COURT OF CHANCERY

OF THE

SAM GLASSCOCK III

VICE CHANCELLOR

STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE

34 THE CIRCLE

GEORGETOWN, DELAWARE 19947

Date Submitted: November 20, 2023

Date Decided: December 8, 2023

Francis Pileggi, Esquire

Sean Brennecke, Esquire

Aimee Czachorowski, Esquire

LEWIS BRISBOIS BISGAARD 

& SMITH LLP

500 Delaware Avenue, Suite 700

Wilmington, DE 19801

Andre Dupre, Esquire

Steven Wood, Esquire

Johanna Peuscher-Funk, Esquire

Kendeil A. Dorvilier, Esquire

MCCARTER & ENGLISH LLP

Renaissance Centre

405 N. King Street, 8th Floor

Wilmington, DE 19801

Re: Barry Leistner v. Red Mud Enterprises LLC,

C.A. No. 2023-0503-SEM

Dear Counsel:

Before me are Plaintiff’s Exceptions to the Magistrate’s Final Report of 

September 7, 2023 (the “Report”), denying a books and records request.1

 Plaintiff, 

Barry Leistner, is a member and investor of Red Mud Enterprises LLC (the 

“Company”).

2

 In an unrelated New York action, in 2010, Plaintiff obtained a default 

judgment against the principals of Red Mud. Despite obtaining the judgment, 

Plaintiff continued to do business with the principals. But distrust and contentious 

1 Bench Ruling before Magistrate in Chancery, Dkt. No. 78; Tr. Tel. Post-Trial Rulings of 

Magistrate’s Final Report, Dkt. No. 83 (“Report”). 2 According to the parties, the Company business involves a process to remediate the industrial 

waste “red mud,” a byproduct of aluminum production. See Pl.’s Mem. in Supp. of Exceptions 

to Magistrate’s Report 13–14, Dkt. No. 86 (“Pl.’s Exceptions”).
2

discussions among the parties persisted over several years. Thereafter, Plaintiff 

became a member of Red Mud and made a books and record demand, which was 

divided into four categories and subdivided into 42 sub-categories (the “Demand”). 

The Company deemed the Demand unreasonable, characterizing the Demand as a 

“fishing expedition” and beyond the scope required by the LLC agreement. The 

Magistrate found that the Company had met its burden to show that its decision was 

proper, since Plaintiff’s purposes in seeking books and records were to pursue his 

interests as a judgment creditor of Red Mud’s principals, and also to become 

involved in the day-to-day management of the Company, which was a role not 

guaranteed by the LLC agreement.

3

 I have reviewed the record and arguments, together with the Magistrate’s 

thoughtful decision. Plaintiff sought records purportedly to value his interest in Red 

Mud. That is undoubtedly a proper purpose. The evidence presented to the 

Magistrate, however, indicates that, as the Magistrate found, the primary purpose of 

Plaintiff was not a stockholder interest.4

 This is strongly supported by the breadth 

and nature of the documents sought, which go far beyond those needed for a 

stockholder purpose. Upon de novo review,5 I adopt the Magistrate’s Report. 

Specifically, Plaintiff’s document request is overbroad, to the extent it is not 

3 Report 33–39. 

4 Id.

5 See DiGiacobbe v. Sestak, 743 A.2d 180, 184 (Del. 1999).
3

sustainable under the rationale expressed in Highland Select Equity Fund, L.P. v. 

Motient Corporation.

6

 Plaintiff in exceptions asks me to, “at a minimum,” tailor his 

request to provide valuation materials.7

 That I decline to do on exceptions. To the 

extent Plaintiff requires documents to value his interests, or for some other 

stockholder purpose, this decision of course is without prejudice to Plaintiff’s right 

to seek books and records going forward upon a reasonable demand. To the extent 

Plaintiff cites “late discovered evidence,” that evidence may be relevant to any 

litigation over a subsequent demand, if any.

 In addition to the records demand based on the LLC agreement and the statute, 

the litigation also sought documents as a matter of separate contract. I adopt the 

Magistrate’s finding that specific performance of these obligations is unnecessary,

since the records have been produced.8

For the foregoing reasons, and for the reasons explained in the Magistrate’s 

well-reasoned bench ruling of September 7, 2023, Plaintiff’s Exceptions are 

DENIED. To the extent the foregoing requires an Order to take effect, IT IS SO 

ORDERED.

6 906 A.2d 156, 157 (Del. Ch. 2006), aff'd sub nom. Highland Equity Fund, L.P. v. Motient 

Corp., 922 A.2d 415 (Del. 2007). 

7 Pl.’s Exceptions 4.

8 Report 26. 
4

Sincerely,

/s/ Sam Glasscock III

Vice Chancellor