In re GGP, Inc. Stockholder Litigation

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN RE GGP, INC. STOCKHOLDER ) CONSOLIDATED
LITIGATION ) C.A. No. 2018-0267-JRS

MEMORANDUM OPINION

Date Submitted: February 18, 2021
Date Decided: May 25, 2021

Ronald A. Brown Jr., Esquire, Stephen D. Dargitz, Esquire, J. Clayton Athey,
Esquire, Marcus E. Montejo, Esquire and Samuel L. Closic, Esquire of Prickett
Jones & Elliott, P.A., Wilmington, Delaware; Carl L. Stine, Esquire and Adam J.
Blander, Esquire of Wolf Popper LLP, New York, New York; and Frank P. DiPrima,
Esquire of Law Office of Frank DiPrima, P.A., Morristown, New Jersey, Co-Lead
Attorneys for Plaintiffs.

Seth D. Rigrodsky, Esquire and Gina M. Serra, Esquire of Rigrodsky Law, P.A.,
Wilmington, Delaware and Aaron Brody, Esquire and Patrick Slyne, Esquire of
Stull, Stull & Brody, New York, New York, Attorneys for Plaintiffs’ Executive
Committee.

Kevin G. Abrams, Esquire, John M. Seaman, Esquire and Matthew L. Miller,
Esquire of Abrams & Bayliss LLP, Wilmington, Delaware and John A. Neuwirth,
Esquire, Evert J. Christensen, Jr., Esquire, Seth Goodchild, Esquire and Matthew S.
Connors, Esquire of Weil, Gotshal & Manges LLP, New York, New York, Attorneys
for Defendant Brookfield Property Partners L.P.

David J. Teklits, Esquire and Thomas P. Will, Esquire of Morris, Nichols, Arsht &
Tunnell LLP, Wilmington, Delaware, Attorneys for Defendants Richard Clark,
Bruce Flatt and Brian W. Kingston.
Raymond J. DiCamillo, Esquire and Susan M. Hannigan, Esquire of Richards,
Layton & Finger, P.A., Wilmington, Delaware and Brian T. Frawley, Esquire and
Y. Carson Zhou, Esquire of Sullivan & Cromwell LLP, New York, New York,
Attorneys for Defendant Sandeep Mathrani.

Peter J. Walsh, Jr., Esquire, Berton W. Ashman, Jr., Esquire and Jaclyn C. Levy,
Esquire of Potter Anderson & Corroon LLP, Wilmington, Delaware and Peter E.
Kazanoff, Esquire, Michael J. Garvey, Esquire, Sara A. Ricciardi, Esquire and
Eamonn W. Campbell, Esquire of Simpson Thacher & Bartlett LLP, New York,
New York, Attorneys for Defendants Mary Lou Fiala, Janice R. Fukakusa, John K.
Haley, Daniel B. Hurwitz and Christina M. Lofgren.

SLIGHTS, Vice Chancellor
 “In the beginning there was noise. Noise begat rhythm. And rhythm begat

everything else.” 1 As a species, human beings are instinctively attracted to rhythm.

As a subspecies, corporate litigators are no different. In the realm of Delaware post-

closing shareholder litigation, over the past seven years, a rhythm has emerged in

the assertion of claims and defenses as our courts have clarified and refined the

application of standards for reviewing fiduciary conduct. In hopes of securing more

rigorous judicial scrutiny of fiduciary conduct, stockholders invoke the sounds of

minority blockholders who act as if they are controlling stockholders, fiduciary

decisionmakers who are overcome by allegiances to the controller, and stockholders

who are coerced to sell their shares while starved of accurate and complete

information. In hopes of securing more judicial deference to fiduciary decision

making, defendants invoke the sounds of passive minority blockholders and

presumptively disinterested, independent (and often exculpated) fiduciaries who

have faithfully served fully informed, uncoerced stockholders. When laid down on

the same track, the sounds can be perceived as noise. But to the accustomed ear,

there is rhythm.

On August 28, 2018, GGP, Inc. (“GGP” or the “Company”) entered into a

merger (the “Transaction”) with Defendants, Brookfield Property Partners, L.P.

1
Mickey Hart, Rhythms of the Universe (360˚ Prod. 2013).

1
(“BPY”) and its affiliates (the “Brookfield Affiliates” and, together with BPY,

“Brookfield”). Prior to the Transaction, Brookfield owned 35.3% of GGP’s shares.

As a result of the Transaction, Brookfield acquired all of the Company’s shares it

did not own in exchange for a combination of cash and either of two forms of equity,

representing 61% and 39% of the consideration, respectively. Structurally, the deal

consideration would be paid in two parts: (1) a pre-closing dividend of cash and

shares, amounting to about 98.5% of the deal consideration (the “Pre-Closing

Dividend”), and (2) $0.312 per share in cash at closing, representing the balance of

the deal consideration, capped at $200 million.

The Transaction was the culmination of negotiations that began in 2017, when

Brookfield extended an offer to GGP’s board of directors (the “Board”) to acquire

the balance of the Company’s outstanding shares. As if striking a well-worn key on

the piano, Brookfield asked GGP to appoint a committee of independent directors to

evaluate the offer and negotiate the Transaction, and clarified that any final deal

would “be subject to customary approvals including . . . approval of a majority of

the Company’s stockholders not affiliated with [Brookfield].” 2 The Board did not

miss a beat and appointed a special committee (the “Special Committee”) the next

2
Consol. Verified Third Am. S’holder Class Action Compl. (D.I. 109) (“Compl.”) ¶ 138;
Decl. of Matthew L. Miller, Esq. in Connection with Defs.’ Opening Brs. in Supp. of Their
Mots. to Dismiss (D.I. 118) (“Miller Decl.”) Ex. 4 (“Offer Letter”) at 2.

2
day. At the same time, the three Board members affiliated with Brookfield, each

Defendants here, formally recused themselves from the process.

From November 15, 2017 through March 26, 2018, the date the Merger

Agreement was executed, the Special Committee held over thirty meetings to

consider Brookfield’s various proposals while also evaluating GGP’s strategic

options. On June 27, 2018, GGP and Brookfield jointly filed a Proxy soliciting a

“yes” vote on the Transaction from GGP’s stockholders unaffiliated with

Brookfield. Stockholders resoundingly (by vote of 94% of stockholders unaffiliated

with Brookfield) approved.

With the benefit of books and records obtained in an action brought under

8 Del. C. § 220,3 Plaintiffs, three stockholders of GGP, filed this action alleging the

Transaction was the product of actionable breaches of fiduciary duties by GGP’s

Special Committee, its Board and its allegedly controlling stockholder, Brookfield.

According to Plaintiffs, if the Court finds they have not well pled that Brookfield

was GGP’s controlling stockholder, then Brookfield is liable as an aider and abettor

of the fiduciary duty breaches committed by GGP’s conflicted Board, a majority of

whom were beholden to Brookfield.

3
Kosinski v. GGP Inc., 214 A.3d 944 (Del. Ch. 2019) (“220 Decision”).

3
 Plaintiffs’ allegations, and the defenses to them, summon the familiar rhythm

of contemporary stockholder post-closing litigation in standard 4/4 time. In motions

to dismiss the Complaint, Defendants answer Plaintiffs’ refrain by arguing

Brookfield’s controller status is not well pled. Brookfield was a minority

blockholder who neither controlled GGP generally nor with respect to the

Transaction specifically. If the Court agrees it is not reasonably conceivable that

Brookfield was GGP’s controlling stockholder, then, say Defendants, the defendant

fiduciaries are entitled to business judgment deference because an overwhelming

majority of GGP stockholders approved the Transaction in an informed, uncoerced

vote and thereby “cleansed” any breaches of fiduciary duty. If the Court disagrees,

Defendants say all fiduciaries are nonetheless entitled to business judgment

deference because the controller’s influence was neutralized by a well-functioning,

independent special committee of the Board and the informed, uncoerced approval

of the Transaction by a majority vote of GGP’s minority stockholders. And the

beat goes on. . . . 4

4
I make this point not to belittle the claims or defenses here, but merely to preview that
they will be well-familiar to those who follow post-closing stockholder litigation. See In re
Rouse Props., Inc., 2018 WL 1226015, at *1 (Del. Ch. Mar. 9, 2018) (“In this post-Corwin,
post–MFW world, a pattern has emerged in post-closing challenges to corporate
acquisitions (whether by merger or tender offer) where a less-than-majority blockholder
sits on either side of the transaction, but the corporation in which the blockholder owns
shares does not recognize him as a controlling stockholder and does not, therefore, attempt
to neutralize his presumptively coercive influence. The pattern, in its simplest form,

4
 For reasons explained below, I cannot reasonably infer from the Complaint

that Brookfield was GGP’s controlling stockholder at the time of the Transaction, so

Corwin, not MFW, is the appropriate paradigm under which to determine the

applicable standard of review. I have also determined that the Complaint does not

well plead that the stockholder vote approving the Transaction was either

uninformed or coerced. The upshot is that the business judgment rule is the operative

standard of review. Having determined that GGP stockholders were informed when

they voted to approve the Transaction, including with respect to their right to seek

statutory appraisal, Plaintiffs’ claim for quasi-appraisal fails. Having declined to

plead waste, Plaintiffs’ claims for breach of fiduciary duty against Brookfield, the

Board and Mathrani also fail. And, from all of this, it follows that Plaintiffs’ claim

consists of two elements: (1) the stockholder plaintiff pleads facts in hopes of supporting a
reasonable inference that the minority blockholder is actually a controlling stockholder
such that the MFW paradigm is implicated and the Corwin paradigm is not, and (2) failing
that, the plaintiff pleads facts in hopes of supporting a reasonable inference that the
stockholder vote was uninformed or coerced such that Corwin does not apply. Under our
settled law, these are two cleared pathways to avoid pleading-stage business judgment
deference and to secure post-closing discovery in the wake of a stockholder vote approving
a transaction.” (citing In re KKR Fin. Hldgs. LLC S’holder Litig., 101 A.3d 980 (Del. Ch.
2014), aff’d sub nom. Corwin v. KKR Fin. Hldgs. LLC, 125 A.3d 304 (Del. 2015); In re
MFW S’holders Litig., 67 A.3d 496 (Del. Ch. 2013), aff’d sub nom. Kahn v.
M&F Worldwide Corp., 88 A.3d 635 (Del. 2014)); see also, e.g., id. at *1, n.7 (collecting
cases where stockholders challenged a merger post-closing by alleging that a minority
stockholder was, in fact, a controlling stockholder in hopes of ratcheting up the standard of
review from business judgment rule to entire fairness, and then arguing, alternatively, that
the stockholder vote approving the merger could not “cleanse” fiduciary duty breaches
because stockholders were uninformed or coerced).

5
in the alternative against Brookfield for aiding and abetting fails for lack of a

predicate breach of fiduciary duty. Finally, because the Transaction was duly

executed, Plaintiffs’ unjust enrichment claim against Brookfield fails. Defendants’

motions to dismiss, therefore, must be granted in full.

I. BACKGROUND

I have drawn the facts from the well-pled allegations in Plaintiffs’

Consolidated Verified Third Amended Stockholder Class Action Complaint

(the “Complaint”)5 and documents integral to it or incorporated by reference. 6

5
D.I. 109. I acknowledge at the outset that Plaintiffs’ Complaint is lengthy, weighing in
at 330 paragraphs. But a complaint under our law is scaled not by its physical heft in the
hand but rather by the legal substance of its well-pled allegations.
6
See Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 320 (Del. 2004) (noting the
court may consider on a motion to dismiss documents that are “incorporated by reference”
or “integral” to the complaint). Citations in the form of “Proxy __” refer to the Company’s
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934, filed
June 27, 2018, attached as Exhibit 3 to the Miller Declaration at D.I. 118. The Court may
take judicial notice of facts not subject to reasonable dispute in documents filed with the
SEC, such as the Proxy. In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 170
(Del. 2006). The parties agreed that “all documents and information provided by the
Company to the Demanding Party shall be deemed incorporated by reference into the
filing.” Miller Decl. Ex. 13 (Agreement Governing the Inspection of Confidential
Material) ¶ 12; see also Amalgamated Bank v. Yahoo! Inc., 132 A.3d 752, 796
(Del. Ch. 2016) (explaining a corporation may condition Section 220 production on
stockholder agreement that the “entirety” of the production “is incorporated by reference
in any [subsequently filed] complaint”).

6
 A. The Parties and Relevant Non-Parties

Plaintiffs, Randy Kosinski, Arthur Susman and Robert Lowinger, each held

GGP shares at the time of the Transaction.7 They did not vote to support the

Transaction.8

Defendant, BPY, is a Bermuda limited partnership with headquarters in

Hamilton, Bermuda.9 Its limited partnership units are traded on the NASDAQ and

the Toronto Stock Exchange under the symbol “BPY.” 10 Brookfield, through BPY

and other affiliates, holds a diversified global portfolio of real estate investments,

including office, retail, hospitality, industrial and multifamily residential. 11 At the

7
Compl. ¶¶ 22–24.
8
Compl. ¶ 25.
9
Compl. ¶ 26.
10
Id.
11
Id. Plaintiffs use “Brookfield” and “BPY” interchangeably and sometimes in conflicting
ways throughout the Complaint and briefing. Compare Compl. ¶¶ 26, 291–94 (alleging
“BPY held a share ownership and voting interest of approximately 35.3% of GGP’s
outstanding shares,” and bringing a claim for breach of fiduciary duty against “BPY” as
GGP’s controller) with Compl. ¶¶ 82, 103 (alleging, under the heading “Brookfield
Controlled GGP,” that “Brookfield’s voting power gave it control of GGP far beyond what
its 35.3% voting stake implies” and “[a]t the time of the [Transaction], according to the
Proxy, of 958,392,694 shares of GGP outstanding and entitled to vote, 338,336,700 were
held by BPY and other Brookfield Affiliates. Thus, Brookfield had voting power of
35.3% . . . .”). Yet these parties are not treated identically under the counts brought in the
Complaint. Compare, e.g., Compl. ¶¶ 291–94 (alleging breach of fiduciary duty against
BPY) with Compl. ¶¶ 318–25 (naming in their unjust enrichment count “Brookfield” and
alleging in paragraph 322 that “Brookfield has thus been unjustly enriched, at the expense
of Plaintiffs and other members of the Class,” but alleging in paragraphs 319 and 325 that

7
time of the Transaction, Brookfield held approximately 35.3% of GGP’s outstanding

common stock.12

Defendant, Richard B. Clark, is Chairman of the boards of directors of

Brookfield Property Group, BPY, and Brookfield affiliate BPR REIT (defined

herein). 13 He worked at BPY from 1984 through the time of the Transaction,

including serving a term as its CEO. 14 In 2010, Brookfield designated Clark to serve

on the Board of GGP, a position he held continuously leading up to the

Transaction.15 Between 2010 and the Transaction, Clark was a member of the

Nominating and Governance (“N&G”) Committee of the GGP Board and served as

that committee’s chairman between 2011 and 2014. 16

Defendant, Mary Lou Fiala, was a member of the GGP Board at the time of

the Transaction, having served continuously in that capacity since she was

“BPY was enriched” and “the Class . . . is entitled to restitution and/or disgorgement from
BPY.”). For purposes of the Court’s analysis, however, the distinction is irrelevant
because I ultimately grant Defendants’ motions to dismiss in full. Thus, to avoid confusion,
unless otherwise indicated, I will refer to BPY and/or any Brookfield affiliate collectively
as Brookfield.
12
Compl. ¶ 26.
13
Compl. ¶ 27.
14
Id.
15
Id.
16
Id.

8
designated by Brookfield in November 2010. 17 Fiala was a member of two standing

committees of the Board: the N&G Committee and the Compensation Committee.18

Defendant, J. Bruce Flatt, has served as the CEO of BAM since 2002. BAM

is the Brookfield Affiliate with voting control of BPY. 19 In 2010, Brookfield

designated Flatt to the Board of GGP. 20 As of the time of the Transaction, Flatt

served as Chairman of the Board and Chairman of the Board’s Compensation

Committee. 21

Defendant, Janice R. Fukakusa, is the former Chief Financial Officer and

Chief Administrative Officer of the Royal Bank of Canada (“RBC”), having served

in those dual executive capacities for several years until her retirement in 2017.22

Fukakusa was a member of the GGP Board from 2017 through the Transaction,

17
Compl. ¶ 28.
18
Id.
19
Compl. ¶ 29.
20
Id.
21
Id.
22
Compl. ¶ 30. Fukakusa was employed by RBC for 32 years from 1985 to 2017. Id.

9
serving on the Special Committee and Audit Committee. 23 Fukakusa also currently

serves as Chancellor of Ryerson University in Toronto, Ontario, Canada. 24

Defendant, John K. Haley, was a partner in the accounting firm of Ernst &

Young LLP from 1988 until his retirement in 2009.25 Haley was a member of the

GGP Board from September 2009 until the Transaction. 26 Like Fiala, Haley was

selected by Brookfield to serve as a director of GGP in 2010.27 Haley was a member

of the Special Committee, Chair of GGP’s Audit Committee and a member of its

Compensation Committee at the time of the Transaction.28

Defendant, Daniel B. Hurwitz, is founder and CEO of Raider Hill

Advisors, LLC, a real estate investment and retail advisory firm. 29 He previously

served as CEO of DDR Corp., an owner and manager of value shopping centers.30

Hurwitz was a member of the GGP Board at the time of the Transaction, having

23
Id.
24
Id.
25
Compl. ¶ 31.
26
Id.
27
Id.
28
Id.
29
Compl. ¶ 32.
30
Id.

10
served continuously in that capacity since 2013. 31 He was a member of the GGP

Board’s Compensation Committee at the time of the Transaction, 32 and also served

as chair of the Special Committee. 33

Defendant, Brian W. Kingston, is Managing Partner and CEO of Brookfield

Property Group and of BPY. 34 Kingston was a member of the GGP Board at the

time of the Transaction, having served continuously in that capacity since 2013,

replacing another Brookfield selection to the GGP Board who had served since

2010. 35 Defendants Clark, Flatt and Kingston were three members of the GGP

Board at the time of the Transaction who were designated by BPY, and were at all

relevant times senior Brookfield officers (together, the “Brookfield Directors”). 36

Defendant, Christina M. Lofgren, was a manager and later a senior corporate

executive of The TJX Companies (“TJX”) between 1989 and 2016. 37 Most recently,

Lofgren served as Executive Vice President, Real Estate and Property Development

31
Id.
32
Id.
33
Id.
34
Compl. ¶ 33.
35
Id.
36
Compl. ¶ 36.
37
Compl. ¶ 34.

11
of TJX.38 Lofgren was a member of the GGP Board at the time of the Transaction,

having served continuously in that capacity since 2017. 39 Lofgren was also a

member of the Special Committee. 40

Defendant, Mathrani, was CEO of GGP from 2010 through the time of the

Transaction.41 Mathrani was also a member of the GGP Board at the time of the

Transaction, having served continuously in that capacity since January 2011.42

Upon closing, Mathrani became a top executive at Brookfield.43 The Merger

Agreement identifies Mathrani as a GGP director “affiliated” with Brookfield, along

with the Brookfield Directors. 44

Non-party, GGP, was acquired by Brookfield in 2018. It was organized under

the laws of Delaware and headquartered in Chicago, Illinois.45 Article VIII of

38
Id.
39
Id.
40
Id.
41
Compl. ¶ 35.
42
Id.
43
Id.
44
Id.
45
Compl. ¶ 39.

12
GGP’s Certificate of Incorporation exculpates GGP’s directors from liability for

breaches of the duty of care.46

Non-party, Brookfield Asset Management (“BAM”), a Canadian corporation

based in Toronto, owns a controlling stake in BPY (and other entities) and acts as its

general partner.47

B. GGP Emerges From Bankruptcy

In 2009, GGP, a tax-advantaged real estate investment trust (“REIT”), filed

for bankruptcy protection in the U.S. Bankruptcy Court for the Southern District of

New York (the “Bankruptcy Court”).48 GGP’s reorganization plan called for a sale

of the company and Brookfield emerged as the successful friendly bidder. 49

At the time of its acquisition of GGP, Brookfield entered into two agreements

that are relevant here. The first, a standstill agreement between GGP and Brookfield

(the “Standstill Agreement”), provided that Brookfield was entitled to vote its

shares, up to 10% of the outstanding shares of GGP, for or against any nominee to

the GGP Board not designated by Brookfield.50 The Standstill Agreement also

46
See Miller Decl. Ex. 14 (GGP Certificate of Incorporation).
47
Compl. ¶ 40.
48
Compl. ¶¶ 40, 89, 91–97.
49
Id.
50
Compl. ¶ 100; Miller Decl. Ex. 10 (“Standstill Agreement”) § 1.1(c).

13
required that any transaction between Brookfield (including BPY) and GGP be

approved by a majority of GGP’s stockholders not affiliated with Brookfield.51

It stipulated further that GGP would not agree to waive for other large stockholders

certain of the Standstill Agreement’s provisions, including its majority-of-the-

minority condition, unless it also granted a similar waiver to Brookfield.52 The

second agreement, an investment agreement (the “Investment Agreement”),

provided Brookfield a right to designate three nominees for election to the GGP

Board so long as it owned at least 20% of GGP’s stock. 53

Exercising its right under the Investment Agreement, Brookfield designated

Clark, Flatt and Cyrus Madon (eventually replaced by Kingston) to serve as directors

on GGP’s Board.54 Brookfield also successfully moved in the Bankruptcy Court to

have Haley and Fiala appointed to the Board. 55 Once the acquisition out of

bankruptcy was finalized, Brookfield “recruited” Mathrani to become GGP’s CEO

and he soon after joined the Board as well.56 As noted, these directors remained on

51
Compl. ¶ 100; Standstill Agreement § 1.1(e).
52
Standstill Agreement § 1.1.
53
Miller Decl. Ex. 2 (“Inv. Agreement”) § 5.10(a).
54
Compl. ¶ 97.
55
Compl. ¶¶ 31, 99–100.
56
Compl. ¶ 115(a).

14
the GGP Board until the Transaction closed. A seventh, Fukakusa, was later

recruited to the Board by Brookfield and also remained until the Transaction.57

In each of its Form 10-Ks filed from 2011 through 2018, GGP disclosed:

“Brookfield owns, or manages on behalf of third parties, a significant portion of the

shares of our common stock,” and reported that this “concentration of ownership . . .

may make some transactions more difficult or impossible without their support, or

more likely with their support.”58 Each Form 10-K also disclosed that Brookfield

had “significant influence over” GGP concerning, among other matters,

“any determinations with respect to mergers or other business combinations.”59

C. GGP Explores Strategic Alternatives

On January 17, 2016, Mathrani informally shared with the Brookfield

Directors his opinion that public stock markets undervalued GGP’s assets relative to

private real estate markets.60 He then discussed his valuation concerns with the full

Board and reiterated them publicly during an investor conference call where he

opined that deteriorating market conditions had created “a wide discount between

57
Compl. ¶ 132.
58
Compl. ¶¶ 109–12.
59
Id.
60
Compl. ¶ 75.

15
public and private markets.” 61 This, in turn, prompted GGP’s Board to consider all

strategic alternatives. 62 Mathrani explained:

[T]here’s no sacred cow. We will look at all alternatives . . . . It will
be naïve for us not to look at all options available to us to create
shareholder value. . . . So we’re—we will evaluate one of all multiple
paths to go on, and we will make some decisions in the near term. 63

Mathrani’s comments came amidst deteriorating market conditions for the

brick-and-mortar retail industry. 64 Indeed, GGP management informed the Board in

February 2017 that they had revised downward GGP’s 2017 management

projections due to negative market conditions in the retail property industry. 65 Four

months later, in June 2017, management informed the Board that they had again

61
Compl. ¶¶ 69–77, 80, 119, 154, 158, 174, 197.
62
Compl. ¶ 71.
63
Miller Decl. Ex. 20 (“2017 Investor Call Tr.”) at 10. When asked “[f]rom the plate of
options that you have, buying back stocks, spinoff or asset sales or selling the company, is
there one or a couple that is part at least attractive,” Mathrani responded “[t]here is no
sacred cow.” Id. at 8. Plaintiffs argue the transcript of the 2017 Investor Call cannot be
considered because it is beyond the four corners of the Complaint. (Pls.’ Answering Br. in
Opp’n to Defs.’ Mot. to Dismiss) (D.I. 126) (“Pls.’ Answering Br.”) at 21. But Plaintiffs
referenced the transcript in their Complaint, excerpting selective quotes from Mathrani’s
statements. See Compl. ¶¶ 71–74. Under the incorporation by reference doctrine, the Court
may “review the actual document to ensure that the plaintiff has not misrepresented its
contents and that any inference the plaintiff seeks to have drawn is a reasonable one.”
Yahoo!, 132 A.3d at 797. The doctrine is intended to “limit[] the ability of the plaintiff to
take language out of context because the defendants can point to the entire document,” i.e.,
this precise situation. Id.
64
Proxy at 57–59.
65
Id. at 57.

16
made downward revisions to GGP’s 2017 projections of its “financial

performance.” 66

To gauge the potential market valuation of GGP’s portfolio of assets in the

midst of increasing headwinds, the Board authorized the marketing of two of the

Company’s properties. 67 After receiving proposals well below the hoped-for

valuation on one of the properties, GGP became concerned that its implied valuation

and capitalization rate could put pressure on the net asset value of GGP’s overall

portfolio. 68 On the outside, at least, GGP’s concerns went unnoticed: on

November 2, 2017, BPY CFO Davis was asked by an analyst whether his estimated

net value of GGP’s assets changed from his estimate in an earlier quarter. After the

analyst stated, “I think it was about $29 a share in Q2,” Davis replied “[i]t’s about

$30 per share[, because] [w]hat [BPY] saw this quarter is just continued pickup of

our share of [GGP’s] earnings.”69

66
Compl. ¶ 272.
67
Proxy at 58–59.
68
Id. at 59, 65–67.
69
Compl. ¶ 79.

17
 D. The Brookfield Offer and Formation of the Special Committee

By letter dated November 11, 2017 (the “Offer Letter”), Brookfield extended

an unsolicited offer to acquire the remainder of GGP’s shares (the “2017 Offer”).70

The Offer Letter requested that GGP appoint a committee of independent directors

to “evaluate” the 2017 Offer and clarified that the acquisition proposal would

“be subject to customary approvals including, as is required by the [S]tandstill

[A]greement, approval of a majority of the Company’s stockholders not affiliated

with BPY.”71

The Board met telephonically the next day to discuss the 2017 Offer. The

three Brookfield designated directors, Clark, Flatt and Kingston, recused. At that

meeting, the Board formed the Special Committee consisting of Fiala, Fukakusa,

Haley, Hurwitz and Lofgren, and empowered it with a broad mandate, including the

authority to engage advisors, direct negotiations with Brookfield and engage with

others who might be interested in pursuing a transaction. 72 On this latter point, the

Special Committee was empowered to negotiate with topping bidders but could not

approve a deal with a third-party topping bidder and recommend it to stockholders

70
Compl. ¶¶ 135, 138. On behalf of Brookfield, Kingston had approached Hurwitz on
November 10 to inform him that an offer was coming. Compl. ¶ 136. Hurwitz was later
selected as head of the Special Committee. Id.
71
Compl. ¶ 138; Offer Letter at 2.
72
Compl. ¶¶ 138, 144–45, 151, 164; Proxy at 60–61.

18
without coming back to the Board. 73 The Board resolution establishing the Special

Committee also empowered it to “determine to elect not to pursue [Brookfield’s]

Proposal” or any alternative transaction. 74

The Special Committee held its first meeting the same day it was formed,

November 12, 2017, retaining Simpson Thacher & Bartlett as legal counsel and

Goldman Sachs & Co. LLP as financial advisor.75 Goldman’s $30 million fee was

made contingent on completing a deal.76

On November 13, 2017, GGP and Brookfield publicly disclosed the

Offer Letter. 77 Brookfield’s press release reiterated that any transaction was subject

to “customary approvals, including[] approval of a majority of the Company’s

stockholders not affiliated with [Brookfield].” 78 The press release confirmed GGP’s

73
Compl. ¶ 151.
74
Id.
75
Compl. ¶ 144. There was no “beauty contest” for the financial advisor role, and the
minutes do not mention discussion of any other financial advisor. Id.
76
Compl. ¶¶ 159–63, 169, 271.
77
Proxy at 6; see also Miller Decl. Ex. 5 (Nov. 13, 2017 GGP Press Release) (“GGP Press
Release”), Ex. 6 (Nov. 13, 2017 Brookfield Press Release) (“Brookfield Press Release”).
78
Brookfield Press Release.

19
receipt of the Offer Letter, the formation of the Special Committee and the Special

Committee’s selection of advisors.79

E. The Special Committee Negotiates with Brookfield

From November 15, 2017 to March 26, 2018 (the date on which the Merger

Agreement was executed), the Special Committee held over thirty meetings to

consider Brookfield’s proposal and its strategic options. 80 Plaintiffs do not allege

that the Brookfield Directors participated in this process in any manner at any time.

In December of 2017, the Special Committee rejected the 2017 Offer,

expressing to Brookfield it would consider an offer with improved financial terms,

including a shift in the form of consideration.81 Goldman Sachs also repeatedly

encouraged Brookfield to incorporate a larger cash component in any revised

proposal.82

Brookfield finally acceded to Goldman and the Special Committee’s request

on February 23, 2018, when it delivered a revised proposal to acquire all of the GGP

stock it did not already own for either 0.9656 BPY units per share, or an equivalent

amount of newly issued stock in Brookfield Property REIT Inc. (“BPR”)—a new

79
GGP Press Release.
80
Proxy at 61–78, 87.
81
Compl. ¶ 156; Proxy at 63–64.
82
Proxy at 68.

20
U.S. REIT security designed to mirror the economics of a BPY unit, or $23 in cash

per share, subject to a 60% cash and 40% equity proration (as opposed to the 50%

cash and 50% equity proration in Brookfield’s 2017 Offer). 83 On February 24, 2018,

the Special Committee met with its advisors to consider Brookfield’s revised

proposal.84 After reviewing Goldman’s preliminary financial analysis of both the

revised offer and GGP on a standalone basis, the Special Committee discussed

(1) the market conditions then impacting the retail property industry and its impact

on REITs, and (2) that no party other than Brookfield had approached GGP

concerning a potential transaction since May 1, 2017, when GGP announced it was

considering strategic alternatives.85 The Special Committee determined that it

would respond to Brookfield with a counteroffer of $24 per share, consisting of 70%

cash and 30% BPY units or BPR stock. 86

Brookfield rejected the Special Committee’s counteroffer later that same

day. 87 After the Special Committee met with its advisors on February 25, 2018,

it asked Brookfield to present its “best and final” proposal; Brookfield responded

83
Id. at 66, 68.
84
Id. at 68.
85
Id. at 69.
86
Id.
87
Id. at 70.

21
with a revised proposal consisting of $23.50 per share in cash (capped at

$9.25 billion) or one BPY unit (or one share of BPR stock) per share of GGP stock,

subject to a 61% cash and 39% equity proration (the “Final Offer”).88 Brookfield

also stated that if the Special Committee did not find the terms of this proposal

acceptable, the parties should terminate discussions. 89

On February 25, 2018, the Special Committee met with its advisors to

consider the Final Offer. 90 Goldman informed the Special Committee that the Final

Offer increased aggregate cash consideration over Brookfield’s initial 2017 Offer by

$1.9 billion but decreased the overall consideration. 91 The Special Committee

resolved to begin negotiating the Merger Agreement based on Brookfield’s Final

Offer.92

F. The Merger Agreement

Between February 25 and the end of March 2018, the Special Committee met

with its advisors at least twelve times to discuss the terms of what would become the

88
Compl. ¶ 2; Proxy at 70.
89
Proxy at 70.
90
Id.
91
Id. at 70–71.
92
Id. at 71.

22
Merger Agreement and to undertake “due diligence with respect to BPY.”93

Although GGP was not subject to an exclusivity agreement with Brookfield, and

was free to consider other proposals, no other bidders emerged in the interim.94

On March 26, 2018, nearly five months after the 2017 Offer, the Special Committee

unanimously recommended that the Board approve the Final Offer and execute a

definitive Merger Agreement.95 Immediately following the Special Committee

meeting, the Board’s Audit Committee (consisting of Fukakusa, Haley and

Hurwitz—each of whom were Special Committee members) met to consider the

proposed Transaction in accordance with GGP’s Related Party Transaction Policy,

which prohibited any transaction between Brookfield and GGP unless the Audit

Committee “determines the transaction is on terms comparable to those that could

be obtained in arm’s length dealings with an unrelated third party.” 96 After

approximately five minutes, the Audit Committee unanimously determined that the

proposed Transaction was on terms comparable to those that could be obtained from

93
Id. at 71–79.
94
Id. Goldman spoke with “management representatives of certain of GGP’s competitors
in the real property industry” during this time, but “none . . . expressed any interest or
ability to pursue an acquisition of GGP.” Id. at 71.
95
Id. at 79.
96
Compl. ¶ 191.

23
an unrelated third party and, like the Special Committee, unanimously recommended

that the Board approve the proposed Transaction. 97

The Board (with the three Brookfield-affiliated GGP directors recusing) then

met to consider the proposed Transaction. 98 After further discussion, the Board

unanimously agreed with the Special Committee that the Transaction was fair to and

in the best interests of GGP and its stockholders unaffiliated with Brookfield. 99

That same day, March 26, 2018, GGP and Brookfield executed the Merger

Agreement and related documents and issued a press release announcing the

Transaction.100 The Transaction was conditioned on the approval of a majority of

the GGP stock unaffiliated with Brookfield. 101 Upon such approval, GGP would

declare a pre-closing dividend payable in respect of all shares of GGP stock

unaffiliated with Brookfield in which stockholders could elect to receive, subject to

proration and other adjustments, cash or BPY units (or BPR stock), with the

97
Compl. ¶¶ 133, 192–93; Proxy at 79. It is important to note that Plaintiffs do not allege
that Mathrani participated in any way in, much less interfered with, the Special
Committee’s process as it negotiated and then consummated the Transaction.
98
Proxy at 79–80.
99
Id.
100
Compl. ¶ 165; Proxy at 80.
101
Compl. ¶ 206(h).

24
understanding that all stockholders would receive the balance of the cash merger

consideration at closing.102

No competing offers emerged between public announcement of the

Transaction and closing. According to Plaintiffs, this is likely due to the Merger

Agreement’s deal protection devices, which included a $400 million breakup fee,103

a no-solicitation term, 104 a matching-rights provision,105 and four-business-days’

notice to Brookfield of GGP’s intent to discuss a potential superior offer, as well as

two business days to match any competing offer.106

On June 27, 2018, GGP filed jointly with Brookfield its definitive Proxy

soliciting a “yes” vote on the Transaction from GGP’s stockholders unaffiliated with

Brookfield in both a Form S-4 (GGP solicitation) and Form F-4 (BPY foreign-issuer

registration). 107 Relevant here, the Proxy disclosed:

• The deal’s structure, consisting of (1) the Pre-Closing Dividend and (2) the
balance of the deal consideration, the latter of which was defined in the Proxy
as the “merger consideration” in lowercase; 108

102
Id.
103
Compl. ¶ 188.
104
Compl. ¶ 182.
105
Compl. ¶¶ 183–85.
106
Compl. ¶ 183.
107
Compl. ¶ 3.
108
Compl. ¶ 4.

25
 • GGP stockholders’ right to “demand appraisal of their shares of GGP common
stock (i.e., the dissenting shares) and receive in lieu of the per share merger
consideration a cash payment equal to the ‘fair value’ of their GGP common
stock, as determined by the Delaware Court of Chancery . . . ”;109
• That the Audit Committee determined the proposed Transaction was on terms
comparable to those that could be obtained in arm’s length dealings with an
unrelated third party;110
• That the impact of the Tax Cuts and Jobs Act (“TCJA”) on individual GGP
stockholders’ post-Transaction holdings was uncertain; 111
• Mathrani’s entitlement to a severance payment contemplated under his 2015
GGP employment agreement and his new employment agreement with
Brookfield, to go into effect upon completion of the Transaction, with terms
comparable to his GGP employment agreement; 112
• Fukakusa’s work history with RBC and RBC’s role in the Transaction;113 and
• That Goldman had approached several of GGP’s competitors, none of whom
were interested in pursuing a combination with GGP.114

The Proxy did not disclose:

• The length of the Audit Committee meeting;
• The potential downward pressure a controller’s presence may have on the
price of a company’s publicly traded stock;
• Mathrani’s alleged enthusiasm for a sell-off-the-parts strategy and Davis’
estimation of GGP’s NAV, as stated on investor calls; or

109
Proxy at 32.
110
Id. at 79.
111
Id. at 9, 196–97.
112
Id. at 140–43.
113
Id. at 130, 247. Specifically, and as discussed below, the Proxy disclosed that RBC,
along with several other financial institutions, would act as joint lead arrangers and joint
book runners in connection with the Transaction. Id.
114
Id. at 57, 71.

26
 • The extent of Fukakusa’s stockholdings in RBC, her relationships with
Brookfield or her son’s employment as vice president at RBC throughout the
deal process.

On July 26, 2018, holders of approximately 94% of voting shares unaffiliated

with Brookfield approved the Transaction.115 Brookfield and GGP jointly

disseminated an Election Form the next day.116 The Election Form instructed

holders to elect among three choices: cash-electing shares, stock-electing shares and

non-electing shares. The form stated that each cash-electing GGP share will receive

$14.642 in cash and 0.376 units of BPY or shares of BPR Class A stock; each stock-

electing GGP share will receive 0.986 units of BPY or shares of BPR Class A stock

and $0.312 in cash; and each non-electing GGP share will receive $14.642 in cash

and 0.376 units of BPY. 117

On August 24, 2018, the last full trading day before closing, BPY units closed

on the NASDAQ at $19.66; thus, as of that date, a cash-electing or non-electing

share received the blended value of $22.034 per share, and a stock-electing share

115
Compl. ¶ 229; Miller Decl. Ex. 9 (July 26, 2018 GGP Form 8-K) (“Form 8-K”)
at Item 5.07.
116
Decl. of Samuel L. Closic in Connection with Pls.’ Answering Br. in Opp’n to Defs.’
Mots. to Dismiss (D.I. 126–28) Ex. C (“Election Form”).
117
Id.

27
received the value equivalent of $19.385 per share. 118 The Transaction closed on

August 28, 2018.119

G. Mathrani’s Compensation and Transaction-Related Benefits

Brookfield’s chosen CEO for GGP, Mathrani, was paid handsomely as a result

of the Transaction. He recovered his unvested stock options in GGP worth

$42.1 million, received an additional $145 million in instant liquidity when

Brookfield acquired his shares and vested options, and was paid $7.1 million in cash

severance benefits.120 He also negotiated an agreement with Brookfield for post-

Transaction employment with substantial benefits and compensation.121 Those

negotiations are alleged to have begun “days” before the Merger Agreement was

signed.122

H. RBC’s Role in the Transaction

RBC was one-fourth of the four-bank syndicate providing $12.75 billion in

new loans to finance the Transaction, with its share of the financing exceeding

118
Compl. ¶ 281.
119
Compl. ¶ 1.
120
Compl. ¶ 115.
121
Id.
122
Compl. ¶ 7.

28
$3.2 billion.123 Its relationship with GGP extends back at least to 2013, when it

entered into and at various times amended a credit agreement with GGP amounting

to $1.5 billion.124

The Merger Agreement required that, upon closing, GGP or Brookfield would

repay RBC in full with “cash on hand or proceeds from the Financing or the

Requested Transactions (or other funds provided by [Brookfield]” and discharge all

obligations under the 2015 credit agreement totaling $1.5 billion. 125 RBC was also

Brookfield’s second-largest stockholder, with approximately $3.12 billion in BAM

stock and $682 million in BPY units.126

I. Procedural History

Following the announcement of the Merger Agreement, two putative class

actions were filed and subsequently consolidated. 127 Plaintiffs thereafter moved to

expedite and for a preliminary injunction based principally on alleged disclosure

123
Compl. ¶¶ 122–23.
124
Compl. ¶ 124.
125
Merger Agreement § 6.17; Compl. ¶¶ 14, 41.
126
Compl. ¶ 41.
127
See Susman v. Clark, C.A. No. 2018-0267-JRS (filed April 10, 2018); Lowinger v.
Mathrani, C.A. No. 2018-0272-JRS (filed April 11, 2018); In re GGP Inc. S’holder
Litig. See C.A. No. 2018-0267-JRS (D.I. 7) (consolidating the actions).

29
violations. 128 After GGP responded to Plaintiffs’ concerns by filing its June 11, 2018

Amendment No. 1 to the preliminary proxy, Plaintiffs withdrew their motions.129

After the definitive Proxy was issued and the Transaction consummated,

Plaintiffs filed a Consolidated Verified Second Amended Shareholder Class Action

Complaint on January 7, 2019.130 On April 6, 2019, before Plaintiffs responded to

Defendants’ opening briefs in support of their motions to dismiss, the Court granted

Plaintiff Kosinski’s motion to intervene in this action for the limited purpose of

staying this action while he pursued GGP books and records under 8 Del. C.

§ 220.131

On August 28, 2019, then-Vice Chancellor McCormick ruled that Kosinski

had “demonstrated proper purposes” for the inspection of GGP’s books and records

and directed the parties to meet and confer regarding the scope of the inspection.132

GGP produced documents including Board and Special Committee meeting minutes

and materials, director questionnaires, as well as emails.

128
Susman, C.A. No. 2018-0267-JRS, D.I. 20–22.
129
Id. at D.I. 50.
130
D.I. 61.
131
Kosinski v. GGP, Inc., C.A. No. 2018-0540-KSJM (Del. Ch.).
132
220 Decision at 957.

30
 On February 10, 2020, the Court entered final judgment in the 220 Action.

After motion practice and responsive amendments under Chancery Rule 15(aaa),

Plaintiffs filed the operative Complaint on May 4, 2020, stating six causes of

action. 133 Count I alleges breach of fiduciary duty against BPY in its capacity as

controlling stockholder of GGP. 134 Count II alleges breach of the fiduciary duty of

loyalty against the Director Defendants for approving the Transaction. 135 Count III

alleges breach of the fiduciary duty of loyalty against all Defendants for failing to

provide GGP stockholders with a fair summary of their appraisal rights and

disclosing all material information relevant to GGP stockholders when deciding

whether to vote in favor of the Transaction or pursue appraisal. 136 Count IV alleges

breach of fiduciary duty against Mathrani, BPY and the Brookfield Defendants for

each party’s role in the negotiation of Mathrani’s post-Transaction employment

contract, thereby facilitating Brookfield’s control over Mathrani and allowing him

to be objectively compromised as he participated in negotiating the Transaction.137

133
D.I. 109.
134
Compl. ¶¶ 291–94.
135
Compl. ¶¶ 295–301. As noted, GGP’s certificate of incorporation contains a provision
exculpating GGP directors from monetary liability for claims alleging breach of the
fiduciary duty of care. Compl. ¶ 306.
136
Compl. ¶¶ 302–07.
137
Compl. ¶¶ 308–17.

31
Count V alleges unjust enrichment against Brookfield as the party on the other side

of an allegedly unfair Transaction.138 Finally, Count VI alleges aiding and abetting

breaches of fiduciary duties in the alternative against BPY if it is deemed not to be

GGP’s controlling stockholder.139

Four groups of Defendants filed separate opening briefs in support of motions

to dismiss the Complaint on July 6, 2020. 140 Plaintiffs filed their consolidated

answering brief on September 4, 2020, 141 to which Defendants replied on

October 19, 2020.142 Oral argument was held on November 16, 2020. 143 After a

138
Compl. ¶¶ 318–25.
139
Compl. ¶¶ 326–30.
140
D.I. 113 (Special Committee Defs.’ Opening Br. in Supp. of Mot. to Dismiss) (“Special
Committee Defs.’ Opening Br.”); D.I. 114 (Mathrani Def.’s Opening Br. in Supp. of Mot.
to Dismiss) (“Mathrani Def.’s Opening Br.”); D.I. 118 (Brookfield); D.I. 119 (Clark, Flatt
and Kingston Defs.’ Opening Br. in Supp. of Mot. to Dismiss) (“Brookfield Director Defs.’
Opening Br.”).
141
D.I. 126.
142
D.I. 131 (Clark, Flatt and Kingston Defs.’ Reply Br. in Further Supp. of Mot. to
Dismiss) (“Brookfield Director Defs.’ Reply Br.”); D.I. 133 (Mathrani Def.’s Reply Br. in
Further Supp. of Mot. to Dismiss) (“Mathrani Def.’s Reply Br.”); D.I. 134 (Brookfield
Defs.’ Reply Br. in Further Supp. of Mot. to Dismiss) (“Brookfield Defs.’ Reply Br.”);
D.I. 135 (Special Committee Defs.’ Reply Br. in Further Supp. of Mot. to Dismiss)
(“Special Committee Defs.’ Reply Br.”).
143
D.I. 142.

32
request for supplemental briefing on December 31, 2020,144 the matter was deemed

submitted for decision on February 18, 2021.145

II. ANALYSIS

Chancery Rule 12(b)(6) requires dismissal of a complaint if the plaintiff could

not recover under “any reasonably conceivable set of circumstances susceptible of

proof” based on the complaint’s well-pled facts. 146 While the court need not accept

conclusory allegations or “every strained interpretation of the allegations proposed

by plaintiff,”147 it “must accept as true all well-pled allegations in the complaint and

draw all reasonable inferences from those facts in plaintiff’s favor.”148

A. Brookfield is Not a Controller

“Under Corwin, the business judgment rule applies to transactions where no

controlling shareholder is involved and a majority of the Company’s disinterested

shareholders approves the transaction with a fully informed, uncoerced vote.”149

“The rationale of this line of cases is simple—where holders of a majority of stock

144
D.I. 143.
145
D.I. 146–47.
146
See Gen. Motors, 897 A.2d at 168; see also Savor Inc. v. FMR Corp., 812 A.2d 894,
896–97 (Del. 2002).
147
Id.
148
Rouse, 2018 WL 1226015, at *10 (citations omitted).
149
Id. at *11 (internal quotations omitted).

33
vote to evince their determination that the transaction is in the corporate best interest,

there is little utility in a judicial second-guessing of that determination by the owners

of the entity.”150

Where a conflicted controller stands on both sides of a transaction, however,

its fingerprints on the deal cannot be so readily cleansed—“Corwin cannot protect a

board’s determination to recommend a transaction when it is reasonably conceivable

that a conflicted controller may have influenced the board and the stockholder

decisions to approve the transaction.”151 The rationale is, again, straightforward:

“controller transactions are inherently coercive . . . [and] cannot [therefore] be

ratified by a vote of the unaffiliated majority.”152 “[T]he concern is that fear of

controller retribution in the face of a thwarted transaction may overbear a

150
Sciabacucchi v. Liberty Broadband Corp., 2017 WL 2352152, at *15 (Del. Ch. May 31,
2017).
151
Rouse, 2018 WL 1226015, at *11.
152
Sciabacucchi, 2017 WL 2352152, at *15; see also Leo E. Strine, Jr., The Delaware
Way: How We Do Corporate Law and Some of the New Challenges We (And Europe) Face,
30 DEL. J. CORP. L., 673, 678 (2005) (“Consistent with the nuance that infuses our common
law, Delaware is more suspicious when the fiduciary who is interested is a controlling
stockholder. When that is so, there is an obvious fear that even putatively independent
directors may owe or feel a more-than-wholesome allegiance to the interests of the
controller, rather than to the corporation and its public stockholders. For that reason, when
a controlling stockholder is on the other side of the deal from the corporation, our law has
required that the transaction be reviewed for substantive fairness even if the transaction
was negotiated by independent directors or approved by the minority stockholders.”).

34
determination of best corporate interest by the unaffiliated majority. In such a case,

the Court cannot determine that a vote ratifies the transaction on its own merits.”153

But fiduciaries transacting with a conflicted controller are not without means

to attain coveted business judgment rule deference.154 In In re MFW Shareholders

Litigation, then-Chancellor Strine laid out a process, later endorsed by our Supreme

Court, by which fiduciaries and controlling stockholders negotiating “going private

mergers” can obtain business judgment deference if, from the outset, the transaction

is negotiated and approved by disinterested and independent directors and

conditioned on the informed and uncoerced vote of a majority of the minority

stockholders.155

Plaintiffs allege Brookfield was a conflicted controller; Defendants disagree.

Because Brookfield’s status as a conflicted controller, or not, bears directly on the

analytical framework within which the Court must review Plaintiffs’ breach of

fiduciary duty and related claims, it is appropriate to address this issue first.156

153
Sciabacucchi, 2017 WL 2352152, at *15.
154
See Peter V. Letsou, Steven M. Haas, The Dilemma That Never Should Have Been:
Minority Freeze Outs in Delaware, 61 BUS. LAWYER 25, 82 (Nov. 2005) (discussing the
“covetable policy ramifications” of a “judicial procedure that permits invocation of the
business judgment rule when a freeze out is independently approved [by non-affiliated
stockholders and meets other criteria]”).
155
67 A.3d 496 (Del. Ch. 2013).
156
See Larkin v. Shah, 2016 WL 4485447, at *7 (Del. Ch. Aug. 25, 2016).

35
 Under Delaware law, a stockholder will be deemed a controlling stockholder

where he “(1) owns more than 50% of the voting power of a corporation or (2) owns

less than 50% of the voting power of the corporation but exercises control over the

business affairs of the corporation.”157 It is undisputed that Brookfield held 35.3%

of GGP’s common stock at the time of the Transaction. Plaintiffs, therefore, must

tread the path of well pleading that, notwithstanding Brookfield’s minority

stockholder status, it actually “controlled the business affairs” of GGP. While this

implicates “an intensely factual” inquiry that is often “difficult [] to resolve on the

pleadings,”158 a plaintiff cannot simply allege that a minority blockholder is a

controller, tout its substantial holdings and commensurate influence, leave it at that

and then hope to survive a motion to dismiss. More is needed.159

157
KKR, 101 A.3d at 991.
158
In re Cysive, Inc. S’holders Litig., 836 A.2d 531, 550–51 (Del. Ch. 2003).
159
See Rouse, 2018 WL 1226015, at *11 (“Given that the ‘controlling stockholder’
designation for a minority blockholder imposes upon that stockholder fiduciary duties
where none otherwise would exist, our courts generally recognize that demonstrating the
kind of control required to elevate a minority blockholder to controller status is ‘not easy.’”
(quoting In re PNB Hldg. Co. S’holders Litig., 2006 WL 2403999, at *9 (Del. Ch. Aug. 18,
2006))); see also Sciabacucchi, 2017 WL 2352152, at *16 (“This actual control test is not
an easy one to satisfy as stockholders with very potent clout have been deemed, in
thoughtful decisions, to fall short of the mark.” (internal quotations omitted)). See also
van der Fluit v. Yates, 2017 WL 5953514, at *7 (Del. Ch. Nov. 30, 2017) (dismissing claim
that minority blockholder was a controlling stockholder); Larkin, 2016 WL 4485447, at *1
(same); KKR, 101 A.3d at 983 (same).

36
 For Brookfield to be deemed a controller notwithstanding its minority equity

interest, it must “exercise[] such formidable voting and managerial power that, as a

practical matter, it is no differently situated than if it had majority voting control.”160

Stated differently, its “power must be so potent that independent directors cannot

freely exercise their judgment, fearing retribution from the controlling minority

blockholder.” 161 With these considerations in mind, the minority blockholder will

be deemed a controlling stockholder either if he “actually dominated and controlled

the corporation, its board or the deciding committee with respect to the challenged

transaction,”162 such that his “presence is hard to ignore because he has injected

himself as ‘dominator’ into the board’s process while it considers the transaction and

is, in that sense, actually ‘in the board room,’”163 or he “actually dominated and

controlled the majority of the board generally.”164 In this latter scenario, the

controller’s dominating presence is evidenced “by the board’s awareness of his

160
In re Morton’s Rest. Gp. S’holders Litig., 74 A.3d 656, 665 (Del. Ch. 2013).
161
Id. (internal quotation omitted).
162
Rouse, 2018 WL 1226015, at *12 (citing Williamson v. Cox Commc’ns, Inc.,
2006 WL 1586375, at *4 (Del. Ch. June 5, 2006)).
163
Id.
164
Id. (citing Sciabacucchi, 2017 WL 2352152, at *17; Kahn v. Lynch Commc’n Sys., Inc.,
638 A.2d 1110, 1114–15 (Del. 1994); Cysive, 836 A.2d at 531).

37
ability to make changes at the board level or to push other coercive levers should he

be displeased with the board’s performance or decision-making.” 165

Plaintiffs argue they have well pled that Brookfield controlled the Board both

with respect to the Transaction and GGP’s business affairs more generally. I address

each argument in turn.

Brookfield Did Not Control the Special Committee’s Negotiation of
the Transaction

Plaintiffs allege that “of nine GGP directors, at least five (and conceivably all)

were not independent, not disinterested, or both.”166 Because a majority of GGP’s

directors were conceivably subject to Brookfield’s influence, Plaintiffs contend it is

reasonably conceivable that Brookfield actually dominated and controlled GGP’s

Board with respect to the Transaction.

Of course, Delaware law presumes “that a director’s decision is based on the

corporate merits of the subject matter before the board rather than extraneous

considerations or influence.” 167 “In order to overcome that presumption in the

controller context, the plaintiff must plead facts that support a reasonable inference

165
Id.
166
Pls.’ Answering Br. at 53.
167
In re W. Nat’l Corp. S’holders Litig., 2000 WL 710192, at *11 (Del. Ch. May 22, 2000).

38
the director is either beholden to the shareholder or so under its influence that his

discretion is sterilized.” 168

Plaintiffs do not dispute Brookfield moved to neutralize its influence (such as

it was) over the Board’s consideration of the Transaction by recognizing ab initio

that any transaction with GGP would be “subject to customary approvals including,

as is required by the [S]tandstill [A]greement, approval of a majority of the

Company’s stockholders not affiliated with Brookfield.” 169 Plaintiffs also

acknowledge in the Complaint that GGP formed a five-member Special Committee,

at Brookfield’s request, to neutralize the influence of the Brookfield Directors and

Mathrani.170 This five-member Special Committee constituted a Board quorum

168
Rouse, 2018 WL 1226015, at *13.
169
Offer Letter at 2. While Plaintiffs argue some of the Standstill Agreement’s conditions
were “waivable” if GGP waived such requirements for another competing bidder, no bidder
ultimately emerged and there are no facts pled to suggest the Special Committee ever
contemplated waiving these requirements or that they were, in any event, considered
discretionary by the Special Committee. See Pls.’ Answering Br. at 72 n.237
(“The Company shall not waive any provisions similar to Sections 1.1(c), (e) or (f) above
for any Large Stockholder [i.e., a holder of more than 10% of GGP’s equity] under any
other agreement unless the Company [GGP] grants a similar waiver under this Agreement.”
(quoting Standstill Agreement § 1.1)).
170
Offer Letter at 2; Compl. ¶ 145; Proxy at 61–62, 79, 121. Plaintiffs cite Rouse for the
proposition that a CEO who negotiates for post-merger employment and merger-related
compensation while negotiating the merger itself labors under an irreconcilable conflict.
But, unlike Rouse, where the CEO was on the special committee, and participated in
negotiations, Mathrani was not on GGP’s special committee and did not participate in
negotiations. See Rouse, 2018 WL 1226015, at *13–14; see also Compl. ¶¶ 37–38
(describing Mathrani’s conflicts).

39
under GGP’s bylaws, meaning these directors could unilaterally convene a Board

meeting and approve any action, including an alternative transaction, without the

support of (or over opposition from) the Brookfield Directors or Mathrani.171

The Brookfield Directors, for their part, are not alleged to have participated in

the Special Committee’s decision-making process.172 Mathrani is not alleged to

have participated in negotiating the Transaction either, only casting his vote to

approve the Transaction after receiving the Special Committee’s unanimous

recommendation following its months-long review. 173 Under Section 141(e) of the

171
See Miller Decl. Ex. 11 (GGP Bylaws) at Art. II, §§ 3, 6 (filed as Ex. 3.1 to June 2, 2017
GGP Inc. Form 8-K).
172
Plaintiffs’ attempt to problematize the Brookfield Directors’ inaction fails. See Pls.’
Answering Br. at 164 (arguing the Brookfield Directors breached their fiduciary duties by
“conceal[ing] Davis’ valuation, compromis[ing] Mathrani, [and] conceal[ing] Fukakusa’s
conflicts . . . .” (citing Compl. ¶¶ 78, 118, 133, 237, 261–63, 316)). The information
allegedly “concealed” by the Brookfield Directors is, as explained infra, not material.
Mathrani’s post-Transaction compensation is also irrelevant, as that arrangement was
known to the Board and Mathrani is not alleged to have participated in negotiations.
See Proxy at 141–44 (disclosing Mathrani’s Transaction-related compensation and
employment arrangements); see also In re Toys “R” Us, Inc. S’holder Litig., 877 A.2d 975,
1006 (Del. Ch. 2005) (explaining that the court’s job “is not to police the appearances of
conflict that, upon close scrutiny, do not have a causal influence on a board’s process.”).
Brookfield cannot be said to have exerted influence on a Transaction through directors who
recused themselves from the start of negotiations. See In re Crimson Expl. S’holder Litig.,
2014 WL 5449419, at *11 n.66 (Del. Ch. Oct. 24, 2014) (“[T]he focus of the inquiry has
been on the de facto power of a significant (but less than majority) shareholder, which,
when coupled with other factors, gives that shareholder the ability to dominate the
corporate decision-making process.” (quoting Superior Vision Servs., Inc. v. ReliaStar Life
Ins. Co., 2006 WL 2521426, at *4 (Del. Ch. Aug. 25, 2006) (emphasis added))).
173
Plaintiffs argue Mathrani was involved in the Transaction because “(i) he voted for it at
the board level; (ii) he signed the Proxy’s covering letter as CEO, urging a ‘yes’ vote on

40
Delaware General Corporation Law, directors are entitled to rely in good faith on a

special committee’s recommendation absent credible allegations of flaws in that

committee’s process.174

Plaintiffs’ argument that Brookfield controlled GGP’s process leading to the

Transaction thus turns on whether they have well pled that the Special Committee

was beholden to Brookfield such that Brookfield “actually dominated and controlled

the Buyout; (iii) he signed the Merger Agreement; (iv) he surveilled the Five-Minute [Audit
Committee] Meeting; and (v) he declined to require Proxy disclosure of his oft-expressed
value-maximizing strategy and the reasons he departed from it to support the
[Transaction].” Pls.’ Answering Br. at 55 (citing Proxy at 79; Compl. ¶¶ 72–76, 239–40,
313)). By Plaintiffs’ own admission, then, Mathrani is not alleged to have “set the terms
of the deal . . . [or] deceive[d] the board . . . [or] dominate[d] or control[led] the other
directors’ approval of the Transaction.” Benihana of Tokyo, Inc. v. Benihana, Inc., 906
A.2d 114, 121 (Del. 2006) (dismissing fiduciary duty claims against conflicted director).
And, for reasons explained infra, Plaintiffs mischaracterize Mathrani’s publicly-known
“value-maximizing” strategy. See Investor Tr. 8, 10 (Mathrani describing publicly possible
strategies to catalyze appreciation of GGP’s stock).
174
8 Del. C. § 141(e); see also Crimson, 2014 WL 5449419, at *25; In re Ebix, Inc.
S’holder Litig., 2018 WL 3545046, at *13 (Del. Ch. July 17, 2018). Plaintiffs’ sole
argument against application of Section 141(e) to Mathrani is that he did not rely on the
Special Committee’s recommendation in good faith because of his employment agreement.
See Pls.’ Answering Br. at 164. But Mathrani did not enter into an employment agreement
with Brookfield until after the Merger Agreement was signed and waited to negotiate the
terms of his employment until mere days before the Merger Agreement was to be executed,
well after the economic negotiations had ended. Compl. ¶¶ 7, 115–16. Indeed, Brookfield
submitted its final offer on February 25, 2018—a full month before the Special Committee
approved the Merger and before Plaintiffs contend negotiations regarding Mathrani’s
employment began. Proxy at 70, 142; Compl. ¶ 7. This court has rejected similar
allegations that a CEO is interested in a transaction because he negotiated post-merger
employment “five days before the Merger Agreement was signed and after the economic
terms and nearly all the diligence on the deal were finalized.” In re Saba Software, Inc.
S’holder Litig., 2017 WL 1201108, at *22 (Del. Ch. Mar. 31, 2017), as revised (Apr. 11,
2017).

41
the corporation, its board or the deciding committee with respect to the challenged

transaction.”175 One would expect, therefore, that Plaintiffs would allege facts

allowing a reasonable inference that a majority of the Special Committee’s members

were somehow tainted by Brookfield’s dominance.176 They do not. Instead,

Plaintiffs attack the independence and/or disinterest of two of the five Special

Committee members and assert, at the threshold, that they need only plead a single

Special Committee member is interested or not independent from Brookfield to

make reasonably conceivable Brookfield’s status as controller. 177 Defendants

counter that Plaintiffs must plead facts that support a reasonable inference the

compromised minority of Special Committee members “somehow ‘dominated or

controlled’ the Special Committee’s process.”178

175
Rouse, 2018 WL 1226015, at *12 (citing Cox Commc’ns, Inc., 2006 WL 1586375,
at *4).
176
See In re Pilgrim’s Pride Corp. Deriv. Litig., 2019 WL 1224556, at *17 (Del. Ch.
Mar. 15, 2019) (explaining complaint must plead “sufficient facts to implicate the Director
Defendants in the negotiation, structuring or approval of the Acquisition.”).
177
Pls.’ Answering Br. at 53, 78 (citing In re AmTrust Fin. Serv. S’holder Litig.,
2020 WL 914563, at *10 n.105 (Del. Ch. Feb. 26, 2020) (noting that whether one of the
special committee member’s lack of independence conceivably renders an entire
committee not independent in the context of MFW [i.e., when controllership has already
been established] has not been decided under Delaware law).
178
Special Committee Defs.’ Opening Br. at 22 (citing Rouse, 2018 WL 1226015, at *15).

42
 Defendants offer the correct interpretation of Delaware law. Where, as here,

a plaintiff alleges only a minority of special committee members are incapable of

disinterestedly and independently considering a transaction, a plaintiff must proffer

at the pleading stage some factual predicate from which the court can infer the

compromised director(s) somehow infected the special committee’s process.179

In other words, an inquiry into the existence of a minority controller focuses on

whether the minority shareholder has “the ability to dominate the corporate

179
See Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 363 (Del. 1993) (“This Court has
never held that one director’s colorable interest in a challenged transaction is sufficient,
without more, to deprive a board of protection of the business judgment rule presumption
of loyalty. . . .” (emphasis in original)); In re Alloy, Inc., 2011 WL 4863716, at *8–9
(Del. Ch. Oct. 13, 2011) (holding allegation that an allegedly conflicted corporate fiduciary
“was in a position” to influence other members of a special committee was inadequate to
support an inference that the special committee’s process was tainted by undue influence);
Texlon Corp. v. Meyerson, 802 A.2d 257, 264 (Del. 2002) (“Where only one director has
an interest in a transaction, however, a plaintiff seeking to rebut the presumption of the
business judgment rule under the duty of loyalty must show that the interested director
controls or dominates the board as a whole” (quotations omitted)); Hamilton P’rs, L.P. v.
Highland Cap. Mgmt., L.P., 2014 WL 1813340, at *16 (Del. Ch. May 7, 2014) (noting
allegation did not support reasonable inference that controlled director sought “to comport
with the wishes or interest” of controlling director and refusing to find domination on
“generalized allegations”); Rouse, 2018 WL 1226015, at *15 (“[I]t does not necessarily
follow that an interested party also controls directors, simply because they lack
independence. Lack of independence focuses on the director, and whether she has a
conflict in the exercise of her duty on behalf of her corporation. Consideration of controller
status focuses on the alleged controller, and whether it effectively controls the board of
directors so that it also controls disposition of the interests of the unaffiliated stockholders.”
(quoting Sciabacucchi, 2017 WL 2352152, at *17) (emphasis in original)).

43
decision-making process” which, in the context of this Transaction, was steered

exclusively by the Special Committee.180

The Special Committee was comprised of Defendants, Hurwitz, Fiala,

Fukakusa, Haley and Lofgren.181 Plaintiffs did not brief and so waived any argument

impeaching the impartiality of Hurwitz, Fiala and Lofgren.182 Thus, to the extent

Plaintiffs argue the Special Committee’s process was poisoned by its members, their

allegations are limited to Haley and Fukakusa.

Plaintiffs’ allegations impugning Haley’s independence from Brookfield are

limited to the observations that (1) he was selected to the Board by Brookfield upon

GGP’s emergence from bankruptcy and (2) his tenure at Ernst & Young overlapped

180
Crimson, 2014 WL 5449419, at *11 n.66 (quoting Superior Vision Servs., Inc. v.
ReliaStar Life Ins. Co., 2006 WL 2521426, at *4 (Del. Ch. Aug. 25, 2006)) (emphasis
added).
181
The Board previously determined each of these directors to be independent under NYSE
listing standards. “Although the fact that directors qualify as independent under the NYSE
rules does not mean that they are necessarily independent under [Delaware] law in
particular circumstances, the NYSE rules governing director independence were
influenced by experience in Delaware and other states and were the subject of intensive
study by expert parties. They cover many of the key factors that tend to bear on
independence, including whether things like consulting fees rise to a level where they
compromise a director’s independence, and they are a useful source for this court to
consider when assessing an argument that a director lacks independence.” MFW, 67 A.3d
at 510.
182
See Emerald P’rs v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (“Issues not briefed are
deemed waived.”). Plaintiffs also did not challenge these directors’ independence at oral
argument.

44
with two former Brookfield executives. 183 But Plaintiffs do not allege Haley

interacted with or even knew the former Brookfield executives. 184 And Haley retired

from Ernst & Young in 2009, nearly a decade before the Transaction. 185 “Neither

mere personal friendship alone, nor mere outside business relationships alone, are

sufficient to raise a reasonable doubt regarding a director’s independence.” 186 That

Haley attained his directorship by designation of Brookfield years before Brookfield

extended the 2017 Offer does not change that calculus.187

Plaintiffs’ allegations regarding Fukakusa’s supposed subjugated state fare no

better. Plaintiffs allege Fukakusa was dominated and controlled by Brookfield

because: (1) she served as an RBC executive for 30 years (13 as CFO) before joining

183
Compl. ¶ 134. I note Plaintiffs did not advance an argument that Haley harbored any
self-interest adverse to GGP’s stockholders.
184
While the 220 Decision noted Haley’s employment history may be “evidence of another
possible conflict” under the applicable credible basis burden of proof, Plaintiffs have not
pled facts supporting a reasonable inference that such a conflict exists. 220 Decision at 954
(emphasis added).
185
Proxy at 247.
186
Litt v. Wycoff, 2003 WL 1794724, at *4 (Del. Ch. Mar. 28, 2003).
187
See Edgewater Growth Cap. P’rs LP v. H.I.G. Cap., Inc., 68 A.3d 197, 230 (Del. Ch.
2013) (“Our Supreme Court has long recognized that the manner in which someone is
nominated to the board is not evidence of their lack of independence.”); see also KKR,
101 A.3d at 996 (“It is well-settled Delaware law that a director’s independence is not
compromised simply by virtue of being nominated to a board by an interested
stockholder.”).

45
the GGP Board;188 (2) she owned $31–41 million in RBC equity; (3) RBC stood to

gain from the Transaction via (a) GGP’s anticipated payoff of an existing loan from

RBC of $1.5 billion upon closing the Transaction,189 (b) RBC’s $3.2 billion

participation in a syndicate to provide $12.875 billion of new loans to Brookfield to

fund the Transaction, 190 and (c) RBC’s equity stake in Brookfield;191 (3) Fukakusa’s

son was a vice president of RBC; 192 and (4) she was indebted to Brookfield for

helping her to secure her position as Chancellor at Ryerson University. 193

Fukakusa’s previous employment at RBC is unremarkable, as the Complaint

makes clear she joined the GGP Board only after retiring from RBC in

January 2017—months before GGP began negotiations with Brookfield.194

The same can be said for Fukakusa’s son working at RBC, as there is no allegation

that he had any involvement in, or retained any ancillary benefit from, the

Transaction.

188
Compl. ¶ 30.
189
Compl. ¶¶ 14, 30, 41, 124, 129, 146, 178.
190
Compl. ¶¶ 14, 41, 122–23, 146.
191
Compl. ¶ 41.
192
Compl. ¶¶ 14, 124, 146, 236.
193
Compl. ¶ 132.
194
Id.; see also Pls.’ Answering Br. at 56; Proxy at 247.

46
 Plaintiffs’ assertion that Fukakusa was dominated by Brookfield with respect

to the Transaction on account of her financial ties to RBC similarly land beyond the

bounds of reasonable conceivability. RBC is not a party to the Transaction. Rather,

it served as one of several lenders in connection with the deal, and there are no

allegations regarding how much RBC stood to earn from the Transaction. Plaintiffs

thus ask the Court to infer that RBC’s role in the Transaction as lender, combined

with its relatively small stockholdings in Brookfield, would increase RBC’s market

value to an extent so material to Fukakusa that she would be rendered unable to

“perform her fiduciary duties” on behalf of GGP stockholders. 195 While it is

conceivable a director could be beholden to a controller by virtue of her embedded

relationship to a lender of the controller, 196 Plaintiffs fail in my view to plead

195
In re Gen. Motors Class H S’holders Litig., 734 A.2d 611, 617 (Del. Ch. 1999); see also
Orman v. Cullman, 794 A.2d 5, 25 n.50 (Del. Ch. 2002) (explaining that, absent a director
standing on both sides of a transaction, materiality allegations are required to establish lack
of independence or a disabling interest). Plaintiffs emphasize that this court observed in
the 220 Decision that RBC “stood to receive a substantial benefit” from the Transaction.
220 Decision at 954. But in the context of plenary litigation, it is black letter Delaware law
that Plaintiffs must allege facts from which the Court can reasonably infer a material
benefit to an interested director, i.e., an alleged benefit “significant enough in the context
of the director’s economic circumstances, as to have made it improbable that the director
could perform her fiduciary duties to the . . . shareholders without being influenced by her
overriding personal interest.” Orman, 794 A.2d at 23 (cleaned up).
196
See In re Dell Techs. Inc. Class V S’holders Litig., 2020 WL 3096748, at *37 (Del. Ch.
June 11, 2020) (“[D]efendants fail to cite any authority that requires a director to have a
compromising relationship with the controller himself as opposed to a close advisor or
other associate.”).

47
sufficient facts allowing an inference that Fukakusa’s relationship with RBC was

such that Brookfield could pull that lever to overcome her presumptively loyal

fiduciary instincts as a GGP director. 197

Finally, while Plaintiffs assert that “Brookfield paved the way for Fukakusa’s

chancellorship as a reward for her paving the way for the Transaction,” 198 Plaintiffs

conspicuously fail to plead how Brookfield actually possessed the imperium to

coerce Ryerson’s 24-member board into naming Fukakusa the school’s chancellor,

much less what specific steps were supposedly taken by Brookfield to deliver that

prize.199 Indeed, Fukakusa served as a member of the Board of Governors of

Ryerson University since 2002 and as its chairperson since 2013—many years

197
Plaintiffs rely on Calesa Associates. L.P. v. American Capital, Ltd., to argue that
Fukakusa is interested due to her ties to RBC. 2016 WL 770251 (Del. Ch. Feb. 29, 2016).
But Calesa dealt with directors whose lack of independence was tied to the alleged
controller that was itself financing the transaction. Id. at *1, *12. The company in Calesa
also acknowledged that the directors’ interests were “in addition to or different” than the
target’s stockholders. Id. at *12. The court found such an acknowledgment weighty,
observing “it is well-settled that a director is considered interested when [she] will receive
a personal financial benefit from a transaction that is not equally shared by the
stockholders.” Id. (internal citations and quotations omitted). Here, RBC was not a party
to the Transaction, and there is no acknowledgment from GGP or otherwise that Fukakusa
received any nonratable benefit from the Transaction based on her ties to RBC.
198
Pls.’ Answering Br. at 58–59.
199
See Board Members 2019-2020, RYERSON UNIV.,
https://www.ryerson.ca/governors/members/ (last visited May 10, 2021); see also Compl.
¶ 132(a), (b), (d) (citing Ryerson’s website three times).

48
before she joined GGP’s Board.200 Her selection as chancellor of Ryerson was

announced two months before the Transaction (after more than a decade-and-a-half

of board service), and there is no allegation that such a position resulted in any extra

compensation, let alone that such compensation was material. Fukakusa’s

connection to Brookfield through Ryerson is therefore a far cry from Plaintiffs’

favorite case on this issue, In re Oracle Corp. Derivative Litigation, 201 where the

members of the Special Litigation Committee were Stanford professors asked to

investigate claims against another Stanford professor and two well-known Stanford

benefactors.202 In totality, Plaintiffs’ allegations with respect to Fukakusa fail to

support a reasonable inference that Brookfield dominated and controlled the Special

Committee’s consideration of the Transaction.

200
Compl. ¶ 132(c).
201
824 A.2d 917 (Del. Ch. 2003).
202
Id. at 943. I note that our Supreme Court has cautioned against applying Oracle, decided
in the special litigation committee context, as a yardstick for measuring independence of
board members in other contexts. Beam ex rel. Martha Stewart Living Omnimedia, Inc. v.
Stewart, 845 A.2d 1040, 1055 (Del. 2004). Plaintiffs also lean for support on Delaware
County Employees Retirement Fund v. Sanchez, but the director and Chairman (who was
interested in the subject transaction) were alleged to be close friends for five decades, with
the director’s personal wealth “largely attributable to business interests over which
Chairman Sanchez has substantial influence,” a favor returned by, among other gestures,
the director’s maxed-out $12,500 donation to the Chairman’s campaign for governor
of Texas. 124 A.3d 1017, 1020–21 (Del. 2015). No comparable facts are pled here.

49
 Even assuming the constellation of allegations levelled against Fukakusa

rendered her incapable of considering the Transaction impartially, Plaintiffs have

not even attempted to connect Fukakusa’s alleged ties with Brookfield to any actions

she took to influence the Special Committee or Audit Committee’s process to favor

Brookfield.203 As noted, an inference of transaction-related control must be

supported with well-pled allegations that the compromised Special Committee

member somehow exercised influence over a majority of otherwise disinterested and

independent members. 204 There are no such allegations here.

Perhaps recognizing the fallibility of their challenges to the Special

Committee’s process, Plaintiffs attempt to supplement their claim that Brookfield

actually controlled GGP in the Transaction by reference to several supposed

circumstantial markers of control. First, Plaintiffs point out Brookfield co-authored,

co-filed and co-signed the Proxy. 205 But Plaintiffs cite no authority for the

203
The Court cannot reflexively credit Plaintiff’s conclusory allegation that “Fukakusa’s
participation in the Special Committee tainted the sale process,” but instead must evaluate
the underlying allegations supporting that conclusion. Compl. ¶ 146; see Clinton v. Enter.
Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009) (explaining the court will not accept
“conclusory allegations unsupported by specific facts”).
204
See Cede & Co., 634 A.2d at 363 (“This Court has never held that one director’s
colorable interest in a challenged transaction is sufficient, without more, to deprive a board
of the protection of the business judgment rule presumption of loyalty.”); Nguyen v.
Barrett, 2016 WL 5404095, at *5 n.46 (Del. Ch. Sept. 28, 2016) (same).
205
Compl. ¶ 329.

50
proposition that a co-authored proxy is somehow offensive under Delaware law, and

I cannot surmise any reason why that fact would support a reasonable inference of

control or impropriety.

Second, Plaintiffs allege “BPY took control of the narrative, issuing press

releases when GGP and the Special Committee did not,” pointing, by way of

example, to Brookfield’s announcement of the 2017 Offer and then GGP’s rejection

of that offer.206 Again, Plaintiffs cite no authority that would support the proposition

that a potential acquirer’s effort to take control over the public narrative of its

negotiations with a target somehow supports an inference that the acquirer actually

controls the target, and I am not persuaded that it does.

Third, Plaintiffs allege GGP’s concession to the suite of deal protections in

the Merger Agreement allows an inference that Brookfield dominated and controlled

the GGP fiduciaries who agreed to these fundamentally lopsided terms. 207 To be

206
Pls.’ Answering Br. at 63 (emphasis omitted); Compl. ¶¶ 153, 156; see also Compl.
¶ 283.
207
Compl. ¶¶ 177–90. In this regard, among other “deal protections,” Plaintiffs reference
in their Complaint a “poison put,” purportedly contained in “the RBC Loan Agreement”—
a capitalized term that never reappears either in Plaintiffs’ Complaint or briefing—which
allegedly provided that “if anyone other than Brookfield acquired more than 50% of GGP’s
outstanding voting power, the loan went into default and became due, requiring the
immediate payment of the $1.4 billion credit facility.” Compl. ¶ 178. Consistent with the
long-on-rhetoric-short-on-substance theme running through Plaintiffs’ claims, and
notwithstanding a Complaint numbering many hundreds of paragraphs, Plaintiffs offer no
further detail on the loan: there is no mention of what specifically the agreement says, when
it was entered or by whom. Plaintiffs never cited to an exhibit in their discussion of the

51
sure, the coercive effects of deal protection devices are always important and they

must be measured against the inferences asked to be drawn from them. 208 But this

court has long recognized that non-solicitation provisions, information and matching

rights provisions, and termination fees of less than 3% of the transaction price are

not particularly remarkable in the realm of arms-length mergers and acquisitions.209

While Plaintiffs attempt to attribute the lack of competing bidders to these customary

“deal protection” provisions, the only reasonable inference to be drawn is that other

poison put, and there are no exhibits on record reflecting a loan agreement between GGP
and RBC. Plaintiffs suggest in briefing the loan agreement was negotiated as a part of the
Merger Agreement, but it does not appear to be mentioned in the Proxy and Plaintiffs do
not take issue with the Proxy’s disclosures in that regard. See Pls.’ Answering Br. at 35–
36 (listing the poison put among the deal-protection devices “employed” by the Merger
Agreement); see also Proxy at 34–38, 151, 226–27 (disclosing other deal-protection
devices but making no mention of a poison put). The Court is thus left without pled facts
from which to draw any inference regarding a poison put-related “deal protection” much
less fiduciary impropriety related to that provision. After dedicating significant time to
searching the Complaint, briefs and record for a better understanding of this “poison put,”
I must conclude that this allegation is a distraction that does not meaningfully impact the
Court’s analysis.
208
See Toys “R” Us, 877 A.2d at 1016.
209
See, e.g., In re 3COM S’holders Litig., 2009 WL 5173804, at *7 (Del. Ch. Dec. 18,
2009) (denying expedition under “colorability” standard and explaining that a non-
solicitation provision, matching rights provision, and termination fee of over 4% of equity
value, even where the directors did not attempt to solicit other buyers before executing the
merger agreement, are “standard merger terms”); see also In re TriQuint Semiconductor,
Inc. S’holders Litig., 2014 WL 2700964, at *3 (Del. Ch. June 13, 2014) (denying
expedition and explaining that non-solicitation provision, matching rights provision, and
2.8% termination fee are “familiar and generally permissible merger agreement
provisions”).

52
suiters did not emerge because none were interested. Indeed, Goldman “had several

discussions with management representatives of . . . GGP’s competitors . . . none of

which expressed any interest or ability to pursue an acquisition of GGP.”210

Brookfield, for its part, also attempted but failed to solicit co-investors. 211

210
Proxy at 71. While Plaintiffs allege Goldman and Simpson Thacher were “preordained”
by Brookfield, and therefore conflicted, they allege no well-pled facts to support that
inference. See Compl. ¶¶ 144, 159, 164. The advisors’ presence at the Special
Committee’s first meeting is unsurprising given Plaintiffs’ pleading that Kingston had, on
Brookfield’s behalf, informed the soon-to-be Special Committee chair Hurwitz of the
incoming bid prior to the 2017 Offer. Compl. ¶ 136. Further, it is undisputed that the
Special Committee had power freely to select its own advisors and, according to the
relevant Board resolutions and Proxy, did, in fact, select both advisors based on their
substantial experience and their independence from GGP and BPY. Proxy at 60–61; Miller
Decl. Ex. 16 (Nov. 12, 2017 Minutes of the Board of Directors) (explaining advisors
“present by invitation”). Plaintiffs allege no facts from which the Court can infer that
Brookfield was somehow involved in this selection, either through early involvement in
the Special Committee or past relationships with either firm. Plaintiffs also take issue with
Goldman’s financial incentives, noting that the financial advisor would receive a fee only
if the deal closed. But Plaintiffs admit, as they must, that contingent fees charged by
investment bankers do not alone create disabling conflicts. See In re Smurfit-Stone
Container Corp. S’holder Litig., 2011 WL 2028076, at *23 (Del. Ch. May 20, 2011), as
revised (May 24, 2011); see also Saba Software, 2017 WL 1201108, at *21. Plaintiffs have
not well pled that GGP’s advisors acted in any manner that might reveal a lack of loyalty
to GGP, much less in a manner that would facilitate BPY’s domination and control over
GGP’s sales process. The best Plaintiffs can do is allege in conclusory terms that
Goldman’s price target was “artificially low.” Compl. ¶ 162. They plead no basis for the
Court reasonably to make that inference other than charted price target comparisons from
a Goldman analyst which were from a “prior recent report” and “unrated” following the
announcement of the Transaction. See Compl. ¶¶ 161–62. Plaintiffs’ allegations in this
regard are precisely the sort of “hindsight quibbles” over a financial advisor’s allegedly
“artificially low projections” that have no bearing on any issue that might be relevant in a
fiduciary duty analysis. See In re Novell Inc. S’holder Litig., 2013 WL 322560, at *12
(Del. Ch. Jan. 3, 2013).
211
Compl. ¶ 16. While Plaintiffs allege in conclusory fashion that Brookfield’s
unsuccessful solicitation of co-investors “poison[ed] the well,” there are, again, no facts
pled that any interested bidder was deterred.

53
 Considering these efforts, Plaintiffs’ attempt to lay blame for the apparent lack

of any modicum of third-party interest in GGP on this banal assortment of garden

variety deal protections fails the reasonably conceivable test. 212 Contrary to

Plaintiffs’ implied position, Delaware law does not view the M&A market as

“comprised of buyers of exceedingly modest and retiring personality, too genteel to

make even the politest of uninvited overtures: a cotillion of the reticent.”213

* * * * *

Plaintiffs have attempted to set a stage for their breach of fiduciary duty claims

that has Brookfield, despite its minority ownership stake, playing the role of GGP’s

controlling stockholder by virtue of its domination over GGP’s fiduciaries in the

negotiation and approval of the Transaction. The gambit, of course, is intended to

ratchet up the scrutiny under which the conduct of GGP’s fiduciaries will be

measured.214 For reasons just explained, the gambit falls short.

Brookfield Did Not Actually Control GGP Generally

Even if Brookfield’s control over GGP cannot be surmised from the

Transaction itself, Plaintiffs maintain they have alleged facts sufficient to support a

212
Compl. ¶¶ 143, 176 (internal quotations omitted).
213
Toys “R” Us, 877 A.2d at 1006.
214
See Larkin, 2016 WL 4485447, at *15 (providing examples in the case law where an
alleged controller attempted to exert its coercive influence over a transactional process).

54
reasonable inference that Brookfield controlled GGP generally. The inquiry of

actual control seeks to answer whether, “as a practical matter, [the alleged controller

was] no differently situated than if it had majority voting control.” 215 “It is

impossible to identify or foresee all of the possible sources of influence that could

contribute to a finding of actual control.” 216 Our Supreme Court, however, has set

out various indicia of a stockholder’s general control over the board, including a

stockholder’s ability to:

(a) elect directors; (b) cause a break-up of the corporation; (c) merge it
with another company; (d) cash-out the public stockholders; (e) amend
the certificate of incorporation; (f) sell all or substantially all of the
corporate assets; or (g) otherwise alter materially the nature of the
corporation and the public stockholders' interests.217

Plaintiffs’ case for general control is premised on a constellation of facts they

maintain circumstantially allow an inference that Brookfield dominated the GGP

Board. Graded against Paramount’s rubric, and even more broadly, Plaintiffs’

pleading of general control fails.

215
PNB, 2006 WL 2403999, at *9.
216
Voigt v. Metcalf, 2020 WL 614999, at *12 (Del. Ch. Feb. 10, 2020) (citing Basho Techs.
Holdco B, LLC v. Georgetown Basho Invs., LLC, 2018 WL 3326693, at *26 (Del. Ch.
July 6, 2018), aff’d sub nom. Davenport v. Basho Techs. Holdco B, LLC, 221 A.3d 100
(Del. 2019) (TABLE)).
217
Paramount Commc’ns Inc. v. QVC Network Inc., 637 A.2d 34, 43 (Del. 1994).

55
 To start, as this court observed in Rouse, an ownership stake approximating

Brookfield’s 35.3% is “not impressive on its own.”218 Plaintiffs argue Brookfield’s

right to take its ownership up to 45% under the Standstill Agreement distinguishes

this case from Rouse. According to Plaintiffs, if one assumes, as this court has, that

stockholder “[m]eetings typically attract participation from just under 80% of the

outstanding shares,”219 then it is reasonable to infer that Brookfield’s potential 45%

vote would easily carry any non-election resolution. By Plaintiffs’ lights,

Brookfield’s contractually-reserved right to vote 10% of all outstanding GGP shares

in directors’ elections further bolstered its influence, especially where, as here, there

were no staggered terms and every GGP director seeking re-election stood for a vote

annually.220 They point to cases like Voigt v. Metcalf to argue that this math, alone,

supports the inference that Brookfield was a controller as a matter of Delaware

law. 221

Plaintiffs are wrong. Far from dispositive, this court’s evaluation of a

blockholder’s voting power based on hypothetical voter turnout has, since its

genesis, been merely one of a mix of factors to be considered in the controlling

218
Rouse, 2018 WL 1226015, at *18.
219
Voigt, 2020 WL 614999, at *18.
220
Compl. ¶ 100.
221
See Pls.’ Answering Br. at 64 (citing Voigt, 2020 WL 614999).

56
stockholder analysis.222 While judges certainly should be, and are, mindful of the

practical reality of an alleged controller’s voting power, a 35.3% equity stake does

not transmogrify a minority blockholder into a controlling stockholder (with the

accompanying fiduciary duties to match). 223 No amount of mental or mathematical

gymnastics can establish controllership by metaphysically stretching one-third into

more than one-half.

While this court has certainly scrutinized voting control under the

hypothetical assumption that voter turnout is rarely (if ever) 100%,224 the practical

222
See Voigt, 2020 WL 614999, at *17–18 (noting that “the interaction of block size
with other factors prevents clear patterns [of the relationship between the size of an alleged
controller’s equity stake and an inference of actual control] from emerging.” (emphasis
added)); see also Crimson, 2014 WL 5449419, at *10 (reviewing a non-exhaustive list of
ten significant cases and concluding there was not “any sort of linear, sliding scale
approach whereby a larger share percentage makes it substantially more likely that the
court will find the stockholder was a controlling stockholder.”).
223
Though GGP’s 10-K filings disclose the impact of BPY’s minority holdings, they are
not substantively different than the disclosures held in Rouse as insufficient to support an
inference of control. Compare Compl. ¶¶ 109–12 (quoting GGP’s Form 10-K) with Rouse,
2018 WL 1226015, at *19 (citing cases and finding disclosure that “our substantial
stockholder may exert influence over us that may be adverse to our best interests and those
of our stockholders” to be a “far cry from the outright admission that a minority
blockholder was the corporation’s ‘controlling stockholder’”). And while the 220 Decision
inferred in the context of its proper purpose inquiry that “Brookfield was a de facto
controller” from the 10-K filings and Brookfield’s stock ownership, in addition to its right
to appoint three directors to GGP’s nine-member board, the court expressly distinguished
Rouse based on the fact that “Rouse was a plenary litigation involving breach of fiduciary
duty claims, whereas this case involves a mere Section 220 demand with a significantly
lower burden.” 220 Decision at 953, n.85.
224
See Cysive, 836 A.2d at 552 n.30; see also Voigt, 2020 WL 614999, at *18.

57
reality of this Transaction is that 88% of the outstanding shares voted in

consideration of it.225 After backing out Brookfield’s vote, an overwhelming

majority of GGP’s shares voted in favor of the Transaction. 226 Indeed, even if

Brookfield had voted its entire stake against the Transaction, the Transaction still

would have been approved by a majority of GGP stockholders. 227

The fact that Brookfield could have increased its ownership to 45% does

nothing to change the calculus. According to Plaintiffs, this fact somehow increases

the likelihood that GGP fiduciaries would fear that Brookfield might throw its

weight around to their detriment. But our law is not concerned with the mere

“potential” that a stockholder might increase its stockholdings and thereby increase

its influence; under that standard, any stockholder of means could, at the pleading

stage, be saddled with fiduciary duties based purely on its ability to acquire a

sufficiently large enough stake in the target to raise an inference of minority

225
Form 8-K at Item 5.07 (disclosing 958,392,649 shares of GGP’s common stock were
outstanding and 849,896,012 shares were represented in person or by proxy at the special
meeting).
226
See id.
227
This fact distinguishes this case from Ross v. Lineage Cell, C.A. No. 2019-0822-AGB
(Del. Ch. Sept. 21, 2020), D.I. 56 (TRANSCRIPT). Ross is further distinguishable in that
the court there expressed concern about decidedly low voter turnout (a non-issue in this
case). Id. at 11–12.

58
blockholder control. 228 The question, rather, is whether it is reasonably conceivable

that Brookfield was, at the time of the Transaction, a controller. Plaintiffs do not

allege Brookfield ever made any retributive threats against GGP fiduciaries, either

overtly or implicitly through conduct. 229 Simply put, there is no pled basis to infer

that Brookfield exerted any influence over GGP fiduciaries such that they would

“defer to [Brookfield] because of its position as a significant stockholder” rather than

exercise their own independent business judgment. 230

To be sure, Brookfield had a right under the Investment Agreement to

designate three nominees for election to the Board, so long as it owned at least 20%

of GGP’s stock. 231 But Brookfield had only one representative on the consequential

three-member N&G Committee and Plaintiffs do not challenge the independence of

228
See In re Sea-Land Corp. S’holders Litig., 1987 WL 11283, at *5 (Del. Ch. May 22,
1987) (rejecting a plaintiff’s claim that a 39.5% minority blockholder was a controlling
stockholder because, while the blockholder’s holdings perhaps “had the potential ability to
frustrate a competing bid,” under Delaware law “the potential ability to exercise control is
not equivalent to the actual exercise of that ability.” (citation omitted)); see also Citron v.
Steego Corp., 1988 WL 94738, at *6 (Del. Ch. Sept. 9, 1988) (“Delaware law is well
developed on this point[:] . . . While a position less than a majority stockholding might, as
a factual matter, give rise to control which, in turn, gives rise to a fiduciary duty, it is the
actual exercise of such control, not the simple potential for control, that creates the special
duty.” (internal citations omitted)).
229
See Pls.’ Answering Br. at 65.
230
Lynch, 638 A.2d at 1115. See also Rouse, 2018 WL 1226015, at *18–20 (finding that
plaintiff had failed to plead facts supporting an inference that a minority blockholder
exercised actual control over the target).
231
Inv. Agreement § 5.10(a)(ii).

59
the other two members. 232 Contrary to Plaintiffs’ conclusory allegation, Brookfield

could not impose its will on this important governance committee when, at best, its

preferences were always subject to majority veto.

Further, the Complaint is bereft of allegations that Brookfield had any

contractual right “to dictate any action by the board, to veto any action of the board

or to prevent the board from hiring advisors and gathering information in order to be

fully-informed.”233 To the contrary, Plaintiffs’ allegations detail how Brookfield

made every effort to neutralize its influence by entering the Standstill Agreement,

which provided Brookfield could not acquire more than 45% of GGP’s outstanding

232
See Rouse, 2018 WL 1226015, at *14 (“Plaintiffs seem content to ignore that the
compensation committee comprised three members, two of whom were unquestionably
independent from Brookfield. Thus, Brookfield had no ability to dictate the terms of
Silberfein’s compensation.”).
233
KKR, 101 A.3d at 994. Plaintiffs highlight the Complaint’s allegations that Brookfield
originally nominated or recruited at least seven of the nine GGP directors, all of whom
served throughout the Transaction process until closing. Compl. ¶¶ 27, 36 (Clark),
28 (Fiala), 29, 36 (Flatt), 33, 36 (Kingston), 41 (Haley), 101, (Mathrani) 132 (Fukakusa).
But the fact that a board member was nominated by a stockholder does not cast into
question his independence. See KKR, 101 A.3d at 996 (“It is well-settled Delaware law
that a director’s independence is not compromised simply by virtue of being nominated to
a board by an interested stockholder.”). Brookfield could only vote up to 10% of all
outstanding common shares of GGP for or against other nominees to the Board.
Compl. ¶ 100. Plaintiffs argue the apparently meagre 10% voting block is larger than
advertised due to GGP’s dispersed shareholder base. But a dispersed shareholder base
would appear to empower individual shareholders and dilute Brookfield’s ability to recruit
a meaningful ally to achieve its agenda. Cf. Tesla, 2018 WL 1560293, at *15 (finding
salient a minority blockholder’s ability to “rally other stockholders”). Regardless,
Plaintiffs cannot be heard to argue 10% of a vote could dictate the outcome of a director’s
election.

60
stock without approval by both a majority of disinterested GGP directors and a

majority of GGP stockholders unaffiliated with Brookfield.234 Brookfield thus could

not unilaterally acquire sufficient stock to dictate the outcome of a director’s

election. 235 It further ensured GGP’s independence through several provisions:

• Section 1.1(a) required GGP to have a majority of “independent” directors
under the NYSE Rules;
• Section 1.1(b) required a majority of the Nominating and Governance
Committee to be “disinterested directors” unaffiliated with Brookfield;
• Section 1.1(c) required that, for the election of directors other than
Brookfield’s nominees, Brookfield must vote any shares it held in excess of
10% of GGP’s outstanding stock in proportion to the votes cast by GGP
stockholders unaffiliated with Brookfield; and
• Sections 1.1(e)–(f) required that any transaction involving GGP proposed by
Brookfield or in which Brookfield would receive disparate consideration be
approved by a majority of “disinterested directors” and GGP stockholders
unaffiliated with Brookfield.236

This “bevy of contractual restrictions [that] constrained [Brookfield] from control of

[GGP] . . . prohibit[] a pleading stage inference of control.” 237

Plaintiffs’ final attempt to plead that Brookfield actually controlled GGP rests

upon Brookfield’s role in shaping GGP into what it was at the time of the

234
Standstill Agreement §§ 2.1(a), 4.1(x); Proxy at 144.
235
See Miller Decl. Ex. 14 (GGP Certificate of Incorporation) Art. VI, ¶ C.
236
Standstill Agreement §§ 1.1(a)–(f). As noted, GGP’s Related Party Transaction Policy
also required that any transaction with Brookfield be approved by GGP’s Audit Committee
before being submitted to the Board for consideration. Compl. ¶ 191.
237
Sciabacucchi, 2017 WL 2352152, at *17–18.

61
Transaction. Specifically, the Complaint recites the story of how Brookfield’s

rescue of GGP out of bankruptcy “without the dishonor of default” led GGP and its

fiduciaries to operate under a sense of owing and gratitude toward their redeemer.238

Plaintiffs cite In re Tesla Motors, Inc. Stockholder Litigation by way of analogy,239

where the court relied on the well-pled allegations of the blockholder’s history of

support “in hard times” when the firm was “on the ropes” to support a finding that

it was reasonably conceivable that Tesla’s founder and CEO Elon Musk controlled

the company. 240

Plaintiffs are correct that the court in Tesla pointed in passing to Musk’s early

and necessary support of Tesla when addressing plaintiffs’ allegations that Musk

was Tesla’s controlling stockholder. But that fact, alone, was hardly dispositive.

The Tesla plaintiffs pled much more, including Musk’s ability to rally other

stockholders to follow his initiatives, his alleged history of dominating the Tesla

board, his dominating role in directing Tesla policy and strategy, and Tesla and

Musk’s own acknowledgement of Musk’s control. 241 None of those facts have been

pled here. Indeed, unlike Tesla, the Board signaled its independence from

238
Compl. ¶¶ 83–99.
239
2018 WL 1560293 (Del. Ch. Mar. 28, 2018).
240
Id. at *16.
241
Id. at *14–19.

62
Brookfield by forming a well-functioning Special Committee promptly after

receiving Brookfield’s offer and excluding from deliberations of the Transaction all

Brookfield-affiliated directors. 242 Without well-pled facts supporting an inference

that an alleged controller’s financial support weighed on the minds of a company’s

directors, this factor has no significance in the outcome of the controller inquiry.

In re Cysive, Inc. Shareholders Litigation 243 has been characterized as the

historical “benchmark for the minimum degree of managerial clout needed to meet

the actual control test where the alleged controller’s holdings are well below 50% of

a company’s outstanding shares.”244 In Cysive, then-Vice Chancellor Strine found

the stockholder held “day-to-day managerial supremacy” over the company where:

(1) he served as “Chairman and CEO of Cysive, and a hands-on one, to boot”;

(2) “by admission [he was] involved in all aspects of the company’s business, was

the company’s creator, and . . . its inspirational force”; and (3) two “close family

242
See id. (noting the complaint well pled Musk played an integral role in Tesla’s success,
“brought the [acquisition] proposal to the Board not once, not twice, but three times. . . .
[T]he Board never considered forming a committee of disinterested, independent directors
to consider the bona fides of the Acquisition” notwithstanding the “obvious conflicts of its
members.”).
243
836 A.2d 531 (Del. Ch. 2003).
244
Larkin, 2016 WL 4485447, at *14; see also Morton’s, 74 A.3d at 65 (characterizing
Cysive as the “most aggressive finding that a minority blockholder was a controlling
stockholder”); but see Rouse, 2018 WL 1226015, at *19 n.163 (noting “[i]t is likely that
more ‘aggressive’ examples can be found in our post-Cysive case law, but Cysive is still
generally regarded” as an aggressive example of our controller jurisprudence).

63
members” of the controller served in executive positions.245 Evidence of managerial

clout, combined with the stockholder’s “unified voting coalition” totaling 40% of

the company’s voting stock, drove the court in Cysive to conclude it was reasonably

conceivable that the minority stockholder was actually a controller.246 There are no

comparable allegations of Brookfield’s “managerial supremacy” over GGP. The

best Plaintiffs can muster is the fact that a Brookfield-affiliated director held the

position of Chairman at the time of the Transaction.247 This fact alone, however,

does not move the needle, as Plaintiffs have not pled how any other facts demonstrate

Brookfield exercised managerial supremacy over the day-to-day affairs of GGP or

general control over the Board.

* * * * *

For reasons just stated, I have determined that Brookfield was not a

controlling shareholder of GGP at the time of the Transaction. That finding has two

consequences. First, neither Brookfield nor any Brookfield-affiliated Defendant

owed fiduciary duties to GGP’s shareholders, and so Count I alleging breach of

fiduciary duty against BPY must be dismissed. Counts III and IV must also be

245
Cysive, 836 A.2d at 552.
246
See id. at 551–52.
247
Pls.’ Answering Br. at 67.

64
dismissed as to BPY, as they are both predicated on the existence of BPY’s fiduciary

duties.

Second, Corwin applies because the Transaction did not involve a conflicted

controller.248 Plaintiffs planned for this contingency, arguing that, even under

Corwin, the Transaction cannot be blessed on the pleadings because stockholder

approval was uninformed and coerced. I take up that issue now.

B. Stockholder Approval Was Fully Informed and Uncoerced

Our Supreme Court affirmed in Corwin that, “when a transaction not subject

to the entire fairness standard is approved by a fully informed, uncoerced vote of the

disinterested stockholders, the business judgment rule applies.”249 “Thus, in the

absence of a controller, to avoid the application of the business judgment

presumption under Corwin, a plaintiff must well-plead that the stockholder vote

248
See In re USG Corp. S’holder Litig., 2020 WL 5126671, at *13 (Del. Ch. Aug. 31,
2020). While not necessary to the outcome, even if I had concluded that Plaintiffs had well
pled Brookfield was GGP’s controlling stockholder, I would have landed at business
judgment review in any event given that all involved in the Transaction followed the MFW
roadmap as later refined by our Supreme Court in Flood v. Synutra Int’l, Inc., 195 A.3d
754 (Del. 2018). “[B]efore the start of substantive economic negotiations,” the parties to
the Transaction agreed to and then implemented a process whereby the Transaction was
negotiated by an independent, well-functioning Special Committee and then subjected to
approval by a majority of GGP’s unaffiliated, fully informed, uncoerced stockholders.
See id. at 760.
249
Corwin, 125 A.3d at 309.

65
approving a transaction was either coerced or uninformed.”250 Plaintiffs have failed

to invoke either basis to avoid Corwin.

The Stockholder Vote Was Informed

Delaware law requires directors soliciting stockholder action to “disclose fully

and fairly all material information within the board’s control.”251 When a

stockholder alleges that disclosures relating to a solicitation of stockholder approval

were inadequate, “[t]he essential inquiry is whether the alleged omission or

misrepresentation is material.”252 Information is “not material simply because [it]

might be helpful.”253 Rather, information related to a stockholder vote is material

only if “there is a substantial likelihood that a reasonable shareholder would consider

it important in deciding how to vote.” 254

A majority of voting shares unaffiliated with Brookfield voted to approve the

Transaction;255 Plaintiffs allege that this vote was uninformed. To sustain their

burden to support that conclusion with well-pled facts, Plaintiffs must allege

250
Rouse, 2018 WL 1226015, at *21.
251
Stroud v. Grace, 606 A.2d 75, 84 (Del. 1992).
252
In re Solera Hldgs., Inc. S’holder Litig., 2017 WL 57839, at *9 (Del. Ch. Jan. 5, 2017).
253
Skeen v. Jo–Ann Stores, Inc., 750 A.2d 1170, 1174 (Del. 2000).
254
Saba Software, 2017 WL 1201108, at *8 (quoting Rosenblatt v. Getty Oil Co., 493 A.2d
929, 944 (Del. 1985)).
255
Form 8-K at Item 5.07.

66
“a [material] deficiency in the operative disclosure document, at which point the

burden would fall to defendants to establish that the alleged deficiency fails as a

matter of law in order to secure the cleansing effect of the vote” under Corwin.256

Plaintiffs take to a kitchen sink approach to meeting their burden, enumerating

a laundry list of purportedly “material” facts omitted from, or misleadingly described

in, the Proxy. Most of Plaintiffs’ disclosure claims are obviously deficient and can

be disposed of quickly. Others require more intensive review. For reasons explained

below, I find all fall short.

a. The Five-Minute Audit Committee Meeting

The Audit Committee was charged with meeting to consider the proposed

Transaction in accordance with GGP’s Related Party Transaction Policy, which

prohibited any transaction between Brookfield and GGP unless the Audit Committee

“determines the transaction is on terms comparable to those that could be obtained

in arm’s length dealings with an unrelated third party.”257 Plaintiffs contend the

Proxy should have disclosed that the Audit Committee’s meeting to approve the

Transaction lasted a mere five minutes. Plaintiffs assert that a reasonable GGP

stockholder would have wanted to know that an Audit Committee charged with “the

256
Solera, 2017 WL 57839, at *8.
257
Compl. ¶ 191; Proxy at 79.

67
most germane and complex task in the entire process” took so little time to

deliberate.258

I disagree. The Audit Committee was comprised of Fukakusa, Haley and

Hurwitz. 259 Each of these three directors served on the Special Committee that had

negotiated the Transaction throughout a process that lasted several months. Each

were intimately familiar with the Transaction and its history. The fact that they met

for only five minutes when they took their Special Committee hats off and put their

Audit Committee hats on is not at all surprising. To have disclosed that fact, in these

circumstances, would not have informed stockholders; it would have misled them.260

b. The Potential Impact of TCJA on the Value of GGP Stock

Plaintiffs argue that the Proxy failed sufficiently to disclose material facts

concerning the TCJA. 261 More specifically, Plaintiffs characterize the Proxy’s

disclosures regarding the TCJA’s effect on the value of BRP REIT (the “give”) as

“faulty and inadequate,” and make much of the fact that the Proxy makes no

disclosures at all regarding the statute’s effect on the value of GGP (the “get”), also

258
Pls.’ Answering Br. at 153.
259
Compl. ¶ 193.
260
See Globis P’rs, L.P. v. Plumtree Software, Inc., 2007 WL 4292024, at *12, n.119
(Del. Ch. Nov. 30, 2007); McMillan v. Intercargo Corp., 1999 WL 288128, at *9
(Del. Ch. May 3, 1999).
261
Compl. ¶¶ 248–60.

68
a REIT.262 According to Plaintiffs, these facts would have been material to

stockholders, each of whom “had to decide whether to vote to surrender their GGP

shares, and every one not choosing appraisal had to decide whether the equity

portion of their consideration would be a U.S. REIT (BPR REIT) or a Bermuda-

based non-REIT (BPY).”263

Plaintiffs’ theory ignores that the Proxy expressly directed stockholders to

consult their tax advisors on the impact of tax rules on the Transaction specifically

and the ownership of stock in a REIT generally.264 The Proxy also expressly

addressed how the TCJA might affect BPR and its taxable REIT subsidiaries under

the heading “MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS

AND CONSEQUENCES.”265 It warned expressly, inter alia, that “[t]he effect of

262
Pls.’ Answering Br. at 155.
263
Id.
264
Proxy at 9 (“THE U.S. FEDERAL INCOME TAX RULES APPLICABLE TO THE
TRANSACTIONS AND TO THE OWNERSHIP OF STOCK OF [REITS], AND
BPY UNITS GENERALLY ARE HIGHLY TECHNICAL AND COMPLEX.
HOLDERS OF SHARES OF GGP COMMON STOCK AND HOLDERS OF BPY
UNITS ARE URGED TO CONSULT THEIR TAX ADVISORS REGARDING THE
SPECIFIC TAX CONSEQUENCES TO THEM OF THE TRANSACTIONS, THE
OWNERSHIP OF CLASS A STOCK, AND BPR’S QUALIFICATION AS A REIT
FOLLOWING THE MERGER, AND THE OWNERSHIP OF BPY UNITS,
INCLUDING THE APPLICABILITY AND EFFECT OF U.S. FEDERAL, STATE,
LOCAL AND NON-U.S. INCOME AND OTHER TAX LAWS, AND POTENTIAL
CHANGES IN APPLICABLE TAX LAWS, IN LIGHT OF THEIR PARTICULAR
CIRCUMSTANCES.” (all caps and emphasis in original)).
265
Id. at 196–97.

69
the TCJA on BPR and its holders is uncertain, and administrative guidance will be

required in order to fully evaluate the effect of many provisions.” 266 Delaware law

does not require that fiduciaries soliciting stockholder approval of a transaction

confer individualized tax advice.267 In this instance, it was more than adequate that

the Proxy flagged the issue and suggested that stockholders seek out their own expert

advice.

c. Disclosures Regarding the “Minority Discount”

Plaintiffs assert that class members receiving either BPY units or BPR REIT

stock suffered near-total loss of voting power from the Transaction’s creation of

different classes of stock. They contend the Proxy should have, but did not, disclose

the resulting potential for a “minority discount,” a term which describes an

empirically observable phenomenon whereby the presence of a controlling

stockholder tends to exert downward pressure on the price of a company’s publicly

traded stock.268

266
Id. at 197.
267
See Skeen, 750 A.2d at 1174 (explaining stockholders need not be provided all
information allowing for “an independent determination of fair value”); Dent v. Ramtron
Int’l Corp., 2014 WL 2931180, at *10 (Del. Ch. June 30, 2014); In re Plains Expl. & Prod.
Co. S’holder Litig., 2013 WL 1909124, at *10 (Del. Ch. May 9, 2013).
268
Compl. ¶ 204 (citing Paul Hanouna, Atulya Sarin & Alan C. Shapiro, Value of
Corporate Control: Some International Evidence, (Marshall School of Bus., Working
Paper No. 01-04, 2001).

70
 Contrary to Plaintiffs’ characterizations, however, the Proxy contains a 21-

page section entitled “Comparison of Rights of Holders of GGP Common Stock,

Class A Stock and BPY Units.” 269 That section details the “material differences

between the rights of GGP common stockholders, holders of class A stock and BPY

unitholders under the governing documents of GGP, BPR and BPT,”270 and provides

a comparison of “voting rights,” including the differences in number of votes

per share and any matters on which those shares would not be entitled to vote.271

Other sections of the Proxy disclose the impact of the change in voting rights,

including that:

[U]naffiliated GGP common stockholders who receive class A stock
following the closing of the Transactions will have less voting power
over BPR than they did over GGP prior to the closing of the
Transactions. Consequently, unaffiliated GGP common stockholders as
a group will exercise less influence over the management and policies
of BPY after the consummation of the Transactions than they
currently exercise over the management and policies of GGP.272

Defendants thus disclosed expressly that stockholders “will have less voting

power over BPR than they did over GGP.” 273 They need not have gone further to

269
Proxy at 308–30; see also Compl. ¶ 266 n.56 (citing that section of the Proxy).
270
Proxy at 309.
271
Id. at 310–12.
272
Id. at 150–51 (emphasis added).
273
Id.

71
incant Plaintiffs’ preferred magic words (“minority discount”) or speculate as to the

well-known ways in which a change in control might affect the minority

shareholders’ stock pricing. 274 The stockholders were given sufficient information

to understand the potential imposition of a minority discount and its implications.

d. Conflicts Between Special Committee Minutes and the Proxy

Plaintiffs offer several examples where the 220 Documents purportedly reveal

that the primary official minutes of the Board and Special Committee contradict the

Proxy’s more detailed recitation of the same events. According to Plaintiffs, the

contemporaneously created minutes are the better evidence of what really happened,

and stockholders were entitled to know that version of events leading up to the

approval of the Transaction. Plaintiffs point to the following examples:

• The Proxy states that the Special Committee retained Goldman (1) following
a presentation from Goldman “confirming” the absence of certain conflicts
and (2) based on the Committee’s assessment that Goldman was
“independent[t] from BPY, GGP and their respective management.”275
Plaintiffs highlight that the minutes from the same meetings do not provide an
indication that either of these events occurred as described, and do not explain
why the Special Committee chose to pay Goldman $30 million on a fully
contingent basis.
• The Proxy states that on November 29, 2017, GGP management discussed
with the Board GGP’s worsening market environment and the Company’s

274
See In re MONY Gp., Inc. S’holder Litig., 853 A.2d 661, 682 (Del. Ch.2004) (“[A]s a
general rule, proxy materials are not required to state ‘opinions or possibilities, legal
theories or plaintiff's characterization of the facts.’” (citation omitted)).
275
Compl. ¶ 271.

72
 revised projections reflecting this worsening environment, yet references to
such discussions are entirely absent from the meeting minutes.276
• The Proxy notes—without any support in the meeting minutes—that on
December 8, 2017, the Special Committee discussed that Brookfield might
retain Mathrani post-Transaction (which Plaintiffs assert would objectively
conflict Mathrani).277
• The Proxy notes—without any support in the meeting minutes—that on
February 24, 2018, the Special Committee discussed “negative market
conditions” facing GGP. 278
• The Proxy notes—without any support in the meeting minutes—that the
Special Committee discussed due diligence issues and “potential strategies”
regarding “potential leaks.” 279
• The Proxy dedicates ten “dense, single-spaced pages” to recounting the
Special Committee’s and Board’s discussions the day of the Merger
Agreement’s execution, but the minutes “indicate that the March 26 meetings
were extremely limited, in scope, depth, and time, with the GGP Board
meeting lasting only 15 minutes.” 280

While Plaintiffs misleadingly characterize their nitpickings as “conflicts”

between the minutes and Proxy, their argument distills to a concern that the Proxy

contains more detail than GGP’s minutes. But the purpose of shareholder

disclosures is to provide stockholders additional information; if meeting minutes

were sufficient to disclose all material facts, then companies would have no need to

undertake the significant expense (on stockholders’ behalf) to organize and include

276
Compl. ¶ 272.
277
See Proxy at 64; Compl. ¶ 273.
278
Compl. ¶ 274.
279
Compl. ¶ 275.
280
Pls.’ Answering Br. at 160 (citing Compl. ¶ 276).

73
such details in their disclosures. They would simply attach meeting minutes

(redacted as appropriate) to their public filings and call it a day. In the real world,

meeting minutes need not contain the level of detail contained in a proxy issued to

inform stockholders of all material issues related to a transformative transaction.

To include such granular detail in meeting minutes, in most cases, would entail a

titanic waste of resources by a company owned and run for the benefit of

stockholders. Indeed, Plaintiffs admit in briefing that Delaware law imposes no

requirement that board minutes be prepared to any specified level of particularity.281

In any event, I do not find any of the purported “conflicts” raised by Plaintiffs to be

material.

e. Brookfield’s Transaction-Related Payments to Mathrani

Plaintiffs argue Defendants breached their duty of disclosure by failing to

disclose the details of Mathrani’s post-Transaction plans to work as Vice Chairman

of BAM and CEO of Brookfield’s retail operations. Plaintiffs admit, as they must,

that the Proxy discloses that Mathrani’s then three-year-old 2015 GGP employment

agreement contemplated his receipt of a severance payment if the agreement was

281
Id. at 161 (citing Feuer v. Redstone, 2018 WL 1870074, at *14 n.146 (Del. Ch. Apr. 19,
2018) (observing “that there is no requirement under Delaware law that board minutes
adopt any level of particularity.”)).

74
terminated “without cause” or for “good reason.”282 It also discloses that Mathrani’s

new Brookfield employment agreement would go into effect immediately upon

completion of the Transaction, with terms comparable to his GGP employment

agreement.283 Plaintiffs take issue, however, with the fact that the Proxy did not

disclose whether Mathrani would have been entitled to his severance had he not

bargained with Brookfield for this severance payment while still CEO of GGP.

Contrary to Plaintiffs’ contentions, the Proxy need not have disclosed Board

speculation regarding an irrelevant hypothetical. To assist GGP stockholders in

evaluating the merits of the Transaction, the Proxy disclosed that Brookfield

determined Mathrani’s 2015 GGP employment agreement’s severance package was

due as part of Brookfield’s post-merger employment decisions. 284 That disclosure

was sufficient to put shareholders on notice of Mathrani’s interest in his severance

payment. In any event, Brookfield agreed to pay Mathrani only after the Transaction

was negotiated (without Mathrani’s involvement) and the Merger Agreement was

282
Compl. ¶¶ 8, 17, 115(d), 116, 247, 311; Proxy at 140–43 (“Under the BAM Employment
Arrangement and in connection with the closing of the Transactions, Mr. Mathrani will
receive the cash severance provided in the 2015 Employment Agreement for a termination
without ‘cause’ or for ‘good reason’ . . . .”).
283
Proxy at 142.
284
Id. at 141.

75
signed.285 As such, Mathrani’s severance was irrelevant to the stockholder’s

consideration of the Transaction and need not have been disclosed.

f. Management’s Valuation Theses

Plaintiffs allege that Mathrani at one time advocated “selling off individual

[GGP] properties or groups of properties as a way for shareholders to realize far

more value than the market afforded,” but then “did not object when the GGP Special

Committee did not even test such an approach.”286 They cite our Supreme Court’s

decision in Appel v. Berkman to argue that “[i]t is inherent in the very idea of a

fiduciary relationship that the stockholders that directors serve are entitled to give

weight to their fiduciaries’ opinions about important business matters.”287 Plaintiffs

reason that, just as the Court found in Appel, Defendants here devoted “acres and

acres of the [Proxy] on identifying the subjective reasons for the transaction, as well

as other reasons against it,”288 and so should have included Mathrani’s pre-

Transaction valuation thesis.

In the same vein, Plaintiffs argue that BPY’s long-time CFO’s (Bryan Davis)

statement on an investor call that GGP’s NAV was estimated to be $30 per share

285
Compl. ¶¶ 7, 115–16.
286
Compl. ¶ 119.
287
180 A.3d 1055, 1062 (Del. 2018).
288
Id. at 1060–61.

76
should have been disclosed in the Proxy. As support, they cite Lynch v. Vickers

Energy289 as “controlling precedent” and argue that the undisclosed information was

not, as a matter of law, stale because Davis gave his valuation just before the

2017 Offer was extended.

Plaintiffs’ arguments are unpersuasive on both fronts. First, the Complaint

and documents it incorporates by reference show Plaintiffs mischaracterize

Mathrani’s supposed support for a “sell-off-the-parts” strategy based on isolated

statements Mathrani made during a 2017 investor call. 290 On that call, Mathrani

stated multiple times that “there’s no sacred cow” and GGP “will look at all

alternatives,” including a sale of the Company. 291 Mathrani only described the sell-

off-the-parts strategy in the context of illustrating for analysts “a very extreme

situation,” reiterating in the same breath that he “do[es]n’t know the answer” and is

simply “trying to demonstrate that if a market doesn’t value the real estate, it’s our

job to make sure that the investors get their appreciation.”292 Plaintiffs concede that

this position was widely known in the market.293 Ultimately, Mathrani appears to

289
383 A.2d 278 (Del. 1977).
290
Compl. ¶¶ 69–77, 80, 119, 154, 158, 174, 197.
291
2017 Investor Call Tr. at 6, 8, 10.
292
Id. at 13.
293
Pls.’ Answering Br. at 10–11, 134–37.

77
have decided Brookfield’s offer was the best option; this decision is entirely

consistent with the position he advertised to stockholders before the Special

Committee set about negotiating the Transaction. 294 Thus, Mathrani’s purportedly

fully-formed (and exclusive) “sell the parts” valuation thesis is a litigation-driven

figment of Plaintiffs’ imagination that need not have been disclosed in the Proxy.

As for Davis’ “valuation,” Plaintiffs base their claim on Davis’ response to an

investor question during the November 2, 2017 earnings call regarding the change

in GGP’s NAV since Q2 2017. 295 After an analyst suggested that GGP’s IFRS NAV

“was about $29 a share in Q2,” Davis responded “[i]t’s about $30 per share

[this quarter because] . . . . [w]hat we saw this quarter is just continued pickup of our

share of their earnings. And, as a result of that, it ticked up a little bit more than it

was in Q2.” 296 Unlike Vickers, there is no “report” (or any substantive basis)

proffered by Plaintiffs from which this Court could infer Davis’ answer was anything

other than what it appears to be: an off-the-cuff remark in a back-and-forth with an

analyst during an earnings call, acknowledging a slight price bump based apparently

294
See 2017 Investor Call Tr. at 6, 8, 10 (Mathrani explaining “there’s no sacred cow” and
GGP “will look at all alternatives,” including a sale of the Company).
295
Compl. ¶ 78.
296
Id.

78
on a “slightly-better-performance-than-last-quarter” rationale. 297 A company

properly excludes from proxy materials any “speculative” or unsettled valuations.298

In any event, the gap between GGP’s private and public valuation was no

secret; indeed, it motivated GGP to explore strategic alternatives, and it no doubt

enticed Brookfield into making its 2017 Offer. Moreover, the Proxy addresses the

perceived gap between GGP’s private and public valuation in its discussion of GGP

management’s effort to pursue a sale of two GGP properties it believed would serve

as “a helpful indication as to the potential private market valuation of other

comparable assets in GGP’s portfolio,” as they “were representative, from a

valuation perspective, of GGP’s portfolio of Class A retail properties.”299 The Proxy

further disclosed that a proposal GGP received in January 2018 on one of its

properties was below the sales price capitalization rate authorized by the Board and

was not approved by the Board due to a concern it would “put pressure on the net

asset value of GGP’s portfolio more generally.” 300

297
See Vickers, 383 A.2d at 280.
298
Clements v. Rogers, 790 A.2d 1222, 1245–46 (Del. Ch. 2001); see also In re Netsmart
Techs., Inc. S’holders Litig., 924 A.2d 171, 200 (Del. Ch. 2007) (rejecting plaintiff’s
contention that a valuation was material where plaintiff made “no demonstration that this
part of [the] estimate was at all reliable”).
299
Compl. ¶ 242 (quoting Proxy at 58–59).
300
Proxy at 65–66.

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 Finally, and importantly, neither Mathrani nor Davis are Board members

alleged to have changed their view on the merits of the Transaction: Mathrani voted

in favor of the Transaction, while Davis recused himself early in the process due to

his affiliation with Brookfield. This fact distinguishes this case from Plaintiffs’ cited

authority where courts held as material the reasons for a board member’s objection

or abstention from a board vote.301 For these reasons, I find that neither Mathrani’s

nor Davis’ “valuation” remarks were subject to mandated disclosure.

g. Fukakusa’s Conflicts

Plaintiffs next take aim at the Proxy’s failure to disclose Fukakusa’s conflicts.

Plaintiffs admit, as they must, that the Proxy disclosed that (1) Fukakusa was a RBC

financial executive for 32 years, 13 as CFO, and that she retired from RBC in 2017,

(2) RBC would obtain repayment in the Transaction of its $1.5 billion loan to GGP

and (3) RBC would participate in a syndicate providing many billions of dollars in

new loans to finance the Transaction. Plaintiffs point out, however, that the Proxy

did not disclose the “hard facts” of (4) Fukakusa’s interest in RBC equity of C$31–

301
See Appel, 180 A.3d at 1057, 1059–64 (holding that board Chairman and founder’s
abstention from supporting the merger due to disappointment with the price would have
been material to a reasonable stockholder); Chester Cty. Empls.’ Ret. Fund v. KCG Hldgs.,
Inc., 2019 WL 2564093 (Del. Ch. June 21, 2019) (holding as reasonably conceivable the
materiality of board member and CEO’s “objection to the merger price and change of
position”); Gilmartin v. Adobe Res. Corp., 1992 WL 71510, at *9–10 (Del. Ch. Apr. 6,
1992) (holding as material “at least two directors . . . believed that this was a bad time to
sell Adobe from the perspective of the stockholders due to the depressed gas market; and
that they communicated that belief to others on the Adobe board.”).

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41 million, (5) RBC’s $8.3 billion ownership of BAM/BPY equity, (6) her 20-year

interlocking directorships and collegial relationships with Brookfield at Ryerson,

and (7) her son’s employment as vice president of RBC (2015–2019) throughout the

deal process. Plaintiffs maintain these conflicts were material and argue that

Defendants had a duty to disclose all aspects of Fukakusa’s conflicts having

“traveled down the road of partial disclose.” 302

For reasons explained, however, Plaintiffs fail to allege facts suggesting

Fukakusa’s interest in RBC or RBC’s equity holdings in Brookfield resulted in

material personal benefit to a degree that would have divided her loyalties. Plaintiffs

also fail to establish the materiality of Fukakusa’s son’s employment at RBC, as

there are no allegations he was involved in, or in any way stood to gain from, the

Transaction. As for Fukakusa’s connection to Brookfield through Ryerson, the

Proxy disclosed her overlapping service on the Ryerson Board with Brookfield

executives and, for reasons already explained, Fukakusa’s service in that respect

cannot reasonably be inferred to compromise her independence from Brookfield.303

In sum, the Fukakusa/RBC connection was adequately disclosed.

302
Morrison v. Berry, 191 A.3d 268, 283 (Del. 2018) (citation omitted).
303
Proxy at 247, 255. Because I find Fukakusa’s service on Ryerson immaterial, the
“buried facts” doctrine is not implicated. See Voigt, 2020 WL 614999, at *24.

81
 h. Appraisal

Plaintiffs focus the bulk of their disclosure claim on the way in which

Defendants disclosed stockholders’ appraisal rights. In this regard, Plaintiffs

concede that “[t]he Proxy makes clear that the Transaction did, in fact, trigger

appraisal rights under Delaware law.” 304 The Proxy further described the mechanics

for electing appraisal:

GGP common stockholders who comply exactly with the applicable
requirements and procedures of Section 262 of the DGCL will be
entitled to demand appraisal of their shares of GGP common stock
(i.e., the dissenting shares) and receive in lieu of the per share merger
consideration a cash payment equal to the “fair value” of their GGP
common stock, as determined by the Delaware Court of Chancery,
which we refer to as the Court of Chancery, in accordance with
Section 262 of the DGCL, plus interest, if any, on the amount
determined to be the fair value, subject to the provisions of Section 262
of the DGCL.
[. . .]
If a GGP stockholder elects to exercise appraisal rights under
Section 262 of the DGCL, such GGP stockholder must do ALL of the
following: NOT vote such GGP common stock “FOR” the merger
proposal; deliver a written demand for appraisal of such GGP common
stock that complies exactly with Section 262 of the DGCL before the
vote is taken on the proposal to adopt the merger agreement at the
special meeting . . .; and continuously hold of record such GGP stock
through the effective time of the merger.305

304
Compl. ¶ 209.
305
Proxy at 32, 335–36.

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 As a predicate to their claim that Defendants committed actionable fiduciary

duty breaches by failing adequately to disclose to stockholders the true nature of

their appraisal right, Plaintiffs urge the Court to conclude that the Transaction’s two-

step structure—the payment of the Pre-Closing Dividend followed by a post-closing

payout—violated positive law. Specifically, Plaintiffs argue that 8 Del. C. § 262

(“Section 262”) required Defendants to offer GGP stockholders appraisal for their

shares at a pre-Transaction value. By paying the Pre-Closing Dividend separately,

Plaintiffs assert Defendants removed almost all value underlying the GGP shares

available for appraisal. In this regard, Plaintiffs point to Louisiana Municipal Police

Employees Retirement System v. Crawford for the proposition that the Transaction’s

two-step payment structure should be deemed one transaction and, as such, the Pre-

Closing Dividend should be deemed consideration paid separate and apart from the

“merger consideration.” 306 Viewed in this light, the GGP fiduciaries approved a

transaction that was designed to deny GGP stockholders the right to seek appraisal

for the full pre-Transaction value of their shares as Section 262 requires. Even if the

Court finds Defendants technically complied with Section 262, Plaintiffs assert

306
918 A.2d 1172, 1191–92 (Del. Ch. 2007).

83
Defendants acted in bad faith by attempting to deprive stockholders of their full

appraisal rights.307

Defendants respond that the Transaction’s structure did not violate positive

law, as Section 262 grants dissenting stockholders the right “to an appraisal by the

Court of Chancery of the fair value of the stockholder’s shares of stock” at the

effective time of the merger; the statute says nothing of a right to an appraisal of the

fairness of the merger consideration more generally. 308 Pre-closing dividends in

connection with merger transactions are, according to Defendants, unremarkable.

Thus, so long as GGP paid the Pre-Closing Dividend to all eligible stockholders,

including those who sought appraisal, the Transaction did not violate positive law or

notions of equity.

After careful review, I agree with Defendants that the Transaction’s structure

did not violate Section 262. As an initial matter, the DGCL is an enabling statute

designed to apprise those owning and managing corporations what they can do with

307
See Schnell v. Chris-Craft Indus., Inc., 285 A.2d 437, 439 (Del. 1971) (“Inequitable
action does not become permissible simply because it is legally possible.”); see also Bäcker
v. Palisades Growth Cap. II, LP, 246 A.3d 81, 96 (Del. 2021) (applying Schnell, holding
certain lawful-as-to-form boardroom deceptions constituted bad faith; reaffirming that
“director actions are twice-tested, first for legal authorization, and second for equity”).
308
8 Del. C. § 262(a) (emphasis added).

84
far less emphasis on what they cannot do. 309 It thus comes as no surprise that

Plaintiffs cannot identify any statutory text restricting a buyer’s use of a pre-closing

dividend in advance of a merger as a means to move consideration from the

transacting parties to stockholders.

While Defendants offer no support for their assertion that the Transaction’s

structure is “common,” one of Plaintiffs’ favorite cases, Crawford, provides an

example of a nearly identical deal structure, and the Court has identified others.310

Plaintiffs’ analogy to Crawford is otherwise inapt, however, as the court there dealt

with a situation where no appraisal rights were granted to dissenting stockholders

after an all-cash pre-merger dividend was conditioned on a cashless stock-for-stock

merger that would not otherwise have triggered appraisal rights under Section 262.

Chancellor Chandler looked past the form of the payment to its substance, holding

that the pre-merger dividend required appraisal rights and enjoining the merger until

309
See Grimes v. Alteon Inc., 804 A.2d 256, 266 (Del. 2002) (explaining the DGCL affords
corporations “the freedom to enter into new and different forms of transactions”); Leo E.
Strine, Jr., The Delaware Way: How We Do Corporate Law and Some of the New
Challenges We (and Europe) Face, 30 DEL. J. CORP. L. 673, 674 (2005) (“Consistent with
a contractarian vision, our statute is, by design, a broad enabling one that permits and
facilitates company-specific procedures. In other words, our statute is much different than
one might find in a civil law nation, which would more likely have a prescriptive
corporation law chock full of mandatory terms specifying exactly how corporations must
conduct their business.”).
310
Crawford, 918 A.2d at 1191–92; In re Delphi Fin. Gp. S’holder Litig., 2012 WL 729232
(Del. Ch. Mar. 6, 2012); Hartford’s sale of life and annuity lines calls for $300M pre-
closing dividend, Westlaw Mergers and Acquisitions Daily Briefing (Dec. 6, 2017).

85
the target disclosed that stockholders had the right to dissent and seek appraisal.311

Here, there is no dispute that the Proxy disclosed that GGP stockholders had the

right to seek appraisal and further disclosed how they should go about exercising

that right.

Neither party could identify case law addressing how a pre-closing dividend

would (or should) be treated in an appraisal proceeding, but the answer lies in the

statute itself at Section 262(h), which directs the Court to value GGP “shares” as if

GGP were a going concern “exclusive of any element of value arising from the

accomplishment or expectation of the merger,” and then empowers the court to “take

into account all relevant factors.”312 That language is designed to endow our courts

with flexibility, enabling the presiding judge to view the Transaction as a whole in

the course of determining GGP’s fair value at the time of the merger. 313 The Pre-

Closing Dividend would, in my view, qualify as a “relevant factor” in the court’s

assessment of the fair value of a GGP stockholder’s shares.

311
Crawford, 918 A.2d at 1191–92.
312
8 Del. C. § 262(h).
313
See Ala. By-Prods. Corp. v. Cede & Co., 657 A.2d 254, 258 (Del. 1995) (describing the
purpose of appraisal as a “legislative remedy developed initially as a means to compensate
shareholders of Delaware corporations for the loss of their common law right to prevent a
merger or consolidation by refusal to consent to such transactions.” (citing Schenley Indus.,
Inc. v. Curtis, 152 A.2d 300, 301 (Del. 1959) (explaining the appraisal statute “provid[es]
for the appraisement of their stock and the payment to them of the full value thereof in
money.”))).

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 Thus, a GGP shareholder seeking appraisal could argue, and the Court could

determine under Section 262, that the Pre-Closing Dividend plus the closing

consideration undervalued the dissenting stockholder’s shares. The fundamental

issue raised for resolution in the appraisal proceeding would remain unchanged: did

the stockholder receive fair value for its proportionate share of the corporation upon

closing?314 If the answer was “no,” then the dissenting shareholder would receive

an appraisal award that reflected the difference between what she had received in

the Pre-Closing Dividend and the adjudicated fair value of her shares. With this in

mind, I cannot discern any basis to determine that, by agreeing to structure the

Transaction as it did, GGP denied GGP stockholders their right to seek statutory

appraisal of their shares. To the contrary, far from a “bad faith” attempt to rob GGP

stockholders of appraisal rights, as Plaintiffs put it, GGP stockholders seeking

appraisal would appear to be better off with the Pre-Closing Dividend in hand than

they would be in the typical case, where a dissenting stockholder must forego all

merger consideration in order to perfect her appraisal challenge.

Even assuming the Transaction’s structure did not violate positive law,

Plaintiffs argue the Proxy failed adequately to disclose appraisal rights under

Section 262(d)(1), which requires that companies “notify” stockholders

314
See Cede & Co., 684 A.2d at 296 (Del. 1996); Cavalier Oil Corp. v. Harnett, 564 A.2d
1137, 1143–44 (Del. 1989).

87
“that appraisal rights are available . . . .” 315 The problem, say Plaintiffs, is that the

Proxy falsely disclosed that stockholders pursuing appraisal would receive a

payment of the fair value of their shares “in lieu of the per share merger

consideration,” as “merger consideration” was an uncapitalized term defined as the

post-dividend payment to be made at closing. This disclosure disincentivized

stockholders from pursuing appraisal, Plaintiffs argue, by misleadingly implying

that only the post-dividend payment (comprising a small proportion of the overall

consideration) was subject to appraisal.

I disagree. Section 262 requires companies to disclose to shareholders their

right to an appraisal of their shares. To that end, GGP disclosed via the Proxy the

options available to its stockholders: either (a) accept the post-dividend payment to

be made at closing, or (b) forfeit that payment and demand appraisal for a payment

equal to the “fair value” of the stockholder’s GGP shares. The Proxy then “urged”

stockholders to seek out legal advice in considering whether to exercise their

appraisal rights, which necessarily would have entailed evaluating the role of the

Pre-Closing Dividend on a hypothetical appraisal proceeding. 316 That is all our law

requires, as “there is no obligation [under Delaware law] to supply investors with

315
8 Del. C. § 262(d)(1).
316
Proxy at 336.

88
legal advice” 317 or, relatedly, to engage with legal hypotheticals that are “inherently

speculative.”318

The Special Committee’s related disclosures do not change that outcome.

Plaintiffs take issue with the Special Committee’s statement that dissenting

stockholders demanding appraisal would have an “opportunity to have the Court of

Chancery determine the fair value of their shares of GGP common stock, which may

be more than, less than, or the same as the consideration to be received in the

Transactions.”319 Because “Transactions” was defined to include the Pre-Closing

Dividend, Plaintiffs quibble that there is an apparent unexplained discrepancy

between GGP’s and the Special Committee’s opinions on appraisal rights as stated

in the Proxy. Like its meeting minutes claim, this purported discrepancy is

manufactured, as the Special Committee, like GGP, described stockholders’

appraisal rights as the right to a determination of “the fair value” of “GGP common

317
Kahn v. Caporella, 1994 WL 89016, at *7 (Del. Ch. Mar. 10, 1994) (citation omitted);
see also In re MONY Gp., Inc. S’holder Litig., 853 A.2d 661, 682 (Del. Ch. 2004) (“[A]s a
general rule, proxy materials are not required to state ‘opinions or possibilities, legal
theories or plaintiff[’]s characterization of the facts.’” (quoting Seibert v. Harper & Row,
Publ’rs, Inc., 1984 WL 21874, at *6 (Del. Ch. Dec. 5, 1984))).
318
IRA Tr. FBO Bobbie Ahmed v. Crane, 2017 WL 7053964, at *17 (Del. Ch. Dec. 11,
2017); see also Goodwin v. Live Entm’t, Inc., 1999 WL 64265, at *12–13 (Del. Ch. Jan. 25,
1999) (explaining disclosure of a hypothetical “may have made” the proxy “less, not more,
reliable”), aff’d, 741 A.2d 16 (Del. 1999) (TABLE).
319
Proxy at 86.

89
stock.”320 The additional comment that the Court of Chancery may determine it to

be “more than, less than, or the same as the consideration to be received in the

Transactions” was not misleading, but merely reflects the unremarkable observation

that Section 262 empowers this court to determine fair value and the outcome of the

court’s adjudicated valuation is difficult to predict ex ante.321

Certainly, the Proxy could have been more clearly drafted. For example, the

stockholders may have been better served had Defendants capitalized the defined

term “merger consideration” and tightened up its definition. But “perfect” and

“sufficient” are two distinct concepts; Delaware’s disclosure law concerns itself with

the latter.322 For the foregoing reasons, I find the Proxy’s disclosures concerning

appraisal rights were sufficient and therefore reject Plaintiffs’ claim that the

stockholder vote was uninformed based on the Proxy’s disclosure of appraisal rights.

320
Id.
321
Plaintiffs also attempt to draw into the disclosure analysis Goldman’s fairness opinion’s
discussion of “aggregate consideration” and the Election Form’s statement that “[a]ppraisal
is only available with respect to the Merger Consideration.” Compl. ¶¶ 222–23. But
Goldman’s fairness opinion was not proffered to address appraisal rights, and I find it
inconceivable that its entirely separate discussion could mislead a reasonable stockholder
as to the nature or scope of her appraisal rights. As for the Election Form, it could not have
misled any stockholder into foregoing appraisal because it was disseminated after the
stockholder vote when the time to seek appraisal had expired. See Election Form.
322
Enstar Corp. v. Senouf, 535 A.2d 1351, 1356–57 (Del. 1987); Dent v. Ramtron Int’l
Corp., 2014 WL 2931180, at *15 (Del. Ch. June 30, 2014) (no need for “blow-by-blow”
disclosures).

90
 i. “Other” Material Omissions

Finally, at page 162 of Plaintiffs’ answering brief, Plaintiffs throw at the wall

(under their catch-all “Other” category) several more disclosure violations in hopes

that one sticks. According to Plaintiffs, the Proxy should have disclosed:

(1) the other deal prospects who were contacted and what deal structure they were

shopped; (2) the members or level of management conducting the outreach; and

(3) the Board’s efforts, if any, to solicit indications of interest in a potential

acquisition from third parties. Plaintiffs also contend that the Proxy misleadingly

stated that “from [the BPY Press Release to the Merger Agreement],” Goldman

“had several discussions with . . . certain of GGP’s competitors in the retail property

industry”323 because, in reality, “the universe of prospects is far broader than this

tiny pool of candidates.” 324

The different prospects and deal structures proposed by Brookfield and the

identity of those involved in Brookfield’s or the Board’s outreach efforts are

precisely the sorts of “bends and turns in the road” or “play-by-play” of the

negotiations Delaware law does not require a proxy to disclose.325 The Proxy

323
Proxy at 71.
324
Pls.’ Answering Br. at 162.
325
Globis P’rs, 2007 WL 4292024, at *14.

91
disclosed GGP management had discussions with third-parties throughout 2017,326

and that Goldman “had several discussions with management representatives of . . .

GGP’s competitors . . . none of which expressed any interest or ability to pursue an

acquisition of GGP.” 327 Further details on the Board’s attempt to solicit third-party

interest, and Board explanations of its motives when making transaction-related

decisions, are precisely the sort of “tell me more” disclosures routinely characterized

by Delaware courts as immaterial and unnecessary. 328

Plaintiffs’ unsupported speculation that the universe of transaction prospects

was broader than the realm of those actually contacted is conclusory and so cannot

be credited. Plaintiffs cite no basis to support an allegation that Goldman cast an

unduly small net in shopping GGP. Indeed, the deal’s sheer size likely limited the

pool of potential bidders capable of marshaling the requisite resources. The limited

number of potential suitors is borne out by the record, as bidders were free for

months to step forward and take a run at GGP after Brookfield’s offer was made

public. No one else stepped up. Plaintiffs’ “other” disclosure allegations fail as a

matter of law.

326
Proxy at 57.
327
Id. at 71.
328
See Saba Software, 2017 WL 1201108, at *9 (collecting cases).

92
 * * * * *

In sum, Plaintiffs have failed to plead facts allowing a reasonable inference

that the Proxy was misleading. Accordingly, Count III’s claim for the remedy of

quasi-appraisal based on the Proxy’s mis- or mal-disclosures must be dismissed.329

And, Plaintiffs are left under Corwin to plead the stockholder vote was coerced if

they are to avoid business judgment review.

The Stockholder Vote Was Uncoerced

Under Corwin, a stockholder vote will be deemed coerced “[i]f the vote was

structured in such a way that the vote may reasonably be seen as driven by matters

extraneous to the merits of the transaction.” 330 Plaintiffs recycle their disclosure

argument to argue the Transaction was coercive as a result of Defendants structuring

the merger consideration to remove 98.5% of the deal consideration from appraisal.

According to Plaintiffs, this left stockholders with only one choice: vote for the

Transaction and accept the merger consideration.331 Stated differently, Plaintiffs’

329
See In re Cyan, Inc. S’holders Litig., 2017 WL 1956955, at *17 (Del. Ch. May 11, 2017)
(“[B]ecause I have concluded that plaintiffs’ disclosure allegations are without merit,
plaintiffs’ request for the remedy of quasi-appraisal based on those allegations must be
dismissed as well.”); see also Compl. ¶¶ 302–07 (Plaintiffs basing their quasi-appraisal
claim on disclosures).
330
Sciabacucchi, 2017 WL 2352152, at *2.
331
Compl. ¶¶ 17–18, 206–34.

93
theory is that the Transaction’s structure was coercive because it “presented

appraisal as a non-rational economic choice.” 332

Delaware law has taxonomized various strains of coercion, including inherent,

structural and situational coercion.333 I gather Plaintiffs endeavor to fit their

“coercion” claim under the rubric of “structural coercion,” which “occurs when the

Board structures the vote in a manner that requires stockholders to base their decision

on factors extraneous to the economic merits of the transaction at issue.”334

Plaintiffs’ attempt to repackage their disclosure claim regarding appraisal rights as

structural coercion fails for the same reason the disclosure claim failed.

As explained, Section 262’s plain text allows a court in an appraisal proceeding to

account for the Pre-Closing Dividend in its determination of fair value. I have also

determined that the Proxy adequately disclosed to stockholders their right to seek

332
Compl. ¶¶ 17–18.
333
See Rouse, 2018 WL 1226015, at *21 (collecting cases).
334
Id. (citations omitted). “Inherent coercion” is inapt on its face, as it applies to
transactions involving conflicted controllers and I have found BPY was not a controlling
stockholder. See In re Pure Res., Inc., S’holders Litig., 808 A.2d 421, 438 (Del. Ch. 2002).
“‘Situational coercion’ can arise when the board, by its conduct, creates a situation where
‘stockholders are being asked to tender shares in ignorance or mistaken belief as to the
value of the shares.’” Rouse, 2018 WL 1226015, at *21 (quoting Next Level Commc’ns,
Inc. v. Motorola, Inc., 834 A.2d 828, 851 n.90 (Del. Ch. 2003) (internal quotations
omitted)). Plaintiffs focus their coercion claim on appraisal rights, not hidden value. While
some of Plaintiffs’ disclosure claims (e.g., Mathrani’s “valuation thesis”) arguably fit
within the “situational coercion” paradigm, Plaintiffs do not argue those omissions were
coercive and, in any event, I have determined such disclosures were not required.

94
appraisal. There was nothing coercive about the Transaction’s structure or the

Proxy’s disclosure of stockholder appraisal rights.

* * * * *

For the foregoing reasons, I am satisfied Plaintiffs have failed to well-plead

that the stockholder vote was uninformed or coerced. “[T]he legal effect of a fully-

informed stockholder vote of a transaction with a non-controlling stockholder is that

the business judgment rule applies and insulates the transaction from all attacks other

than on the grounds of waste, even if a majority of the board approving the

transaction was not disinterested or independent.” 335 As our Supreme Court

explained, the “long-standing policy” of Delaware law “has been to avoid the

uncertainties and cost of judicial second-guessing when the disinterested

stockholders have had the free and informed chance to decide on the economic

merits of a transaction for themselves.”336

No waste has been pled. Accordingly, Counts II (breach of fiduciary duty of

loyalty against Director Defendants) and IV (bad faith and breach of the duty of

335
KKR, 101 A.3d at 1001; see also In re Books-A-Million, 2016 WL 5874974, at *8
(Del. Ch. Oct. 10, 2016) (“When the business judgment rule provides the operative
standard of review, then a court will not consider the substance of the transaction unless its
terms are so extreme as to constitute waste.”), aff’d, 164 A.3d 56 (Del. 2017) (TABLE).
336
Corwin, 125 A.3d at 313.

95
loyalty concerning Mathrani’s Employment Agreement against Mathrani,

Brookfield and the other Brookfield Defendants) are dismissed.

C. Aiding and Abetting

In Count VI, Plaintiffs plead in the alternative that, even if the Court finds

Brookfield was not a controller, they have stated a viable claim that Brookfield aided

and abetted the Special Committee’s breach of fiduciary duties. “To state a claim

[of] aiding and abetting, a plaintiff must allege: (1) the existence of a fiduciary

relationship, (2) a breach of the fiduciary's duty, (3) knowing participation in that

breach by the defendants, and (4) damages proximately caused by the breach.”337

Accordingly, a well-pled claim of breach of fiduciary duty is a predicate to stating

an aiding and abetting claim. Having found Plaintiffs have failed to state a claim for

breach of fiduciary duty against the Special Committee, it follows Count VI must

also be dismissed.

D. No Unjust Enrichment

In Count V, Plaintiffs allege that Brookfield was unjustly enriched by the

Transaction. To obtain restitution for unjust enrichment, “the plaintiffs [must] . . .

337
Dent, 2014 WL 2931180, at *17.

96
show that the defendants were unjustly enriched, that the defendants secured a

benefit, and that it would be unconscionable to allow them to retain that benefit.”338

Plaintiffs’ legal theory is that Brookfield was unjustly enriched because the

Transaction is the product of a misleading Proxy and conflicts among members of

the Audit Committee and Special Committee. Because I have determined Plaintiffs

have not adequately pled the Proxy was misleading or that the Audit or Special

Committee functioned ineffectively, their claim that Brookfield has been unjustly

enriched fails as a matter of law.

III. CONCLUSION

For the foregoing reasons, Defendants’ motions to dismiss must be

GRANTED.

IT IS SO ORDERED.

338
Schock v. Nash, 732 A.2d 217, 232 (Del. 1999).

97