IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN RE TERRAFORM POWER, INC. 

STOCKHOLDERS LITIGATION

)

)

CONSOLIDATED

C.A. No. 2019-0757-SG

MEMORANDUM OPINION

Date Submitted: July 16, 2020

Date Decided: October 30, 2020

Ned Weinberger, Derrick Farrell, and Mark Richardson, of LABATON 

SUCHAROW LLP, Wilmington, Delaware; Peter B. Andrews, Craig J. Springer, and 

Davis M. Sborz, of ANDREWS & SPRINGER LLC, Wilmington Delaware; OF 

COUNSEL: Jeremy S. Friedman and David F.E. Tejtel, of FRIEDMAN OSTER & 

TEJTEL PLLC, Bedford Hills, New York; Steven J. Purcell, Douglas E. Julie, Robert 

H. Lefkowitz, and Kaitlyn T. Devenyns, of PURCELL JULIE & LEFKOWITZ LLP, 

New York, New York, Attorneys for Lead Plaintiffs City of Dearborn Police and 

Fire Revised Retirement System (Chapter 23) and Martin Rosson.

Kevin G. Abrams, Eric A. Veres, and Stephen C. Childs, of ABRAMS & BAYLISS 

LLP, Wilmington, Delaware; OF COUNSEL: John A. Neuwirth, Stefania D. 

Venezia, and Amanda K. Pooler, of WEIL, GOTSHAL & MANGES LLP, New 

York, New York, Attorneys for Defendants Brookfield Asset Management Inc., Orion 

US Holdings 1 L.P., Brookfield BRP Holdings (Canada) Inc., Brian Lawson, Harry 

Goldgut, Richard Legault, Sachin Shah, and John Stinebaugh.

Brian C. Ralston, Seth R. Tangman, and Caneel Radinson-Blasucci, of POTTER 

ANDERSON & CORROON LLP, Wilmington, Delaware; OF COUNSEL: Daniel 

M. Sullivan, of HOLWELL SHUSTER & GOLDBERG LLP, New York, New York, 

Attorneys for Nominal Defendant TerraForm Power, Inc.

GLASSCOCK, Vice Chancellor
1

This matter involves a purported direct action by stockholders against 

the corporate controller and certain directors for breach of fiduciary duty. The 

Plaintiffs allege that the controller caused the entity to issue it stock for inadequate 

value, diluting both the financial and voting interest of the minority stockholders.

Although the Plaintiffs initially asserted both direct and derivative claims, they

subsequently ceased to be stockholders of the entity after the company was acquired 

in a merger. The merger ended any viable derivative claims, leaving the Plaintiffs 

with only their direct claims to pursue. Unlike derivative claims, a merger does not 

terminate a plaintiff’s standing to pursue direct claims. Therefore, any direct claims 

survive the merger.

The Defendants have moved to dismiss for lack of standing, arguing that

dilution claims are quintessential derivative claims that belong to the corporation

under the standard articulated in Tooley v. Donaldson, Lufkin & Jenrette, Inc.

1 The 

Plaintiffs counter that their claims are dual natured under the more specific rubric

established by Gentile v. Rossette, and that their direct claims thus persist.

2

The facts of this case are strikingly similar to those of Gentile. The 

Defendants do not dispute this. Instead, because Gentile has been both criticized and 

 1 See Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031 (Del. 2004).

2 See Gentile v. Rossette, 906 A.2d 91 (Del. 2006).
2

applied narrowly in a number of judicial opinions, they urge me to disregard it as 

precedent.

It may be tempting for a bench judge to think that a common law that is 

composed solely of his best judgement would itself be the perfect expression of the 

law. Fear of hubris and its condign results should dissuade any judge from such an 

error. More fundamentally, the value of the common law is that it provides for 

incremental change only, so that decision makers have a sense of certainty and 

predictability in taking actions under its framework. This value requires a careful 

balance. Prior decisions by those at the same judicial level, on the same facts, have 

strong persuasive value, and a judge should disregard them only when convinced 

that the prior conclusions of her colleague were erroneous. Prior on-point decisions 

of higher tribunals, by contrast, are controlling. If a plaintiff is to prevail against 

such prior case law, then, it must be via appeal.

This principle of stare decisis is the balance by which our common-law system 

enables flexibility without sacrificing predictability. Here, Gentile is the controlling 

precedent, under which I find that the Plaintiffs have adequately pled a direct claim, 

and the Defendants’ Motion to Dismiss must be denied.

I amplify my reasoning, below.
3

I. BACKGROUND3

A. The Parties

Nominal Defendant TerraForm Power, Inc. (“TerraForm”) is a Delaware 

corporation headquartered in New York.

4

 TerraForm is a publicly traded company 

that acquires, owns, and operates solar and wind assets in North America and 

Western Europe.5

Defendant Brookfield Asset Management, Inc. (“Brookfield”) is a Canadian 

corporation headquartered in Toronto.6

 Brookfield is an alternative asset manager 

that primarily conducts business through direct and indirect subsidiaries.7

 At the 

time the Complaint was filed, Brookfield and its affiliates beneficially owned 61.5% 

of TerraForm.8

 Pursuant to TerraForm’s then-operative Certificate of Incorporation

(the “Charter”), Brookfield also had the power to designate four members of 

Brookfield’s senior management to TerraForm’s Board of Directors.9

 3 The facts, except where otherwise noted, are drawn from the designated operative Verified 

Stockholder Derivative and Class Action Complaint, C.A. No. 2020-0050-SG, Dkt. No. 1 (the 

“Complaint” or “Compl.”), and are presumed true for the purposes of evaluating the Defendants’ 

Motion to Dismiss. See Stip. and Order of Consolidation and Appointment of Lead Pls. and CoLead Counsel ¶ 14, Dkt. No. 19.

4 Compl. ¶ 13.

5 Id. Terraform’s common stock trades on the NASDAQ under the ticker “TERP.” Id. 6 Id. ¶ 14.

7 Id. ¶¶ 14–15.

8 Id. ¶ 14.

9 Id. ¶ 2.
4

Defendant Orion US Holdings 1 L.P. (“Orion Holdings”) is a Delaware 

limited partnership and an affiliate of Brookfield.10 Orion Holdings is one of 

Brookfield’s affiliates through which Brookfield has held beneficial voting and 

dispositive power over Brookfield’s TerraForm shares.11

Defendant Brookfield BRP Holdings (Canada) Inc. (“BRP Holdings”) is a 

Canadian corporation and an affiliate of Brookfield.12 BRP Holdings’ sole purpose 

appears to be holding stock in TerraForm.13

Defendant Brian Lawson is a director of TerraForm and Senior Managing 

Partner and Chief Financial Officer (“CFO”) of Brookfield.14

Defendant Harry Goldgut is a director of TerraForm and Vice Chair of 

Brookfield’s Renewable Group and Brookfield’s Infrastructure Group.15

Defendant Richard Legault is a director of TerraForm and Vice Chairman of 

Brookfield.16

 10 Id. ¶ 17.

11 Id. ¶ 14 n.5.

12 Id. ¶ 18.

13 Id.

14 Id. ¶ 19.

15 Id. ¶ 20.

16 Id. ¶ 21.
5

Defendant Sachin Shah is a director of TerraForm and a Managing Partner of 

Brookfield.17 Shah also serves as Chief Executive Officer (“CEO”) of Brookfield 

Renewable Partners and BRP Holdings.18

Defendant John Stinebaugh is TerraForm’s CEO.19 Stinebaugh was 

appointed as TerraForm’s CEO by Brookfield and is employed as a Managing 

Partner of Brookfield.20 Stinebaugh receives no direct compensation from 

TerraForm for his services as CEO and instead receives his compensation solely 

from Brookfield.21

Plaintiff City of Dearborn Police and Fire Revised Retirement System 

(Chapter 23) (“City of Dearborn”) has continuously owned shares of TerraForm 

Class A common stock at all times relevant to this action.22

Plaintiff Martin Rosson has continuously owned shares of TerraForm Class A 

common stock since January 2018.23

 17 Id. ¶ 22.

18 Id.

19 Id. ¶ 23.

20 Id.

21 Id.

22 Id. ¶ 12.

23 Verified Stockholder Derivative and Class Action Complaint for Breach of Fiduciary Duties

¶ 10, C.A. No. 2019-0757, Dkt. No. 1.
6

B. Brookfield Becomes TerraForm’s Controlling Stockholder; TerraForm’s 

Governance

TerraForm was formed on January 15, 2014 as a wholly-owned indirect 

subsidiary of SunEdison, Inc. (“SunEdison”).24 TerraForm completed an initial 

public offering (“IPO”) on July 23, 2014.

25 Subsequent to its IPO, SunEdison was 

TerraForm’s controlling stockholder with 91% of the combined voting power of 

Terraform.26 In April 2016, SunEdison filed for production under Chapter 11 of the 

United States Bankruptcy Code.27 Because SunEdison was not performing certain 

obligations (including management and administrative services) owed to TerraForm, 

TerraForm initiated a process to explore and evaluate strategic alternatives.28

Brookfield ultimately agreed to purchase a controlling interest in Terraform

(the “Merger”).

29 As a result of the Merger, Brookfield became TerraForm’s 

controlling stockholder, holding through its affiliates 51% of TerraForm’s 

outstanding common stock.30 The Merger was effectuated by a Merger and 

Sponsorship Transaction Agreement (the “Transaction Agreement”) entered into by 

TerraForm and two Brookfield affiliates: Orion Holdings and BRE TERP Holdings, 

 24 Compl. ¶ 25. TerraForm’s original name was SunEdison Yieldco, Inc.—the company’s name 

was changed to TerraForm on May 22, 2014. Id. 25 Id. ¶ 26.

26 Id. ¶ 27.

27 Id. ¶ 29.

28 Id.

29 Id. ¶ 32.

30 Id.
7

Inc. (“Merger Sub”).31 In connection with the Merger, TerraForm eliminated its 

previous share structure—which included three classes of stock—and instead now 

has only a single class of stock: Class A, which is entitled to one vote per share.32

Brookfield and several of its affiliates, including Orion Holdings, also entered 

into several sponsorship arrangements with Terraform.33 Pursuant to a Master 

Services Agreement between TerraForm, Brookfield, and several Brookfield 

affiliates (the “Master Services Agreement”), Brookfield agreed to provide certain 

management and administrative services to TerraForm.34 A Governance Agreement 

between TerraForm and Brookfield (through Orion Holdings) (the “Governance 

Agreement”) fixed certain rights and obligations of TerraForm and Brookfield 

related to TerraForm’s governance.35

The Master Services Agreement and Governance Agreement granted 

Brookfield the exclusive power to appoint TerraForm’s CEO, CFO, and General 

Counsel.36 Following the Merger, Brookfield appointed Defendant Stinebaugh as 

TerraForm’s CEO, a position he currently retains.37 Brookfield also appointed 

 31 Id. ¶ 30.

32 Id. ¶ 31.

33 Id. ¶ 33.

34 Id. ¶ 34.

35 Id.

36 Id. ¶ 35.

37 Id. ¶ 36.
8

TerraForm’s CFO and General Counsel, both of whom, along with Stinebaugh, were

Brookfield employees.38

Also in connection with the Merger, Terraform amended its Charter; fixing

the size of TerraForm’s Board of Directors (the “Board”) to seven members.39 The

amended Charter provided that, for so long as Brookfield remains TerraForm’s 

controlling stockholder under stock exchange listing rules, Brookfield will have the 

right to designate four of the seven Board members.40 Upon the consummation of 

the Merger, Brookfield appointed four members of its senior management to the 

Board—Defendants Lawson, Goldgut, Legault, and Shah.41

Pursuant to TerraForm’s Charter, the remaining three directors of TerraForm 

must be “independent” under SEC and NASDAQ rules and regulations.42 The 

Governance Agreement requires that TerraForm have a Conflicts Committee 

composed of the three non-Brookfield directors (the “Conflicts Committee”).43 The 

Conflicts Committee is responsible for reviewing and approving material 

transactions and matters in which a conflict of interest exists between TerraForm 

and Brookfield (and its affiliates).

44 Since May 23, 2018, Mark McFarland, 

 38 Id.

39 Id. ¶ 37.

40 Id.

41 Id. ¶ 38.

42 Id. ¶ 39.

43 Id. ¶ 40.

44 Id.
9

Christian S. Fong, and Carol Burke have comprised the Conflicts Committee.45 

McFarland was appointed as a non-Brookfield designee, but Brookfield “requested 

that [TerraForm] consider appointing” McFarland to the Board following the 

Merger.46

TerraForm acknowledges that it is a “‘controlled company,’ controlled by 

Brookfield and its affiliates, whose interest in [TerraForm’s] business may be 

different from [TerraForm’s] or other holders of [TerraForm’s] Class A common 

stock.”47

C. TerraForm Determines to Acquire Saeta Yield S.A.; Planned Equity 

Offering

In or around January 2018, Brookfield approached TerraForm regarding an 

opportunity to acquire Saeta Yield, S.A. (“Saeta”), a publicly-traded Spanish yieldco

with 1.0+ gigawatts of contracted onshore wind and solar assets for $1.2 billion (the 

“Saeta Acquisition”).

48 Saeta had a high-quality operating portfolio and represented 

an attractive acquisition target in line with TerraForm’s growth mandate.49 

 45 Id. ¶ 41.

46 Id. ¶ 39.

47 Id. ¶ 43.

48 Id. ¶ 44. A “yieldco” is a company formed to own operating assets that produce a predictable 

cash flow, primarily through long-term contracts. Id. ¶ 3 n.2.

49 Id. ¶ 45.
10

TerraForm had the debt capacity to fund most—if not all—of the $1.2 billion 

price of the Saeta Acquisition.50 Notwithstanding this debt capacity, Brookfield 

steered TerraForm towards funding a significant portion of the purchase price with 

a backstopped equity offering.51 On January 23, 2018 Brookfield and TerraForm 

informed the Conflicts Committee that, in addition to funding the Saeta Acquisition 

with debt, TerraForm would raise approximately $600–$700 million of equity in the 

public markets.52 Brookfield indicated that in addition to participating up to it’s pro 

rata portion of the equity offering—that is, 51%—it was willing to backstop part of 

the equity offering.53

The Conflicts Committee initially did not retain its own financial advisor in 

connection with the proposed equity offering and instead relied on the advice of 

Barclays, who was serving as TerraForm’s financial advisor.54 Barclays had a 

history of advising Brookfield and its affiliates on significant transactions, and, 

additionally, Brookfield owns Barclays’ London headquarters and Barclays is 

Brookfield’s third-largest tenant.55 Board and Conflict Committee meeting minutes 

 50 Id. ¶ 52.

51 Id. ¶ 53.

52 Id. ¶ 54.

53 Id. TerraForm’s management recommended that Brookfield receive a 2.625% upfront free for 

providing the equity back-stop. Id.

54 Id. ¶ 55.

55 Id. ¶ 56.
11

do not reflect any discussion, deliberation, or questioning concerning Barclays’s 

affiliation with Brookfield.56

The Conflicts Committee met on January 26, 2018 to discuss a proposed $650 

million equity offering backstopped in part by Brookfield (the “Equity Offering”).

57 

The Conflicts Committee tasked Committee member Fong with seeking additional 

detail as to the reasons why a funding plan with more debt and less equity was not 

as advantageous to TerraForm as the proposed funding plan—Fong was to seek such 

information from TerraForm’s CEO Stinebaugh.58

The Conflicts Committee met again on January 29, 2018 at which time it 

determined that the proposed backstop was advisable and in TerraForm’s best 

interests.59 In forming this conclusion the Conflicts Committee relied on 

TerraForm’s management and Brookfield for advice.60 The Conflicts Committee 

still had not engaged or consulted with a financial advisor.61

As of February 6, 2018 the funding plan for the Saeta Acquisition had been 

updated to reduce the Equity Offering from $650 million to $400 million due to, 

among other things, recent stock market volatility.62 Brookfield offered to backstop 

 56 Id.

57 Id. ¶ 57.

58 Id.

59 Id. ¶ 58.

60 Id.

61 Id.

62 Id. ¶ 60.
12

the full amount of the anticipated $400 million Equity Offering for no fee, so long 

as the offering price was equal to the five-day volume weighted average price ending 

the trading day prior to TerraForm’s announcement of the Saeta Acquisition.63 At a 

meeting that day the Conflicts Committee approved the equity backstop on these 

terms, as documented in a support agreement between TerraForm and Brookfield 

(the “Support Agreement”).64

The Support Agreement provided that TerraForm’s funding of the Saeta 

Acquisition via tender offer might include an equity offering of TerraForm common 

stock “on a pro rata basis to existing TerraForm stockholders of up to approximately 

$400 million.”65 Brookfield agreed in the Support Agreement to backstop the Equity 

Offering if the offering price equaled TerraForm’s five-day weighted average price 

ending February 6, 2018, which was $10.66 per share.66 Brookfield’s backstop 

obligations were subject to successful commencement of the tender offer under 

applicable Spanish law and to prior effectiveness of the necessary TerraForm 

registration statement, if required.67 TerraForm and Brookfield agreed that the 

pricing, size, and timing of the Equity Offering—including the decision to use the 

 63 Id.

64 Id. ¶ 61.

65 Id. ¶ 62.

66 Id. ¶ 63.

67 Id. ¶ 64.
13

backstop—would be subject to prior review and approval of the Conflicts 

Committee, together with any other necessary approvals.68 Finally, it was agreed in 

the Support Agreement that TerraForm and the Conflicts Committee would retain 

an independent financial advisor—meaning independent from Brookfield—to 

provide advice regarding the Equity Offering.69

On February 7, 2018, TerraForm announced that it intended to launch a tender 

offer to acquire 100% of Saeta’s outstanding shares for an aggregate purchase price 

of approximately $1.2 billion (the “Tender Offer”) and that TerraForm expected to 

fund the Tender Offer by (1) conducting a $400 million equity issuance of 

TerraForm’s Class A common stock (the Equity Offering) and (2) providing the 

remaining $800 million using its available liquidity.

70 On May 3, 2018, TerraForm 

commenced the Tender Offer.71 

TerraForm had filed a preliminary Form S-1 registration statement with the 

Securities and Exchange Commission (“SEC”) on March 19, 2018 in connection 

with the planned public offering of $400 million in TerraForm Class A Common 

stock.72 On May 10, 2018 TerraForm filed its definitive proxy statement with the 

 68 Id. ¶ 65. The Complaint notes that “[t]he Support Agreement did not ‘require TerraForm to 

make or complete any [e]quity [o]ffering’ nor ‘commit TerraForm to an [e]quity [o]ffering at any 

particular price, of any particular size or at any particular time.’” Id. 69 Id. ¶ 66.

70 Id. ¶ 67.

71 Id. ¶ 69.

72 Id. ¶ 68.
14

SEC seeking stockholder approval for the issuance of up to 61 million shares of 

Class A Common stock in connection with the planned Equity Offering.73 

TerraForm’s stockholders approved the share issuance on May 23, 2018 at 

TerraForm’s annual stockholder meeting.74

D. TerraForm Enters Into Private Placement with Brookfield

Immediately after TerraForm’s May 23, 2018 annual meeting, the Board met 

to discuss the Equity Offering and backstop.75 TerraForm’s CEO Stinebaugh 

proposed TerraForm raise $650 million—rather than $400 million—through the sale 

of equity because “the market expect[ed] a $650 million total equity offering and 

that the impact to the returns on the Saeta transaction would not be material.”76 

TerraForm director Shah—also a Brookfield appointee—indicated that Brookfield 

would be prepared to increase the size of the backstop from $400 million back up to 

$650 million.77 Stinebaugh then proposed that if the Equity Offering presented too 

much market risk, the full amount be offered to Brookfield through a private 

placement at $10.66 per share.78 At the conclusion of the meeting, TerraForm’s 

 73 Id. ¶ 70.

74 Id. ¶ 71.

75 Id. ¶ 73.

76 Id.

77 Id. ¶ 74.

78 Id.
15

Board determined that the Conflicts Committee should consider Brookfield’s 

proposal to increase the size of the backstop to $650 million.79

At the conclusion of the full Board meeting on May 23, 2018, the Conflicts 

Committee met to discuss the information that had just been presented.80 There was 

no discussion of the proposed private placement and only a discussion of the

proposed increase to the equity offering (to $650 million) and commensurate 

increase in Brookfield’s backstop.81 

That same day, the Conflicts Committee had its first meeting with an 

independent financial advisor, Greentech Capital Advisors, LLC (“Greentech”).

82 

The Conflict Committee’s minutes do not indicate when the Conflicts Committee 

determined to retain Greentech, why the Conflicts Committee chose to retain 

Greentech specifically, or whether the Conflicts Committee considered retaining 

other financial advisors.83 Greentech’s written presentation to the Conflicts 

Committee contemplated that Brookfield would backstop the full $650 million even 

though, according to meeting minutes, Brookfield first suggested the increased 

backstop only a few hours earlier.84 Greentech’s materials do not address or provide 

 79 Id. ¶ 76.

80 Id. ¶ 77.

81 Id.

82 Id. ¶ 78.

83 Id. ¶ 77.

84 Id. ¶ 78.
16

advice related to the fairness of a private placement with Brookfield.85 At the 

conclusion of the meeting, the Conflicts Committee directed Greentech to 

“coordinate” with Barclays.86

The Conflicts Committee met again the following day—May 24, 2018—and 

Greentech reviewed with the Conflicts Committee the materials provided the 

previous day.87 The Greentech materials remarked that “a $650 million offering 

would be less favorable to [TerraForm] than a $400 million offering because it would 

‘significantly reduce returns’ and ‘reduce the accretion from Saeta.’”88 The 

materials continued that the precedent transactions for the Equity Offering implied

a total discount of 4%–7% which “would lead to a discounted stock price lower than 

Brookfield’s backstop of $10.66.”89 Nonetheless, Greentech advised the Conflicts 

Committee that it would be “difficult to predict the price at which the Equity 

Offering could be executed (and whether it could be executed at a price above 

[$10.66]).”90 Greentech also noted that a backstop covering the full amount of the 

Equity Offering “was very beneficial.”91 As with the previous day’s meeting, there 

 85 Id.

86 Id.

87 Id. ¶ 79.

88 Id. ¶ 80.

89 Id. ¶ 81.

90 Id. ¶ 82.

91 Id. ¶ 83.
17

was no discussion of the proposed private placement.92 At the conclusion of the 

meeting, the Conflicts Committee approved an increase of the backstop to $650 

million and amendment to the Support Agreement reflecting such increase.93

On May 25, 2018, the Conflicts Committee met once again, and, following 

discussion with Greentech concerning the Equity Offering and backstop, the 

Conflicts Committee invited Stinebaugh and other Brookfield representatives to join 

the meeting.94 The meeting minutes suggest that Brookfield viewed the backstop 

and the private placement as one in the same—i.e. that that backstop was an 

agreement to sell $650 million in stock to Brookfield regardless of whether 

TerraForm sold any equity to the public.95 The Conflicts Committee however 

received no advice concerning whether a private placement with Brookfield was in 

TerraForm’s best interests or in any way superior to other financing alternatives 

besides the Equity Offering.96 Both Barclays and Greentech did opine that the 

Equity Offering would likely be priced below TerraForm’s trading price (and thus 

below the backstop price).97 However, the Complaint criticizes both Barclays’ and 

Greentech’s comparable transactions analyses on which they respectively relied in 

 92 Id.

93 Id. ¶ 84.

94 Id. ¶ 85.

95 Id.

96 Id. ¶ 86.

97 Id. ¶ 87.
18

forming this conclusion.

98 At the conclusion of the May 25, 2018 meeting, the 

Conflicts Committee reaffirmed its approval of the increase in the backstop to $650 

million.99

The Conflicts Committee reconvened on May 29, 2018.100 The meeting was 

attended by representatives of Brookfield, including Stinebaugh and Shah, as well 

as Barclays.101 Barclays and the Conflicts Committee discussed certain qualitative 

benefits of the Equity Offering, but Barclays advised the Conflicts Committee that 

a marketed equity offering would likely be at a 5%–8% discount to TerraForm’s 

trading price and therefore below the backstop price ($10.66).102 Barclays stated 

that they did not recommend proceeding with the Equity Offering unless the 

Conflicts Committee was comfortable with the Equity Offering pricing at an 8% 

discount to market price (that is, the high range of Barclays’ projected discount).103

The Conflicts Committee met again on June 4, 2018, at which time it was 

clear that Spanish authorities required all funding for the Saeta Acquisition to be in 

 98 Id. ¶¶ 81, 87.

99 Id. ¶ 88.

100 Id. ¶ 90.

101 Id.

102 Id. ¶ 91. The qualitative benefits included “(i) providing [TerraForm]with an opportunity 

directly to address the investor community and communicate [TerraForm’s] story and fundamental 

value, (ii) increasing [TerraForm’s] public float and reducing equity overhang, (iii) building and 

diversifying [TerraForm’s] stockholder base and (iv) paving a pathway for subsequent offerings.” 

Id. 103 Id.
19

place within a week (by June 11, 2018).104 Barclays reiterated their view on the 

likely discount should TerraForm proceed with the Equity Offering even though 

Barclays had not received any “price feedback” from investors.105 Barclays also told 

the Conflicts Committee that Barclays “was not willing to proceed with the Equity 

Offering unless [TerraForm] was willing to forego exercising the [backstop] after 

the Equity Offering had been launched and to consummate the Equity Offering at 

the per share price fixed by the market.”106 TerraForm’s management advised the 

Conflicts Committee that it recommended that TerraForm exercise the backstop in 

lieu of proceeding with the Equity Offering.107 That is, though the backstop was 

originally conceived to “backstop” any amount of the Equity Offering that was not 

purchased by existing TerraForm stockholders, TerraForm management 

recommended doing away with the public offering aspect and instead simply sell the 

entire amount of the proposed offering directly to Brookfield. Despite the fact that 

the Conflicts Committee never received advice concerning a private placement with 

Brookfield, the Conflicts Committee accepted TerraForm management’s 

recommendation and approved full exercise of the backstop—that is, a private 

placement of $650 million of TerraForm stock with Brookfield at $10.66 per share 

 104 Id. ¶ 92.

105 Id.

106 Id.

107 Id. ¶ 93.
20

(the “Private Placement”).108 Upon completion of the Private Placement, Brookfield 

(through its affiliates) owned 65.3% of TerraForm’s outstanding common stock.109

With the $650 million received from Brookfield, and $471 million in available 

liquidity, TerraForm acquired approximately 95% of Saeta’s shares for an aggregate 

of $1.12 billion.110 Following the tender offer, TerraForm completed a squeeze-out 

under Spanish law for the remaining shares of Saeta that were not tendered.111 

TerraForm’s stock increased in the aftermath of the Saeta Acquisition and by June 

25, 2018 TerraForm’s stock was trading at $11.77 per share (more than 10% higher 

than the Private Placement price).112

In October 2019, TerraForm conducted a $250 million public offering for 

14,907,573 shares of common stock at a price of $16.77 per share.113 Concurrent 

with this offering, Brookfield entered into a second private placement, purchasing 

2,981,514 shares of common stock for $16.77 per share.114 Brookfield did not 

purchase enough shares in this offering to maintain its equity percentage, which 

subsequently decreased from 65.3% to 61.5%.

115

 108 Id.

109 Id. ¶ 94.

110 Id. ¶¶ 95–96.

111 Id. ¶ 97.

112 Id. ¶ 98.

113 Id. ¶ 106 n.19.

114 Id.

115 Id. ¶¶105–06.
21

E. Procedural History

Plaintiff Rosson filed a complaint challenging Private Placement on 

September 19, 2019 alleging breach of fiduciary against Brookfield, and its affiliates 

(Orion Holdings and BRP Holdings).

116 Plaintiff City of Dearborn Police and Fire 

Revised Retirement System (Chapter 23) filed a separate complaint on January 27, 

2020 also challenging the Private Placement and bringing fiduciary duty claims 

against Brookfield and the same affiliates, but additionally bringing breach of 

fiduciary duty claims against Brookfield’s director appointees (Lawson, Goldgut, 

Legault, and Shah), and TerraForm’s CEO (Stinebaugh). On February 13, 2020, the 

Rosson and City of Dearborn actions were consolidated, Rosson and City of 

Dearborn were appointed as Lead Plaintiffs, and City of Dearborn’s complaint was 

designated as the operative Complaint.

117

The Complaint alleges three counts of breach of fiduciary duty. Count I is 

brought against Brookfield, Orion Holdings, and BRP Holdings as controlling 

stockholders.118 Count II is brought against Lawson, Goldgut, Legault, and Shah.

119 

 116 See Verified Stockholder Derivative and Class Action Complaint for Breach of Fiduciary 

Duties, C.A. No. 2019-0757, Dkt. No. 1.

117 See generally Stip. and Order of Consolidation and Appointment of Lead Pls. and Co-Lead 

Counsel, Dkt. No. 19.

118 See Compl. ¶¶ 131–41.

119 See id. ¶¶ 142–45.
22

Count III is brought against Stinebaugh.120 All three counts were brought both

derivatively and directly.

On March 26, 2020, the Defendants moved to dismiss the Plaintiffs’ direct 

claims and stay the Plaintiffs’ derivative claims.121 On April 23, 2020, I denied the 

motion to stay the derivative claims orally.

122 On May 27, 2020, the Plaintiffs moved 

to strike certain of the affirmative defenses in the Defendants’ Partial Answer.

123 On 

July 16, 2020, I heard Oral Argument on the Motion to Dismiss and Motion to Strike 

and considered the matters submitted for decision on that date.124 On July 31, 2020, 

all outstanding TerraForm shares not already owned by Brookfield were acquired by 

Brookfield affiliates Brookfield Renewable Partners L.P. and Brookfield Renewable 

Corporation.

125 In light of that merger, I granted an order dismissing the derivative 

counts of the Complaint.126 Because the Plaintiffs’ previous Motion to Strike was 

exclusively concerned with the Defendants’ affirmative defenses to the derivative 

claims,127 the Order of Partial Dismissal renders the Motion to Strike moot. 

Accordingly, this Opinion addresses only the Defendants’ Motion to Dismiss.

 120 See id. ¶¶ 146–49.

121 See generally Defs.’ Mot to Dismiss and Stay, Dkt. No. 24.

122 See generally Tr. of Oral Arg., Dkt. No. 78.

123 See generally Pls.’ Mot. to Strike, Dkt. No. 50.

124 See generally Tr. of Oral Arg., Dkt. No. 78.

125 See generally Stip. and Order of Partial Dismissal, Dkt. No. 80.

126 See generally id.

127 See generally Defs.’ Partial Answer and Affirmative Defenses, Dkt. No. 43.
23

II. ANALYSIS

“A controlling stockholder owes fiduciary duties to the corporation and its 

minority stockholders, and it is ‘prohibited from exercising corporate power . . . so 

as to advantage itself while disadvantaging the corporation.’”128 This Memorandum 

Opinion resolves whether the Plaintiffs have adequately alleged that the Private 

Placement breached fiduciary duties Brookfield owed directly to TerraForm’s 

minority stockholders, or whether the Plaintiffs have instead alleged claims of harm 

to TerraForm directly, and the minority stockholders only derivatively.

A. Relevant Legal Standard

The Defendants have moved to dismiss this action pursuant to Court of 

Chancery Rule 12(b)(6).129 The path to dismissal under Rule 12(b)(6) motion is 

well-worn:

(i) all well-pleaded factual allegations are accepted as true; (ii) even 

vague allegations are well-pleaded if they give the opposing party 

notice of the claim; (iii) the Court must draw all reasonable inferences 

in favor of the nonmoving party; and (iv) dismissal is inappropriate 

unless the plaintiff would not be entitled to recover under any 

reasonably conceivable set of circumstances susceptible of proof.130

 128 Carr v. New Enter. Assocs., Inc., 2018 WL 1472336, at *22 (Del. Ch. Mar. 26, 2018) (quoting 

Thorpe v. CERBCO, Inc., 1995 WL 478954, at *8 (Del. Ch. Aug. 9, 1995). 129 Ct. Ch. R. 12(b)(6).

130 Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002) (footnotes and internal quotation 

marks omitted).
24

When reviewing a motion to dismiss, the Court may take into consideration 

documents incorporated into the pleadings by reference and judicially noticeable 

facts available in public SEC filings.131

The Defendants suggest that the Plaintiffs lack standing to seek redress for the 

injury they allege. The issue of whether the Plaintiffs have standing is an issue 

precedent to consideration of a complaint, and is an issue of law.132

B. Standing

The doctrinal front on which this Motion is contested is whether the Plaintiffs 

have standing to pursue direct claims against Brookfield for breach of fiduciary duty. 

Standing “refers to the right of a party to invoke the jurisdiction of a court to enforce 

a claim or to redress a grievance” and “is a threshold question that must be answered 

by a court affirmatively to ensure that the litigation before the tribunal is a case or 

controversy that is appropriate for the exercise of the court’s judicial powers.”133

In support of their Motion to Dismiss, the Defendants contend that the 

Plaintiffs’ claims are exclusively derivative claims belonging to Terraform.

Consequently, the Plaintiffs lack standing to pursue such claims directly. In Tooley 

v. Donaldson, Lufkin & Jenrette, Inc.,

134 the Delaware Supreme Court held that the 

 131 Reith v. Lichtenstein, 2019 WL 2714065, at *1 (Del. Ch. June 28, 2019). 132 El Paso Pipeline GP Co., L.L.C. v. Brinckerhoff, 152 A.3d 1248, 1256 (Del. 2016).

133 Dover Historical Soc’y. v. City of Dover Planning Comm’n, 838 A.2d 1103, 1110 (Del. 2003) 

(citations and internal quotation marks omitted).

134 845 A.2d 1031 (Del. 2004).
25

determination of whether a stockholder’s claim is direct or derivative “must turn 

solely on the following questions: (1) who suffered the alleged harm (the corporation 

or the suing stockholders, individually); and (2) who would receive the benefit of 

any recovery or other remedy (the corporation or the stockholders, individually)?”135 

Per the Defendants, the claims asserted—though purportedly brought directly—are 

derivative under Tooley, and hence, the Plaintiffs can have no “right to bring an 

individual action for injuries affecting [their] legal rights as [] stockholder[s].”136

The Plaintiffs’ retort is twofold. First, the Complaint states direct claims 

under Gentile v. Rossette.

137 Second, the Complaint states direct claims under 

Tooley alone—even without relying on Gentile. I evaluate these arguments in 

reverse order below, finding first that the Complaint does not state direct claims 

without Gentile, but that it does state direct claims under Gentile’s rationale. I note 

ongoing uncertainty over whether Gentile remains good law, but find that it is 

binding Delaware Supreme Court precedent, and thus controlling here.

C. The Complaint Does Not State Direct Claims under a Classic Tooley 

Analysis

The Plaintiffs argue that they have made adequate direct claims without 

relying on the Gentile doctrine. They allege that the Private Placement inflicted 

 135 Id. at 1033.

136 Id. at 1036.

137 906 A.2d 91 (Del. 2006).
26

direct harm on TerraForm’s minority stockholders based on the increase in 

Brookfield’s voting power from 51% to 65.3%. Specifically, the Complaint pleads 

that the Private Placement “solidified Brookfield’s control” over TerraForm.138 In 

briefing, the Plaintiffs contend that without the Private Placement Brookfield would 

have eventually lost absolute majority control. They also maintain that Brookfield’s 

increased voting power gave it the ability to eliminate or change minority 

stockholder protections in TerraForm’s Charter.139 Thus, per the Plaintiffs, the 

Private Placement worked a direct injury on the minority stockholders.

I note that, because I find Gentile controlling below, I could simply deny the 

Motion to Dismiss on that basis. Because the Tooley analysis necessarily informs 

the Defendants’ argument that Gentile is no longer viable precedent, and because of 

the procedural posture here, which seems likely to involve a request for interlocutory 

appellate relief, I find it appropriate to first briefly examine the Motion to Dismiss 

under the rubric set out in Tooley.

1. Dilution is Typically a Derivative Claim Under Tooley

Under Tooley, in order to plead a direct claim a “stockholder must 

demonstrate that the duty breached was owed to the stockholder and that he or she 

 138 Compl. ¶ 10.

139 Pls.’ Answering Br. in Opp’n to Defs.’ Mot. to Dismiss, Dkt. No. 44, at 22–23.
27

can prevail without showing an injury to the corporation.”140 Ordinarily, claims of 

corporate overpayment141 are not regarded as direct “because any dilution in value 

of the corporation’s stock is merely the unavoidable result (from an accounting 

standpoint) of the reduction in the value of the entire corporate entity, of which each 

share of equity represents an equal fraction.”142 In fact, corporate overpayment is 

the quintessence of a claim belonging to an entity: that fiduciaries, acting in a way 

that breaches their duties, have caused the entity to exchange assets at a loss. This 

rationale extends even where a controlling stockholder allegedly causes a corporate 

overpayment in stock and consequent dilution of the minority interest. This claim 

is still derivative. If the issuance was for adequate value, obviously, it did not work 

a detriment to the stockholder. In that case, the minority simply beneficially owns a 

smaller percentage of a bigger corporate pie, enlarged by the proceeds of the sale of 

equity; the value of its slice remains the same. If the transaction was for inadequate 

value, the worth of the stockholder’s interest is reduced to the extent the entity was 

harmed, a classic derivative claim.

 The harm is suffered by the entity, and restoring value to the entity would 

make both it and, derivatively, its stockholders, whole. While the situation 

 140 Tooley, 845 A.2d at 1039.

141 That is, claims that the corporation has overpaid for the asset received, and that the controller 

underpaid. 142 Gentile, 906 A.2d at 99.
28

addressed in Gentile represents a “species of corporate overpayment claim,” as I 

discuss infra, a direct claim does not arise “wherever a controlling stockholder 

extracts economic value from an entity to its benefit and to the detriment of the 

minority stockholders.”143 Consequently, a claim that the Private Placement injured 

stockholders simply because it diluted their ownership interest in TerraForm is alone

insufficient to state a direct claim under Tooley.

144

2. The Plaintiffs’ Entrenchment Argument Fails Reasonable 

Conceivability

In their non-Gentile argument, the Plaintiffs contend that the Private 

Placement did not constitute run-of-the-mill dilution giving rise to solely derivative 

claims. Instead, the Plaintiffs contend that the Private Placement entrenched 

Brookfield as TerraForm’s controlling stockholder, and thus TerraForm’s minority 

stockholders suffered a distinct harm, apart from the indirect injury of value and 

voting dilution.

The Plaintiffs’ theory is that Brookfield sought to further entrench itself 

through the Private Placement as protection against losing its voting majority when 

TerraForm conducted a $250 million public offering in October 2019.145 This theory 

 143 El Paso Pipeline GP Co., L.L.C. v. Brinckerhoff, 152 A.3d 1248, 1263 n.76 (Del. 2016); see 

also In re J.P. Morgan Chase & Co. S’holder Litig., 906 A.2d 808, 818 (Del. Ch. 2005); Avacus 

Partners, L.P. v. Brian, 1990 WL 161909, at *6 (Del. Ch. Oct. 24, 1990) (“[I]f a board of directors 

authorizes the issuance of stock for no or grossly inadequate consideration, the corporation is 

directly injured and shareholders are injured derivatively.”).

144 See Gentile, 906 A.2d at 99–100.

145 Compl. ¶¶ 105–06.
29

is somewhat convoluted: Brookfield theoretically entrenched itself in 2018 in 

anticipation of failing to purchase sufficient stock to maintain control in 2019. The 

Plaintiffs point to the fact that Brookfield did not purchase enough stock in the 2019 

offering to maintain its voting percentage, thereby decreasing its equity ownership

from 65.3 to 61.5% following the offering.146 In other words, had it not increased 

its majority interest in 2018 from 51% to 65.3%, and if it had acted in that 

hypothetical situation as it did in fact—not participating pro rata in the 2019 offering

(which occurred over a year after the Private Placement)—Brookfield would have 

lost control of TerraForm.

It is not reasonably conceivable that the Plaintiffs’ allegations regarding the 

2019 offering state a claim. The Plaintiffs do not allege that anyone knew in June,

2018 that TerraForm would conduct an offering in October, 2019. Moreover, for 

the Plaintiffs to state a claim under this theory, it would have to be reasonably 

conceivable that even had the Private Placement not occurred, Brookfield would 

not have participated on a pro rata basis in the 2019 offering, thereby choosing to 

forgo its majority stake. Thus, to adopt the Plaintiffs’ view, I must find it reasonably 

conceivable that Brookfield, as controller of TerraForm, would have allowed 

TerraForm to issue stock and decrease Brookfield’s ownership stake whereby 

Brookfield would then lose its majority stake in TerraForm without compensation. 

 146 Id. ¶ 106.
30

It is only under such a scenario that the Private Placement could be viewed as 

entrenchment, under the threat that the 2019 offering— an offering that Brookfield 

as TerraForm’s controller ostensibly approved—would otherwise strip Brookfield 

of its majority position. 

Given that a control premium has value—and likely significant value at 

that147—I find it not reasonably conceivable that Brookfield would have declined to 

participate in the 2019 offering if such an action would have cost Brookfield its 

majority stake in TerraForm, thereby forfeiting control of a majority of the voting 

power of TerraForm for no premium. The required secondary inference imbedded 

in such a theory—that the 2018 Private Placement was done in anticipation of the 

2019 public offering—is likewise unsupported in the record. Consequently, it is not 

reasonably conceivable that the Private Placement constituted Brookfield’s 

entrenchment in view of the 2019 offering.

The Plaintiffs in briefing made a second argument. They pointed out that

Article Thirteen of Terraform’s Charter provides that the affirmative vote of at least 

66.6% of the combined voting power of all of TerraForm’s outstanding shares is 

required to alter, amend, or repeal certain provisions of the Charter (the 

“Supermajority Voting Requirement or SVR”).

148 The Complaint pleads that 

 147 See In re Books-A-Million, Inc. S’holders Litig., 2016 WL 5874974, at *13–*14, *16 n.16 (Del. 

Ch. Oct. 10, 2016).

148 Compl. ¶ 109.
31

Brookfield intends to use its increased voting power—65.3%, reduced to 61.5% after 

Brookfield permitted itself to be diluted in the 2019 offering—to remove the 

Supermajority Voting Requirement.149 Thus, according to the Plaintiffs, the Private 

Placement put their rights under the SVR at risk, which was a direct injury not shared 

by Terraform. There are three defects to this argument: (1) Brookfield never 

achieved the level of control necessary to unilaterally remove the SVR rights; (2) 

Brookfield never attempted to abrogate the rights and through the 2019 placement 

moved further from the ability to do so; and (3) the merger has mooted the issue and

no damages could attach to any such claim.

To recapitulate, the Plaintiffs have argued that their claims are direct under 

Tooley without invoking Gentile, citing allegations that Brookfield used the Private 

Placement to entrench itself to the detriment of TerraForm’s minority stockholders. 

In other words, the Plaintiffs remained minority stockholders in a controlled entity 

post-Placement; nonetheless, they argue that Brookfield increased its control via the 

Private Placement in a way that directly harmed the minority independent of any 

harm to the entity. However, as set out above, I find it not reasonably conceivable 

that the Private Placement served to entrench Brookfield’s control of TerraForm. 

Without an adequate pleading of entrenchment, the Plaintiffs’ claims are for harm

 149 Id. ¶¶ 113–14.
32

that devolved upon the minority as “equity holder[s] in the form of the proportionally 

reduced value of [their] units—a classically derivative injury.”150 Thus, under 

Tooley alone, the Plaintiffs’ overpayment claims neatly fall into the derivative 

category.

D. The Plaintiffs State Direct Claims under Gentile

What follows is the heart of the Plaintiffs’ argument. It is simple and 

compelling: (1) our Supreme Court in Gentile found that where a controller has 

caused the corporation to issue stock to it for inadequate compensation, the 

stockholders have a direct claim for relief, and (2) the facts here are indistinguishable 

from Gentile. Gentile involved a corporation’s CEO and controlling stockholder 

who forgave debt the corporation owed to him personally in exchange for additional 

equity in the corporation.151 The debt was convertible contractually, but the CEO 

and the corporation’s board (the CEO and one other individual) agreed to a lower 

conversion price per share, which had the effect of allowing the CEO to obtain more 

shares.152 A special stockholders meeting was called to authorize the additional 

shares, but the stockholders were not informed of the underlying purpose: to convert 

the CEO’s debt to equity.153 Before the conversion, the CEO held approximately 

 150 El Paso Pipeline GP Co., L.L.C. v. Brinckerhoff, 152 A.3d 1248, 1261 (Del. 2016).

151 Gentile v. Rossette, 906 A.2d 91, 94 (Del. 2006).

152 Id. at 94–95.

153 Id. at 95.
33

61.19% of the corporation’s equity—after the conversion, the CEO held 93.49%.154 

The CEO later negotiated an acquisition of the corporation whereby he received 

“unique benefits.”155 This Court dismissed the minority stockholders’ claim for 

breach of fiduciary duty against the CEO arising out of the debt conversion because 

it found that the claim was solely derivative under Tooley, and the stockholders lost 

standing to pursue claims on the corporate behalf after the merger.

156 The appeal to 

our Supreme Court concerned only the dismissal via summary judgment of the

breach of fiduciary duty claim arising from the debt conversion; “the issue before 

the court [was] whether that claim was exclusively derivative in character.”157

Gentile noted that the plaintiffs pled two independent harms arising from the 

transaction: (1) that the corporation was caused to overpay (in stock) for the debt 

forgiveness, and (2), the minority stockholders lost a significant portion of the cash 

value and voting power of their minority interest.158 The Supreme Court continued 

that, as noted, supra, claims of corporate overpayment are “[n]ormally . . . treated as 

causing harm solely to the corporation and, thus, are regarded as derivative” because, 

“in Tooley terms . . . the corporation is both the party that suffers the injury (a 

 154 Id.

155 Id.

156 Id. at 96–97.

157 Id. at 97.

158 Id. at 99.
34

reduction in its assets or their value) as well as the party to whom the remedy (a 

restoration of the improperly reduced value) would flow.”159 The proportionate

injury resulting from a corporate overpayment—“the reduction in the value of the 

entire corporate entity, of which each share of equity represents an equal fraction”—

“is not viewed as, or equated with, harm to specific shareholders individually.”160

But Gentile continued that there is “at least one transactional paradigm,” 

which is “a species of corporate overpayment claim” that is both direct and 

derivative in character.161 A breach of fiduciary duty claim with this dual character 

arises where:

(1) a stockholder having majority or effective control causes the 

corporation to issue “excessive” shares of its stock in exchange for 

assets of the controlling stockholder that have a lesser value; and (2) 

the exchange causes an increase in the percentage of the outstanding 

shares owned by the controlling stockholder, and a corresponding 

decrease in the share percentage owned by the public (minority) 

shareholders.162

Of course, such a transaction gives rise to a derivative claim because the means to 

achieve the result is an overpayment of shares to the controller, and the corporation 

 159 Id.

160 Id.

161 Id.

162 Id. at 100. “[T]he Gentile paradigm only applies when a stockholder already possessing 

majority or effective control causes the corporation to issue more shares to it for inadequate 

consideration.” Cirillo Family Tr. v. Moezinia, 2018 WL 3388398, at *16 (Del. Ch. July 11, 2018), 

aff’d, 220 A.3d 912 (Del. 2019) (TABLE) (italics omitted).
35

is harmed to the extent of the overpayment.163 The derivative nature of this claim is 

consistent with the dilution-as-derivative rationale explained, supra.

However, the Gentile court found that the minority stockholders also had a 

separate direct claim arising out of this transactional paradigm. “Because the shares 

representing the ‘overpayment’ embody both economic value and voting power, the 

end result of this type of transaction is an improper transfer—or expropriation—of 

economic value and voting power from the public shareholders to the majority or 

controlling stockholder.”164 Consequently, the harm arising from such a transaction 

is not limited to an equal dilution of the economic value and voting power of each 

minority-held share—instead, “[a] separate harm also results: an extraction from the 

public shareholders, and a redistribution to the controlling shareholder, of a portion 

of the economic value and voting power embodied in the minority interest.”165 For 

these reasons, the minority stockholders are harmed “uniquely and individually” to 

the same extent the controller benefits and are entitled to recover the value 

represented by the overpayment directly.

166

The facts alleged in the Complaint fit Gentile’s transactional paradigm to a T. 

The Plaintiffs allege that Brookfield—TerraForm’s controlling stockholder—caused 

 163 Gentile, 906 A.2d at 100.

164 Id.

165 Id.

166 Id.
36

TerraForm to proceed with the Private Placement and issue shares to Brookfield at 

an inadequate price.167 The Complaint also alleges that the Private Placement caused 

Brookfield’s percentage of shares in TerraForm to increase from 51% to 65.3%.168 

TerraForm’s minority stockholders suffered a corresponding decrease in their 

ownership stake in TerraForm.

The Defendants concede that the facts here are consistent with Gentile; 

nonetheless, they argue that I need not follow Gentile and instead should engage in 

a Tooley analysis.

The Defendants contend that Gentile is not controlling precedent because it 

“explicitly relied upon and expanded the application” of In re Tri-Star Pictures, Inc., 

Litigation,

169 a case which was disapproved of in Tooley.170 However, Gentile was 

decided after Tooley, and Gentile holds that the decision therein “fits comfortably 

within the analytical framework mandated by Tooley.”171 Consequently, to the 

extent that Gentile can be said to rely on Tri-Star, the Gentile decision itself 

 167 Compl. ¶¶ 100–04.

168 Id. ¶ 105.

169 634 A.2d 319 (Del. 1993). 170 Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1038 n.21 (Del. 2004) (“In the 

Tri-Star case, however, this Court lapsed back into the ‘special injury’ concept, which we now 

discard.”).

171 Gentile, 906 A.2d at 102.
37

forecloses any argument that Gentile’s citation of Tri-Star renders Gentile

irreconcilable with Tooley.172

Ultimately, the Defendants are left to argue that I need not follow Gentile

because it was improperly decided. They point to criticism of and limitations on the 

decision in our courts, which I briefly summarize below.

Gentile has been much discussed, and often distinguished, in the case law, 

particularly in light of the simple test posed in Tooley for determining whether a 

claim is direct or derivative: who has suffered the injury and to whom will the 

recovery flow? “Post-Gentile, Delaware courts have struggled to define the 

boundaries of dual-natured claims.”173 In Gentile’s immediate aftermath, this Court 

in one decision found it “clear” that the Gentile court intended to confine the scope 

of its rulings to only those situations where a controlling stockholder exists because 

“any other interpretation would swallow the general rule that equity dilution claims 

 172 The Defendants in briefing suggested that Gentile is distinguishable from the facts alleged here 

because in Gentile the plaintiffs no longer held any stock due to a liquidation in bankruptcy. 

Gentile does recognize that in the “specific case” presented there “the sole relief that is presently 

available would benefit only the minority stockholders.” Id. at 103. In my view, this does not 

mean that the claim was not derivative in character as well; the Supreme Court noted that “under 

Tooley the claim could be brought derivatively or directly.” Id. (emphasis added). Nothing in 

Gentile limits its application to those instances where the plaintiff stockholders lack standing to 

bring derivative claims. Thus, Gentile would not be distinguishable from the facts pled here on 

the grounds that the Plaintiffs here continue to hold TerraForm stock. In any event, the point is 

moot; the post-complaint merger resulted in the loss of the Plaintiffs’ stock and the extinguishment 

of the derivative claims, which have been voluntarily dismissed.

173 Sciabacucchi v. Liberty Broadband Corp., 2018 WL 3599997, at *7 (Del. Ch. July 26, 2018).
38

are solely derivative, and would cast great doubt on the continuing vitality of the 

Tooley framework.”174 Via El Paso, the Supreme Court has adopted this reasoning, 

holding that “the Gentile paradigm only applies when a stockholder already 

possessing majority or effective control causes the corporation to issue more shares 

to it for inadequate consideration.”175

However, Gentile’s limited application to controller transactions was not 

forgone or obvious. This Court in Carsanaro v. Bloodhound Technologies, Inc.,

176

for instance, disagreed with a “line in the sand” limiting Gentile to cases involving 

a majority stockholder.177 Instead, Carsanaro held that Gentile also applies to selfinterested stock issuances effectuated by a board lacking a disinterested and 

independent majority.178 Carsanaro noted that the “core insight of [the] dual injury” 

framework is “the real-world impact of the transaction upon the shareholder value 

and voting power embedded in the (pre-transaction) minority interest, and the 

uniqueness of the resulting harm to the minority shareholders individually.”179 The 

Court reasoned that what Gentile termed expropriation applied with equal force 

 174 Feldman v. Cutaia, 956 A.2d 644, 657 (Del. Ch. 2007), aff’d, 951 A.2d 727 (Del. 2008).

175 Cirillo Family Tr. v. Moezinia, 2018 WL 3388398, at *16 (Del. Ch. July 11, 2018); Carr v. 

New Enter. Assocs., Inc., 2018 WL 1472336, at *9 (Del. Ch. Mar. 26, 2018); Feldman, 956 A.2d 

at 657.

176 65 A.3d 618 (Del. Ch. 2013). 177 Id. at 658.

178 Id.

179 See id. at 657–58
39

where (for example) a self-interested board issued itself stock at a price below 

current market value.180 Per Carsanaro, Gentile should logically extend to any 

situation where “defendant fiduciaries (i) had the ability to use the levers of corporate 

control to benefit themselves and (ii) took advantage of the opportunity,” 181 resulting 

in expropriation from the minority.

In re Nine Systems Corporation Shareholders Litigation182 echoed 

Carsanaro, finding that if the reasoning of Gentile were to be respected, “it [would 

make] little sense to hold a controlling stockholder to account to the minority for 

improper expropriation after a merger but to deny standing for stockholders to 

challenge a similar expropriation by a board of directors after a merger.”183 The 

board of directors, after all, has the exclusive authority to manage and direct the 

corporation’s business affairs, including the power to issue stock.184 Why then, 

asked Nine Systems, should Delaware law hold controlling stockholders to a higher 

standard than the board of directors?185

 180 Id. at 658.

181 Id. at 658–59.

182 2014 WL 4383127 (Del. Ch. Sept. 4, 2014).

183 Id. at *28.

184 See id. (citing 8 Del. C. §§ 141(a), 151–53, 157, 161, 166).

185 Id. at *28. Sciabacucchi v. Liberty Broadband Corp., 2018 WL 3599997, at *10 (Del. Ch. July 

26, 2018), noted that “El Paso . . . implicitly rejected the reasoning of decisions such as . . . Nine 

Systems, which had extended Gentile to any dilutive issuance approved by a conflicted board.” 
40

Carsanaro and Nine Systems were an attempt reconcile Tooley and Gentile. 

Those cases, since abrogated, along with the reversed trial court decision in El Paso, 

reasoned that the doctrinally consistent way to read Gentile (given Tooley’s 

directive) is that Gentile stands for the dual-natured character of an expropriation 

claim. Thus, Carsanaro reasoned that both Tooley questions could be answered 

either way for a dilutive issuance.186 Vice Chancellor Noble, in Nine Systems, 

“struggled to articulate” why an expropriation transaction effected by a controller 

should give rise to dual-natured claims, but an expropriation transaction effected by 

a board was a solely derivative dilution claim.187 Citing Carsanaro and Nine 

Systems, the reversed trial court opinion in El Paso remarked that “Gentile’s core 

insight applies to any insider stock issuance where the value transferred directly to 

the insider exceeds the share of the loss that the insider suffers through its stock 

ownership.” This line of cases can thus be read as attempts to place Gentile within 

Tooley’s overarching framework.

In a concurring opinion in El Paso, former Chief Justice Strine proposed 

resolving this tension in the opposite way. He wrote that Gentile “is a confusing 

decision, which muddies the clarity of our law in an important context.”188 Instead 

 186 Carsanaro, 65 A.3d at 656.

187 In re Nine Sys. Corp. S’holders Litig., 2014 WL 4383127, at *28.

188 El Paso Pipeline GP Co., L.L.C. v. Brinckerhoff, 152 A.3d 1248, 1265–66 (Del. 2016) (Strine, 

C.J., concurring).
41

of backing the Carsanaro and Nine Systems approach—searching for a way to read 

Gentile as consistent with Tooley—Chief Justice Strine directly questioned the 

soundness of Gentile and its ongoing viability, remarking that it “cannot be 

reconciled with the strong weight of our precedent.”189

Chief Justice Strine reasoned that a dilution claim is a “quintessential example 

of a derivative claim,” that “[a]ll dilution claims involve, by definition, dilution,” 

and that “[t]o suggest that, in any situation where other investors have less voting 

power after a dilutive transaction, a direct claim also exists turns the most traditional 

type of derivative claim—an argument that the entity got too little value in exchange 

for shares—into one always able to be prosecuted directly.”190 The concern 

enunciated by Chief Justice Strine in his El Paso concurrence is that Gentile is 

inconsistent with Tooley and that no sound reason exists to permit this awkward 

carve-out to an otherwise straightforward doctrine.

I have previously noted that limiting Gentile to controller situations, rather 

than “expanding it to conflicted board non-controller dilution cases, or overruling it 

entirely, is, as a matter of doctrine, unsatisfying”191 for the reasons just articulated.

The El Paso court was able to resolve the issue there narrowly without addressing 

 189 Id. at 1266.

190 Id. at 1265–66.

191 Sciabacucchi v. Liberty Broadband Corp., 2018 WL 3599997, at *10 n.147 (Del. Ch. July 26, 

2018).
42

the overarching doctrinal issue. The Supreme Court majority in El Paso “decline[d]

the invitation to further expand the universe of claims that can be asserted ‘dually’

to hold here that the extraction of solely economic value from the minority by a 

controlling stockholder constitutes direct injury.” This allowed the El Paso court to 

preserve the Tooley framework and avoid “largely swallow[ing] the rule that claims 

of corporate overpayment are derivative [which would result from] permitting 

stockholders to ‘maintain a suit directly whenever the corporation transacts with a 

controller on allegedly unfair terms.’”192 

In his El Paso concurrence, Chief Justice Strine agreed with the majority that 

the case at hand—involving a limited partnership—did not require the Supreme 

Court to consider Gentile’s ongoing viability in the corporate context.193 But the 

logic of his dissent has been echoed in this Court in El Paso’s aftermath: “[w]hether 

Gentile is still good law is debatable;”194 “the viability of [the Gentile] doctrine has 

been called into doubt;”195 “there is reason to question whether Gentile will remain 

the law of Delaware.”196 

 192 El Paso, 152 A.3d at 1264.

193 Id. at 1266 (Strine, C.J., concurring).

194 ACP Master, Ltd. v. Sprint Corp., 2017 WL 3421142, at *26 n.206 (Del. Ch. July 21, 2017).

195 Cirillo Family Tr. v. Moezinia, 2018 WL 3388398, at *16 n.156 (Del. Ch. July 11, 2018).

196 Mesirov v. Enbridge Energy Co., Inc., 2018 WL 4182204, at *8 n.77 (Del. Ch. Aug. 29, 2018).
43

Based upon this case history of Gentile, and notwithstanding the factual 

congruence of that case with the one before me, the Plaintiffs argue that stare decisis 

is inapplicable here. “Stare decisis . . . is the legal term for fidelity to precedent.”197

The concept is “well established in Delaware jurisprudence,” and “[o]nce a point of 

law has been settled by decision of [the Supreme Court], ‘it forms a precedent which 

is not afterwards to be departed from or lightly overruled or set aside and it should 

be followed except for urgent reasons and upon clear manifestation of error.’”198 

Thus, unless Gentile somehow departs from the stare decisis paradigm, it is binding 

precedent here. The Defendants maintain that Gentile is not consistently applied and 

is not settled law, for the reasons laid out above, and thus stare decisis does not 

mandate denial of the outstanding Motion.

“There is no question that, if the Supreme Court has clearly spoken on a 

question of law necessary to deciding a case before it, this court must follow its 

answer.”199 In El Paso,

200 the Delaware Supreme Court declined to extend Gentile 

to instances where the expropriation of economic value to a controller was not 

coupled with any voting rights dilution.201 El Paso held that the claims there—

 197 Fanin v. UMTH Land Development, L.P., 2020 WL 4384230, at *18 (Del. Ch. July 31, 2020).

198 Account v. Hilton Hotels Corp., 780 A.2d 245, 248 (Del. 2001) (quoting Oscar George, Inc. v. 

Potts, 115 A.2d 479, 481 (Del. 1955)).

199 In re MFW S’holders Litig., 67 A.3d 496, 520 (Del. Ch. 2013).

200 152 A.3d 1248 (Del. 2016). 201 Id. at 1264.
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involving a limited partner’s claim that the partnership had overpaid the controlling 

general partner for assets held by the general partner’s parent—did not “satisfy the 

unique circumstances presented by the Gentile ‘species of corporate overpayment 

claim[s].’”202 The takeaway from El Paso is that “Gentile and its progeny should be 

construed narrowly,”203 and that “Gentile must be limited to its facts, which involved 

a dilutive stock issuance to a controlling stockholder.”204 But El Paso did not 

overrule Gentile.

I have laid out above the cases involving criticism of Gentile, upon which the 

Defendants rely to argue that I am at liberty to disregard the case. 

The Defendants argue stoutly that the Gentile doctrine, in light of the case 

analysis above, is moribund, and that I should disregard it. That argument is 

misplaced. Our system does not work that way, and if it did, the results would bleed 

value from the orderly development of the common law. As a trial court judge, I am 

not free to decide cases in a way that deviates from binding Supreme Court 

precedent.205 This is not merely a matter of respect for superior authority; the proper 

development of the common law, and its utility, rest on a balance of judicial 

 202Id. (quoting Gentile v. Rossette, 906 A.2d 91, 99 (Del. 2006)). Notably, the limited partner 

“never alleged and did not prove” that the partnership’s overpayment increased the general 

partner’s or the general partner’s parent’s control at the expense of the limited partners. Id. 203 Mesirov v. Enbridge Energy Co., Inc., 2018 WL 4182204, at *8 n.77 (Del. Ch. Aug. 29, 2018).

204 Sciabacucchi v. Liberty Broadband Corp., 2018 WL 3599997, at *10 (Del. Ch. July 26, 2018).

205 See, e.g., In re Cornerstone Therapeutics Inc. Stockholder Litig., 2014 WL 4418169 (Del. Ch. 

Sept. 10, 2014), rev’d sub nom, In re Cornerstone Therapeutics Inc, Stockholder Litig., 115 A.3d 

1173 (Del. 2015).
45

responsiveness and certainty, as represented by employing the doctrine of stare 

decisisto bind the trial courts. Under this rubric, if law settled by our Supreme Court 

is to be changed, it requires a reasoned analysis by that Court; under this rubric, our

common law develops in an orderly way206 that provides that consistency that is 

itself an attribute of justice.207

Where a Supreme Court precedent inexorably commands a result, my 

obligation as a trial court judge is to follow the Supreme Court’s directive. Here, 

the facts alleged are doctrinally indistinguishable from those facts to which Gentile 

is limited, a circumstance that the Defendants do not contest. This is the rare case 

that perfectly fits the narrow Gentile paradigm, and Gentile mandates that the direct 

claims pled survive the Defendant’s Motion to Dismiss.

Consistent with Gentile, the Plaintiffs have made a sufficient pleading that 

Brookfield is TerraForm’s controller, that Brookfield caused TerraForm to issue 

excessive shares of its stock in exchange for insufficient consideration, and that the 

exchange caused an increase in the percentage of the outstanding shares owned by

Brookfield, and a corresponding decrease in the share percentage owned by the 

public (minority) stockholders. Such a pleading is sufficient, under controlling 

 206 E.g Payne v. Tennessee, 501 U.S. 808, 827 (1991) (holding that stare decisis promotes the 

“evenhanded, predicable and consistent development” of the law).

207 See State v. Barnes, 116 A.3d 883, 890–911 (Del. 2015) (explaining that “[t]he doctrine of stare 

decisis exists to protect the settled expectations of citizens because ‘[e]lementary considerations 

of fairness dictate that individuals should have an opportunity to know what the law is and conform 

their conduct accordingly’) (citing Landgraf v. USI Film Products, 511 U.S. 244, 256 (1994)).
46

Supreme Court precedent, to withstand the Defendant’s Motion to Dismiss the 

Plaintiffs’ direct claims.

III. CONCLUSION

The Defendants’ Motion to Dismiss is DENIED. The parties should submit a 

form of order consistent with this Memorandum Opinion.