IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

MICHELLE ALTIERI ,

Plaintiff,

v. KIMBERLY ALEX Y , SARA ANDREWS, RONALD E. F. CODD, ARTHUR W. COVIELLO, JR. , KEVIN MANDIA, ADRIAN MCDERMOTT, VIRAL PATEL, ENRIQUE SALEM, ROBERT E. SWITZ, and MANDIANT, INC. ,

Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C.A. No. 202 1

- 0 946

- KSJM

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
1. Defendant Kevin Mandia formed Defendant Mandiant, Inc. ( the “Company”) in 2004 to provide incident response services to companies that experience data security breaches. The Company embarked on a merger and acquisition strategy to grow the original business. This Order refers to the Company’s original business line as “Old Mandiant.”
2. The Company combined with FireEye, Inc

. on December 30, 2013. The combined entity initially took the FireEye name but later chang ed it back to Mandiant

. This Order refers to the FireEye line of business, including goodwill and associated intangible assets, as the “FireEye Business

. ” Whereas Old Mandiant focus ed on incident response and consulting services , the FireEye Business created products designed to detect2

and prevent cyberattacks. Combin ing with FireEye a llowed the Company to both “detect[]
attacks” and also “respond[] to attacks [

. ] ” 1
3. The Company acquired other businesses in 2016

— iSight Partners, which was in the business of gathering information “ about hacker groups and other cybersecurity
risks , ” 2 and Invotas International Corp., which provided “security automation and orchestration technology.” 3 Also in 2016, Mandia joined the Company ’s Board of
Directors (the “Board”) and replaced David DeWalt as CEO

. 4. The Company’s revenue increased between 2016 and 2020

. During this period of growth, the FireEye Business was significant to overall business

. I n 2019 and 2020, the FireEye Business accounted for 62% and 57% of the Company’s overall revenue, respectively. 4 Further , the Company’s Form 10

- Q for the fiscal quarter ended June 30, 2021, listed $1 billion in goodwill , approximately $500 million of which is alleged to be
attributable to the FireEye B usiness. 5 The FireEye Business also had a strong social media presence relative to Mandiant’s other offerings. In 2021, however, t he Board projected that the FireEye Business would decline as a percentage of overall revenue

— forecasted down
to 48% in 2022 and 42% in 2023. 6

1 C.A. No. 2021

- 0946

- KSJM, Docket (“Dkt.”) 1 (“Compl.”) ¶ 19.
2 Id. ¶ 20.
3 Id. ¶ 21.
4 Id. ¶ 32

. 5 Id. ¶ 31; see also FireEye, Inc., Quarterly Report (Form 10

- Q) (August 9, 2021) (“Aug. 9 Form 10

- Q”). The Complaint incorporates the contents of the August 9 Form 10

- Q by reference. See Compl. ¶ 31 n.11

. 6 Compl. ¶ 32.3

5. On May 10, 2021, Mandia sold 150,000 shares in the Company , pursuant to a trading plan , for $20.06 per share

— a t otal of about $3 million. Mandia had sold no shares
in 2020 and sold only 15,781 shares in 2019.
6. On June 2, 2021, the Company sol d the FireEye B usiness to Symphony Technology Group (“STG”) for $1.2 billion (the “Sale”)

. Mandia described the Sale as an opportunity to let Mandiant “concentrate exclusively on scaling our intelligence and
frontline expertis e[.]” 7 He stated that the FireEye B usiness would fare better with STG , as STG was focused on “fueling innovative market leaders in software and cybersecurity[.]” 8 The Company did not seek stockholder approval of the Sale

. 7. In reaction to the announcement of the Sale, t he Company’s stock dropped by 17.62%

. 9 F inancial analysts who covered the Company expressed concern about the Company’s “lower gross margin and stability” absent the FireEye B usiness , noting that “the realized price for [the Company’s] product portfolio is less than we would have expected.” 10
8. Plaintiff Michelle Altieri (“Plaintiff”) is a stockholder of the Company . On November 3, 2021, Plaintiff brough t this action challenging the Sale, asserting claims against the Com pany and its Board members , Defendants Mandia, Kimberly Alexy, Sara

7 Id. ¶ 25.
8 Id.
9 Id. ¶ 26.
10 Id. ¶¶ 27

– 28.4

Andrews, Ronald E. F. Codd, Arthur W. Coviello, Jr., Adrian McDermott, Viral Patel, Enrique Salem, and Robert E. Switz (together, the “Director Defendants”)

. 9. The Complaint asserts three causes of action . In Count I, Plaintiff seeks to
void the Sale under 8 Del. C. § 271 , arguing that the Sale was a “sale of all or substantially
all” of Mandiant ’s assets but that the Board failed to put it to a stockholder vote as required by Secti on 271

. 11 In Count II, Plaintiff claims that the Director Defendants breached their fiduciary duties by knowingly failing to obtain a stockholder vote as required by Section
271

. In Count III, Plaintiff claim s that Mandia breached his fiduciary duties to the Company by trading on material, non

- public information ahead of the Sale and by approving the Sale

. On July 29, 2022, Plaintiff withdrew the portion of Count III alleging
a breach of fiduciary duty through stock trading

. 12 As relief, Plaintiff seeks declaratory judgment in her favor, an injunction compelling a stockholder vote on the Sale, and attorneys’ fees. 13
10. Defendants have moved to dismiss the Complaint pursuant to Court of Chancery Rules 12(b)(6) and 23.1

. 14 The parties briefed the motion and the court heard oral argument on February 24, 2023

. 15 Because Defendants’ Rule 12(b)(6) arguments are dispositive, this Order does not reach the Rule 23.1 arguments.

11 Id. ¶¶ 39

– 48.
12 See Dkt. 42 (“Pl.’s Answering Br.”) at 28 n.18.
13 See Compl. at 16.
14 See Dkt. 18.
15 Dkt s. 54, 55 (Feb. 25, 2023 Hr’g Tr.)

.5

11. Under Delaware law, the governing pleading standa rd to survive a motion to dismiss under Rule 12(b)(6) is reasonable conceivability. 16 When considering such a motion, the court must “accept all well

- pleaded factual allegations in the [c]omplaint as

true

. . . , draw all reasonable inferences in favor of the plaintiff, and deny the motion unless the plaintiff could not recover under any reasonably conceivable set of circumstances susceptible of proof.” 17 The court need not, however, “accept conclusory allegations unsupported by specific facts or

. . . draw unreasonable inferences in favor of the non

moving party.” 18
12. In Count I, Plaintiff claims that the Company breached Section 271, which requires a stockholder vote on any “[sale] , lease or exchange all or substantially all of its property and assets, including its goodwill and its corporate franchises

. ” 19 Defendants argue that Count I fails to state a claim because the Sale did not constitute a sale of “substantially all” the Company’s assets under Section 271

. 20
13. Under Gimbel v. Signal Companies, Inc. , 21 the court must evaluate “the quantitative and qualitative imp ortance of the transaction at issue ” to determine what

16 Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldgs. LLC , 27 A.3d 531, 537 (Del. 2011).
17 Id. at 536 (citing Savor, Inc. v. FMR Corp. , 812 A.2d 894, 896

– 97 (Del. 2002)).
18 Price v. E.I. du Pont de Nemours & Co. , 26 A.3d 162, 166 (Del. 2011), overruled on other grounds by Ramsey v. Georgia S. Univ. Advanced Dev. Ctr. , 189 A.3d 1255, 1277 (Del. 2018) (citing Clinton v. Enter. Ren t

- A

- Car Co. , 977 A.2d 892, 895 (Del. 2009)).
19 8 Del. C. § 271(a).
20 See Dkt. 18 (“Defs.’ Opening Br.”) at 16

. 21 316 A.2d 599 ( Del

. Ch

. 1974 ) ; see also Hollinger Inc. v. Hollinger Int’l, Inc. , 858 A.2d 342, 379 (Del. Ch. 2004) (citing Gimbel , 316 A.2d at 606 ) ; Winston v. Mandor , 710 A.2d6

constitutes “substantially al l” of a company’s assets for purposes of Section 271. 22 The purpose of th e Gimbel analysis is to determine whether the transaction “struck ‘at the heart of the corporate existence and purpose,’ in the sense that it involved the ‘destruction of the means to accomplish the purpose or objects for which the corporation was incorporated and actually performs.’” 23
14. When eval uating quantitative metrics, n o one factor is necessarily dispositive . Courts consider data points such as the revenue generated by the assets sold as a percentage of total company revenue, the percentage of book value of the sale, the
contribution of the assets sold to the company’s overall EBITDA , and future earnings potential. 24 “[T]he transaction must be viewed in terms of its overall effect on the corporation, and there is no necessary quantifying percentage.” 25
15. When evaluating qualitative metrics , the court focuses on “economic quality and, at most, on whether the transaction leaves the stockholders with an investment that in economic terms is qualitatively different than the one that they now possess.” 26 For Section

835, 843 (Del. Ch. 1997) (“The Supreme Court has long held that determination of whether there is a sale of substantially all assets so as to trigger [S]ectio n 271 depends upon the particular qualitative and quantitative characteristics of the transaction at issue.”).
22 Hollinger , 858 A.2d at 379.
23 Id. (quoting Gimbel , 316 A.2d at 606) (internal quotation marks omitted).
24 See Hollinger , 858 A.2d at 379

– 82

. 25 Winston , 710 A.2d at 843.
26 Hollinger , 858 A.2d at 384 (citing Gimbel , 316 A.2d at 606 ).7

271 to apply, the sale must b e “out of the ordinary and substantially affect[] the existence and purpose of the corporation[.]” 27
16. When considered quantitatively, the Sale does not satisfy the substantially

all test

. T he C ompany’s public filings indicate total assets of approximately $3.2 45 billion

a s of December 2020 and $3.14 billion as of June 30, 2021

. 28 The Sale, which was for $1.2 billion, is 37.5% and 38.2% of each figure , respectively

. 29 These percentages fall short
of the substantiall y - all threshold from a quantitative perspective

. 30
17. When considered qualitatively, the Sale does not satisfy the substantially

- all

test

. A lthough the FireEye B usiness was an important aspect of Mandiant, Plaintiff has not pled that it affects the “existence and purpose” of the Company. 31 Man di ant was a cybersecurity company before the Sale. It is a cybersecurity company after the Sale. Although selling the FireEye Business may alter course in how the Company operates, the change is not qualitati vely so significant as to “strike a blow” to Mandiant’s “heart.” 32

27 Gimbel , 316 A.2d at 606.
28 See Dkt. 18, Defs.’ Ex. 1 at 54 (December 20, 2020 Form 10

- K reflecting approximately $3.245 billion at Year End 2020 ) ; see also Aug. 9 Form 10

- Q at 4 ( reflecting total asset value of approximately $3.14 billion)

. 29 In briefing, Defendants cite web sources purporting to show a market capitalization of over $5.3 billion on June 1, 2021. See Defs.’ Opening Br. at 18, 18 n.8. On this basis, Defendants measure the $1.2 billion Sale as 23% of the Company’s overall value. The link that Defendants cite , however, is no longer operational. For this and other reasons, the court does not rely upon this data for its decision

. See id.
30 See Hollinger , 858 A.2d at 377 (“A fair and succinct equivalent to the term ‘substantially all’ would [] be ‘essentially everything .’”).
31 See id.
32 Id. at 385.8

Al t hough the Sale was out of the ordinary, it does not satisfy the “substantially all” test from a qualitative perspective

. 18. Plaintiff’s position is that the Sale satisfies the substantially

- all test because the FireEye B usiness accounted for 62% of Company revenue in 2019 and 57% in 2020. 33
Plaintiff cites four cases to support her position that these figures, when paired with qualitative factors, are sufficient. 34 All four cases are distinguishable.
19. In the first case, Katz , the court determined that the transaction satisfied the substantially

- all test based primarily on qualitative factors. Quantitatively, the business
li ne at issue, stee l drums , represent ed only 51% of its remaining assets , 44.9% of its sales

revenue , and 52.4% of its pre

- tax net operating income

. 35 Qualitatively, however, t he challenged transaction constituted an effort by the company to shift its overall business strategy by “embark[ing] on the manufacture of plastic drums” that “represent[ed] a radical departure from [the company’s] historically successful line of business, namely steel
drums.” 36
20. Katz is distinguishable because the transaction at issue in this case did not represent a stark departure from the Company’s historic line of business. The Company was born from the fusion of FireEye with Old Mandiant, which focused on cybersecurity

33 See Pl.’s Answering Br. at 24.
34 See id. at 23 (citing Katz v. Bregman , 431 A.2d 1274, 1275

– 76 (Del. Ch. 1981) ; Thorpe v. CERBCO, Inc. , 1995 WL 478954, at *9 (Del. Ch. Aug. 9, 1995) ; B.S.F. Co. v. Phila. Nat’l Bank , 204 A.2d 746, 750 (Del. 1964) ; Winston , 710 A.2d at 843 ).
35 Katz , 431 A.2d at 1275.
36 See id. at 1276.9

services. Mandiant had several businesses prior to the Sale, only one of which was the FireEye Business. The Sale was not qualitatively transformative for Mandiant.
21. I n the next two cases, Thorpe and B.S.F. , th e court determined that the challenged transaction s satisfied the substantially

- all standard based on quantitative
factors. In Thorpe , the Delaware Supreme Court affirmed th is court’s holding that a pipeline services provider ’s sale of a subsidiary pipeline services business satisfied the substantially

- all test

. The high court reasoned that the subsidiary accounted for 68% of the company’s overall assets and was the holding company’s “primary income generating

asse t[.]” 37 Th e Court of Chancery had held that , if the assets at issue were removed, the holding company “would have been left with a substantial amount of cash, a small subsidiary that was about to be liquidated, and a single operating compan y
. . . that was minimally profitable. ” 38 In B.S.F. , the asset sale falling under Section 271 constituted 75% of the company’s assets that were its “only substantial income [] producing asset[.]” 39
22. Thorpe and B.S.F. are distinguishable because the quantitative metrics on which Plaintiff relies are much less compelling. Plaintiff rightly notes tha t the revenue metrics for the FireEye Business are close to the revenue metrics in Thorpe and B.S.F

. , but
Plaintiff ignores that the percentage of overall assets attributable to the FireEye Business
is far smaller . The FireEye Business constituted approxi mately 38% of the Company’s overall assets compared to 68% and 75% in Thorpe and B.S.F

. , respectively. Also, b y

37 676 A.2d 436, 444 (Del. 1996)

. 38 Thorpe , 1995 WL 478954, at *9.
39 See B.S.F. , 204 A.2d at 112.10

contrast to both Thorpe and B.S.F. , Plaintiff has not pled facts indicating that Mandiant is unable to generate income in FireEye’s absence ; indeed, the Company generated total

revenue s of approximately $121.97 million in the fiscal quarter following the Sale

. 40
23. In the last case, Winston , the court held that it was reasonably conceivable
that a sale satisfied the substantially

- all st andard based on qualitative and quantitative
fact or s
. There, the court interpreted a corporate certificate of designations entitling holders of preferred stock to convert their shares into a new security in the event the company disposed of substantially a ll of the company’s assets. The court looked to case law interpreting Section 271 for guidance concerning the substantially

- all standard . The plaintiff alleged that, qualitatively, the sale shifted the company’s primary business from holding real propert y to holding real estate

- related securities. 41 The plaintiff alleged that, quantitatively, the assets sold were 60% of the company’s net assets

. 42 Based on these allegations, t he court held that it was reasonably conceivable that the sale was for substantially all of the company’s assets

. 43
24. Winston is distinguishable in two ways

. For one , the company had shifted its “primary business” from “the ownership and management of real proper ty” to “the

40 See Defs.’ Opening Br., Ex. 25 at 37 (Form 10

- Q for quarter ended September 30, 2021, describing Company revenues). The court may take judicial notice of this revenue figure. See Wal

- Mart Stores, Inc. v. AIG Life Ins. Co. , 860 A.2d 31 2, 320 n.28 (Del. 2004).
41 Winston , 710 A.2d at 843.
42 Id.
43 Id.11

holding of real estate[

- ]related securities and mortgages[.]” 44 By contrast, as discussed above, the Company has not fundamentally changed its core practice in the cybersecurity space. Moreover, the plaintiff in Winston alleged that the asset s at issue constituted 60% of the company’s net assets. 45 Here, the FireEye Business indisputabl y constituted far less ( approximately 38% ) of the Company’s net asset s
. 25. Another decision of this court, Hollinger , supports dismissal

. There, then

Vice Chancellor Strine held that media company Hollinger International, Inc .’s sale of a major asset, t he “ Telegraph Group , ” did not satisfy the substantially

- all test of Section
271

. 46 The Telegraph Group was the “single most valuable asset” that the com pany possessed, accounting for approximately 56

– 57% of the company’s overall asset value

. 47 Qualitatively, the court reasoned that even after the sale of the Telegraph Group, “stockholders will remain investors in a publication company with profitable operating assets, a well

- regarded tabloid newspaper of good reputation and large circulation, a prestigious newspaper in Israel, and other valuable assets. While important, the sale of the Telegraph does not strike a blow to [the company’s] hea rt. ” 48 The Vice Chancellor reached
this conclusion even assuming “ that the Telegraph Group is the single most valuable asset
that [the company] possesses [.]” 49

44 Id.
45 Id.
46 See Hollinger , 858 A.2d at 379.
47 Id. at 379

– 80.
48 Id. at 385.
49 Id. at 379.12

26. Here, t he court’s analysis is unchanged even credi t ing Plaintiff’s description
of the FireEye Business as the crown jewel of the Company , much as the Hollinger court credited the plaintiff’s allegations concerning the Telegraph Group

. Post

- Sale, Company
investors are still left with an investment in a cybersecurity company , much as investors in Hollinger International, Inc. retained their investment in a global media company even after
the sale of the Telegraph Group

. The elimination of the FireEye Business is si milarly “important,” but “does not strike a blow” to the Company’s heart. 50
27. Plaintiff attempts to distinguish Hollinger in several ways. First, Plaintiff
observes that Hollinger was decided not on the pleadings, but rather, on a preliminary injunction r ecord and thus with the benefit of fact discovery. 51 But the factual record did
not drive the outcome of Hollinger , which was resolved as a matter of law

. Second,
Plaintiff views Hollinger as an outlier relative to the four cases on which Plaintiff relies

. 52
But for reasons already discussed, those cases are distinguishable. T hird , Plaintiff argues
that the presence of strong qualitative factors weighing in her favor distinguishes Hollinger , which

— unlike here

— was not a close call on the qualitative dimension of the Gimbel test. 53
But th e qualitative analysis does not weigh in Plaintiff’s favor , as discussed above

. The FireEye Business was o ne part of the Company’s corporate identity, but the Complaint does

50 Id. at 385.
51 See Pl.’s A nswering Br. at 24

– 25.
52 See id. at 25.
53 See id.13

not support a reasonable inference that the FireEye Business was the “heart ” of the Company’s existence and purpose. 54
28. Under the circumstances, Plaintiff has not adequately alleged that the Sale trigger ed the voting requirement of Section 271

. Count I is dismissed.
29. In Count I I , Plaintiff claims that the Director Defendants breach ed their fiduciary duties by approving the Sale without obtaining stockholder approval as required by Section 271. Invoking the Company’s exculpatory charter provision adopted pursuant
to 8 Del. C. § 102(b)(7) and In re Cornerstone Therapeutics Inc., Stockholder Litigation , 55
the Director Defendants argue for dismissal of Count II on the basis that Plaintiff was required, but failed, to plead that they acted in bad faith when approving the Sale

. 56
30. Because the Sale did not violate Section 271, Plaintiff’s voting rights were not breached. Therefore, it is not reasonably conceivable that the Director Defendants acted in bad faith by failing to submit the Sale to a vote. Furthermore, Plaintiff has alleged no defect in the Sale process itself that would suggest bad faith. Accordingly, Count II is
dismissed

. 31. In Count III, Plaintiff seems to assert a claim for breach of the duty or loyalty

or waste against Mandia in connection with the S ale, although Count III is not clearly pled
as such. 57 Plain tiff argues that Mandia used the Sale to transform the Company into a

54 Gimbel , 316 A.2d at 606.
55 115 A.3d 1173 (Del. 2015).
56 Defs.’ Opening Br. at 30

– 39.
57 See Compl. ¶¶ 54

– 60.14

vanity project. By pruning out the influence of the FireEye Business , Plaintiff alleges that
Mandia turned the Company into something approximating what he originally founded

. 58
Plaintiff argues that Mandia did so for his own ego rather than for the benefit of the Company

. 32. This decision need not dilate extensively on the standard for pleading the claims at issue in Count III, because Plaintiff’s vanity

- project theory is wholly conclusory

. I t would take a lot of work to list all the allegations relevant to such a claim that are missing from the Complaint. Suffice it to say, Count III falls way short

. It is therefore dismissed

. 33. For the foregoing reasons, Defendants’ motion to dismiss is granted in its entirety. Judgment is entered in favor of Defendants

.

/s/ Kathaleen St. J. McCormick Chancellor Kathaleen St. J. McCormick Dated: May 22 , 2023

58 See Pl.’s Answering Br. at 6 (describing the Sale as a way for Mandia to “return the Company to his original vision for Old Mandiant”).