COURT OF CHANCERY

OF THE

SAM GLASSCOCK III

VICE CHANCELLOR

STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE

34 THE CIRCLE

GEORGETOWN, DELAWARE 19947

November 24, 2020

Ned Weinberger, Esquire

Derrick Farrell, Esquire

Labaton Sucharow LLP

300 Delaware Avenue – Suite 1340

Wilmington, DE 19801

Peter B. Andrews, Esquire

Craig J. Springer, Esquire

David M. Sborz, Esquire

Andrews & Springer LLC

3801 Kennett Pike

Building C, Suite 305

Wilmington, DE 19807

Kevin G. Abrams, Esquire

Eric A. Veres, Esquire

Stephen C. Childs, Esquire

Abrams & Bayliss LLP

20 Monthchanin Road, Suite 200

Wilmington, DE 19807

Brian C. Ralston, Esquire

Caneel Radinson-Blasucci, Esquire

Potter Anderson & Corroon LLP

Hercules Plaza, 6th Floor

1313 North Market Street

Wilmington, DE 19899

Re: In re Terraform Power, Inc. Stockholders Litigation

C.A. No. 2019-0757-SG

Dear Counsel:

I have the Defendants’ Application for Certification of Interlocutory Appeal 

of my Memorandum Opinion of October 30, 2020 (the “Opinion”),

1 together with 

the Plaintiffs’ Opposition thereto. Because the Opinion was not accompanied by an 

order, I have filed a consistent order today and consider the Application for 

 1 In re Terraform Power, Inc. Stockholders’ Litigation, C.A. No. 2019-0757-SG, Dkt. No. 84.
2

Certification to be addressed to that Order of November 24, 2020 (the “Order”). 

After considering the parties’ submissions, I have concluded that this matter is 

appropriate for interlocutory appeal and have attached an order granting leave to 

appeal from the Order and Opinion, consistent with Supreme Court Form L.

Supreme Court Rule 42 is a testament to the particularity with which the 

Supreme Court considers interlocutory appeals. It is unsurprising that this is so; 

interlocutory appeals tend to be inefficient for the Supreme Court, the trial courts

and litigants. It is a rare case in which such an appeal is justified. I find that this is 

such a case, however.

I am directed by Rule 42 to consider several factors in addressing whether an 

interlocutory appeal is warranted. I first consider 42(b)(3)(iii)(G).

2

 That factor 

involves whether consideration of the appeal may end the litigation. The Opinion 

and Order involved the Defendants’ contention that the matter should be dismissed 

because the Plaintiffs lack standing to pursue their Complaint directly rather than 

derivatively. The Plaintiffs have standing in this matter, if at all, under the doctrine 

set forth in Gentile v. Rosette.

3

 I will not repeat in this brief Letter Opinion the 

reasons for which the application of the Gentile doctrine has been questioned in light 

of our Supreme Court’s overarching test for determining whether a stockholder-

 2 Supr. Ct. R. 42(b)(iii)(G) (“Review of the Interlocutory Order may terminate the litigation.”). 3 906 A.2d 91 (Del. 2006).
3

plaintiff’s corporate litigation is direct or derivative, as set forth in Tooley v. 

Donaldson, Lufkin, & Jenrette, Inc.

4 That discussion is set out in some detail in the 

Opinion from which this interlocutory appeal is sought.

5

 In consideration of the 

instant motion, however, the issue of the continuing validity of the Gentile rationale, 

in light of, inter alia, criticism from our Supreme Court,

6 indicates that factor 

42(b)(3)(iii)(G)7 is implicated here. I note that the application of subsection (G), by 

itself, it is unlikely to be sufficient to sustain an interlocutory appeal. Here, however, 

I find that subsection (H) also comes into play. That factor directs me to consider 

whether “[r]eview of the interlocutory appeal may serve considerations of justice.”8

 

Again, in light of case law questioning the continued vitality of Gentile at the trial 

court level, and in light of criticism at the Supreme Court level, I find it in the interest 

of justice that the matter be available for review by the Supreme Court at this Motion 

to Dismiss stage. A successful interlocutory appeal, before the parties undergo the 

extensive litigation that will be required to bring this matter to a final resolution in 

this Court, will avoid substantial useless effort on behalf of litigation by parties who 

 4 845 A.2d 1031 (Del. 2004).

5 See generally Mem. Op., In re Terraform Power, Inc. Stockholders’ Litigation, C.A. No. 2019-

0757-SG, Dkt. No. 84.

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

(Strine, C.J., concurring).

7 Supr. Ct. R. 42(b)(iii)(G).

8 Supr. Ct. R. 42(b)(iii)(H).
4

lack standing. An unsuccessful appeal will still serve the interests of justice, by 

clarifying an area of law that appears to be in a state of flux.

I appreciate the Plaintiffs’ forceful argument that a reliance solely upon the 

last two factors of Rule 42(b)(iii) constitutes but a weak ground upon which to certify 

interlocutory appeal. To my mind, this is the rare exception that proves that 

proposition; of course, if the Supreme Court disagrees, it need only decline to accept 

the appeal. I have therefore attached an Order certifying the interlocutory appeal.

To the extent the foregoing requires an order to take effect, IT IS SO 

ORDERED.

Sincerely,

/s/Sam Glasscock III

Vice Chancellor