This post is authored by Benjamin Chapple (Widener Law ’13)
In Hospitalists of Delaware, LLC v. Lutz, C.A. 622-1 VCP (August 28, 2012), Vice Chancellor Parsons extensively reviews the basis for exercising personal jurisdiction over alleged co-conspirators. Here’s a brief review of the opinion:
When sued by two judgment creditors, the managers and controlling stockholder of Cubit Medical Practice Solutions, Inc. (“the Company”) consented to personal jurisdiction; however, three other defendants, all of whom are non-Delaware business entities, did not. These non-consenting defendants (BCV, BC2, and Integra) all moved to dismiss for lack of personal jurisdiction.
Hospitalist (one of the two plaintiffs) sent the Company a claims letter because the Company was failing to process and collect medical bills. This claims letter threatened suit. Plaintiffs alleged that upon receipt of this letter the defendants immediately began to hatch a plan in which they would sell or dissolve the Company and, at the same time, extract their investment from Integra (a separate Ohio corporation that the defendants controlled) for the purpose of avoiding the Company’s creditors (the plaintiffs). The defendants began by changing Integra’s name and removing its website. Importantly, the defendants transferred the Company’s assets to another entity (BC4), planning to sell the worthless Company. By mid-2010, realizing that the judgments were inevitable, and unable to sell the business, the defendants decided to dissolve the Company before the plaintiffs could obtain default judgments. The Company’s board and stockholders authorized the dissolution. In connection with that dissolution process, however, the director defendants allegedly caused the Company to transfer all or substantially all of the Company’s remaining assets to the other business entity (BC4).
Plaintiffs Pled Bancario‘s “Conspiracy Theory” of Jurisdiction
Plaintiffs argued that the Court may exercise personal jurisdiction over the non-consenting defendants because (1) the director defendants caused the Company to file a certificate of dissolution with the Secretary of State, which constitutes the transaction of business for purposes of the long-arm statute; and (2) that jurisdictional act can be attributed to the non-consenting defendants under the so-called “conspiracy theory” of personal jurisdiction recognized by the Delaware Supreme Court in the Istituto Bancario decision. Plaintiffs contended that all the defendants, including the non-consenting defendants, participated in a conspiracy to dissolve the Company. Further, according to the plaintiffs, because the director defendants filed a certificate of dissolution, their action should be imputed to the non-consenting defendants because the conspiracy involved a collective effort between all defendants.
In discussing the relevant law regarding the plaintiffs’ personal jurisdiction claim, the Court explained:
[b]ecause the Long Arm Statute speaks in terms of acts committed “in person or through an agent,” and because “conspirators are considered agents for jurisdictional purposes,” “a foreign defendant may be subject to jurisdiction in Delaware, despite lacking direct forum contacts of its own, where it acts as part of a scheme in which the others engaged in Delaware-directed activity.”
The Court next explained that under the five-part test articulated in Bancario, a plaintiff asserting a conspiracy theory of jurisdiction must make a factual showing that:
(1) a conspiracy to defraud existed; (2) the defendant was a member of that conspiracy; (3) a substantial act or substantial effect in furtherance of the conspiracy occurred in the forum state; (4) the defendant knew or had reason to know of the act in the forum state or that acts outside the forum state would have an effect in the forum state; and (5) the act in, or effect on, the forum state was a direct and foreseeable result of the conduct in furtherance of the conspiracy.
Additionally, the Court stated, “Although Bancario literally speaks in terms of a ‘conspiracy to defraud,’ it is now well-settled that ‘a claim for aiding and abetting a breach of fiduciary duty satisfies the first and second elements of the Bancario test.” Next, the Court identified the elements of aiding and abetting a breach of fiduciary duty as the following: (1) a fiduciary relationship exists; (2) a breach of that relationship occurred; (3) that the alleged aider or abettor knowingly participated in the fiduciary’s breach of duty; and (4) damages exists that are proximately caused by the breach.
Conspiracy Jurisdiction Exists Over Integra
There was no dispute that a fiduciary relationship existed and the plaintiffs suffered damages; however, Integra denied that the plaintiffs pled a breach of duty against the director defendants or that Integra, the entity itself, as opposed to its directors– “knowingly participated” in the Company’s directors’ breach. The Court disagreed with Integra, stating:
Integra’s argument . . . deserves short shrift. . . . The Complaint alleges that the Director Defendant’s “breached their fiduciary duties by unlawfully dissolving [the Company] and engaging in a series of self-dealing and interested transactions . . . to the detriment of [the Company’s] creditors, including [the] plaintiffs.” That allegation is supported by the specific fact, among others, that [the Company] made preferential payments to Integra under the 2005 Management Services Agreement while insolvent and when Defendants feared that judgment creditors like [the] plaintiffs would have priority over Integra’s accounts receivable. These allegations state a claim for breach of fiduciary duty.
. . .
The flaw in Integra’s argument is that it mischaracterizes the alleged wrong as a conspiracy to dissolve [the Company]. Although dissolution of the Company was a substantial component of the alleged scheme to effect self-dealing transactions, the “conduct advocated or assisted constitut[ing the] breach” was the preferential treatment [the Company] gave to a subset of its creditors for self-interested reasons at a time when the Company was insolvent and, ultimately, planning to dissolve. Hence, Plaintiffs only need to plead facts permitting an inference that Integra knowingly advocated or assisted the Director Defendants in giving Integra the alleged preferential treatment.
The Court went on to state, “in the context of merger negotiations . . . while the acquirer’s mere receipt of preferential terms does not demonstrate participation in the target board’s breach of duty, ‘the terms of the negotiated transaction themselves may be so suspect as to permit, if proven, an inference of knowledge of an intended breach of trust.” The Court then noted that the alleged breach of duty in the case sub judice does not involve a negotiated merger, but disloyal preferential treatment to certain creditors. However, “by analogous reasoning . . . the extent of preferential treatment to insider creditors also may be so suspect or egregious as to permit an inference of knowing participation in the breach of duty.”
The Court found that the plaintiffs satisfied the first two Bancario elements as to Integra based on: (1) the Company did not make payments to the plaintiffs under the 2005 Management Services Agreement for a period of almost three years; (2) Rosenberg, a director of the Company, “instructed”/”suggested” that Integra start formally documenting a payable from the Company to Integra as a secured note rather than an unsecured payable so that Integra could claim priority over any potential judgment creditors of the Company; (3) the suggestion to take down the website for the purpose of making it difficult for creditors to “track them down”; (4) the “brash attitude” in Rosenberg’s emails about managing the Company’s affairs solely and explicitly to undermine the plaintiffs’ ability to recover their then still prospective judgments and to advantage its affiliate Integra; (5) Integra knew that Company was insolvent because both of its directors served on Cubits Board and Integra provided day-to-day management services to the Company.
In regards to the third element of the Bancario test—that a substantial act or substantial effect in furtherance of the conspiracy occurred in the forum state—the Court found that the Company filing a certificate of dissolution with the Secretary of State was a substantial act in furtherance of the director defendants’ allegedly disloyal scheme to give preferential treatment to Integra.
Finally, “[t]he fourth and fifth . . . elements are that ‘the defendant knew or had reason to know of the act [or effect] in the forum states’ and that ‘the act in[, or effect on,] the forum states was a direct and foreseeable result of the conduct in furtherance of the conspiracy.” The Court found that both elements were satisfied because Integra is charged with the knowledge of its directors who authorized the Company’s dissolution. Moreover, the Court found the act of filing a certificate of dissolution to be a direct and foreseeable result of conspiring to dissolve the Company. Similarly, it was reasonable to infer that Integra, through the director defendants, knew of the preferential payments to Integra and that, as a result of those payments, the Company would be unable to afford comparable treatment to the plaintiffs, even though they were (or imminently would be) judgment creditors of the Company.
After finding that all five elements were satisfied, the Court held that its exercise of personal jurisdiction over Integra comports with constitutional due process.
Conspiracy Jurisdiction Does Not Exist Over BC2
The Court held that the plaintiffs failed to satisfy the first two Bancario elements because the plaintiffs’ pleading failed to state a claim of either aiding or abetting or civil conspiracy against BC2.
Conspiracy Jurisdiction Does Not Exist Over BCV
Similarly, the Court found that the plaintiffs’ basis for personal jurisdiction over BCV failed for the same reason as with BC2—as a result of the absence of nonconclusory allegations or evidence that BCV conspired or knowingly participated in an unlawful scheme to defraud the Company’s creditors. Except for conclusory allegations, there is no indication that BCV participated in any of the events that gave rise to the plaintiff’s various claims. The Court went on to explain that the only specific allegations supporting the plaintiffs’ conspiracy theory of jurisdiction against BCV are that two of the alleged primary wrongdoers held management-level positions at BCV and BCV benefited from the allegedly fraudulent transfers. “More than mere knowledge, however, is required to subject a foreign corporation to the personal jurisdiction of this Court.” Rather, unless the plaintiffs “seek to predicate personal jurisdiction on a veil-piercing theory, they must identify some action by BCV, the entity, from which the Court can infer the requisite participation or conspiratorial agreement.”