COURT OF CHANCERY OF THE S AM G LASSCOCK III

V ICE C HANCELLOR STATE OF DELAWARE C OURT OF C HANCERY C OURTHOUSE 34 T HE C IRCLE G EORGETOWN , D ELAWARE 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 Anderso n & Corroon LLP Hercules Plaza, 6 th Floor 1313 North Market Street W ilmington, 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

o r der, I have filed a consiste nt o rder 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 ap peal and have attached an o rder 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 wit h which the Supreme Court consider s interlocutory appeals. It is unsurprising that t his is so; interlocutory appeals tend to be inefficient for the Supreme Court, the trial court s 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 d octrine
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 determi ning 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 Too ley v.
Donaldson , Lufkin , & Jenrette , Inc

. 4 That discussion is set out in some detail in the Opinion from which this interlo cutory 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 intere st 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 th is 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

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- SG, Dkt. No. 84. 6 See El Paso Pipeline GP Co., L.L.C. v. Br inckerhoff , 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) constitute s 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