Icahn Partners LP v. Francis deSouza

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
PAUL A. FIORAVANTI, JR. LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734

Date Submitted: November 9, 2023
Date Decided: January 16, 2024

C. Barr Flinn, Esquire A. Thompson Bayliss, Esquire
M. Paige Valeski, Esquire Eric A. Veres, Esquire
Young Conaway Stargatt Michael T. Manuel, Esquire
& Taylor, LLP Abrams & Bayliss LLP
1000 North King Street 20 Montchanin Road, Suite 200
Wilmington, DE 19801 Wilmington, DE 19807

Peter J. Walsh, Jr., Esquire
Michael A. Pittenger, Esquire
Justin T. Hymes, Esquire
Potter Anderson & Corroon LLP
1313 North Market Street, 6th Floor
Wilmington, DE 19801

RE: Icahn Partners LP et al. v. Francis deSouza et al.,
C.A. No. 2023-1045-PAF

Dear Counsel:

This letter opinion resolves the motion to strike portions of the complaint.

Defendants seek to strike the allegations that were derived from privileged or

confidential board-level communications and delivered to the Plaintiffs by a director

of Nominal Defendant Illumina, Inc. (“Illumina” or the “Company”). For the

reasons discussed herein, the motion is granted.
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I. BACKGROUND1

Illumina is a life sciences company that develops tools and systems for genetic

analysis.2 In 2015, it formed a subsidiary named GRAIL, Inc. (“GRAIL”) to develop

a blood-based cancer-detection test utilizing Illumina’s main-line DNA sequencing

technology. 3 Illumina chose to reduce its ownership stake in GRAIL to less than

20% in a February 2017 spin-off, stating publicly that doing so would encourage

investment in GRAIL and comparable technologies.4 Over the next three years,

GRAIL raised $1.9 billion dollars through private financing options and went public

on September 9, 2020. 5 On September 20, 2020, 11 days after GRAIL’s initial

public offering, Illumina announced that it had agreed to reacquire its former

subsidiary for $8 billion.6

1
The recitation of facts is drawn from the verified complaint, the documents integral
thereto, the briefing on this motion, and information subject to judicial notice. The court
has taken care to avoid disclosure of the specific information that is the subject of this
motion. Citations to the docket in this action are in the form of “Dkt. [#].” In citations,
the complaint in this action, Dkt. 1, will be cited as “Compl.” After being identified
initially, individuals are referenced herein by their surnames without regard to formal titles
such as “Dr.” No disrespect is intended.
2
Compl. ¶ 35.
3
Id. ¶¶ 35–36.
4
Id. ¶ 38.
5
Id. ¶ 39.
6
Id. ¶ 40.
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The proposed merger drew scrutiny from regulators in the United States and

the European Union. 7 On March 30, 2021, the United States Federal Trade

Commission (the “FTC”) filed an administrative complaint seeking to block the

merger and authorized a federal suit to obtain an injunction to prevent the deal from

closing prior to the resolution of the administrative trial.8 The European Union’s

European Commission (“EC”) formally initiated its own investigation on April 19,

2021, triggering an automatic standstill under the EU Merger Regulation.9 The FTC

dismissed its federal complaint seeking injunctive relief without prejudice to its

ability to renew its claim if the standstill under EU regulations were lifted but

maintained the administrative proceeding. 10 Notwithstanding the standstill and

pending regulatory review in the US and EU, Illumina closed the acquisition on

August 18, 2021. 11 In response, the EC ordered Illumina to keep the companies

separate and not to share confidential information, but required Illumina to fully fund

GRAIL while the EC’s review was ongoing. 12 On September 6, 2022, the EC issued

7
Id. ¶ 42.
8
Id. ¶¶ 42–43.
9
Id.
10
Id. ¶ 43.
11
Id. ¶ 63.
12
Id. ¶ 67.
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a final ruling prohibiting Illumina from acquiring GRAIL and ordered Illumina to

divest GRAIL.13 On March 31, 2023, the FTC also ordered Illumina to divest

GRAIL. 14 On July 12, 2023, the EC levied a €432 million fine (equivalent to $476

million at the time of the complaint) against Illumina for violating the standstill.15

On February 13, 2023, Plaintiffs Icahn Partners LP, Icahn Partners Master

Fund LP, and Matsumura Fishworks LLC became stockholders of Illumina.16 All

three Plaintiffs are controlled by Carl Icahn.17 On April 27, 2023, the Plaintiffs,

which collectively owned approximately 1.4% of Illumina’s outstanding common

stock, 18 proposed a three-candidate slate to challenge the Company’s nominees at

the 2023 annual meeting of stockholders.19 One of the Plaintiffs’ nominees, Andrew

13
Id. ¶¶ 68–69.
14
Id. ¶ 70.
15
See id. ¶ 6; Illumina, Inc., Quarterly Report (Form 10-Q) (Nov. 13, 2023) at 26. “The
court may take judicial notice of facts publicly available in filings with the SEC.”
Omnicare, Inc. v. NCS Healthcare, Inc., 809 A.2d 1163, 1167 n.3 (Del. Ch. 2002) (citing
In re Santa Fe Pac. Corp. S’holder Litig., 669 A.2d 59, 69–70 (Del. 1995)); accord In re
Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 169 (Del. 2006) (“The trial court may
also take judicial notice of matters that are not subject to reasonable dispute.”).
16
Illumina’s Opening Br. 4.
17
Id. at 6–7.
18
Id. Ex. B at 2; Compl. ¶ 14.
19
Illumina’s Opening Br. 6.
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Teno, is an employee of Icahn Capital LP, which is also controlled by Icahn.20 At

the May 25, 2023, annual meeting, Illumina’s stockholders elected Teno to the

Company’s Board of Directors (the “Board”). 21 Plaintiffs’ other two nominees were

not elected.22

About one week before the election, the Plaintiffs delivered a demand to

inspect books and records under 8 Del. C. § 220 to Illumina, requesting information

about the GRAIL transaction, among other matters. 23 On May 18, 2023, the

Company agreed to produce certain non-privileged documents, conditioned upon the

demanding stockholders’ entering into a confidentiality agreement.24 The Plaintiffs

have not responded to the Company’s offer. 25

In connection with his joining the Board, Teno agreed to abide by the

Company’s Code of Conduct, which provides, among other things, that, “[e]xcept

as required for the proper performance of your duties, you may not use or give to

20
Id. at 6–7.
21
Id. at 7.
22
Id.
23
Id.; id. Ex. D.
24
Id. at 7.
25
Id.
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others trade secrets or confidential information of the Company.” 26 After being

seated on the Board, Teno received privileged and confidential Company

information, including information that predated his tenure on the Board.27 Teno

subsequently provided privileged and confidential information to Icahn and his

affiliates. 28 Using this information, Plaintiffs drafted their complaint in this action,

bringing direct and derivative claims alleging that Francis deSouza, John W.

Thompson, Frances Arnold, Caroline Dorsa, Robert Epstein, Scott Gottlieb, Gary

Guthart, Philip Schiller, and Susan Siegel (the “Individual Defendants”) breached

their fiduciary duties.29

Plaintiffs filed their complaint on October 17, 2023, as a confidential filing

under Court of Chancery Rule 5.1. 30 It is undisputed that the complaint contains

information from Illumina that is protected by the attorney-client privilege. 31

26
Pls.’ Opp’n Br. 32 (internal quotation marks omitted).
27
Illumina’s Opening Br. 8.
28
Id.; Pls.’ Opp’n Br. 5.
29
Illumina’s Opening Br. 9; Compl. ¶¶ 109–28. Shortly after the filing of Plaintiffs’
complaint, two other stockholder groups entered appearances in this action and informed
the court that they have served demands upon the Company to inspect books and records
relating to the same claims asserted in this action. See Dkts. 17–18, 20–21. As of the
publishing of this letter ruling, neither stockholder group has filed a plenary complaint.
30
Dkt. 1.
31
Illumina’s Opening Br. 2 n.2 (“The Complaint contains information privileged by both
the attorney-client privilege and attorney work product doctrine.”); Pls.’ Opp’n Br. 3
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On November 1, 2023, the Company filed a motion to strike paragraphs of the

complaint that contain privileged and confidential information that Teno obtained

after joining the Board and supplied to the Plaintiffs (the “Challenged

Information”).32 The Individual Defendants have joined in that motion. 33 The

parties fully briefed the motion to strike, and the court has concluded that the motion

can be resolved on the papers.

II. ANALYSIS

A. Directors Have Extremely Broad Access to Corporate Information
There is no dispute that Teno, as a director of the Company, possessed broad

rights to information about Illumina. See In re Aerojet Rocketdyne Hldgs., Inc., 2022

WL 1446782, at *3 (Del. Ch. May 5, 2022) (“A director’s right to information is

essentially unfettered in nature and includes equal access to board information.”)

(internal quotation marks omitted); In re Info. Mgmt. Servs., Inc. Deriv. Litig., 81

A.3d 278, 290 (Del. Ch. 2013) (“[B]ecause of their statutory obligation to manage

the business and affairs of the corporation and the concomitant fiduciary duties they

(stating that “[a]ll the Company’s confidential or privileged information has been filed
under seal with the Court consistent with Court of Chancery Rule 5.1”).
32
Dkt. 25.
33
Individual Defs.’ Opening Br. All of the Defendants filed a motion to dismiss the same
day. Dkt. 26.
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owe to the corporation and its stockholders, individual directors have informational

rights that are essentially unfettered in nature.”) (internal quotation marks omitted);

Henshaw v. Am. Cement Corp., 252 A.2d 125, 128 (Del. Ch. 1969) (observing that

a director’s right to inspect books and records “is correlative with his duty to protect

and preserve the corporation”). Teno’s right to Company information also extends

to privileged material. Kalisman v. Friedman, 2013 WL 1668205, at *4 (Del. Ch.

Apr. 17, 2013); see Moore Bus. Forms, Inc. v. Cordant Hldgs. Corp., 1996 WL

307444, at *4 (Del. Ch. June 4, 1996) (“[A]s a general matter, a corporation cannot

assert the privilege to deny a director access to legal advice furnished to the board

during the director’s tenure.”); Kirby v. Kirby, 1987 WL 14862, at *7 (Del. Ch. July

29, 1987) (“The directors are all responsible for the proper management of the

corporation, and it seems consistent with their joint obligations that they be treated

as the ‘joint client’ when legal advice is rendered to the corporation through one of

its officers or directors.”); cf. SBC Interactive, Inc. v. Corp. Media P’rs, 1997 WL

770715, at *6 (Del. Ch. Dec. 9, 1997) (“Where, however, a director’s interests come

into conflict with the interests of the corporation on a given issue, [the board may

exclude that director from the privilege], so long as the board employs appropriate

governance procedures.”). Directors may also be entitled to access legal advice

provided to the board before their tenure if they have a present need for that
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information to perform their fiduciary duties. See Intrieri v. Avatex Corp., 1998 WL

326608, at *2 (Del. Ch. June 12, 1998) (declining to recognize a broad rule allowing

a corporation to withhold privileged documents created before an individual

becomes a director, because it “would have the potential to hinder a director’s ability

to perform his fiduciary duties”); cf. SerVaas v. Ford Smart Mobility LLC, 2021 WL

5226487, at *5 (Del. Ch. Nov. 9, 2021) (denying access to privileged information

that predated the plaintiffs’ tenure on the board where they sought the information

in furtherance of personal litigation).

Thus, as a general rule, directors are entitled to privileged communications

delivered to the corporation or the board. As this court recently observed:

The rationale for this rule is that “all directors are responsible for the
proper management of the corporation, and thus, should be treated as a
‘joint client’—‘not in his or her individual capacity, but as a member
of the collective body’—when legal advice is rendered to the
corporation through one of its officers or directors.”

Hyde Park Venture P’rs Fund III, L.P. v. FairXchange, LLC, 292 A.3d 178, 188

(Del. Ch. 2023) (quoting 1 Donald J. Wolfe, Jr. & Michael A. Pittenger, Corporate

and Commercial Practice in the Delaware Court of Chancery § 7.02[d], at 7-46 (2d

ed. 2021)).

This court recognizes three exceptions to a director’s broad access to

privileged information:
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First, the director’s right can be diminished by an ex ante agreement
among the contracting parties . . .

Second, a board can act pursuant to 8 Del. C. § 141(c) and openly with
the knowledge of the excluded director to appoint a special committee.
A committee would be free to retain separate legal counsel, and its
communications with that counsel would be properly protected, at least
to the extent necessary for the committee’s ongoing work, such as
conducting a special committee investigation or negotiating an
interested transaction . . .

Third, a board or a committee can withhold privileged information once
sufficient adversity exists between the director and the corporation such
that the director could no longer have a reasonable expectation that he
was a client of the board’s counsel.

In re CBS Corp. Litig., 2018 WL 3414163, at *4–5 (Del. Ch. July 13, 2018) (quoting

Kalisman, 2013 WL 1668205, at *4–5) (alterations in original).

The motion before the court does not involve a dispute over Teno’s

entitlement to Illumina information that is protected by the attorney-client privilege.

The issue is whether Teno is permitted to share that privileged information with the

Plaintiffs and whether Plaintiffs may disclose that confidential information in a civil

complaint against the Company’s directors. As to that issue, this court has not

developed a bright-line rule. See J. Travis Laster & John Mark Zeberkiewicz, The

Rights and Duties of Blockholder Directors, 70 Bus. Law. 33, 41 (2015) (“Laster &

Zeberkiewicz”) (“Less clear, however, is what a particular director can do with the

information, such as whether the director can share it with the stockholder he
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represents.”); Catherine G. Dearlove & Jennifer J. Veet Barrett, What to Do About

Informational Conflicts Involving Designated Directors, 57 Prac. Law. 45, 48 (2011)

(“[T]he boundaries of where a director’s disclosure of confidential corporate

information crosses from permissible disclosure to a breach of fiduciary duty are far

from clear . . . .”).

B. Plaintiffs Are Not Within the Circle of Confidentiality
As a threshold matter, Plaintiffs do not argue that they are entitled to

Illumina’s privileged information on the grounds that attorney-client privilege had

been waived—either by Defendants’ having disclosed the privileged

communications to Teno or Teno’s having shared the communications with

Plaintiffs.34 Rather, Plaintiffs contend that they were within the scope of the

privilege all along because Teno is their board nominee and he is employed by a

different Icahn-controlled entity. Plaintiffs argue that they were joint clients with

respect to the privileged information shared with Teno and, therefore, had the same

34
Pls.’ Opp’n Br. 32–35; see Tenneco Auto. Inc. v. El Paso Corp., 2001 WL 1456487, at
*2 (Del. Ch. Nov. 7, 2001) (holding that a party in a community of interest “cannot waive
the attorney-client privilege on its own”); In re Teleglobe Commc’ns Corp., 493 F.3d 345,
379–80 (3d Cir. 2007), as amended (Oct. 12, 2007) (“[O]ne party to a joint representation
. . . may [not] unilaterally waive the privilege.”); SerVaas, 2021 WL 5226487, at *3 (“The
privilege exists for the benefit of the corporation—not for any particular corporate
constituency (such as an individual director).”).
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right to the information as Teno. 35 Specifically, Plaintiffs assert that their

nomination of Teno and the public disclosure of his employment at an Icahn entity

would render unreasonable any expectation that Teno would not share confidential

and privileged information that he acquired as a director with Plaintiffs. Plaintiffs

pin their right to Illumina’s privileged communications to a string of cases holding

that a corporate director who has been designated by a stockholder may share

confidential corporate communications, including privileged information, with the

designating stockholder. Defendants argue that the Plaintiffs are trying to stretch

the underlying doctrine of those cases too far.

As explained last year in Hyde Park, this court has held in a long line of cases

dating back to 1992 that a director may share a corporation’s privileged

communications with the director’s designating stockholder under certain limited

circumstances. See 292 A.3d at 188–96. Generally, those circumstances exist when

(1) a stockholder has the right to designate a director, either by contract or through

35
This is not a case in which the director claims a need to share information with agents in
order to assist the director in performing a review of the documents. Cf. Henshaw, 252
A.2d at 130 (“Unquestionably a director is entitled to assistance in his examination of
corporate records.”); Kortum v. Webasto Sunroofs, Inc., 769 A.2d 113, 120 (Del. Ch. 2000)
(observing that “restrictions on [the director’s] choice of agents to assist him in the
inspection [of books and records under DGCL § 220(d)] might be justified if the proposed
agents have interests in conflict with [the corporation]”).
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its voting power; or (2) the director serves as a controller or fiduciary of the

stockholder. The Defendants argue that neither of these circumstances exists here

and, therefore, Teno could not share Illumina’s privileged information with the

Plaintiffs. A brief recap of the key precedents is helpful to set the stage.

The court first confronted this issue in AOC Limited Partnership v. Horsham

Corp., 1992 WL 97220 (Del. Ch. May 5, 1992). The case involved a dispute

concerning Clark Oil & Refining Corp. (“Clark Oil”), a wholly owned subsidiary of

AOC Holdings, Inc. (“AOC Holdings”). AOC Holdings, in turn, was owned by two

entities: Horsham Corp. (“Horsham”) and AOC Limited Partnership (“AOC Fund”).

Two individuals (Paul A. Novelly and Samuel R. Goldstein) indirectly owned 100%

of AOC Fund and served on the Clark Oil board along with Horsham’s controlling

stockholder and two other unaffiliated individuals. AOC Fund filed litigation to

enforce a stockholders’ agreement with Horsham and asserted breach of fiduciary

duty claims against Horsham and the three directors not affiliated with the AOC

Fund. In resolving a discovery dispute, then-Vice Chancellor Chandler held that

AOC Fund was entitled to discovery of purportedly privileged communications

provided to Clark Oil. The court reasoned that the AOC Fund “in effect, is a member

of Clark Oil’s board since its two constituents are members of its board.” Id. at *1.

In analyzing the opinion last year, Vice Chancellor Laster observed:
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Because Novelly and Goldstein managed the AOC Fund, they
necessarily shared information with the fund as human beings who
could not partition their brains. Clark Oil therefore had no expectation
of confidentiality as to the AOC Fund either, and the defendants could
not invoke the attorney-client privilege to withhold advice provided to
the Clark Oil board.

Hyde Park, 292 A.3d at 190.

In Moore Business Forms, the stockholder plaintiff (“Moore”) acquired

preferred stock of Cordant Holdings Corporation (“Holdings”) and entered into a

stockholders’ agreement that enabled it to appoint a director to the Holdings board

and to the board of its wholly owned subsidiary Cordant, Inc. (“Cordant”). 1996

WL 307444. After Moore declined an offer by Holdings to purchase its shares,

Holdings and the board excluded Moore’s designee from board meetings at which

the repurchase was discussed. Moore commenced litigation and later moved to

compel information that the other directors had received to the exclusion of Moore’s

designee. In resolving the discovery dispute, Justice Jacobs, then a Vice Chancellor,

held that Moore was entitled “by virtue of the Stockholders’ Agreement” to all of

the information that its director designee could have received, and that “no basis

exists to assert the privilege against [the designee] or, by extension, against Moore.”

Id. at *4, *6. As later explained in Hyde Park:

The outcome in Moore Business Forms [turned] on the fact that Moore
could appoint a designee and was presumed to share information with
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its designee, just as the AOC Fund and its representatives on the Clark
Oil board were presumed to share information. That in turn meant that
Holdings had no expectation of confidentiality as to Moore and could
not assert the attorney-client privilege.

292 A.3d at 192.

KLM v. Checchi involved a motion to compel Northwest Airlines, its

directors, and its officers to produce information related to board and officer

discussions to KLM, “a substantial minority shareholder with a contractual right to

designate certain directors.” 1997 WL 525861, at *1 (Del. Ch. July 23, 1997).

Specifically, KLM sought information about Northwest’s adoption of a

stockholders’ rights plan in response to KLM’s threat to bring litigation to enforce

certain contractual rights. Most of the information KLM sought had been conveyed

at a board meeting to which KLM’s director designees were not given notice. The

court granted KLM’s motion to compel because “the clandestine meeting of

November 15, 1995 was held without notice to KLM” or its directors and “[i]t is far

from clear, despite defendant’s argument to the contrary, that KLM should or would

have been recused from general discussions about the adoption of a shareholders’

rights plan” despite its then-outstanding “threat to enforce contractual rights.” Id.36

36
KLM was decided on a highly expedited basis, and the court granted the motion in part
because the plaintiff established good cause under two earlier decisions of this court that
followed Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970). See KLM, 1997 WL
525861, at *1–2 (citing Carlton Invs. v. TLC Beatrice Int’l Hldgs., Inc., 1996 WL 132983
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In Kortum, a stockholder and its director designee filed a books and records

action against Webasto Sunroofs, Inc. (“WSI”). 769 A.2d 113. The stockholder,

Webasto AG Fahrzeugtechnik (“WAG”), owned 50% of the equity of WSI,

possessed the right to designate a director to the WSI board, and chose its chief

executive officer as its director designee. The Kortum court held that it was not

reasonable “to condition Kortüm’s inspection upon an undertaking not to disclose to

WAG any information gleaned from the document inspection” because, “[a]bsent a

conflict between [Kortüm’s role as a fiduciary of both WSI and WAG], Kortüm’s

fiduciary duty would require him to disclose that information to WAG.” Id. at 121.

Finding no such conflict, the Kortum court granted Kortüm mostly unrestricted

informational access and gave WAG the same access as Kortüm. Id. at 121, 125.

In Kalisman, Jason Kalisman, a director of Morgans Hotel Group Co.

(“Morgans”), and the co-founder of OTK Associates, LLC (“OTK”), which owned

13.9% of Morgans’ outstanding stock, brought suit against the other directors of

Morgans, challenging, among other things, a proposed recapitalization. 2013 WL

1668205. OTK later joined as a plaintiff. Kalisman sought discovery of privileged

(Del. Ch. Mar. 15, 1996), and Lee v. Engle, 1995 WL 761222 (Del. Ch. Dec. 15, 1995)).
In addition, the court noted that it was not allowing discovery into board discussions about
litigation with KLM. KLM, 1997 WL 525861, at *2.
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material, which the defendants opposed. After surveying the law governing a

director’s right to board information, Vice Chancellor Laster concluded that

Kalisman was entitled to the documents that predated the board’s formation of a

special committee excluding Kalisman. The court explained the generally accepted

throughline of information sharing between a director and the director’s designating

stockholder as follows: “When a director serves as the designee of a stockholder on

the board, and when it is understood that the director acts as the stockholder’s

representative, then the stockholder is generally entitled to the same information as

the director.” Id. at *6. The court, however, did not reach the issue of whether OTK

was entitled to the same information being provided to Kalisman because Kalisman

had “undertaken not to share privileged information with OTK.” Id.

In CBS, Chancellor Bouchard held that a corporation could not withhold

privileged information from its controlling stockholder (National Amusements, Inc.

or “NAI”) and the controller’s affiliated directors. 2018 WL 3414163. The court

held that the directors affiliated with NAI were entitled to all privileged

communications provided to the CBS board, other than those provided exclusively

to the special committees. Additionally, the court concluded that the controller and

its affiliates were entitled to the same information as the NAI-affiliated directors,

reasoning that:
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Given that Ms. Redstone is one of the NAI Affiliated Directors (as well
as one of the NAI Parties) and, by all accounts, is the key decision-
maker for NAI, it is simply not realistic or practical to believe that any
information to which she may become privy as a result of this ruling
could be segregated from her thought process as an adversary of CBS
in this case.

Id. at *7.

Most recently, in Hyde Park, two venture capital funds (the “Funds”) that

owned preferred stock in FairXchange, Inc. (“FairX”) held, with the other holders

of preferred stock, a contractual right to designate a director to the FairX board of

directors. 292 A.3d 178. The preferred stockholders designated Ira Weiss, a partner

in the venture capital firm that sponsored the Funds. Weiss also managed the Funds.

During Weiss’s tenure on the board, FairX received an acquisition proposal. Weiss

advocated for a different approach to the offer than the other two members of the

FairX board. Weiss was then removed by the other preferred stockholders. After

Weiss’s removal, the company was acquired in a merger, and the Funds sought

appraisal of their stock. In discovery, the Funds sought privileged information

generated while Weiss served as a FairX director. In a comprehensive analysis of

our caselaw on joint-client privilege and its application to directors and stockholders,

Vice Chancellor Laster held that the funds were entitled to all of the information to

which Weiss was entitled while he served as a director, reasoning that:
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Weiss served on the Board as a representative of the Funds [and]
necessarily shared information in light of his dual roles as director and
fund manager. Having only one brain, Weiss could not avoid sharing
information. The Funds were therefore inside the circle of
confidentiality as well.

Id. at 196.

The caselaw discussed above establishes that a director may share privileged

or confidential company information with a stockholder if (1) the director is

designated to the board by the stockholder pursuant to contract or the stockholder’s

voting power; or (2) if the director also serves in a controlling or fiduciary capacity

with the stockholder. See, e.g., Hyde Park, 292 A.3d at 183, 185 (allowing discovery

of privileged information where the plaintiffs’ contractually designated director was

a manager of the plaintiffs and a partner of their sponsor); CBS, 2018 WL 3414163,

at *7 (granting motion to compel privileged information where one of the directors

who was entitled to privileged information was also the key decision maker for the

corporation’s litigation counterparty and controlling stockholder, which had moved

to compel that information); AOC, 1992 WL 97220, at *1 (allowing stockholder to

access privileged information where the designated directors were partners of and

indirectly owned 100% of the designating stockholder); Kortum, 769 A.2d at 121

(allowing a 50% stockholder that had the right to designate a director to inspect

records demanded by its dual-fiduciary designee); Moore Bus. Forms, 1996 WL
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307444, at *4 (granting stockholder with the contractual right to designate a director

access to company information to the same extent as its director designee); KLM,

1997 WL 525861, at *1 (allowing stockholder to access privileged information

because the stockholder had a contractual right to designate a director).37

The facts of this case do not fit the paradigm of the cases discussed above.

First, Plaintiffs do not have a contractual right to appoint a director and, owning less

than two percent of Illumina’s outstanding stock, they did not control the vote during

Teno’s election. Second, Teno does not serve in a fiduciary role for any of the

Plaintiffs. Thus, this case does not present the concern that the director is a dual-

fiduciary. See CBS, 2018 WL 3414163, at *7 (observing that “it is simply not

realistic or practical to believe that any information to which [a director] may

become privy as a result of [her director status] could be segregated from her thought

process” in her other capacity); Hyde Park, 292 A.3d at 196 (“Having only one brain,

37
Although it is not discernable from the opinion discussed above or the related opinion in
KLM Royal Dutch Airlines v. Checchi, 698 A.2d 380 (Del. Ch. 1997), it appears that the
KLM director designees on the Northwest board were also fiduciaries of KLM. The
Northwest 1994 Annual Report identifies KLM’s president, Pieter Bouw, managing
director, Leo van Wijk, and chief financial officer, Rob Abrahamsen, as members of the
Northwest board. See Northwest Airlines Corporation 1994 Annual Report 61 (Feb. 17,
1995), https://dlg.galileo.usg.edu/data/delta/nwa-ar/pdfs/delta_nwa-ar_nwa-ar-1994.pdf.
A 1996 New York Times news article reported on the resignations of those three members
from the Northwest board. See Company News;3 KLM Executives Resigning from
Northwest Air Board, N.Y. Times, Feb. 24, 1996 (§1), at 35.
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Weiss [a director and manager of plaintiffs] could not avoid sharing information.”);

In re Dole Food Co., Inc. S’holder Litig., 2015 WL 5052214, at *43 (Del. Ch. Aug.

27, 2015) (stating that it was not a per se breach of fiduciary duty for “a human being

with only one brain,” to share that information “with himself in his stockholder

capacity” and with his personal advisers in that capacity); see also Laster &

Zeberkiewicz at 55 (recognizing that a bright-line rule against dual-fiduciary

directors’ sharing information with their designating stockholder risks fiduciary

breaches at two levels: “first at the corporate level by preventing the director

representatives from engaging in behavior that is currently a normal part of the

investment and monitoring process, and second at the fund level by preventing the

director who was a fund fiduciary from sharing information that was material to the

fund”).

Plaintiffs’ contention that their relationship with Teno grants them access to

Illumina’s privileged information lacks support under either recognized path of

acceptable information sharing. First, Teno’s employment relationship with

Plaintiffs is readily distinguishable from the “one brain” cases. In the “one brain”

cases, the director controlled or served in a fiduciary capacity with the stockholder

seeking the information and, therefore, was unable to split their brain between their

position as a director and their position controlling or as a fiduciary to the entity
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seeking information. See Hyde Park, 292 A.3d at 183 (“While serving as a director,

Weiss also managed the funds.”); AOC, 1992 WL 97220, at *1 (“Plaintiff, in effect,

is a member of Clark Oil’s board since its two constituents are members of its

board.”); CBS, 2018 WL 3414163, at *7 (“Ms. Redstone is one of the NAI Affiliated

Directors (as well as one of the NAI Parties) and, by all accounts, is the key decision-

maker for NAI . . . .”). Plaintiffs do not argue that Teno exercises influence over

any of them, instead consistently referring to their relationship as that of an employee

and employer. 38 Second, as an undisputed factual matter, Plaintiffs did not designate

Teno to the Company’s board of directors pursuant to the type of contractual right

present in any of the designated-director cases.

Plaintiffs, citing the recent Hyde Park decision, contend that the combination

of their having nominated Teno and his employment relationship with another Icahn-

controlled entity negates any reasonable expectation of confidentiality between the

Plaintiffs and the Company. Implicit in Plaintiffs’ argument is the suggestion that

Hyde Park expanded the circumstances under which a director could share

38
See, e.g., Pls.’ Opp’n Br. 30 (arguing that Defendants failed to substantiate “a tension
between [Teno’s fiduciary duties as a director] and the duties that Mr. Teno owes
simultaneously to his employer and its investors”). Plaintiffs cite no caselaw establishing
fiduciary duties arising from a director’s ordinary employment by a third-party that
override the fiduciary duties that a director owes to the corporation on whose board he
serves.
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confidential and privileged information with stockholders. The Defendants argue it

did not.

Hyde Park synthesized the accepted bases for information sharing into a

conceptual framework that looks to whether there is a “sufficient expectation of

confidentiality” on the part of the corporation to deny information sharing between

the director and the stockholder. 292 A.3d at 194–95. Hyde Park did not expand

the limited circumstances in which a stockholder falls within the circle of

confidentiality. Id. at 188–96. Throughout the opinion, the court highlighted and

consistently adhered to the more than three decades of precedent on which it relies.

Indeed, in pointing to Chancellor Bouchard’s decision in CBS, Vice Chancellor

Laster highlighted the precise ways in which the ruling followed the cases that

preceded it:

Following precedent, Chancellor Bouchard held that the controlling
stockholder could receive the same discovery as its director designees,
noting that one of the director designees controlled the controlling
stockholder . . . . In other words, she only had one brain, and she could
not avoid sharing information with the entity she controlled, which was
permissible under the weight of precedent.

Hyde Park, 292 A.3d at 194 (emphasis added).

Hyde Park itself expressly grounded its decision in well-established caselaw.

The court concluded that that the plaintiff funds were within the circle of
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confidentiality because their director designee also controlled the funds, a

determination that did not signal an expansion of precedent:

Under AOC, Moore Business Forms, Kalisman, and CBS, Weiss had
the right to share information with the Funds, and he necessarily shared
information in light of his dual roles as director and fund manager.
Having only one brain, Weiss could not avoid sharing information. The
Funds were therefore inside the circle of confidentiality as well.

Hyde Park, 292 A.3d at 196. Hyde Park did not change the law; it reframed and

clarified a “framework [that] has been settled law in Delaware for nearly four

decades.” Id. at 194–95.39

Under Moore Business Forms and its progeny, a director may share certain

confidential board information with a designating stockholder who has a contractual

right to designate the director or where the director serves in a fiduciary capacity

with the stockholder. 40 That is not to say that there are not other situations in which

39
Plaintiffs’ reliance on Aerojet, is misplaced. 2022 WL 1446782. Aerojet presented “an
unusual question” of privilege involving two equally divided board factions that were
deadlocked and engaged in a proxy contest against each other. Id. at *1. One side sought
to invoke the corporation’s privilege against the other. The court held that it could not.
Aerojet did not address whether the board faction could share privileged information with
its nominating stockholder. Furthermore, unlike in this case, one of the director plaintiffs
in Aerojet also served as the executive chairman of the stockholder’s general partner, thus
presenting the dual-fiduciary issue highlighted in cases such as CBS, Kortum, and Hyde
Park. Aerojet supports the proposition that Teno is entitled to privileged Illumina
information, but it does not address what he may do with that information.
40
The director’s sharing information with the designating stockholder does not give the
stockholder freedom to further disseminate the company’s confidential information. See
Laster & Zeberkiewicz at 56–57 (“[T]he ability of a blockholder director to convey
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information sharing might be permissible. But, under the circumstances presented

in this case, the mere fact that Teno was nominated by the Plaintiffs and is an

employee of another Icahn-affiliated entity does not persuade the court that Teno

had the right to disclose Illumina’s confidential and privileged information to the

Plaintiffs. Nor is it reasonable for Teno to have believed that he could share the

Company’s privileged information with Plaintiffs, given his agreement to abide by

the Company’s Code of Conduct, which provides that he “may not use or give to

others . . . confidential information of the Company.”41 Accordingly, Plaintiffs have

information to the stockholder that placed him on the board does not mean that the fund or
investor obtains the unfettered right to use the information in whatever manner it sees
fit. . . . In other words, the director can share with his stockholder affiliate, but the ability
to share within the silo does not permit sharing outside of the silo.”).
41
Pls.’ Opp’n Br. 32 (internal quotation marks omitted). To avoid Teno’s agreement to
maintain confidentiality, Plaintiffs proffer several unpersuasive arguments. First, they
contend that the Company had a reasonable expectation that Teno would share privileged
information with Plaintiffs or Icahn because the Company communicated with Teno using
Teno’s email account “@icahncap.com” and, therefore, confidential information was
provided “to Plaintiffs’ electronic communication network.” Pls.’ Opp’n Br. 14. But there
is no assertion that the Challenged Information was provided to Teno via email. Teno
accessed it via a Board portal. Illumina’s Reply Br. 19. The fact that Teno received login
information to the Board portal at his @icahncap.com email address does not diminish the
Company’s expectation of confidentiality as to information accessible through the portal.
Dkt. 33 ¶ 9 (“Teno Decl.”). The portal contained a notice from Illumina’s general counsel
that “[e]verything provided herein is confidential” and that “[e]ven within the company,
this information should not be communicated outside of senior management, the board and
our counsel.” Dkt. 25 Ex. C ¶ 7 (“Orsini Decl.”); id. Ex. 1. Teno’s assertion that he was,
nevertheless, not aware of such expectations because he stated to one director at a board
dinner that he told Icahn “the important stuff” and was not subsequently dissuaded is
unpersuasive—particularly because the notices reinforcing his confidentiality obligation
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not established that they are within the circle of confidentiality that would permit

Teno to share with them Illumina’s privileged information. 42

C. Striking Is Warranted

As a remedy for Teno’s unauthorized dissemination of the Company’s

privileged information and Plaintiffs’ unauthorized use thereof, Defendants request

an order striking the Challenged Information from the complaint. Court of Chancery

Rule 12(f) provides:

were added shortly after the dinner. Teno Decl. ¶ 10; Orsini Decl. ¶ 7. Second, Teno’s
assertion that he never executed an agreement not to share information is undermined by
his executed board questionnaire, wherein he agreed to comply with the Company’s Code
of Conduct, which prohibited the sharing of confidential information. See Teno Decl. Ex.
1 at 58 (agreeing “in [his] individual capacity and on behalf of any person or entity on
whose behalf my nomination is being made” to “comply[] with applicable law and all
applicable corporate governance, code of conduct and ethics, . . . confidentiality and stock
ownership and trading policies and guidelines of the corporation”); see also Dkt. 34 Ex. C
(Illumina Bylaws § 2.13) (requiring a director nominee, if elected, to agree “in such
nominee’s individual capacity and on behalf of any person or entity on whose behalf the
nomination is being made . . . [that] if elected [the nominee] will comply[] with applicable
corporate governance, code of conduct and ethics, . . . confidentiality and stock ownership
and trading policies and guidelines of the corporation”). Finally, Teno asserts that “the
first time I heard Illumina’s position that I should not share information with Icahn was
after this lawsuit was filed.” Teno Decl. ¶ 10. The documents cited above make that
assertion entirely untenable.
42
It seems likely that most activist investors would strongly support remaining outside of
the circle of confidentiality given the trading restrictions that accompany this kind of
information access. See Laster & Zeberkiewicz at 57 (“Given the affiliation between the
blockholder director and the stockholder and the understanding that information will flow
from the blockholder director to the stockholder, the stockholder will be treated as a
constructive insider for the purpose of the common law limitations on insider trading.”)
(citing Brophy v. Cities Serv. Co., 70 A.2d 5 (Del. Ch. 1949)).
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Upon motion made by a party before responding to a pleading or, if no
responsive pleading is permitted by these Rules, upon motion made by
a party within 20 days after the service of the pleading upon the party
or upon the Court’s own initiative at any time, the Court may order
stricken from any pleading any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.

Ct. Ch. R. 12(f).

Plaintiffs oppose the motion on the grounds that the Challenged Information

is neither redundant, immaterial, impertinent, or scandalous. Plaintiffs also argue

that the information is adequately protected because it is contained in a confidential

filing covered by Court of Chancery Rule 5.1.

Admittedly, the Challenged Information does not neatly fit into the four

categories that permit the court to strike information from a pleading under Rule

12(f). The Defendants implicitly agree, as they do not attempt to classify the

Challenged Information as being redundant, immaterial, impertinent, or scandalous.

Rather, they rely heavily on public policies that support protection of privileged

communications and confidential information.

Vice Chancellor Slights’s discussion of this issue in KT4 Partners LLC v.

Palantir Technologies Inc., is instructive, and indicates that the court’s power to

strike information from a pleading or other filing is not limited to a strict application

of the rule:
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[M]otions to strike, because of the standards, tend to get folks fired up.
Rule 12(f) talks about striking “redundant, immaterial, impertinent, or
scandalous material.” That standard is helpful as far as it goes, but what
the defendant here is arguing is not really any of those things per se but,
instead, saying that there is a Court order in place that restricts use of
certain information and that the plaintiff here has used that information
in a manner that is contrary to the Court’s order.

C.A. No. 2018-0596-JRS, at 15:22–16:8 (Del. Ch. Dec. 4, 2018) (TRANSCRIPT).

Vice Chancellor Slights went on to grant the motion to strike information from a

complaint that exceeded the scope of a prior order of the court in a books and records

action. Id. at 19:21–22.

Defendants point to NewYork.com Internet Holdings, Inc. v. Entertainment

Benefits Group, LLC, where this court granted a Rule 12(f) motion to strike a

paragraph from a pleading that disclosed information from a confidential mediation

conference. 2015 WL 4126653, at *4–5 (Del. Ch. July 8, 2015); see also Khanna v.

McMinn, 2006 WL 1388744, at *37–39 (Del. Ch. May 9, 2006) (considering

whether to strike allegedly privileged information from a complaint but declining to

do so because the information was not privileged). Defendants also rely on former

Chief Justice, then-Chancellor, Strine’s transcript ruling and order in Indiana

Electrical Workers Pension Trust Fund IBEW v. Wal-Mart Stores, Inc., where he

granted a motion to strike information from a brief that was derived from material

delivered anonymously to plaintiffs’ counsel. C.A. No. 7779-CS (Del. Ch. May 16,
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2013) (“Wal-Mart”) (TRANSCRIPT), aff’d, 95 A.3d 1264 (Del. 2014). The

Chancellor reasoned that the plaintiffs were not entitled to have that information and,

therefore, could not rely on it, even if the anonymous whistleblower “may have been

acting in subjective good faith.” Id. at 76:23. The court viewed the issue as one of

fairness: “So I don’t think of this as an issue of privilege, really. I look at it as if

you have someone else’s stuff and you shouldn’t have that, then you got to give it

back. . . . So I’m requiring those [documents] to be given back, and I’m requiring

the references to those to be stricken.” Id. at 77:23–78:7. In affirming the

Chancellor, the Delaware Supreme Court concluded that the “Court of Chancery

properly discharged its equitable discretion in crafting a remedy.” Wal-Mart Stores,

Inc. v. Indiana Elec. Workers Pension Tr. Fund IBEW, 95 A.3d 1264, 1282 (Del.

2014). 43

43
Defendants also persuasively argue that Teno should not be permitted to circumvent the
well-established precedent which holds that a director lacks standing to assert derivative
claims on behalf of the corporation. See Schoon v. Smith, 953 A.2d 196 (Del. 2008). In
Schoon, the Delaware Supreme Court rejected a director’s argument that he should be
permitted to sue derivatively on behalf of a privately held company because, as a director,
he was “in a better position to know and to make his allegations against the board without
waiting for a stockholder to do so.” Id. at 208. The Court noted that depriving the director
of standing did not prevent a failure of justice because the stockholder that directly elected
him had already made a books and records demand, utilizing “the tools at hand” to frame
a derivative complaint. Id. at 208–09. So too, here. Plaintiffs delivered a books and
records demand to obtain information to support their derivative claims. Teno may not
effectively permit Plaintiffs to end-run the Section 220 process by providing privileged
information to Plaintiffs for a derivative suit in this case. To be sure, this ruling should not
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Plaintiffs distinguish these cases, noting that the decision in Wal-Mart did not

involve a pleading, and NewYork.com involved confidential information that was

subject to a mediation agreement which stated that all information provided during

the mediation would be inadmissible in any litigation. These distinctions are

unpersuasive. 44 The caselaw demonstrates that this court has broad power to protect

be construed as prohibiting a director from violating attorney-client privilege under any
possible circumstances. See Laster & Zeberkiewicz at 53 (raising the hypothetical of a
director becoming aware of potential criminal conduct at the corporation and feeling
compelled to contact law enforcement). There are also professional rules that govern a
lawyer’s ability to disclose confidential client information in certain circumstances. See
Del. Lawyers’ R. Prof’l Conduct 1.6(b).
44
Plaintiffs also cite Dole, 2015 WL 5052214, and Kerbawy v. McDonnell, 2015 WL
4929198 (Del. Ch. Aug. 18, 2015), for the proposition that it is not inherently wrongful for
a director to share confidential information with third parties. Pls.’ Opp’n Br. 36–37.
Neither case involved a motion to strike.
In Dole, the plaintiffs brought an aiding and abetting claim against the CEO’s financial
adviser for using confidential information that the CEO shared with the adviser to prepare
a takeover bid. The court found that it was not a per se breach of fiduciary duty for “a
human being with only one brain” to share that information “with himself in his
stockholder capacity” and with his personal advisers in that capacity. Dole, 2015 WL
5052214, at *43. That decision is entirely consistent with Moore Business Forms and its
progeny.
In Kerbawy, a Section 225 action, the plaintiff sought to invalidate written consents on the
grounds that they were solicited using improperly shared confidential information. 2015
WL 4929198. Kerbawy presented starkly different facts than the case at bar—there, “the
documents and information at issue were fairly unremarkable corporate documents,” “the
[privately held company’s] Board itself often shared with the stockholders information that
it considered confidential or privileged,” and the movants could not “point convincingly to
any harm to ACell as a result of Kerbawy obtaining the Company information and
documents.” Id. at *21. By contrast, it is undisputed that the information that Teno shared
was privileged and confidential. In addition, the Company took measures to protect its
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confidential information and to formulate an appropriate remedy in the event

confidential or privileged information is improperly interjected into litigation. This

approach is also supported by decisions from federal courts applying the federal

counterpart to Rule 12(f).45 See, e.g., Ward v. CommScope, Inc., 2021 WL 1297849,

at *4 (S.D. Cal. Apr. 6, 2021) (“Courts have utilized Rule 12(f) to strike sections of

a pleading that include inadmissible or privileged information.”) (internal quotation

marks omitted); O’Donnell v. Genzyme Corp., 2014 WL 12953767, at *7 (N.D. Ohio

Dec. 18, 2014) (striking privileged information from a complaint under Rule 12(f));

Sims v. Roux Lab’ys, Inc., 2007 WL 2571941, at *1–4 (E.D. La. Aug. 31, 2007)

(same); Hensley v. City of Port Hueneme, 2018 WL 5903963, at *2–3 (C.D. Cal.

Mar. 21, 2018) (same).

confidential information, and Teno’s sharing of this information violated Teno’s agreement
to keep the information confidential.
45
Where, as here, a Federal Rule of Civil Procedure closely tracks a Delaware court’s rules,
cases applying the federal rule are persuasive in applying the Delaware court’s rules. See
Crumplar v. Superior Ct. ex rel. New Castle Cnty., 56 A.3d 1000, 1007 (Del. 2012)
(observing that an interpretation of a Federal Rule of Civil Procedure that closely tracks a
Delaware rule “provide[s] persuasive guidance” in interpreting the Delaware rule); Appriva
S’holder Litig. Co., LLC v. EV3, Inc., 937 A.2d 1275, 1286 (Del. 2007) (“Where, as here,
the Superior Court’s Rules of Civil Procedure closely track the Federal Rules of Civil
Procedure, cases interpreting the federal rules are persuasive authority for our construction
purposes.”).
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Finally, Plaintiffs argue that there is no harm because the complaint was filed

confidentially under Court of Chancery Rule 5.1.46 That argument is without merit.

The purpose of the motion to strike is to prevent Plaintiffs from utilizing privileged

information to which they are not entitled. The fact that the public is not able to

access that information does not remedy Teno’s unauthorized dissemination of

Illumina’s privileged and confidential information or Plaintiffs’ unauthorized use of

it. To repeat the words of our former Chief Justice in similar circumstances: “[I]f

you have someone else’s stuff and you shouldn’t have that, then you [have] got to

give it back” and may not use it for any purpose. Wal-Mart, C.A. No. 7779-CS, at

77:24–78:2.

III. CONCLUSION

For the foregoing reasons, the Motion to Strike is GRANTED.

IT IS SO ORDERED.

46
Pls.’ Opp’n Br. 4 (arguing that “Rule 5.1 provides the mechanism for addressing
[Defendants’] concerns”); id. at 17 (arguing that, by filing the complaint in compliance
with Rule 5.1, “Plaintiffs protected and preserved the Company’s ability to assert and
maintain the privilege or any other viable confidentiality interests over these materials”);
id. at 35–36 (identifying that the purpose of Rule 5.1 is “to preserve confidentiality in
judicial filings where it is necessary and appropriate to do so” and quoting a list of
categories of information appropriately protected by Rule 5.1—a list which does not
include privileged information).
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Very truly yours,

/s/ Paul A. Fioravanti, Jr.

Vice Chancellor

PAF/dtw

cc: All counsel of record (by File & ServeXpress)