Sagarra Inversiones, S.L. v. Cementos Portland Valderrivas, S.A., et al.

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Justia Opinion Summary

This action arose out of the sale of Giant Cement Holding, Inc. (Giant) by defendant Cementos Portland Valderrivas (CPV) to defendant Corporacion Uniland S.A. Sagarra Inversiones, S.L. (Sagarra) challenged the transaction on the basis of CPV's self-dealing because of its position as the majority shareholder on both sides of the transaction. Sagarra purported to bring this action individually and derivatively on behalf of nominal defendant Uniland Acquisition Corp. (Uniland Delaware). The court held that to the extent the Complaint asserted a multiple derivative action on behalf of Uniland Delaware, it must be dismissed because Sagarra did not have standing to raise those claims based on the court's review of Spanish law. The court held that for the same reasons, Counts I and II, which assert multiple derivative claims on behalf of Uniland Delaware, were dismissed. The court's determination with respect to Sagarra's lack of standing as to Counts I and II was equally applicable to Count III. The court finally held that because Count IV raised fiduciary duty claims under Spanish law, the better course of action was for the court to exercise its discretion and dismiss Count IV. Therefore, defendants' motion to dismiss the Complaint was granted and an implementing order would be entered.

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EFiled: Aug 5 2011 12:50PM EDT Transaction ID 39118467 Case No. 6179-VCN IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE SAGARRA INVERSIONES, S.L., Plaintiff, v. CEMENTOS PORTLAND VALDERRIVAS, S.A., et al., Defendants. UNILAND ACQUISITION CORPORATION, Nominal Defendant. : : : : : : : : : : : : : : C.A. No. 6179-VCN MEMORANDUM OPINION Date Submitted: April 26, 2011 Date Decided: August 5, 2011 Arthur L. Dent, Esquire and Scott B. Czerwonka, Esquire of Potter Anderson & Corroon LLP, Wilmington, Delaware, and John R. Fornaciari, Esquire, Robert M. Disch, Esquire, and Jeremy M. Keim, Esquire of Baker & Hostetler LLP, Washington, D.C., Attorneys for Plaintiff. Paul J. Lockwood, Esquire and Rachel J. Barnett, Esquire of Skadden, Arps, Slate, Meagher & Flom LLP, Wilmington, Delaware, and Jay B. Kasner, Esquire and Jeremy A. Berman, Esquire of Skadden, Arps, Slate, Meagher & Flom LLP, New York, New York, Attorneys for Defendants. NOBLE, Vice Chancellor I. INTRODUCTION 1 As described in the Co this action arises out -dealing because of its position as the majority shareholder on both sides of the transaction. For that reason, Sagarra seeks, through this lawsuit, (1) to prevent the payment of any additional funds under the ), and (2) to rescind the SPA. Now before the Court is the Defendants or to stay. II. BACKGROUND2 A. The Parties Sagarra, a minority shareholder of Uniland S.A., is an entity organized under the laws of Spain with its principal place of business in Barcelona. It purports to bring this action individually and derivatively on behalf of Nominal Defendant elaware corporation formed on December 28, 2010 for the purpose of effectuating the Giant transaction. 1 Sagarra Inversiones, S.L. v. Cementos Portland Valderrivas, S.A., 2011 WL 3273266 (Del. Ch. There interim injunctive relief. Id. at *3. 2 The factual background is based on allegations in the Verified Direct and Derivative Complaint 1 Uniland S.A., an entity formed under the laws of Spain, acquires and operates cement, concrete and aggregate plants in Spain and Tunisia. Uniland Delaw a Dutch holding company which itself is wholly owned by Uniland S.A. CPV, an entity formed under the laws of Spain, is the majority shareholder of Uniland S.A. It had held a majority interest in Giant until that entity merged with Uniland Delaware. CPV also commands a majority stake in three of the four entities that appoint directors to the Uniland S.A. board of directors Defendants Participaciones Estella 6, S.L.U., Compañia Auxiliar De Bombeo De Hormigón S.A.U., and Horminal S.L.U.,3 which are all Spanish corporations. Jaime à rculo Bareño and Borja Arbesú Lobo are also named as defendants in the Complaint.4 B. Factual Background and Procedural History Familiarity with the factual background set forth in the Letter Opinion is assumed. allegations is simply summarized. CPV by virtue of its controlling stake in both Giant and Uniland S.A. forced through the 3 The directors designated to serve on the Uniland S.A. board on behalf of these entities are, respectively, Defendants José Manuel Revuelta Lapique, Antonio Crous Millet, and José Luis Gómez Crúz all residents of Madrid, Spain. The only other director on the Uniland S.A. board Pedro Navarro 4 James C. Siokos, Esq., the incorporator of Uniland Delaware, was included as a defendant in the Complaint; however, Sagarra agreed voluntarily to dismiss him without prejudice from this action. See Sagarra Inversiones, S.L. v. Cementos Portland Valderrivas, S.A., C.A. No. 6179VCN (Del. Ch. Mar. 3, 2011) (ORDER) (Trans. ID No. 36245803). 2 approximately $279 million acquisition of Giant by Uniland S.A. at an inflated acquisition price. Because the merger consideration closing adjustments which is subject to post- is to be paid in four equal installments, Sagarra seeks to prevent the payment of any additional funds. In addition, it ultimately seeks rescission of the SPA. Both CPV and Giant are financially distressed companies. CPV has encountered difficulties in satisfying the covenants in its financing agreements. Giant a cement and concrete producer headquartered in South Carolina has substantial outstanding debt, has experienced net losses in past years, and has failed to comply with its financial covenants. Because of these ongoing financial struggles, CPV began to solicit interest in 2009 in the sale of Giant at a price of $270 million. Around that same time, Uniland B.V. sold its stake in certain South American entities, which resulted in proceeds of approximately $188 million. Sagarra alleges that CPV then sought to sell Giant to Uniland S.A. as a means of obtaining these proceeds for itself, while simultaneously disposing of its interest in Giant. Around September 2010, CPV first proposed a sale of Giant to Uniland S.A. for a purchase price of approximately $278 million. Sagarra, through its board representative, opposed that proposal. Sagarra and CPV later agreed that an independent valuation of Giant should be completed before a Giant-Uniland S.A. 3 transaction would be considered. Accordingly, UBS was retained by Uniland S.A. in October 2010 to conduct that valuation. Only days later, CPV ordered UBS to cease its efforts because PriceWaterhouseCoopers had already produced a valuation report in March 2010 that, according to CPV, had properly valued Giant at $700 million. That report was not acceptable to Sagarra, mainly because it was created based on CPV instructions but, also, because of what Sagarra perceived to be material shortcomings in the analysis. Thus, Sagarra again expressed its lack of interest in moving forward with a Giant-Uniland S.A. transaction. In December 2010, CPV retreated from its mandate that UBS not complete its valuation. Indeed, UBS issued a draft report on December 15th, after which it received separate confidential comments from CPV and Sagarra. Thereafter, on December 22nd, UBS submitted its final valuation report, which, according to Sagarra, recommended a range of $66 million to $151 million as an appropriate purchase price for Giant. It is on that basis that Sagarra contends that the $279 million price paid by Uniland S.A. for Giant is inflated by somewhere between $128 million and $213 million; more importantly, that purportedly inflated purchase price benefited only CPV, at the expense of Uniland S.A. and Sagarra. After UBS issued its final valuation of Giant, CPV which by then had terminated discussions with Sagarra used its majority stake in Uniland S.A. to consummate the Giant acquisition. Uniland Delaware was formed to effectuate the 4 merger. The transaction was approved board representative by the three CPV directors on the Uniland S.A. board. Thereafter, acting consistently with the resolutions adopted by the Uniland S.A. board executed the SPA. Sagarra (and its affiliates) first commenced proceedings to challenge the Giant transaction in Spain; around January 28, 2011, they filed an action in the Spanish Commercial Court and initiated a Spanish arbitration proceeding. Subsequently, Sagarra filed this action on February 9, 2011. The Complaint alleges four counts. Counts I-III which raise multiple derivative claims on behalf of Uniland Delaware and cla 5 allege breaches of fiduciary duty and aiding and abetting those breaches. Count IV also raises fiduciary duty claims; however, those claims are asserted under Spanish law. III. CONTENTIONS The Defendants contend that dismissal of the Complaint is appropriate under Court of Chancery Rules 12(b)(1) through 12(b)(7) for lack of personal jurisdiction, invalid service, lack of subject matter jurisdiction, improper venue (under McWane and based on forum non conveniens), and failure to state a claim 5 Compl. ¶ 63. 5 upon which relief may be granted.6 Moreover, they argue that dismissal is proper under Court of Chancery Rule 23.1 for lack of standing and for failure to comply with the derivative suit requirements of Spanish and Delaware law. Alternatively, the Defendants have moved to stay this action in favor of the earlier-filed proceedings commenced by Sagarra and its affiliates in Spain. Sagarra, in opposing the motion, argues that the grounds for dismissal do not apply to these multiple derivative claims brought solely on behalf of Uniland Delaware. McWane is inapplicable, according to Sagarra, because the Spanish claims will not (and cannot) address the injunctive and rescissionary relief sought in this action. Moreover, Sagarra argues that the forum non conveniens assertions must fail because the Cryo-Maid factors have not been satisfied.7 Delaware law, according to Sagarra, governs questions of standing and demand futility and, as a result, the Defendants arguments to the contrary are without merit. 6 Uniland Delaware and its directors do not join the other defendants in moving for dismissal based on lack of personal jurisdiction and invalid service. 7 Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681 (Del. 1964), overruled on other grounds by Pepsico, Inc. v. Pepsi-Cola Bottling Co., 261 A.2d 520 (Del. 1969). Under the Cryo-Maid framework as supplemented by Parvin v. Kaufmann, 236 A.2d 425, 427 (Del. 1967) the Court must consider six factors in determining whether the forum non conveniens doctrine should be applied. Lisa, S.A. v. Mayorga are: (1) the relative ease of access to proof; (2) the availability of compulsory process for witnesses; (3) the possibility of the view of the premises, if appropriate; (4) whether or not the controversy is dependent upon the application of Delaware law; (5) the pendency or nonpendency of a similar action or actions in another jurisdiction; and (6) all other practical problems that would make Id. 6 IV. ANALYSIS A. Counts I & II In Count I of the Complaint, Sagarra asserts a multiple derivative claim on behalf of Uniland Delaware based on purported breaches of the duty of loyalty by the directors of that entity. Count II also styled as multiple derivative claims on behalf of Uniland Delaware alleges that a number of other defendants, including CPV, aided and abetted that supposed breach of the duty of loyalty by the Uniland Delaware directors. In a multiple derivative action, the claims that the plaintiff seeks to pursue belong to a subsidiary positioned somewhere down the corporate structure;8 here, the claims asserted in Counts I and II belong to Uniland Delaware a wholly owned, indirect subsidiary of Uniland S.A. (a Spanish entity). Sagarra (also a Spanish entity) is a shareholder of Uniland S.A. only. Further complicating the corporate structure in this instance is an intermediate subsidiary of Uniland S.A. Uniland B.V., a Dutch company which wholly owns Uniland Delaware. s are then required to comply with the requirements of Court of Chancery Rule 23.1, that the stockholder: (a) retain ownership of the shares throughout the litigation; (b) make 8 Hamilton Partners, L.P. v. Englard, 11 A.3d 1180, 1199 (Del. Ch. 2010). 7 9 Moreover, he right of a stockholder to prosecute a derivative suit is limited to situations where the stockholder has demanded that the directors pursue the corporate claim and they have wrongfully refused to do so or where demand is excused because the directors are incapable of making an 10 I issue of whether a derivative plaintiff should be permitted to press a cause of action on behalf of a corporation is, in key respects, a . . . matter about the 11 Although Sagarra correctly contends that Delaware has an important interest in holding accountable individuals responsible for the operation of Delaware corporations and, if the allegations here are true, it raises some troubling issues related to the Giant transaction and the operation of Uniland Delaware the threshold question that the Court must confront is whether Sagarra has standing to bring these multiple derivative claims on behalf of Uniland Delaware. Because 9 Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1036 (Del. 2004); see also Aronson v. Lewis, 473 A.2d 805, 811By its very nature the derivative action impinges on the managerial freedom of directors. Hence, the demand requirement of Chancery Rule 23.1 exists at the threshold, first to [e]nsure that a stockholder exhausts his intracorporate remedies, and then to provide a safeguard against strike ). 10 Rales v. Blasband, 634 A.2d 927, 932 (Del. 1993). 11 Lewis v. Ward, 2003 WL 22461894, at *2 (Del. Ch. Oct. 29, 2003). 8 affairs doctrine applies to the right of a stockholder to pursue a derivative action[,] 12 a review of that doctrine and its applicability here is warranted. The internal affairs doct tate should have the 13 For that reason, it is only the law of the state of incorporation 14 governs and determines issues relating to a corporation Our Supreme Court has observed that internal corporate affairs include which are peculiar to the relationships among or between the corporation and its 15 rooted, in part, The internal affairs doctrine is know to what standards of accountability they may hold affairs 16 and, of similar importance, a right of the directors and officers of a to know what law will be applied to their actions. 17 Consistent with the above examination of the internal affairs doctrine, Hamilton Partners in a double derivative action involving a wholly owned subsidiary, a stockholder plaintiff only must plead demand futility (or 12 Kostolany v. Davis, 1995 WL 662683, at *2 (Del. Ch. Nov. 7, 1995). VantagePoint Venture Partners 1996 v. Examen, Inc., 871 A.2d 1108, 1112 (Del. 2005). 14 Id. at 1113. 15 McDermott Inc. v. Lewis, 531 A.2d 206, 214 (Del. 1987). 16 Newcastle Partners, L.P. v. Vesta Ins. Group, Inc., 887 A.2d 975, 982 (Del. Ch. 2005) (internal quotations omitted). 17 McDermott Inc., 531 A.2d at 216. 13 9 otherwise satisfy Rule 23.1) at the parent level. 18 Thus, where the parent entity is not a Delaware corporation, then under the internal affairs doctrine, the law of the state of incorporation determines the showing that a plaintiff must make satisfy the Court that the plaintiff has standing to bring a multiple derivative action.19 For that reason, because Sagarra only owns shares in Uniland S.A., a corporation organized under the laws of Spain, the Court must consider whether Sagarra has standing to bring a derivative claim under Spanish law.20 earlier-filed proceedings in Spain are not derivative actions,21 but that it would appear that Sagarra could have pursued a derivative action of some kind against 18 Hamilton Partners, 11 A.3d at 1207 (citing , 3 A.3d 277, 282 (Del. 2010)). 19 Id. Thus, because the parent corporation was incorporated in New York, the Court considered whether the plaintiff in Hamilton Partners had satisfied the derivative suit requirements under New York law. Id. at 1207-08. 20 See id. at 1206-07; Kostolany, 1995 WL 662683, at *2strong intere is a stockholder of the Dutch parent [company], not of the Delaware subsid Levine v. Milton, 219 A.2d 145, 147 (Del. Ch. 1966) (dismissing a derivative suit purportedly brought on behalf of a corporation organized under the laws of Panama because Panama law does not f a stockholder to bring a derivative action is a question of substantive law to be determined by the law of the state or country of disagreed with on other grounds by Hamilton Partners, 11 A.3d at 1199-1200. 21 Transmittal Aff. of Scott B. Czerwonka, Esq., Ex. 2 (English Translation of Aff. of Francisco e Spanish action). 10 Uniland S.A. under Spanish law.22 To bring a derivative suit under Spanish law, Sagarra would have first had to request that directors call a shareholder meeting to consider whether to pursue the derivative claims. Had the Uniland S.A. board refused, Sagarra could have then brought an action asserting those derivative claims. Otherwise, had a meeting been held, it would appear that Sagarra still could have pursued the derivative claims after a 23 certain period of time, Sagarra concedes that neither it nor its affiliates made a demand on the Uniland S.A. board.24 Thus, no request was made for a shareholder meeting to That decision was 22 Id. S.A. directors under Art. 239 [of the Ley de Sociedades de Capital] seeking liability for damages 23 Tra Corporate law only provides for some specific instances of derivative actions that third parties shareholders among them may undertake concerning matters belonging to the corporation and on behalf of the latter. . . . [T]he only [provision] directly affecting lawsuits and shareholders, is the provision in art. 239 of the Capital Companies Act or Ley de Sociedades de Capital, . . . [which] refers to the admissibility, when certain requirements . . . are met, of lawsuits filed by shareholders representing at least 5% of share capital of the corporation, to seek compensation for the corporation from directors who are liable for harm caused to the corporation in breach of the to decide on filing a lawsuit seeking liability (from the directors). 2. They (the shareholders representing at least five per cent of share capital) may also jointly file the lawsuit defending the purpose, when the cor ed 10% 24 Compl. ¶ 51. 11 justified, according to Sagarra, because any demand would have been futile based 25 Although the Uniland S.A. board failed to exhaust its intra-corporate remedies under Spanish law. Had it requested that a shareholder meeting be called, and had that request been refused, it would directors. Accordingly, the Court must conclude that, even though Spanish law recognizes some kind of derivative suit, Sagarra lacked standing under Spanish law to bring a claim of that sort. Thus, to the extent the Complaint asserts a multiple derivative action on behalf of Uniland Delaware, it must be dismissed under these circumstances because Sagarra does not have standing to raise those claims review of Spanish law.26 That result is consistent with earlier rulings of Delaware courts, as discussed supra, the internal affairs doctrine, Spanish law shareholder in Uniland S.A., a Spanish corporation.27 Indeed, because Sagarra and 25 Id. 26 right to pursue a derivative action on behalf of a corporat Kostolany, 1995 WL 662683, at *3bringing a derivative suit under Dutch law based on the role of Uniland B.V., an intermediate subsidiary of Uniland S.A. that wholly owns Uniland Delaware. 27 This action implicates the internal affairs of a Spanish corporation and its relationship with a Spanish shareholder. Although a Delaware entity may be involved in the corporate structure, the 12 its affiliates commenced legal proceedings in Spain to challenge the Giant transaction before filing in Delaware, that provides some indication that it can adequately pursue claims challenging the Giant transaction in Spanish courts. For these reasons, Counts I and II which assert multiple derivative claims on behalf of Uniland Delaware are dismissed. B. Count III Count III asserts claims against CPV for breach of fiduciary duty under of Uniland S.A. and as the ultimate minority sha 28 Sagarra contends that Count III asserts both direct and derivative claims against CPV under Delaware law because CPV, as the majority shareholder, owed certain duties to Sagarra as the minority shareholder. It asserts that - dealing violated that duty and caused financial injury to Sagarra that differs from that suffered by Uniland S.A. and Uniland Delaware. To determine whether a claim is direct or derivative, the Court must look he manner in which a plaintiff labels its claim and the form of words Court is mindful of the important interest of affording comity to foreign business law governing expect that other sovereigns will respect our state s overriding interest in the interpretation and enforcement of our entity laws, we must show reciprocal respect. Diedenhofen-Lennartz v. Diedenhofen, 931 A.2d 439, 451-52 (Del. Ch. 2007). 28 Compl. ¶ 63. 13 used in the complaint 29 Instead, as directed by Tooley,30 must look exclusively to (1) who suffered the alleged harm and (2) who would receive the benefit of any recovery or other remedy. 31 The duty of loyalty shareholder not act, or cause its representatives to act, in such a manner as to deal unfairly with the minority shareholders. 32 Assuming the allegations to be true, CPV caused Uniland S.A. and its subsidiaries to enter into a transaction for Giant at an inflated financials by (1) disposing of its interest in the financially distressed Giant, and (2) shifting cash from Uniland S.A. to CPV. The suggestion then is that the harm was suffered by Uniland S.A. because it was forced to pay an inflated price for its newly acquired subsidiary. Even assuming that Sagarra has (or will) suffer a direct 29 Hartsel v. Vanguard Group, Inc., 2011 WL 2421003, at *16 (Del. Ch. June 15, 2011). 845 A.2d 1031. 31 Hartsel, 2011 WL 2421003, at *16. Although the Tooley formulation provides a two-part analysis for determining whether an asserted claim is direct or derivative, there are some limited exceptions where the same facts may support both direct and derivative claims. See, e.g., Gentile v. Rossette, 906 A.2d 91, 99-100 (Del. 2006). The Gentile framework does not appear to have any application to the claims asserted in Count III. However, if the Court is incorrect in that determination and the claims asserted are direct, Count III should still be dismissed (or at least McWane Cast Iron Pipe Corp. v. McDowell-Wellman Engineering Co., 263 A.2d 281 (Del. 1970), to Count IV in Part IV.C. That is becaus minority shareholder of Uniland S.A., with CPV, the controlling shareholder of that entity. The interests in that dispute relate solely to Spanish entities and, as a result, the Court should defer to the Spanish courts on a claim of that kind. Although that count discusses Uniland Delaware, the 30 its influence over the Uniland S.A. board. Oliver v. Boston Univ., 2006 WL 1064169, at *18 (Del. Ch. Apr. 14, 2006). 32 14 injury by having to support Uniland S.A. financially as a result of the Giant transaction, any remedy resulting from the purported overpayment would accrue to Uniland S.A. and its subsidiaries because Sagarra seeks rescission of the SPA. conclude that Count III is a derivative claim under the Tooley two-part analysis. determination as to Counts I and II is equally applicable to Count III. For that reason, it too must be dismissed. C. Count IV Count IV is similar to Count III in that it asserts claims against CPV for breach of fiduciary duty; however, Count IV asserts those claims under Spanish law. Although the Court analyzed Counts I through III on the basis of Sagarra standing under Spanish law to assert those derivative claims, Count IV must be considered under the well-established doctrine of McWane33 and its progeny. The decision of whether to stay or to dismiss a Delaware action in favor of a foreign action is a matter of discretion for the Court.34 Because earlier-filed proceedings were commenced by Sagarra in Spain, the Court considers the application of 33 McWane 263 A.2d 281. 34 -Hunt Park DR. BNK Investors, L.L.C., 2009 WL 3335332, at *3 (Del. Ch. Oct. 15, 2009). 15 prior action pending elsewhere, in a court capable of doing prompt and complete 35 In applying the McWane factors, the Court must consider the following: (1) is there an earlier-filed action pending in another jurisdiction related to the Delaware action; (2) does that other action involve the same parties and the same issues; and (3) is the foreign court capable of doing prompt and complete justice. 36 First, there is no doubt that Sagarra commenced earlier-filed proceedings in Spain. Both an action in the Spanish Commercial Court and an arbitration proceeding were begun on January 28, 2011 by Sagarra and its affiliates, but this action was not filed until February 9, 2011. Second, the parties and the issues appear to be substantially or functionally identical, as required by McWane. Under McWane analysis focuses on substance over form. 37 For that reason, the Court must examine whether the ultimate legal issues to be litigated will be determined in the first-filed action, and thus, [it] require[s] only a showing of [s]ubstantial or functional identity of the parties and issues. 35 38 Although the Court recognizes that Id. (quoting McWane, 263 A.2d at 283). Id. at *5. 37 Kurtin v. KRE, LLC, 2005 WL 1200188, at *4 (Del. Ch. May 16, 2005). 38 Id. (quoting AT & T Corp. v. Prime Sec. Distribs., Inc., 1996 WL 633300, at *2 (Del. Ch. Oct. 24, 1996)). 36 16 Uniland S.A.,39 under the circumstances, that is sufficient since it is the parent entity which wholly owns (directly or indirectly) all of the other entities of concern in this action.40 process leading to consummation of the Giant transaction. Because the Spanish proceedings challenge that decision at the Uniland S.A. level, those proceedings and the Delaware action undoubtedly arise from a common nucleus of operative facts.41 Accordingly, although the Court is mindful that the parties and issues are not identical, it is satisfied that, in putting substance over form, the first-filed Spanish proceedings involve functionally the same parties and issues. Finally, because this action is brought by a Spanish entity that is a shareholder in a Spanish corporation, there is little doubt that the Spanish courts are best suited to resolve the issues raised by Sagarra. This Court has already indication that, despite the financial distress of CPV and Giant, time is critically of 39 See . 5 (English Translation see also -Reply Aff. regarding Spanish Law and the Spanish Proceeding, Ex. A (Rebuttal Aff. of Francisco Peláez) ¶ 9 (observing that any ruling in the earlier-filed Spanish proceedings would not bind the subsidiaries of Uniland S.A.). 40 Kurtin, 2005 WL 1200188, at * here a named party owns and controls an unname substantially identic -filed analysis. In addition, this cou under McWane where related entities are involved, but not named, in both actions. 41 Id. McWane, the primary Dura Pharms., Inc. v. Scandipharm, Inc., 713 A.2d 925, 930 (Del. Ch. 1998)). 17 the essence in resolving these claims. Accordingly, although Sagarra takes issue with the time it will take to secure a resolution of the Spanish proceedings, it is not for this Court to question the efficiency of the Spanish Commercial Court. Even if it does not resolve disputes as quickly as Sagarra might like, there is no indication that the Spanish Commercial Court is incapable of providing timely and complete justice based on Sagarra challenge to the Giant transaction.42 Thus, all of the McWane factors are satisfied. Sagarra first challenged the Giant transaction in its earlier-filed proceedings in Spain before asserting similar claims in Delaware. There is little support for why duplicative actions that could result in conflicting rulings should be permitted in this instance. Because Count IV raises fiduciary duty claims under Spanish law, the better course of action is for the Court to exercise its discretion and dismiss Count IV. 42 best, can only provide a declaration that the two specific resolutions of Uniland S.A. [related to the SPA and the -24). What Sagarra ignores, however, is that, if it ultimately prevails on the merits of its current claim, the Spanish Court appears to be capable of providing something akin to rescissionary relief. reasonably and lawfully give full e and effective for all shareholders of the corporation, even if they were not parties to the litigation Id. under the duty to take all reasonably available actions to eliminate the effects and consequences of the resolution for the corporation, as the resolution [would have] been deemed ineffective by using the civil and other remedies that are available to enforce the general duties of Directors visà-vis the corporatio Id. ¶ 10. 18 V. CONCLUSION For the foregoing reasons, the Defendants motion to dismiss the Complaint is granted. An implementing order will be entered. 19

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