FS Parallel Fund, L.P. et al. v. Ergen, et al.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE FS PARALLEL FUND., L.P., FS § EMPLOYEE INVESTORS LLC, FURMAN§ SELZ INVESTORS II L.P., ING FURMAN § SELZ INVESTORS III L.P., ING § BARINGS GLOBAL LEVERAGED § EQUITY PLAN LTD. and ING BARINGS § U.S. LEVERAGED EQUITY PLAN LLC, § § Plaintiffs Below, § Appellants, § § v. § § CHARLES W. ERGEN, DAVIS § MOSKOWITZ, STEVE SCHAVER, § MARK JACKSON, ECHOSTAR § COMMUNICATIONS CORPORATION § and ECHOBAND CORPORATION, § § Defendants Below, § Appellees. § No. 423, 2003 Court Below: Court of Chancery of the State of Delaware, in and for New Castle County C. A. No. 19853-NC Submitted: September 23, 2003 Decided: April 15, 2004 Before VEASEY, Chief Justice, HOLLAND, BERGER, STEELE and JACOBS, Justices, constituting the Court en Banc. ORDER This 15th day of April 2004, upon consideration of the briefs and oral argument of the parties, and considering this Court's Opinion of April 2, 2004, in the case of Tooley v. Donaldson, No. 84, 2004, ("Tooley"), with respect to which the mandate from this Court issued on April 13, 2004, it appears to the Court that: (1) In an opinion dated July 28, 2003, the Court of Chancery dismissed the claims of Plaintiff-Appellants under Court of Chancery Rules 12(b)(6) and 23.1. (2) The Court of Chancery found the claims to be derivative, thus implicating the jurisprudential issues decided by this Court in Tooley. (3) It is desirable that the Court of Chancery should evaluate its decision dated July 28, 2003, in light of Tooley, and this case be remanded for that purpose. NOW, THEREFORE, IT IS ORDERED that this matter is REMANDED to the Court of Chancery to evaluate its decision dated July 28, 2003, in light of Tooley. Jurisdiction is not retained. BY THE COURT: /s/ E. Norman Veasey Chief Justice 2
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