Brehm v. Eisner

Decision Date09 February 2000
Docket NumberNo. 469, 1998.,469, 1998.
PartiesWilliam BREHM and Geraldine Brehm, as Trustees and Custodians; Michael Grening; Richard Kaplan and David Kaplan, as Trustees; Thomas M. Malloy; Richard J. Kager and Carol R. Kager, as Joint Tenants; Michael Caesar, as Trustee for Howard Gunty, Inc., Profit Sharing Plan; Robert S. Goldberg, I.R.A.; Michael Shore; Michele De Bendictis; Peter Lawrence, I.R.A.; Melvin Zupnick; Judith B. Wohl, I.R.A.; James C. Hays; and Barnett Stepak, Plaintiffs Below, Appellants, v. Michael D. EISNER, Michael S. Ovitz, Stephen F. Bollenbach, Reveta F. Bowers, Roy E. Disney, Stanley P. Gold, Sanford M. Litvack, Ignacio E. Lozano, Jr., George J. Mitchell, Thomas S. Murphy, Richard A. Nunis, Leo J. O'Donovan, Sidney Poitier, Irwin E. Russell, Robert A.M. Stern, E. Cardon Walker, Raymond L. Watson and Gary L. Wilson, Defendants Below, Appellees. and The Walt Disney Company, Nominal Defendant Below, Appellee.
CourtUnited States State Supreme Court of Delaware

Joseph A. Rosenthal, Kevin Gross, Rosenthal, Monhait, Gross & Goddess, Wilmington, Delaware; Steven G. Schulman (argued), Edith M. Kallas, U. Seth Ottensoser, Milberg Weiss Bershad Hynes & Lerach, New York City, for appellants.

R. Franklin Balotti (argued), Anne C. Foster, Srinivas M. Raju, Peter B. Ladig, Richards, Layton and Finger, Wilmington, Delaware, for director appellees.

David C. McBride, Young, Conaway, Stargatt & Taylor, Wilmington, Delaware; Ronald L. Olson, George M. Garvey, Mark H. Epstein (argued) Munger, Tolles & Olson, Los Angeles, California, for appellee Ovitz.

Andre G. Bouchard, Joel Friedlander, Bouchard, Friedlander & MaloneyHuss, Wilmington, Delaware; Edward J. Nowak, Jay S. Handlin, Burbank, California; David S. McLeod, John P. Flynn, Dewey Ballantine, Los Angeles, California, for appellee The Walt Disney Company.

Stuart M. Grant, Jay W. Eisenhofer, Megan D. McIntyre, Grant & Eisenhofer, Wilmington, Delaware, for Amicus Curiae Council of Institutional Investors.

Before VEASEY, C.J., WALSH, HOLLAND, HARTNETT and BERGER, JJ., constituting the Court en Banc. VEASEY, Chief Justice:

In this appeal from the Court of Chancery, we agree with the holding of the Court of Chancery that the stockholder derivative Complaint1 was subject to dismissal for failure to set forth particularized facts creating a reasonable doubt that the director defendants were disinterested and independent or that their conduct was protected by the business judgment rule.2 Our affirmance, however, is in part based on a somewhat different analysis than that of the Court below or the parties. Accordingly, in the interests of justice, we reverse only to the extent of providing that one aspect of the dismissal shall be without prejudice, and we remand to the Court of Chancery to provide plaintiffs a reasonable opportunity to file a further amended complaint consistent with this opinion.

The claims before us are that: (a) the board of directors of The Walt Disney Company ("Disney") as it was constituted in 1995 (the "Old Board") breached its fiduciary duty in approving an extravagant and wasteful Employment Agreement of Michael S. Ovitz as president of Disney; (b) the Disney board of directors as it was constituted in 1996 (the "New Board") breached its fiduciary duty in agreeing to a "non-fault" termination of the Ovitz Employment Agreement, a decision that was extravagant and wasteful; and (c) the directors were not disinterested and independent.3

The Complaint, consisting of 88 pages and 285 paragraphs, is a pastiche of prolix invective. It is permeated with conclusory allegations of the pleader and quotations from the media, mostly of an editorial nature (even including a cartoon). A pleader may rely on factual statements in the media as some of the "tools at hand"4 from which the pleader intends to derive the particularized facts necessary to comply with Chancery Rule 11(b)(3) and Chancery Rule 23.1. But many of the quotations from the media in the Complaint simply echo plaintiffs' conclusory allegations. Accordingly, they serve no purpose other than to complicate the work of reviewing courts.

This is potentially a very troubling case on the merits. On the one hand, it appears from the Complaint that: (a) the compensation and termination payout for Ovitz were exceedingly lucrative, if not luxurious, compared to Ovitz' value to the Company; and (b) the processes of the boards of directors in dealing with the approval and termination of the Ovitz Employment Agreement were casual, if not sloppy and perfunctory. On the other hand, the Complaint is so inartfully drafted that it was properly dismissed under our pleading standards for derivative suits. From what we can ferret out of this deficient pleading, the processes of the Old Board and the New Board were hardly paradigms of good corporate governance practices. Moreover, the sheer size of the payout to Ovitz, as alleged, pushes the envelope of judicial respect for the business judgment of directors in making compensation decisions. Therefore, both as to the processes of the two Boards and the waste test, this is a close case.

But our concerns about lavish executive compensation and our institutional aspirations that boards of directors of Delaware corporations live up to the highest standards of good corporate practices do not translate into a holding that these plaintiffs have set forth particularized facts excusing a pre-suit demand under our law and our pleading requirements.

This appeal presents several important issues, including: (1) the scope of review that this Court applies to an appeal from the dismissal of a derivative suit; (2) the extent to which the pleading standards required by Chancery Rule 23.1 exceed those required by Rule 8 of that Court; and (3) the scope of the business judgment rule as it interacts with the relevant pleading requirements. To some extent, the principles enunciated in this opinion restate and clarify our prior jurisprudence.

Facts

This statement of facts is taken from the Complaint. We have attempted to summarize here the essence of Plaintiffs' factual allegations on the key issues before us, disregarding the many conclusions that are not supported by factual allegations.

A. The 1995 Ovitz Employment Agreement

By an agreement dated October 1, 1995, Disney hired Ovitz as its president. He was a long-time friend of Disney Chairman and CEO Michael Eisner. At the time, Ovitz was an important talent broker in Hollywood. Although he lacked experience managing a diversified public company, other companies with entertainment operations had been interested in hiring him for high-level executive positions. The Employment Agreement was unilaterally negotiated by Eisner and approved by the Old Board. Their judgment was that Ovitz was a valuable person to hire as president of Disney, and they agreed ultimately with Eisner's recommendation in awarding him an extraordinarily lucrative contract.

Ovitz' Employment Agreement had an initial term of five years and required that Ovitz "devote his full time and best efforts exclusively to the Company," with exceptions for volunteer work, service on the board of another company, and managing his passive investments.5 In return, Disney agreed to give Ovitz a base salary of $1 million per year, a discretionary bonus, and two sets of stock options (the "A" options and the "B" options) that collectively would enable Ovitz to purchase 5 million shares of Disney common stock.

The "A" options were scheduled to vest in three annual increments of 1 million shares each, beginning on September 30, 1998 (i.e., at the end of the third full year of employment) and continuing for the following two years (through September 2000). The agreement specifically provided that the "A" options would vest immediately if Disney granted Ovitz a non-fault termination of the Employment Agreement. The "B" options, consisting of 2 million shares, differed in two important respects. Although scheduled to vest annually starting in September 2001 (i.e., the year after the last "A" option would vest), the "B" options were conditioned on Ovitz and Disney first having agreed to extend his employment beyond the five-year term of the Employment Agreement. Furthermore, Ovitz would forfeit the right to qualify for the "B" options if his initial employment term of five years ended prematurely for any reason, even if from a non-fault termination.

The Employment Agreement provided for three ways by which Ovitz' employment might end. He might serve his five years and Disney might decide against offering him a new contract. If so, Disney would owe Ovitz a $10 million termination payment.6 Before the end of the initial term, Disney could terminate Ovitz for "good cause" only if Ovitz committed gross negligence or malfeasance, or if Ovitz resigned voluntarily. Disney would owe Ovitz no additional compensation if it terminated him for "good cause." Termination without cause (non-fault termination) would entitle Ovitz to the present value of his remaining salary payments through September 30, 2000, a $10 million severance payment, an additional $7.5 million for each fiscal year remaining under the agreement, and the immediate vesting of the first 3 million stock options (the "A" Options).

Plaintiffs allege that the Old Board knew that Disney needed a strong second-in-command. Disney had recently made several acquisitions, and questions lingered about Eisner's health due to major heart surgery. The Complaint further alleges that "Eisner had demonstrated little or no capacity to work with important or well-known subordinate executives who wanted to position themselves to succeed him," citing the departures of Disney executives Jeffrey Katzenberg, Richard Frank, and Stephen Bollenbach as examples. Thus, the Board knew that, to increase the chance for long-term success, it had to take extra care in reviewing a decision to hire...

To continue reading

Request your trial
1084 cases
  • Oliveira v. Sugarman
    • United States
    • Court of Special Appeals of Maryland
    • January 20, 2017
    ...be respected by courts.Aronson v. Lewis , 473 A.2d 805, 812 (Del. 1984) (citations omitted), overruled on other grounds by Brehm v. Eisner , 746 A.2d 244 (Del. 2000).4 To overcome the "dangerous terrain" of the business judgment rule presumption, the plaintiff must assert facts that suggest......
  • In re Enivid. Inc.
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts
    • July 12, 2006
    ...was in the best interests of the company." Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984), overruled on other grounds, Brehm v. Eisner, 746 A.2d 244 (Del.2000). The rule "operates as both a procedural guide for litigants and a substantive rule of in breach of corporate fiduciary duty cases......
  • Levin v. Modi (In re Firestar Diamond, Inc.)
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • October 15, 2021
    ...that the corporation has received adequate consideration." In re Walt Disney Co. Derivative Litig. , 906 A.2d at 74 (quoting Brehm , 746 A.2d at 263 ). The Trustee alleges that Defendants committed corporate waste by both "directing the Debtors and their officers to use corporate assets to ......
  • In re Inc.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Northern District of Texas
    • November 28, 2011
    ...directors will not be disturbed unless they acted in a manner that cannot be attributed to a rational business purpose. Brehm v. Eisner, 746 A.2d 244, 264 (Del. 2000). Therefore, to withstand a 12(b)(6) motion, the Trustee must have alleged facts plausibly showing that the Outside Directors......
  • Request a trial to view additional results
14 firm's commentaries
  • Delaware Court Of Chancery Rules That Shareholder Derivative Lawsuits Are Not Collaterally Estopped By Previously Dismissed Suits Involving Similar Claims
    • United States
    • Mondaq United States
    • June 21, 2012
    ...144 (Del. 2008); Beam v. Stewart, 845 A.2d 1040, 1056-57 (Del. 2004); White v. Panic, 783 A.2d 543, 556-57 (Del. 2001); Brehm v. Eisner, 746 A.2d 244, 266-67 (Del. 2000); Grimes v. Donald, 623 A.2d 1207, 1216 (Del. 1996); In re Dow Chem. Co. Derivative Litig., No. 4349-CC, 2010 WL 66769, at......
  • Say No More: The Latest Blow To Suits Challenging Proxy Disclosures About Say-On-Pay And Stock Incentive Plans
    • United States
    • Mondaq United States
    • September 30, 2013
    ...2008 WL 2923427, at *19 (Del. Ch. July 28, 2005), rev'd on other grounds, 970 A.2d 235 (Del. 2009)). Id. at 6-7 (citing Brehm v. Eisner, 746 A.2d 244, 259 (Del. 2000)). See, e.g., In re Netsmart Techs., Inc. S'holders Litig., 924 A.2d 171, 209 (Del. Ch. 2007). Mancuso v. The Clorox Co., No.......
  • Say-On-Pay Lawsuits - Is This Time Different?
    • United States
    • Mondaq United States
    • January 4, 2012
    ...14 ½ months after being hired as its president. In re Walt Disney Co. Derivative Litigation, 906 A.2d 27 (Del. 2006); Brehm v. Eisner, 746 A.2d 244 (Del. 2000). As described in those opinions, two narrow avenues are available to the shareholder who seeks to challenge a compensation decision......
  • Say-On-Pay Lawsuits - Is This Time Different?
    • United States
    • Mondaq United States
    • March 7, 2012
    ...14 ½ months after being hired as its president. In re Walt Disney Co. Derivative Litigation, 906 A.2d 27 (Del. 2006); Brehm v. Eisner, 746 A.2d 244 (Del. 2000). As described in those opinions, two narrow avenues are available to the shareholder who seeks to challenge a compensation decision......
  • Request a trial to view additional results
22 books & journal articles
  • A divided court in more ways than one: the Supreme Court of Delaware and its distinctive model for judicial efficacy, 1997-2003.
    • United States
    • Albany Law Review Vol. 67 No. 3, March 2004
    • March 22, 2004
    ...Inc. v. NCS Healthcare, Inc., 818 A.2d 914 (Del. 2003); Cerberus Int'l v. Apollo Mgmt., 794 A.2d 1141 (Del. 2002); Brehm v. Eisner, 746 A.2d 244 (Del. 2000); Stegemeier v. Magness, 728 A.2d 557 (Del. 1999); Kahn v. Tremont Corp., 694 A.2d 422 (Del. 1997). Note that Taylor I and Taylor II ar......
  • The pendulum swings: federalization of corporate law and its effects on the American capital markets.
    • United States
    • Suffolk University Law Review Vol. 41 No. 4, September 2008
    • September 22, 2008
    ...directors). (131.) See Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984) (explaining business judgment rule), overruled by Brehm v. Eisner, 746 A.2d 244 (Del. 2000). Courts will presume that "in making a business decision the directors or a corporation acted on an informed basis, in good fait......
  • Overlitigating Corporate Fraud: An Empirical Examination
    • United States
    • Iowa Law Review No. 97-1, November 2011
    • November 1, 2011
    ..., 964 A.2d at 121 (quoting Aronson v. Lewis, 473 A.2d 805, 815 (Del. 1984), overruled in part on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del. 2000)). 160. See supra notes 115–18 and accompanying text. A study by Bernard Black, Brian Cheffins, and Michael Klausner, for example, concl......
  • Bankruptcy & The Benefit Corporation.
    • United States
    • American Bankruptcy Law Journal Vol. 96 No. 1, January 2022
    • January 1, 2022
    ...A.2d 805, 809 (Del. 1984) (plaintiff sought derivative standing for non-fiduciary claims), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244, 254 (Del. 2000). The policy behind derivative standing maps onto the benefit corporation neatly: insolvency "makes the creditors the princi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT