Timothy J. Harris v. Mary Ellen Harris

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

TIMOTHY J. HARRIS, et al. )
)
Plaintiffs, )
)
v. ) C.A. No. 2019-0736-JTL
)
MARY ELLEN HARRIS, et al., )
)
Defendants. )

MEMORANDUM OPINION

Date Submitted: November 9, 2022
Date Decided: January 23, 2023

Joel Friedlander, Christopher M. Foulds, David Hahn, FRIEDLANDER & GORRIS,
P.A., Wilmington, Delaware; Counsel for Petitioner/Plaintiff Timothy J. Harris.

S. Michael Sirkin, R. Garrett Rice, ROSS ARONSTAM & MORITZ LLP, Wilmington
Delaware; Gregory Lomax, LAULETTA BIRNBAUM, Sewell, New Jersey; Jill Guldin,
FISHER BROYLES, LLP, Princeton, New Jersey; Counsel for Kristen C. Harris and
Megan Harris Loewenberg.

David A. Jenkins, Julie M. O’Dell, SMITH, KATZENSTEIN & JENKINS LLP;
Wilmington, Delaware; Counsel for Mary Ellen Harris.

Steven L. Caponi, Matthew B. Goeller, Megan E. O’Connor, K&L GATES LLP,
Wilmington, Delaware; Counsel for Mary Ellen Harris, Paul Petigrow, and Michael
Schwager.

Kurt M. Heyman, Patricia L. Enerio, Gillian L. Andrews, HEYMAN ENERIO
GATTUSO & HIRZEL LLP, Wilmington, Delaware; Counsel for Royce Management,
Inc., Judith Lolli, and Charles Grinnell.

John L. Reed, Ronald N. Brown, III, Peter H. Kyle, Kelly L. Freund, DLA PIPER LLP
(US), Wilmington, Delaware; Neal J. Levitsky, E. Chaney Hall, FOX ROTHSCHILD
LLP, Wilmington, Delaware; Emily A. Kaller, GREENBAUM, ROWE, SMITH &
DAVIS LLP, Woodbridge, New Jersey; Counsel for Harris FRC Corporation.
William M. Kelleher, Phillip A. Giordano, Madeline Silverman, GORDON,
FOURNARIS & MAMMARELLA, P.A., Wilmington, Delaware; Counsel for The Mary
Ellen Harris 2011 Grantor Retained Annuity Trust.

LASTER, V.C.
 Five of the six defendants have asked the court to dismiss this action under the

doctrine of forum non conveniens. There is no earlier-filed action elsewhere involving

substantially the same parties, addressing substantially the same subject matter, and

pending in a court capable of providing substantial justice, so the defendants have the

burden of showing that they would face overwhelming hardship from litigating in

Delaware. The defendants have not met that standard. The motion is denied.

I. FACTUAL BACKGROUND

The facts are drawn from the plaintiffs’ Verified Supplemental and Third

Amended Complaint (the “Complaint”) and the documents that it incorporates by
1
reference. At this procedural stage, the plaintiffs are entitled to have the court credit

their allegations and draw all reasonable inferences in their favor.

A. The Company

Before May 2016, Harris FRC Corporation (the “Company”) was a New Jersey

corporation. From May 2016 until May 2019, the Company was a Delaware corporation.

Since May 2019, the Company has been a New Jersey corporation. It is and always has

been a family-held entity. Currently, its only stockholders are Mary Ellen Harris, her five

adult children (the “Siblings”), and various trusts created for their benefit.

1
Citations in the form “Ex. __” refer to documents attached to the Affidavit of
Christopher M. Foulds, which collects certain documents that are incorporated by
reference in the Complaint. Dkt. 467.
 The family patriarch, Dr. Robert M. Harris, Sr. founded the Company after

securing the patent rights for an epilepsy drug.2 He monetized the patent rights through a

license agreement with a global biopharmaceutical company and formed the Company to

hold the rights and receive the royalty payments. That revenue stream historically

amounted to approximately $100 million per year. The Company’s only significant

function was to collect and distribute the payments. In 2020, the Company sold its patent

rights for $342 million in cash.

The Company has issued 1,000 shares. Originally, Dr. Harris and Mary Ellen

owned all of the shares jointly as tenants by the entirety. In 2002, they transferred 38

shares to each of the Siblings, resulting in each owning a 3.8% interest. In 2011, Dr.

Harris and Mary Ellen each created a grantor retained annuity trust (a “GRAT”) and

funded it with 245 shares. The GRATs had terms of seven years and would expire on

December 31, 2018. At that point, the shares would be distributed to the Siblings.

Through the combination of the 190 shares they received directly and the 490 shares

distributed from the GRATs, the Siblings would receive a total of 680 shares,

representing a controlling 68% interest in the Company.

2
My standard practice is to identify individuals by their last name without
honorifics. When individuals share the same last name, my standard practice is to shift to
first names. Using first names is confusing because Dr. Robert M. Harris has a son with
the same name. This decision therefore refers to the father as Dr. Harris. That reference is
sadly also confusing, because one of the plaintiffs is Dr. Timothy J. Harris. This decision
refers to him as Tim Harris.

2
B. Dr. Harris’s Illness

In October 2013, Dr. Harris was diagnosed with an aggressive form of aphasia

consistent with Alzheimer’s disease. As Dr. Harris’s health deteriorated, Judith Lolli

insinuated herself into Mary Ellen’s financial life.

Lolli brought Mary Ellen into contact with her own friends and advisors. Paul

Petigrow is a New Jersey lawyer who served as Lolli’s personal counsel. Charles Grinnell

is a New Jersey lawyer and career prosecutor who investigated and prosecuted the

gangland murder of Lolli’s brother, then became her close friend. Michael Schwager is

Lolli’s personal accountant and another close friend. Like the Complaint, this decision

refers to Lolli, Petigrow, Grinnell, and Schwager collectively as the “Advisors.”

C. The Takeover

With Dr. Harris’s health declining, questions arose as to who would lead the

Company. Mary Ellen had no experience or qualifications for the role. The eldest Sibling,

Robert M. Harris, Jr., had worked at the Company since 2000, held the office of Vice

President, and managed the relationship that generated the Company’s royalty stream.

A power struggle ensued with Mary Ellen and the Advisors on the one side and

Robert on the other. In April 2015, eighteen months after his Alzheimer’s diagnosis, Dr.

Harris purportedly acted by written consent to remove Robert from his position as an

officer.3 The written consent added Mary Ellen to the board of directors (the “Board”),

3
The Complaint alleges that Robert also signed a letter of resignation. In any
event, he was out.

3
where Dr. Harris had been the sole director. The plaintiffs assert that Dr. Harris did not

have the capacity to execute the written consent and that Lolli pulled the strings so that

Mary Ellen gained control over the Company.

Immediately after the first consent, Dr. Harris and Mary Ellen executed a second

consent that caused the Company to enter into “an agreement with Lolli in substantially

the form submitted hereto.” Compl. ¶ 32. The consent did not attach an agreement. In

June 2015, Lolli and Mary Ellen executed an employment agreement which provided for

Lolli’s compensation to be determined at an unspecified future date. The Company began

providing Lolli with benefits and paying her $15,000 as an employee. The Company

retained Grinnell as a consultant at a rate of $110 per hour. Petigrow began doing legal

work for the Company. Schwager took over as the Company’s accountant. The Advisors

had gotten their noses inside the tent.

In late summer 2015, Lolli and Grinnell decided to form Royce Management, Inc.

(“Royce”) as a vehicle for providing management services to the Company. In October,

the Company began paying Royce $208,000 a month or $2,496,000 per year. The

Company and Royce subsequently entered into a management services agreement that

paid Royce $208,334 per month, or $2,500,128 per year. The agreement renewed

automatically every year and provided for an annual fee escalator of 3.5%. The Company

and Royce have amended the management services agreement twice, each time making it

more favorable to Royce. In addition to the monthly fee, Mary Ellen has approved large

end-of-year bonuses for Royce. In total, Royce received over $20 million from the

Company between October 2015 and December 2020.

4
 Royce is a shell. It has no employees other than Lolli and Grinnell, and it has no

other clients. It has no assets other than its contract with the Company. It operates out of

the Company’s offices. It exists solely to channel money to Lolli and Grinnell. It has no

expenses other than their salaries, pension contributions, distributions, and two $1,000

per month luxury car leases.

D. Dr. Harris’s GRAT

To maintain control over the Company, Mary Ellen and the Advisors had to deal

with the GRATs. If the GRATs distributed their 490 shares as planned, then control over

the Company would pass to the Siblings.

Around the same time that the Company began paying Royce, Lolli served as a

witness when Dr. Harris purportedly amended his GRAT and executed a codicil to his

will. Petigrow oversaw the drafting of the documents. The principal consequence of the

amendments was to redirect the 245 shares in Dr. Harris’s GRAT from the Siblings to Dr.

Harris’s marital trust. That trust benefits Mary Ellen, and she has a power of appointment

over its corpus, enabling her to determine where the assets go when the GRAT

terminates. The transaction reduced the number of Shares that the Siblings would receive

from 680 to 435, below majority control. The amendments to Dr. Harris’s GRAT and the

codicil to his will are not at issue in this litigation, but they provide important context.

The Advisors wanted a cooperative trustee for Dr. Harris’s GRAT and the marital

trust, so they turned to Dan Selcow, a wealth manager at First Republic Bank. Lolli and

Grinnell had an existing relationship with Selcow, and he was a friend of Petigrow and

Schwager. Initially, they brought some of the Harris’ personal accounts to Selcow to

5
manage. Eager for more business, Selcow arranged for First Republic Trust Company of

Delaware LLC (“First Republic Delaware”) to take over as trustee.

E. The Idea For The Inbound Merger

It was readily apparent that Robert might bring litigation over his removal and the

events at the Company. New Jersey recognizes a claim for minority stockholder

oppression, and available remedies include orders dissolving the corporation or

appointing a custodian or provisional directors. A stockholder oppression lawsuit thus

threatened to deprive Mary Ellen and the Advisors of control.

Mary Ellen and the Advisors believed that Delaware law would be more protective

of their activities, so they started working on a merger that would move the Company to

Delaware (the “Inbound Merger”). As Mary Ellen colorfully put it, “I have to work out a

billion things at the office to get things ready for Delaware. They have better laws

regarding shit like bob is pulling and we have connections there.” Ex. 1.

In November 2015, Petigrow drafted Dr. Harris’s letter of resignation from the

Board, which he purportedly signed on November 16, two years after his Alzheimer’s

diagnosis. His resignation left Mary Ellen as the sole director. Petigrow drafted a power

of attorney in which Dr. Harris empowered Mary Ellen to act on his behalf. Dr. Harris

purportedly signed it, and Lolli witnessed it. Petigrow also drafted two proxies that Mary

Ellen could use to vote Dr. Harris’s shares, one for Dr. Harris to sign and one for Mary

Ellen to sign using her power of attorney.

In December 2015, Mary Ellen provided an initial set of approvals for the Inbound

Merger. She also appointed herself President and began paying herself $5 million per

6
year for serving in that role. She continued the payments until 2019, when she resigned

after the filing of this litigation. She appointed a lawyer to succeed her and paid him

11.5% of what she paid herself.

F. Value Extraction On A Larger Scale

In 2016, Mary Ellen and the Advisors stepped up their extraction of value from the

Company. In February, Mary Ellen signed a written consent approving an employment

agreement with Petigrow that paid him $600,000 per year to serve as Vice President and

General Counsel for the Company. Petigrow continued to run a solo law practice out of

the Company’s offices, using the Company’s personnel and resources, and without

paying rent.

In March 2016, Lolli had a physician friend declare Dr. Harris incapacitated. That

same month, Mary Ellen adopted a resolution in her capacity as sole director that paid Dr.

Harris a bonus in the amount of $15 million. In light of Dr. Harris’s incapacitation, the

$15 million bonus was a disguised distribution to Mary Ellen.

Schwager cashed in too. Given the Company’s minimal operations, the services

for its accounting and taxes should have cost $20,000 to $30,000 per year. The Company

entered into an arrangement with Schwager under which the Company paid him

simultaneously on two parallel schedules: (i) $12,500 a month for a total of $150,000 per

year, and (ii) $25,000 quarterly for another $100,000 per year. He also received annual

“Merry Christmas” bonuses of $35,000. Schwager thus raked in $285,000 per year, ten

times what the Company should have been paying.

7
 On May 1, 2016, the Inbound Merger became effective, and the Company

emerged as a Delaware corporation. Robert exercised dissenters’ rights and pursued an

appraisal proceeding in New Jersey state court. He also filed plenary litigation.

Now firmly in control of the Company, and believing that they had protection

under Delaware law, Mary Ellen and the Advisors used Company funds to pay for an

array of personal expenses. On the Company’s taxes, Schwager deducted the expenses as

if they were business related.

In April 2017, Dr. Harris died. The shares in his GRAT that would have gone to

the Siblings passed to the marital trust.

G. The Transactions To Preserve Control

During the second half of 2018, Mary Ellen and the Advisors engaged in two

transactions to preserve their control over the Company. The first was a settlement with

Robert, who was continuing to pursue his lawsuits. Just before Mary Ellen’s deposition,

she settled with Robert by having the Company pay him more than $20 million.

The second transaction involved Mary Ellen’s GRAT. It was still scheduled to

expire on December 31, 2018, at which point 245 shares representing just under 25% of

the Company’s common stock would be distributed to the Siblings. Under the trust

agreement governing the GRAT, Mary Ellen could withdraw assets if she provided the

trust with “equivalent value.” Compl. ¶ 95. The Advisors decided that Mary Ellen would

withdraw the shares at a lowball price, thereby benefiting herself by preventing a block of

shares from falling into potentially adverse hands while expropriating the difference

between the lowball price and fair value (the “Share Withdrawal”).

8
 To support a lowball price for the Share Withdrawal, Petigrow commissioned an

appraisal of the Company from EisnerAmper LLP, a valuation firm. Schwager helped

furnish the firm with information.

The appraisal valued the Company at $242,863,296. The plaintiffs have pointed to

substantial flaws in the appraisal, including a facially questionable 20% company-

specific risk premium that increased the discount rate from 13% to 33%. The 20%

company-specific risk premium was based in large part on a pending application by

generic pharmaceutical companies for certiorari to the Supreme Court of the United

States. As of November 19, 2018, weeks before what should have been a December

valuation date, the Supreme Court had denied certiorari. See Accord Healthcare, Inc. v.

UCB, Inc., 139 S. Ct. 574 (2018). After more questionable discounts, the report appraised

the 245 shares at $52,677,000, or 21.7% of the value of the Company. The shares

represented 24.5% of the Company’s capitalization, so on that basis alone, Mary Ellen

was paying 88.5% of their value (21.7% divided by 24.5%) for a built in 11.5% discount.

The underpricing was much greater because the Company itself was undervalued.

Backing out the 20% company-specific risk premium increases the value of the Company

to $325 million. A 24.5% share of that value is $79,625,000. Mary Ellen’s valuation was

66.1% of that figure, meaning that Mary Ellen was getting a 33.9% discount.

With a lowball valuation in hand, the next step was to find a trustee who would go

along with the Share Withdrawal. And with the expiration date of the GRAT rapidly

approaching, Mary Ellen and the Advisors needed a trustee who would sign off quickly,

before December 31, 2018.

9
 The Advisors went back to First Republic Bank, where Selcow had benefitted

from managing more of Mary Ellen’s assets. Selcow readily agreed and secured the

greenlight to have First Republic Delaware become the trustee for Mary Ellen’s GRAT.

First Republic Delaware officially became trustee of Mary Ellen’s GRAT on

December 24, 2018. Within two days, First Republic Delaware had approved the Share

Withdrawal at the valuation set by Mary Ellen’s appraiser.

H. Tim Harris Hires Counsel And Asks Questions.

The Siblings had heard rumblings about the Share Withdrawal. On February 14,

2019, Megan Harris Loewenberg asked if anything was happening with Mary Ellen’s

GRAT. She received a misleading response. Over a month later, First Republic Delaware

told Tim Harris that “Mary Ellen exercised her power to substitute the Harris FRC stock

with cash.” Id. ¶ 110. That same week, First Republic Bank was in discussion with the

Advisors about moving the “Mary Ellen and the Harris FRC relationship from Schwab to

First Republic.” Id. ¶ 111.

On April 10, 2019, Tim Harris’s counsel in this action attended the Company’s

annual meeting as his proxy. Petigrow and Grinnell attended for the Company. Mary

Ellen did not attend. Petigrow chaired the meeting. Grinnell refused to identify himself.

Petigrow called for a vote for the election of Mary Ellen as the Company’s sole director

and exercised proxies from Mary Ellen and First Republic Delaware in favor of her

election. After tallying the vote, he called the meeting to a close.

Before the meeting was adjourned, Tim Harris’s counsel asked for a report on the

business of the Company, then followed up with a series of specific questions. Petigrow

10
and Grinnell failed to provide substantive answers on numerous topics. Grinnell

repeatedly asserted that all stockholder questions needed to be put in writing.

I. The Outbound Merger

With Tim Harris having retained a Delaware lawyer whose questions had not been

answered, the Advisors anticipated that a books-and-records demand would be coming.

Immediately after the annual meeting, they started working on a merger that would take

the Company out of Delaware and back to New Jersey (the “Outbound Merger”).

Grinnell circulated a New Jersey Supreme Court decision which indicated that inspection

rights could be limited to formal documents like financial statements, minutes, and a list

of stockholders. The Company did not keep minutes, and Schwager prepared the

Company’s financial statements so that they did not reveal the many self-interested

transactions or the payments to Royce. The Advisors thought by using the Outbound

Merger to take the Company back to New Jersey, they could prevent Tim Harris and the

other Siblings from obtaining information about the Company. They also thought that the

Outbound Merger would cut off the Siblings’ standing to assert derivative claims

regarding events predating the merger, as they have argued in this case.

On May 6, 2019, Tim Harris sent the Company a written demand for documents

under Section 220. On May 13, the Company refused to produce any documents,

claiming the demand constituted “harassment.” Id. ¶ 127.

The Outbound Merger became effective on May 17, 2019. Mary Ellen approved

the Outbound Merger as a director, and Mary Ellen and First Republic Delaware

executed written consents approving it as stockholders.

11
 The notice provided scant information about the Outbound Merger. The notice did

not include any information about the large payments going to Royce and to Schwager,

the plentitude of personal expenses being paid for by the Company, or the numerous

entities being run out of the Company’s offices.

J. This Litigation

The Outbound Merger stymied Tim Harris’s attempt to use Section 220, but it

opened up another informational avenue. Tim Harris sought appraisal for one share of

Company common stock. In discovery, he requested the information that a books-and-

records inspection would have generated. Discovery did not go smoothly, and the court

has expended significant judicial resources addressing various discovery motions.

In September 2021, Tim Harris filed an amended petition and complaint that

added plenary claims for breach of fiduciary duty against Mary Ellen and claims for

breach of fiduciary duty and aiding and abetting against the Advisors. In October, Kristen

Harris and Loewenberg joined the case as additional plaintiffs.

K. The Currently Operative Complaint

In March 2022, the plaintiffs filed the Complaint. It asserts claims against Mary

Ellen, Petigrow, Lolli, Grinnell, Royce, and Schwager.

Count I of the Complaint asserts that Mary Ellen has breached her fiduciary duties

as President, sole director, and controlling stockholder of the Company. Although Count

I originally pled multiple theories, this court issued a decision holding that the only

theory currently at issue in Count I is a direct challenge to the Outbound Merger. Harris

v. Harris, 2023 WL 115541, *2 (Del. Ch. Dec. 6, 2023) (the “Standing Decision”). The

12
derivative theories originally included in Count I remain at issue, but as corporate assets

to be valued in connection with the challenge to the Outbound Merger.

Skipping for the moment over Count II, Count III asserts claims for breach of

fiduciary duty against the Advisors in their capacities as officers and agents. The

substance of the claims for breach of fiduciary duty against the Advisors generally tracks

the claims against Mary Ellen. The Standing Decision applies to this count, so the only

theory currently at issue is a direct challenge to the Outbound Merger.

Count IV alleges in the alternative that to the extent the Advisors are not

accountable for breaching their own duties as fiduciaries, both they and Royce have aided

and abetted breaches by Mary Ellen, Petigrow, and any other Advisor that is found to

have owed duties. The Standing Decision applies to this count as well, so the only theory

currently at issue is a direct challenge to the Outbound Merger.

Counts II and V challenge the Share Withdrawal. Count VI is the claim for an

appraisal.

Petigrow, Schwager, Lolli, Grinnell, and Royce have asked the court to rely on

forum non conveniens to dismiss this action in deference to actions pending in New

Jersey. This decision addresses that motion.

II. LEGAL ANALYSIS

A motion invoking the doctrine of forum non conveniens proceeds under Rule

12(b)(3) and seeks dismissal on grounds of improper venue. See Lefkowitz v. HWF

Hldgs., LLC, 2009 WL 3806299, at *3 (Del. Ch. Nov. 13, 2009). When considering such

a motion, the court is not “shackled to the plaintiff’s complaint” and “is permitted to

13
consider extrinsic evidence from the outset . . . .” Simon v. Navellier Series Fund, 2000

WL 1597890, at *5 (Del. Ch. Oct. 19, 2000); accord Troy Corp. v. Schoon, 2007 WL

949441, at *2 (Del. Ch. Mar. 26, 2007).

When evaluating a motion based on forum non conveniens, a Delaware court

considers the so-called “Cryo-Maid factors.” See Gen. Foods Corp. v. Cryo-Maid, Inc.,

198 A.2d 681, 684 (Del. 1964). In paraphrased form, they are:

(1) the existence of other litigation involving substantially similar parties or
subject matter;

(2) whether the controversy depends upon a question of Delaware law
which the courts of this State more properly should decide than those of
another jurisdiction;

(3) the relative ease of access to proof;

(4) the availability of compulsory process for witnesses;

(5) any other matters that would affect the conduct of the litigation and the
expeditious and economic administration of justice.4

The paraphrased list identifies the factors in their relative order of importance for

corporate and commercial disputes.5 “Together, these factors have come to form the core

of Delaware’s traditional forum non conveniens analysis.” Gramercy, 173 A.3d at 1037.

4
Id.; accord Martinez v. E.I. DuPont de Nemours & Co., Inc., 86 A.3d 1102, 1104
(Del. 2014). The Delaware Supreme Court’s recent discussions of forum non conveniens
have addressed cases involving claims arising under the law of foreign countries and
potential deference to courts in those countries. See, e.g., Aranda v. Philip Morris USA
Inc., 183 A.3d 1245, 1253 (Del. 2018) (Argentina); Gramercy Emerging Mkts. Fund v.
Allied Irish Banks, P.L.C., 173 A.3d 1033, 1043 (Del. 2017) (Bulgaria); Martinez, 86
A.3d at 1107 (Argentina). The distinction between intra-country deference to another
state and international deference to another country is one of degree, rather than kind.
The same concepts and principles apply.

14
A. The Pendency Or Non-Pendency Of A Similar Action Or Actions In Another
Jurisdiction

The first Cryo-Maid factor asks whether there is (i) an earlier-filed action, (ii)

between the same or substantially similar parties, (iii) addressing the same or

substantially similar subject matter, (iv) pending in a court capable of addressing the

matter in a just way (a “Prior Action”). Whether this factor is satisfied affects the

approach the court takes to the balancing of the Cryo-Maid factors. See Gramercy, 173

A.3d at 1036–38.

If a Prior Action exists and remains pending, then a Delaware court approaches the

Cryo-Maid factors with the analysis tilted in favor of the defendant. Under an approach

known as the “McWane doctrine,” the court will dismiss or stay the Delaware action in

deference to the Prior Action unless the Cryo-Maid factors weigh heavily in favor of

allowing the Delaware action to proceed. Id. at 1037; see McWane Cast Iron Pipe Corp.

v. McDowell-Wellman Eng’g Co., 263 A.2d 281 (Del. 1970). Generally speaking, the

calculus only will favor denying the motion and permitting the Delaware action to move

forward if the Delaware plaintiff has invoked a specialized statutory proceeding designed

5
The list omits a sixth Cryo-Maid factor—“the possibility of the view of the
premises”—because that factor is frequently irrelevant in corporate and commercial
disputes. See, e.g., Hall v. Maritek Corp., 170 A.3d 149, 162 (Del. Super. Ct. 2017)
(“[The] third Cryo–Maid factor holds little to no weight even in a case where there was a
relevant premises that the fact-finder might want to view.”) (internal quotations omitted),
aff’d, 182 A.3d 113 (Del. 2018); Hamilton P’rs, L.P. v. Englard, 11 A.3d 1180, 1212
(Del. Ch. 2010) (collecting authorities). A view of the premises is not relevant to this
case, and this decision therefore does not discuss it.

15
to address a particular issue or if Delaware otherwise has a particularly strong interest in

the dispute. See Focus Fin. P’rs, LLC v. Holsopple, 250 A.3d 939, 953–54, 956 (Del. Ch.

2020).

If a Prior Action once existed but no longer is pending, then the Delaware court

conducts a straightforward assessment of the Cryo-Maid factors to determine where it

makes the most sense for the action to proceed. The resulting analysis “is not tilted in

favor of the plaintiff or the defendant.” Gramercy, 173 A.3d at 1044.

If the Delaware case is the first-filed action, then the court will approach the Cryo-

Maid factors with the analysis tilted in favor of the plaintiff. The court generally will

allow the Delaware action to proceed unless the defendant shows that it would face

overwhelming hardship or inconvenience from litigating in Delaware. Id. Although the

test sounds extreme, trial judges should not perceive that the standard “suggests an

insurmountable burden for defendants.” Martinez, 86 A.3d at 1105. The test “is not

intended to be preclusive.” Id.; accord Ison v. E.I. DuPont de Nemours & Co., Inc., 729

A.2d 832, 842 (Del. 1999). “[I]t is intended as a stringent standard that holds defendants

who seek to deprive a plaintiff of her chosen forum to an appropriately high burden.”

Martinez, 86 A.3d at 1105. What is required is that the Cryo-Maid factors weigh “heavily

and decisively” in favor of dismissal. IM2 Merch. & Mfg., Inc. v. Tirex Corp., 2000 WL

1664168, at *1 (Del. Ch. Nov. 2, 2000); see Martinez, 86 A.3d at 1105 (discussing IM2

with approval and agreeing that “a more restrained meaning is at the essence of the

overwhelming hardship standard” (cleaned up)).

16
 When considering whether the Cryo-Maid factors weigh heavily and decisively in

favor of dismissal, the court should not treat them as a checklist or tally sheet.

“Application of these factors is not mechanical or mathematical . . . .” Pipal Tech

Ventures Priv. Ltd. v. MoEngage, Inc., 2015 WL 9257869, at *5 (Del. Ch. Dec. 17,

2015). The court must “look to the circumstances as a whole to determine whether an

overwhelming hardship is present.” Barrera v. Monsanto Co., 2016 WL 4938876, at *5

(Del. Super. Ct. Sept. 13, 2016). “The moving defendant need not show that it is factually

or financially impossible to mount a defense in this jurisdiction.” Pipal Tech, 2015 WL

9257869, at *5. When “properly applied,” the doctrine “involves a wholesome balancing

between the strong interest of a plaintiff in choosing the appropriate forum in which to

bring her action, and the interest of the other litigants and the court in an efficient and just

resolution of the issues, together with principals of comity.” Wilm. Sav. Fund Soc’y, FSB

v. Caesars Ent. Corp., 2015 WL 1306754, at *7 (Del. Ch. Mar. 18, 2015).

In this case, there is no Prior Action. This action is first-filed by a long shot. On

May 6, 2019, Tim Harris initiated the litigation process in Delaware by serving a Section

220 demand. See Lebanon Cnty. Empls.’ Ret. Fund v. Collis, 2022 WL 17687848, at *30

(Del. Ch. Dec. 15, 2022) (using date when plaintiff served demand that was diligently

pursued to determine when litigation was commenced); Wang v. Fulton, C.A. 3409-VCL,

at 47–48 (Del. Ch. Feb. 14, 2014) (TRANSCRIPT) (“[I]t is realistic, and in the tradition

of equity looking at the substance of things rather than simply at their form, to view the

Section 220 as an aspect of the overall proceeding.”). The defendants defeated the books-

and-records demand by effectuating the Outbound Merger, but that transaction gave rise

17
to another avenue for discovery, and on September 12, Tim Harris filed an appraisal

proceeding in which he conducted discovery designed to gather the information sought in

the Section 220 demand. See Wei v. Zoox, Inc., 268 A.3d 1207, 1223 (Del. Ch. 2022). In

his petition, Tim Harris expressly reserved the right to assert other claims. See Harris v.

Harris FRC Corp., 2021 WL 57021, at *1, *3 (Del. Ch. Jan. 7, 2021) (noting that Tim

Harris had “reserved his right to assert other claims when demanding appraisal” and

“moved to modify the confidentiality order entered in this action so that he can assert

plenary claims, including claims for breach of fiduciary duty”). After numerous

discovery delays, Tim Harris filed the an amended petition and complaint, which Kristen

Harris and Megan Harris Loewenberg later joined.

The defendants cite two actions currently pending in New Jersey plus a third that

has been dismissed. The courts of New Jersey are plainly capable of handling this dispute

and providing the parties with justice. But the New Jersey actions were not filed earlier

than this one, and they do not involve substantially the same parties or substantially the

same issues.

After this lawsuit was well underway, Tim Harris filed an action in New Jersey

state court that challenged the amendments to Dr. Harris’s estate plan that were

implemented on October 6, 2015 (the “New Jersey Estate Planning Action”). The

Company, Grinnell, and Royce are not parties to the New Jersey Estate Planning Action,

so that action does not involve substantially the same parties as this one. The New Jersey

Estate Planning Action also does not involve substantially the same issues as this action.

It does not involve any claims relating to the Outbound Merger or the Share Withdrawal,

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nor does it address any of the events underlying the derivative claims that this court will

consider as assets of the Company in connection with the challenges to the Outbound

Merger. Conversely, this action does not challenge the modifications to Dr. Harris’s will

and GRAT that took place in October 2015. The Complaint and this decision reference

those events as background, but the plaintiffs do not assert any claims or seek any relief

about what took place.

Two other actions in New Jersey derived from discovery in this proceeding. After

Mary Ellen, Lolli, and Grinnell worked together to frustrate the plaintiffs’ efforts to

obtain meaningful information about Royce from the Company, Tim Harris’s counsel

issued subpoenas to Grinnell, Royce, and Bank of America N.A., where Royce had bank

accounts. Grinnell and Royce responded by filing a miscellaneous proceeding in New

Jersey state court to quash the subpoenas (the “New Jersey Miscellaneous Action”).

During a series of conferences with the New Jersey judge, Grinnell and Royce first

refused to produce anything, then agreed to produce W-2s and K-1s, then refused to

produce K-1s, and then reverted to refusing to produce anything. Their counsel could not

explain their about face. She has since withdrawn. The New Jersey Miscellaneous Action

has been dismissed. It was solely an action about enforcing a subpoena. It was ancillary

to this action. It was not a plenary action that involved substantially the same parties and

issues as this case.

In an effort to break through the problems that were plaguing the discovery

process, the court appointed a discovery facilitator. He recommended that Royce and

Bank of America produce documents in response to the subpoenas. Lolli, Grinnell, and

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Royce lashed out by filing another action in the New Jersey state court, this time alleging

purported constitutional violations and seeking to enjoin Bank of America from

complying with this court’s subpoena (the “New Jersey Discovery Action”). The New

Jersey court subsequently denied the application, but Lolli, Grinnell, and Royce have

repackaged their theories as claims for malicious prosecution. The Company, Mary Ellen,

Lolli, Petigrow, Schwager, Kristen Harris, and Megan Harris Loewenberg are not parties

to the New Jersey Discovery Action, and that lawsuit does not involve any claims

relating to the Outbound Merger or the Share Withdrawal, nor does it address any of the

events underlying the derivative claims that this court will consider as assets of the

Company in connection with the challenges to the Outbound Merger. Conversely, this

action does not involve any of the strident assertions about the ordinary progression of

discovery that Lolli, Grinnell, and Royce have made the focus of the New Jersey

Discovery Action.

None of the New Jersey actions could be regarded as a Prior Action for purposes

of McWane. The defendants therefore bear the burden of proving that they would

experience overwhelming hardship or inconvenience from litigating in Delaware.

Gramercy, 173 A.3d at 1044.

B. The Extent To Which The Controversy Depends On Issues Of Delaware Law

The second Cryo-Maid factor examines “whether or not the controversy is

dependent upon the application of Delaware law which the courts of this State more

properly should decide than those of another jurisdiction.” Cryo-Maid, 198 A.2d at 684.

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 Choice of law under Cryo-Maid operates as a proxy for Delaware’s
interests, and the analysis must address the degree to which Delaware has a
particular interest in the subject matter of the case. It therefore includes
considerations such as the nature and novelty of questions of law to be
answered, the desirability of providing a Delaware forum, and the
importance of overseeing the conduct of particular classes of actors and
policing against particular types of wrongdoing.

Hamilton, 11 A.3d at 1213; see Warburg, Pincus Ventures, L.P. v. Schrapper, 774 A.2d

264, 271 (Del. 2001) (explaining that the “choice of law factor, while relevant to

establishing hardship and inconvenience, primarily focuses on ‘Delaware’s interest in the

litigation’” (quoting Ison, 729 A.2d at 843 (Del. 1999))).

As a result of the Standing Decision, the two principal claims in this case are

governed by Delaware law. The first claim is a direct challenge to the Outbound Merger

on the grounds that (i) Mary Ellen and Petigrow failed to disclose all material information

in connection with that transaction, (ii) Mary Ellen and Petigrow failed to afford any

value to the Company’s pending derivative claims, and (iii) the other Advisors aided and

abetted Mary Ellen and Petigrow in their breaches of duty. That claim is governed by

Delaware law. See, e.g., Morris v. Spectra Energy P’rs (DE) GP, LP, 246 A.3d 121, 138–

39 (Del. 2021); Parnes v. Bally Ent. Corp., 722 A.2d 1243, 1244–46 (Del. 1999); In re

Primedia, Inc. S’holder Litig., 67 A.3d 455, 477–90 (Del. Ch. 2013).

There are derivative claims that will need to be considered to determine whether

the Outbound Merger was an interested transaction, when assessing whether its terms

were entirely fair, and to value the Company for purposes of a quasi-appraisal remedy.

Under the internal affairs doctrine, the law that governs the underlying claims for breach

of fiduciary duty and aiding and abetting depends on whether the Company was a

21
Delaware corporation or a New Jersey corporation when the misconduct occurred. Mary

Ellen gained control of the Company in April 2015. The Company became a Delaware

corporation in May 2016 as a result of the Inbound Merger, and it remained a Delaware

corporation until May 2019, when the Outbound Merger closed. All of the derivative

claims challenging alleged incidents of self-dealing and wrongful extraction of value that

took place during the Company’s three-year stint in Delaware are governed by Delaware

law. Standing Decision, 2023 WL 115541, at *11.

To be sure, there are some transactions that pre-date the Company’s sojourn in the

First State, and those claims will be governed by New Jersey law, but that does not

undermine the primacy of Delaware law. The central claim—the challenge to the

Outbound Merger—is governed by Delaware law. As part of deciding that claim, the

court will be considering the underlying derivative claims, but the court will not be

deciding the underlying derivative claims as claims in their own right. The parties will

need to conduct discovery into the underlying claims and present sufficient evidence

regarding the claims so that the court can assess the fairness of the Outbound Merger and

value the Company, but the court will not need to make formal determinations regarding

liability. To the extent New Jersey law governs aspects of the underlying claims, the role

of New Jersey law is secondary.

The plaintiffs’ challenges to the Share Withdrawal are also governed by Delaware

law. Section 3332(b) of Title 12 of the Delaware Code provides that that “[e]xcept as

otherwise provided by the terms of a court order and notwithstanding a general choice of

law provision in the governing instrument of a trust, . . . the laws of this State shall

22
govern the administration of a trust while the trust is administered in this State . . . .” 12

Del. C. § 3332(b). The statute creates a default rule under which the appointing of a

Delaware trustee brings the trust situs into Delaware and results in the application of

Delaware law to trust administration. In re Peierls Fam. Inter Vivos Trs., 77 A.3d 249,

256 (Del. 2013). The appointment of First Republic Delaware as the trustee of Mary

Ellen’s GRAT caused the situs of the GRAT to move to Delaware and caused Delaware

law to govern its administration. As part of that transaction, the trust instrument

governing Mary Ellen’s GRAT was amended to confirm that “the situs of the Trust shall

be Delaware” and “the governing law of the Trust shall henceforth be the law of the State

of Delaware.” Ex. 16 at ‘945. Mary Ellen and the GRAT subsequently engaged in the

Share Withdrawal, which therefore must be tested under Delaware law.

A final and critical factor is Delaware’s “strong interest in policing against duty of

loyalty violations and the misuse of its entities for fraudulent purposes.” Hamilton, 11

A.3d at 1218. “Delaware has more than an interest in providing a sure forum for

shareholder derivative litigation involving the internal affairs of its domestic

corporations. Delaware has an obligation to provide such a forum.” Sternberg v. O’Neil,

550 A.2d 1105, 1125 (Del. 1988) (internal citations and footnote omitted). “Delaware

courts have a significant and substantial interest in overseeing the conduct of corporate

fiduciaries.” Hamilton, 11 A.3d at 1213; see, e.g., Ryan v. Gifford, 918 A.2d 341, 349–50

(Del. Ch. 2007); In re Chambers Dev. Co., Inc. S’holders Litig., 1993 WL 179335, at *3

(Del.Ch. May 20, 1993). Likewise, “Delaware has a powerful interest of its own in

preventing the entities that it charters from being used as vehicles for fraud. Delaware’s

23
legitimacy as a chartering jurisdiction depends on it.” NACCO Indus., Inc. v. Applica,

Inc., 997 A.2d 1, 26 (Del. Ch. 2009). As the Supreme Court of the United States has

recognized, a chartering state has “a substantial interest in preventing the corporate form

from becoming a shield for unfair business dealing.” CTS Corp. v. Dynamics Corp. of

Am., 481 U.S. 69, 93 (1987).

In this case, the defendants came to Delaware in the apparent belief that Delaware

law would provide an accommodating forum for their schemes. See Ex. 1 (Mary Ellen

stating “I have to work out a billion things at the office to get things ready for Delaware.

They have better laws regarding shit like bob is pulling and we have connections there.”).

Then, when Tim Harris began asking questions, the defendants attempted to flee the state.

Delaware has an interest in having the defendants’ conduct reviewed under its laws to

evaluate whether it passes muster.

Given the predominant role of Delaware law and Delaware’s significant interest in

this dispute, the second Cryo–Maid factor militates powerfully in favor of retaining

jurisdiction.

C. The Relative Ease Of Access To Proof

The third Cryo-Maid factor examines the relative ease of access to proof.

Holsopple, 250 A.3d at 973–74. With current technology, the importance of this factor

has faded for corporate and commercial disputes.6 In the third decade of the twenty-first

6
See, e.g., Barrera, 2016 WL 4938876, at *6 (observing that evidence may be
transmitted electronically with ease); Pipal Tech, 2015 WL 9257869, at *6 (noting that
“[m]odern methods of information transfer render concerns about transmission of
24
century, “evidence has undergone a shift to electronic data and courts now recognize that

transmittal of evidence electronically is not a burden, particularly in corporate and

commercial disputes.” GXP Cap., LLC v. Argonaut Mfg. Servs., Inc., 253 A.3d 93, 103

(Del. 2021) (internal quotation marks omitted).

For this factor to weigh in favor of dismissal, the defendants must “identify

specific evidence that could not be produced in Delaware.” Id. “[M]ost corporate

litigation in the Court of Chancery involves companies and documents located outside of

Delaware, and this mere inconvenience, without more, does not warrant a stay or

dismissal.” Rosen v. Wind River Sys., Inc., 2009 WL 1856460, at *6 (Del. Ch. June 26,

2009) (cleaned up).

The defendants have not pointed to any evidence that could not be produced in

Delaware. This factor favors denying the motion.

D. The Availability Of Compulsory Process For Witnesses

The fourth “Cryo-Maid factor asks whether this court can compel the relevant

witnesses to appear for discovery and trial.” Holsopple, 250 A.3d at 974. When assessing

documents virtually irrelevant”) (internal quotations omitted); Vichi v. Koninklijke
Philips Elecs. N.V., 2009 WL 4345724, at *13 (Del. Ch. Dec. 1, 2009) (noting that parties
to Delaware action could collect evidence from other jurisdictions, even where most of
the relevant documents and witnesses were in Italy and the Netherlands); In re IBP, Inc.
S’holders Litig., 2001 WL 406292, at *9 (Del. Ch. Apr. 18, 2001) (“While it is true that
Arkansas will be more convenient for Tyson’s witnesses, that is not a substantial factor.
Depositions can be scheduled in a manner convenient to witnesses, and business travel is
expected of top corporate executives . . . .”).

25
this factor, the court “must evaluate whether ‘another forum would provide a substantial

improvement as to the number of witnesses who would be subject to compulsory

process.’” Aveta, Inc. v. Colon, 942 A.2d 603, 613 (Del. Ch. 2008). The court’s subpoena

power is not limited to individuals who reside in or pass through Delaware. Through its

jurisdiction over Delaware entities, “this Court can compel production of (i) documents

in the entities’ possession, custody, or control, (ii) corporate representatives pursuant to

Rule 30(b)(6), and (iii) officers, directors, and managing agents of the firms pursuant to

Rule 30(a).” Hamilton, 11 A.3d at 1214.

The principal witnesses to the events in question are parties to the case. The

defendants correctly point out that all of the defendants live in New Jersey, but they

remain subject to compulsory process in this court. With one exception, the court has

ruled that each of the defendants is subject to this court’s jurisdiction and can be

compelled to participate in discovery and appear at trial. If necessary, sanctions can be

imposed and entered as orders, or a default judgment can be awarded. Those orders can

be domesticated and enforced in New Jersey. The lone exception is Schwager, where the

court has deferred ruling on whether this court can exercise jurisdiction over him until

after jurisdictional discovery.

The principal non-party witness, First Republic Delaware, is a Delaware entity and

subject to this court’s jurisdiction. Any other third parties organized as Delaware entities

also would be subject to this court’s jurisdiction.

It is possible that there could be non-party witnesses that live in New Jersey and

who are outside this court’s jurisdiction. As to those witnesses, a New Jersey court would

26
have an advantage. The advantage is not overly great because the parties can secure

subpoenas through the commission process or by using the Uniform Interstate

Depositions and Discovery Act, which both Delaware and New Jersey have adopted. See

43 Del. C. § 4311; N.J. R. 4:11-4 to 11-5. The depositions of those witnesses who are not

subject to this court’s jurisdiction can be used at trial.

The parties have not pointed to legitimate witnesses who are beyond the court’s

subpoena power. The defendants state that they intend to depose the two non-party

Siblings, their spouses and children, and the physicians for Dr. Harris and Mary Ellen.

Those are credibility-compromising threats. It is highly unlikely that those individuals

would have any knowledge relevant to the claims at issue. But the idea of deposing those

witnesses is consistent with how some of the defendants, most notably Mary Ellen, Lolli,

and Grinnell, have approached discovery. They have repeatedly sought to frustrate

discovery in this proceeding, then leveled over-the-top allegations in the New Jersey

Miscellaneous Action and the New Jersey Discovery Action about the burdens and

injustice associated with producing materials that are plainly relevant. Then, when the

time came to identify witnesses who might be necessary for trial and beyond the court’s

subpoena power, they identified individuals tangential to this proceeding who appear to

have been selected to cause maximum annoyance. The court already quashed a subpoena

that the defendants served, in-person during the pandemic, on Tim Harris’s spouse

because “[t]he circumstances surrounding the subpoena suggest that it was served for

purposes of harassment . . . .” Harris v. Harris FRC Corp., 2021 WL 1103395, at *2

27
(Del. Ch. Mar. 22, 2021). The defendants’ argument about witnesses smacks of more of

the same.

The fifth factor is in equipoise. To be charitable to the defendants, it marginally

favors dismissal.

E. All Other Practical Problems That Would Make The Trial Easy, Expeditious,
And Inexpensive

The last Cryo-Maid factor is a catch-all factor that “looks to any other matters that

would affect the conduct of the litigation and the expeditious and economic

administration of justice.” Holsopple, 250 A.3d at 974. “Under this prong, Delaware

courts have examined a wide array of considerations[,] including judicial economy, the

motives of the parties filing suit in the respective jurisdictions, and public interest.” Pipal

Tech, 2015 WL 9257869, at *9. “It authorizes a trial court to take into account the need to

control its own docket, manage its affairs, achieve the orderly disposition of its business,

and promote the efficient use of judicial resources.” Holsopple, 250 A.3d at 974–75. The

final factor “will seldom, in isolation, be dispositive of whether dismissal on the grounds

of forum non conveniens is warranted.” Martinez, 86 A.3d at 1113.

A significant consideration under this factor is the amount of judicial resources

that the court already has devoted to the case. The parties have litigated in this court for

three years, and the court has expended a significant amount of time addressing and

resolving discovery disputes. After engaging in a pattern of bad faith discovery conduct,

the defendants would understandably like to start over with a clean slate elsewhere. That

is not a reason for dismissal. It is a reason for retaining the case. A new judge would have

28
to invest time and energy to come up to speed on the issues, and given the defendants’

litigiousness, the new judge likely would be asked to revisit the decisions that this court

has made. Dismissing the action thus would result in considerable duplication of effort,

and the timeline for resolving it would be extended further into the future.

As their principal argument under this factor, the individual defendants point out

that all of them live in New Jersey. True, but the Garden State is not a faraway country. It

is not even a faraway state. Delaware and New Jersey are neighbors. Interstate 95

transects both, and Interstate 295 links the two. Amtrak offers convenient rail service, and

a more cost-conscious traveler can take New Jersey Transit to Trenton, then change to

SEPTA for a commuter train to Wilmington. And while the Delaware River serves as a

dividing line, the Delaware Memorial Bridge, the Commodore Barry Bridge, the

Benjamin Franklin Bridge, and the Betsy Ross Bridge (to name a few) connect the

opposing banks.

For the defendants to litigate in Delaware is not a significant burden. They happily

moved the Company to Delaware for three years, and they established an office for the

Company in Newark. They happily moved Mary Ellen’s GRAT to Delaware to facilitate

the Share Withdrawal. They can handle litigating in this court.

F. The Overall Balancing

In the absence of a Prior Action, the defendants must establish that they will suffer

overwhelming hardship from litigating in this court, which means that the Cryo-Maid

factors, taken as a whole, must favor dismissal heavily and decisively. The defendants

have failed to make that showing. The choice of law factor and the practical

29
considerations associated with the case point strongly in favor of this court retaining

jurisdiction. The ease of access to proof is in equipoise. The availability of compulsory

process for witnesses points marginally in favor of New Jersey. Taking all the factors into

account, they do not aggregate to the level of hardship required for dismissal.

III. CONCLUSION

The court will not dismiss this action under the doctrine of forum non conveniens.

The motion for dismissal on that basis is denied.

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