IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

CITY PENSION FUND FOR 

FIREFIGHTERS AND POLICE 

OFFICERS IN THE CITY OF MIAMI,

on behalf of itself and all others 

similarly situated,

Plaintiff,

v.

THE TRADE DESK, INC., LISE J. 

BUYER, KATHRYN E. FALBERG,

THOMAS FALK, JEFF GREEN, ERIC 

B. PALEY, DAVID R. PICKLES, 

BLAKE GRAYSON, GOKUL 

RAJARAM, BRIAN J. STEMPECK, 

and DAVID B. WELLS,

Defendants.

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C.A. No. 2021-0560-PAF

MEMORANDUM OPINION

Date Submitted: April 11, 2022

Date Decided: July 29, 2022

Gregory V. Varallo, Andrew E. Blumberg, Daniel E. Meyer, BERNSTEIN 

LITOWITZ BERGER & GROSSMANN LLP, Wilmington, Delaware; Mark 

Lebovitch, Reuben Gottlieb, Jeroen van Kwawegen, BERNSTEIN LITOWITZ 

BERGER & GROSSMANN LLP, New York, New York; Jeremy Friedman, David 

Tejtel, Julie Palley, FRIEDMAN OSTER & TEJTEL PLLC, Bedford Hills, New 

York; Attorneys for Plaintiff City Pension Fund for Firefighters and Police Officers 

in the City of Miami.

William M. Lafferty, Ryan D. Stottmann, Sabrina Hendershot, MORRIS, 

NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; Attorneys for 

Defendants Lise J. Buyer, Gokul Rajaram, and David B. Wells.
Peter J. Walsh, Jr., Jacqueline A. Rogers, Abraham C. Schneider, POTTER 

ANDERSON & CORROON LLP, Wilmington, Delaware; Matthew Rawlinson, 

LATHAM & WATKINS LLP, Menlo Park, California; Colleen Smith, LATHAM 

& WATKINS LLP, San Diego, California; Kristin Murphy, LATHAM & 

WATKINS LLP, Costa Mesa, California; Attorneys for Defendants The Trade

Desk, Inc., Kathryn E. Falberg, Thomas Falk, Blake Grayson, Eric B. Paley, David 

R. Pickles, and Brian J. Stempeck.

Brad D. Sorrels, Shannon E. German, Benjamin M. Potts, WILSON SONSINI 

GOODRICH & ROSATI, P.C., Wilmington, Delaware; David J. Berger, Steven M. 

Guggenheim, WILSON SONSINI GOODRICH & ROSATI, P.C., Palo Alto, 

California; S. Toni Wormald, WILSON SONSINI GOODRICH & ROSATI, P.C., 

San Francisco, California; Attorneys for Defendant Jeff Green.

FIORAVANTI, Vice Chancellor
This case involves a stockholder challenge to an amendment to the certificate 

of incorporation of The Trade Desk, Inc. (“TTD” or the “Company”) that extended 

the duration of its dual-class stock structure. In effect, the amendment prolonged 

voting control held by TTD’s co-founder and Chief Executive Officer, Jeffrey 

Green, who owns 98% of the Company’s high-vote Class B common stock. The 

plaintiff alleges that Green, the Company’s board of directors, and certain officers 

breached their fiduciary duties in approving and obtaining stockholder votes for the 

amendment.

The defendants have moved to dismiss the complaint under Court of Chancery 

Rule 12(b)(6) for failure to state a claim upon which relief can be granted. There is 

no dispute that the amendment was an interested transaction involving a controlling 

stockholder, which is presumptively subject to review under the exacting entire 

fairness standard. The defendants’ primary argument in support of their motions is 

that the transaction complied with the framework set forth in Kahn v. M & F 

Worldwide Corp., 88 A.3d 635 (Del. 2014) (“MFW”), thus subjecting the transaction 

to business judgment review rather than the entire fairness standard. Plaintiff argues 

that the defendants have not satisfied two of the six elements of the MFW framework. 

For the reasons explained below, the court concludes that the defendants have

satisfied MFW. Thus, the transaction is subject to review under the business 

judgment standard, and the Complaint must be dismissed.
2

I. BACKGROUND

The facts recited in this Memorandum Opinion are drawn from the Verified 

Class Action Complaint (the “Complaint”) and documents integral thereto or 

otherwise subject to judicial notice.

A. The Parties

Plaintiff City Pension Fund for Firefighters and Police Officers in The City of 

Miami (“City Pension Fund” or “Plaintiff”) alleges that it has held Class A stock of

TTD at all relevant times.

1

Defendant TTD is a Delaware Corporation headquartered in Ventura, 

California.2 TTD is a technology company that markets “a software platform to 

provide data-driven digital advertising campaigns.”3

 Defendant Jeff Green cofounded the Company and has served as its President, Chief Executive Officer

(“CEO”), and as a director of the Company since 2009.

4

 Green has also been 

chairman of the Company’s board of directors (the “Board”) at all relevant times.

5

1 Dkt. 1 (“Compl.”) ¶ 23. 

2 Id. ¶ 24.

3 Id. ¶ 38.

4 Id. ¶ 25.

5 Id.; The Trade Desk, Inc., Schedule 14A (Apr. 13, 2021) (the “2021 Proxy”) at 9. 

Documents filed with the United States Securities and Exchange Commission (“SEC”) that 

are cited in this Memorandum Opinion are properly within the court’s view as: (i) 

documents incorporated by reference to Plaintiff’s Complaint; and (ii) public filings, to the 
3

Defendant David R. Pickles is the other co-founder of TTD.

6

 Pickles serves as

TTD’s Chief Technology Officer.

7 Defendant Blake Grayson has served as the 

Company’s Chief Financial Officer (“CFO”) since 2019.

8

 Together, Green, Pickles, 

and Grayson constitute the “Officer Defendants.”

When it approved the challenged certificate amendment, the TTD board of 

directors consisted of Green and seven outside directors: Lise J. Buyer, Gokul 

Rajaram, Kathryn E. Falberg, David B. Wells, Thomas Falk, Eric B. Paley, and 

Brian J. Stempeck (collectively the “Director Defendants”).9

 Buyer, Rajaram, and 

Wells served on a special committee of the TTD board that negotiated the certificate 

amendment with Green and recommended that the Board approve it.

10 

The named defendants are collectively referred to as the “Defendants.” 

B. The Company’s Stock Structure

TTD has two classes of common stock. The Company’s Class A common 

stock trades publicly on the NASDAQ Global Market under the ticker symbol 

extent they address publicly available facts not subject to reasonable dispute. In re Gen. 

Motors (Hughes) S’holder Litig., 897 A.2d 162, 169–70 (Del. 2006).

6 Compl. ¶ 10.

7 Id. ¶ 26. Pickles joined the Company’s Board in February 2021. Id. 

8 Id. ¶¶ 8, 27.

9 Id. ¶¶ 25–26, 28–34.

10 Id. ¶ 67; The Trade Desk, Inc., Schedule 14A (Oct. 27, 2020) (the “2020 Special Proxy”) 

at “LETTER FROM THE SPECIAL COMMITTEE.”
4

“TTD” and entitles its holder to one vote per share.

11 The Company’s Class B 

common stock, which is not publicly traded, is entitled to ten votes per share.12 This 

dual-class common stock structure was created in conjunction with the Company’s 

initial public offering in 2016 (the “IPO”).

13 The original Class B stockholders

included Green, members of management, and certain venture capital investors that 

had supported the Company’s growth as a private entity.14 Of the 33.4 million Class 

B shares originally issued, Green received approximately 8.9 million.15 Since the 

IPO, the Class B stockholders have controlled the Company:

Because of the ten-to-one voting ratio between our Class B and Class 

A common stock, the holders of our Class B common stock collectively 

continue to control a majority of the combined voting power of our 

common stock and therefore are able to control all matters submitted to 

our stockholders for approval . . . .

16

By March 2020, the number of Class B shares outstanding had declined to

approximately 5.2 million, with Green owning 97.6% of them.17 When added to the 

Class A shares that he beneficially owned, Green at that time controlled 

11 Id. ¶ 39; The Trade Desk, Inc., Form 10-K (Feb. 28, 2020) at 31.

12 Compl. ¶ 39.

13 2020 Special Proxy at 12–13.

14 Id.

15 Id.

16 The Trade Desk, Inc., Form 10-K (Feb. 28, 2020) at 31.

17 The Trade Desk, Inc., Schedule 14A (Apr. 14, 2020) (the “2020 Annual Proxy”) at 49

(reflecting Green’s ownership of 5,071,141 Class B shares).
5

approximately 55% of the combined voting power of the outstanding Class A and 

Class B common stock.18

The Company’s amended and restated certificate of incorporation (the 

“Certificate”) restricts the ownership of Class B common stock to its original owners 

and “Permitted Transferee[s]” as defined in the Certificate.

19 If a Class B share is 

transferred to someone other than a Permitted Transferee, it is automatically 

converted into Class A common stock on a 1-for-1 basis.

20

The Certificate also provides for the elimination of the Class B Stock once 

“the number of outstanding shares of Class B Common Stock represent less than ten 

percent (10%) of the aggregate number of shares of the then outstanding Class A 

Common Stock and Class B Common Stock” (the “Dilution Trigger”).21 Once the 

Dilution Trigger is tripped, each share of Class B common stock is automatically 

converted into Class A common stock on a 1-for-1 basis, and the Class B stock is 

canceled.22

18 Id.

19 Dkt. 63, Ex. 3 (the “TTD Certificate”), Art. IV(C)(3)(b) (the “Transfer Restriction 

Provision”).

20 Id.

21 TTD Certificate Art. V.

22 TTD Certificate Art. IV(C)(3)(c).
6

C. Green Learns of the Approaching Dilution Trigger in May 2020

As of March 31, 2020, the Class B common stock constituted 11.2% of the 

Company’s total outstanding Class A and Class B common stock.

23 The number of 

Class B common shares was continuing to decline, as Green sold shares pursuant to 

a Rule 10b5-1 trading plan.24 In late May 2020, Green learned that the Dilution 

Trigger was looming large.

25 To avoid this control-stripping event, Green contacted 

Company officers, his personal financial professionals, and the other holders of 

Class B stock for help.26 On May 23, 2020, Green discussed the possible elimination 

of the Dilution Trigger with the Company’s Vice President, Investor Relations, Chris 

Toth.

27 In a follow up email, Toth noted that: “We may have more leverage than 

we think. Externally no one knows you want to sell shares. Currently our 

[Certificate] state[s] there is NO timeframe to sunset shares. Therefore it is 

23 2020 Annual Proxy at 2 (“On the [March 31, 2020] record date, there were 40,864,997 

shares of our Class A common stock outstanding and 5,169,630 shares of our Class B 

common stock outstanding.”).

24 Rule 10b5-1 of the Securities Exchange Act of 1934 “permits insiders to implement 

written, pre-arranged stock trading plans when they are not in possession of material nonpublic information. Generally speaking, 10b5-1 plans offer a safe harbor for corporate 

insiders to sell stock by ceding trading authority to third parties with exclusive discretion 

to execute trades under certain pre-determined parameters.” Laborers Dist. Council 

Constr. Indus. Pension Fund v. Bensoussan, 2016 WL 3407708, at *2 (Del. Ch. June 14, 

2016) (footnote omitted), aff’d, 155 A.3d 1283 (Del. 2017).

25 Compl. ¶¶ 46, 56–58. 

26 Id. ¶¶ 47–59, 65.

27 Id. ¶ 47.
7

indefinite.”28 Toth outlined steps to propose a Certificate amendment and 

highlighted the importance of procuring support of proxy advisory firms ISS and 

Glass Lewis.

29

The next day, on May 24, 2020, Green sent an email to his personal banker 

and the Company’s CFO, Grayson, directing them to cancel his ongoing 10b5-1 

stock sale plan “as soon as possible.”30 Green also had Julie Carolan, the Company’s 

Financial Reporting Specialist, ask Green’s bankers if there was any way to settle a 

portion of a conversion and sale of Class B stock placed the prior week with Class 

A stock instead.

31 

On May 26, 2020, Grayson updated Green as to the expected timeline of the

Dilution Trigger: “[I]f you AND Dave P[ickles] don’t sell any more Class B shares, 

you very likely are in the clear until at least 9/30 of this year before Class B crosses 

below 10% of total shares.”32 Grayson further suggested that Green encourage

Pickles not to convert Class B stock “over the next couple months until any structure 

28 Compl. ¶ 49 (emphasis omitted); see also Dkt. 64, Ex. 20 (document incorporated by 

reference into the Complaint).

29 Compl. ¶¶ 48, 51; Dkt. 64, Ex. 20.

30 Compl. ¶ 54.

31 Id. ¶ 55.

32 Id. ¶ 56. The court notes that the operative complaint purports to quote documents that 

Plaintiff has not attached as exhibits for the court’s review. Such quotations to documents 

not within the court’s purview will be accepted as true for purposes of resolving these

motions only.
8

adjustments are discussed with the board.”33 That same day, Carolan asked Green 

to confirm that he was willing to settle a portion of the prior week’s trade with Class 

A stock.34 As outlined in her email to Green, settling the trade with Class A common 

stock instead of Class B common stock would have tax implications, but would 

create a “larger cushion” to maintain the dual-class structure without tripping the 

Dilution Trigger.

35 Green responded: “I hate to forego 39,000,000 of long term 

capital gains, but I will if the [high] vote [share structure] lasts less than 6 months 

with current run rates.”36

On May 27, 2020, Green emailed Wells asking for time to talk: “Can we get 

30 mins tomorrow? Something has come up that is quite urgent and important and 

I’d love to get 30 mins to share and get your feedback.”37 Based on this email, 

Plaintiff finds it “reasonably inferable” that this meeting occurred and “that they 

33 Id. ¶ 56–57.

34 Id. ¶ 59.

35 Id.

36 Id. ¶ 60. Plaintiff insinuates that Green was willing to pay $39 million in capital gains 

tax. Id. ¶¶ 11, 61. Based on the trading price of TTD Class A stock at that time, it is 

apparent that Green was willing to forgo long term capital gains treatment as to the

approximate $39 million in sale proceeds realized from his settling the trade with 129,119 

shares of Class A stock not that he would be liable for $39 million in capital gains tax. Id.

¶ 59.

37 Dkt. 64, Ex. 21; Compl. ¶ 62.
9

discussed Green’s competing desires for liquidity and continued control over Trade 

Desk.”38

On May 29, 2020, Green sent an email to the Board calling a special meeting 

to discuss the Dilution Trigger.

39 Green’s email stated, “[s]ince we recently learned 

that the dual class sunset provision will take effect much sooner than we thought, we 

need to have a board meeting to discuss what to do next.”40 Green’s email proposed 

agenda items to discuss the impact of the dual-class structure to date, the threat to 

the business without this structure, identifying available options for changing the 

Dilution Trigger, and the applicable legal process for doing so.

41 In response to a

private email from Paley, Green stated that he believed the Dilution Trigger would 

not be triggered until March 2021.42

On June 2, 2020, Green sent an email to Pickles asking him to refrain from 

selling Class B stock: “I think we discussed this, but please don’t sell any b shares 

before we chat. We’ve got a limited runway to preserve our dual-class status.”43

38 Compl. ¶ 63.

39 Id. ¶¶ 62–63. 

40 Id. ¶ 63.

41 Id.

42 Id. ¶ 64.

43 Id. ¶¶ 64–65.
10

D. The Special Committee Process

On June 3, 2020, the Board met to discuss the Company’s dual-class structure 

and, specifically, the Dilution Trigger.

44 At that meeting, the Board formed a special 

committee comprising Buyer, Rajaram, and Wells (the “Special Committee”) and 

empowered them to evaluate a potential Certificate amendment to extend the 

Company’s dual-class capitalization structure.

45 

After its formation, the Special Committee selected Buyer as its chair and

retained Morris Nichols Arsht & Tunnell LLP (“MNAT”) as its counsel.

46 MNAT 

then reviewed the independence of the Special Committee members.

47 In late June 

2020, the Special Committee interviewed three potential financial advisors, Perella 

Weinberg Partners (“PWP”), Moelis, and Centerview Partners (“Centerview”).48 In 

44 Id. ¶ 66.

45 Id. ¶ 67; 2020 Special Proxy at 14 (“At the June 3, 2020 meeting, our board of directors 

. . . delegated to the Committee the full power and authority of our board of directors to, 

among other things, (i) review and evaluate the advisability of the Potential Action, (ii) 

identify, review and evaluate alternatives to the Potential Action, (iii) recommend, reject 

or seek to modify the terms of the Potential Action, (iv) if the Committee considered it 

advisable or appropriate, negotiate the structure, form, terms and conditions of the Potential 

Action and the form, terms and conditions of any definitive agreements or any amendments 

to the Company’s governing documents, (v) obtain any necessary or desirable advice,

assistance and opinions from financial advisors or other advisors, consultants and agents 

selected by the Committee, (vi) recommend to the full board of directors what action, if 

any, should be taken by the Company with respect to the Potential Action, and (vii) appoint 

one of its members as Chair of the Committee.”).

46 Compl. ¶ 82; 2020 Special Proxy at 15.

47 2020 Special Proxy at 15.

48 Compl. ¶ 68.
11

its presentation to the Special Committee, PWP expressed concerns over the

feasibility and governance implications of a full recapitalization, instead favoring an 

amendment to the Dilution Trigger in return for governance concessions.

49

Centerview’s presentation highlighted the current market trend away from dual-class 

stock structures and summarized the “lessons learned” from precedent “Founderled” recapitalizations.

50 The Special Committee then formally retained Centerview 

as its financial advisor.51

On July 2, 2020, the Special Committee held a meeting with four MNAT 

attorneys and five Centerview representatives in attendance.52 The Special 

Committee discussed its process and the potential timing of a stockholder meeting 

with respect to any negotiated proposal and “expressed an initial preference for a 

special meeting to be held in the fourth quarter of 2020.”53 Additionally, 

“Centerview expressed a desire to . . . gather information concerning the Company’s 

stockholder base and the Company’s estimates of when the number of outstanding 

shares of Class B Common Stock will fall below 10% of the aggregate number of 

49 Id. ¶ 69.

50 Id. ¶¶ 73–75.

51 Id. ¶ 77.

52 Id. ¶ 80; Dkt. 64, Ex. 31.

53 Compl. ¶ 80; Dkt. 64, Ex. 31.
12

outstanding shares of . . . Common Stock.”54 The Special Committee suggested that 

Centerview contact Toth and Carolan regarding these inquiries.55

Centerview’s discussion materials for the July 2, 2020 meeting included 

alternatives available as consideration for a certificate amendment, including each 

alternative’s relative value to stockholders.

56 Centerview reported that controlextension proposals typically place a higher emphasis on economic considerations 

and that governance measures alone may be insufficient consideration for minority 

stockholders.

57

At a July 23, 2020 Special Committee meeting, Centerview discussed the 

Company’s estimation that the Dilution Trigger could be tripped “as early as the 

second quarter of 2021” and the “assumptions underlying such estimate.”58 The 

Special Committee then authorized MNAT to inform Green’s counsel, Wilson 

Sonsini Goodrich & Rosati, P.C. (“Wilson Sonsini”), that the Special Committee 

was now willing “to consider a proposal from Mr. Green regarding a potential

extension of the Company’s dual-class capitalization structure.”59 

54 Compl. ¶ 80.

55 Id.; Dkt. 64, Ex. 33.

56 Compl. ¶ 78. The slide did not place a dollar value on any of the alternatives.

57 Id.

58 Id. ¶ 81.

59 Id. ¶ 82.
13

On July 24, 2020, Wilson Sonsini confirmed Green’s interest in presenting an

MFW-compliant offer to the Special Committee.60 MNAT summarized this 

response in an email to the committee, which stated, in part:

[Green’s Counsel] did say that he and his client recognize the need for 

there to be a “business rationale” for the extension (and Jeff has one 

that he will offer up as part of the proposal) and the potential need to 

address other “governance issues” as part of a proposal. He said his 

client is very willing to work with the Committee and will be “flexible”. 

He said the proposal will [be] made under the MFW structure.61

On July 30, 2020, Wilson Sonsini informed MNAT that Green would deliver a 

formal proposal, featuring a “rationale for the business case,” by the end of the 

following week.62 Plaintiff interprets these two responses as admissions that there 

was no business rationale for pursuing the transaction and the entire Special 

Committee process was therefore “just a ruse.”63

On August 3, 2020, Green transmitted his proposal to the Special Committee 

(the “Initial Green Proposal”).

64 It contained three key provisions.65 First, in 

exchange for removing the Dilution Trigger, Green proposed that outstanding shares 

of Class B Common would automatically convert into Class A Common Stock upon 

60 Id. ¶ 83.

61 Dkt. 64, Ex. 34; Compl. ¶ 83.

62 Compl. ¶ 84.

63 Id. ¶ 83.

64 Id. ¶ 85.

65 Id.
14

the occurrence of one of the following conditions: (i) the seven-year anniversary of

the adoption of the Certificate amendment (the “Sunset Provision”); (ii) the 

discretion of the Company’s Board, if Green was removed for cause from his 

positions as CEO, President, or director of the Company; or (iii) a date specified by

the holders of at least 66-2/3% of the outstanding Class B common stock.66 Second, 

stockholders would be provided with a right to act by written consent at duly-called 

annual or special meetings, so long as Green and/or his affiliates hold more than 

50% of the Company’s voting power.67 Third, stockholders holding at least 10% of 

the Company’s voting power during the immediately preceding one-year period 

would be provided with a right to call special meetings.

68

The Initial Green Proposal included a letter explaining the value to the 

Company of Green retaining control through the extension of the dual-class common 

stock structure:

[Green] believes that the continuation of the Company’s governance 

structure—which will allow the Company to continue to be guided by 

the same vision and long-term perspective that have made the Company 

so successful, without distraction—is firmly in the best interests of the 

Company and all of its stockholders. Indeed, Mr. Green believes that 

the same principles that caused the Company to adopt its current 

governance structure in connection with its recent initial public offering 

apply with equal, if not greater, force and importance now. This is 

66 Id. at 33; see also 2020 Special Proxy at 17.

67 Compl. at 33; see also 2020 Special Proxy at 17.

68 Compl. at 33; see also 2020 Special Proxy at 17.
15

particularly true given that the Company, while very strong, faces new 

and unexpected challenges, as all companies do at this time. These 

challenges, as you know, include navigating unprecedented market 

uncertainty and volatility that are completely untethered to the 

Company’s performance. In addition, management and the Board are 

faced with the task of steering the Company and its employees through 

a global pandemic, all while managing a complex but extremely 

valuable business.69

On August 4, 2020, the Special Committee met to discuss the Initial Green 

Proposal.

70 The substantive portion of the meeting minutes consist of three 

sentences and lack any detail as to the Special Committee’s discussion with its 

advisors.71 The minutes conclude: 

The Committee expressed its belief that a structure under which Mr. 

Green maintained voting control for at least seven to ten years post 

initial public offering is in the best interests of all of the Company's 

stockholders based on a number of different considerations, including 

the value associated with Mr. Green’s leadership and vision for the 

Company.72

Centerview’s materials for this meeting estimated that outstanding Class B shares 

would equal less than 10% of the Company’s aggregate outstanding shares by the 

second quarter of 2021, thereby tripping the Dilution Trigger.

73

69 Compl. ¶ 86; 2020 Special Proxy at Appendix D-1.

70 Compl. ¶ 88.

71 Dkt. 64, Ex. 36 at TTD0000261.

72 Compl. ¶ 89; Dkt. 64, Ex. 36 at TTD0000261.

73 Compl. ¶ 89; Dkt. 64, Ex. 37 at TTD0000376.
16

The Special Committee met again with its advisors on August 7 and 11 to 

discuss the Initial Green Proposal and a potential counterproposal.

74 At the August 

11 meeting the committee also considered a potential timeline for a special meeting

of stockholders to vote on a possible transaction.

75

On August 14, 2020, the Special Committee approved a counterproposal (the 

“Counterproposal”) to the Initial Green Proposal with seven substantive 

modifications to Green’s terms.76 First, the Counterproposal shortened the Class B 

Sunset Provision date by two years, so all outstanding shares of Class B common 

stock would automatically convert to Class A common stock five years (instead of 

seven years) after the adoption of the Sunset Provision. Second, the Counterproposal 

removed the “for cause” limitation and the references to Green’s directorship so that 

Green’s removal as CEO or President, either with or without cause, would

automatically convert the Class B stock into Class A stock. Third, similar to the 

original Dilution Trigger, the Counterproposal provided that the outstanding Class 

B common stock would automatically convert once it equaled a specific percentage 

(to be negotiated) of the Company’s aggregate outstanding stock. Fourth, the

Counterproposal clarified that for shares to be counted towards the majority 

74 Compl. ¶¶ 90–91.

75 Id. ¶ 91.

76 Id. ¶ 92.
17

ownership requirement within the written consent clause those shares must be owned 

by Green or his controlled affiliates. Fifth, the Counterproposal modified the special 

meeting call right to be vested in stockholders holding 20% of the Company’s 

outstanding common stock (instead of a specific percentage of “voting power”). 

Sixth, the Counterproposal gave holders of Class A common stock the right to elect 

directors (with the number to be negotiated). Seventh, the Counterproposal provided

that the Company’s independent directors would elect a lead independent director.

Green ultimately accepted the majority of the terms set in the Special 

Committee’s Counterproposal. In his August 20, 2020 response, Green pushed back 

on two of them.

77 Green rejected the adoption of a new dilution trigger based on the 

ratio of Class B stock to the total number of outstanding shares of common stock.

78 

Additionally, Green specified that the holders of Class A common stock be permitted 

to elect 1 director if the board consists of nine or fewer directors, and 2 directors if 

the board consists of ten or more directors.79 The Special Committee continued to 

negotiate with Green over the following few days.

80 The Special Committee 

relented on its proposal for a new dilution trigger based on share percentage, and 

77 Id. ¶ 95; Dkt. 65, Ex. 45 at TTD0000516.

78 Compl. ¶ 95.

79 Id.

80 Id.
18

Green conceded to providing the Class A stockholders with the right to elect 1 

director if the board is eight or fewer directors, and 2 directors if the board is nine or 

more directors.

81 On August 27, 2020, Green and the Special Committee

memorialized their agreement-in-principle in a term sheet (the “Term Sheet”).

82 The

following chart illustrates the evolution from initial proposal to Term Sheet: 83

81 Id.

82 Compl. ¶ 94; 2020 Special Proxy at 18.

83 Compl. at 41; Dkt. 65, Ex. 45 at TTD0000516.
19

The full Board, including Green, met on September 3, 2020, with MNAT and 

Centerview in attendance, to discuss the Special Committee’s negotiations, the 

proposed Term Sheet, and next steps.

84 The advisors warned that the deal “may be 

viewed as novel” and “attract attention and scrutiny from stockholders and the

broader market.”85 During this meeting, the Board was shown Company projections 

indicating that the Dilution Trigger was expected to trip in the second quarter of 

2021.86

On October 16, 2020, the Board voted to approve the amendment to the

Certificate and the related terms (together, the “Dilution Trigger Amendment”).

87

Green, Stempeck, and Falberg abstained from the Board vote, due to their ownership 

of Class B stock.

88 Following the vote, the Board began its campaign in support of 

the Dilution Trigger Amendment.

89 As one of the first steps of the campaign, the 

board distributed a letter to stockholders stating that the “proposals enable the board 

to end the dual-class structure at an earlier date (in certain circumstances).”90

84 Compl. ¶ 97.

85 Id.

86 Id. ¶ 99.

87 Id. ¶ 100.

88 Id.

89 Id. ¶ 102.

90 Id.
20

E. The Stockholder Vote

On October 27, 2020, the Company filed with the SEC a notice of special 

meeting of stockholders for December 7, 2020 (the “Special Meeting”) and a 

Definitive Proxy Statement (the “2020 Special Proxy”) to solicit stockholder votes 

in favor of the proposed transaction.91 

When the date of the Special Meeting arrived on December 7, 2020 there was 

insufficient stockholder support to approve the Dilution Trigger Amendment.92 As 

a result, the Company adjourned the Special Meeting to enable proponents additional 

time to garner more votes in favor of the transaction.93 On December 22, 2020, the 

Company reconvened the Special Meeting, where the Dilution Trigger Amendment 

was approved, with 52% of the unaffiliated shares voting in favor.

94 

Once the Dilution Trigger Amendment had been approved, Green resumed

disposing of Class B shares. Between December 24, 2020, and April 19, 2021, he

converted 544,139 Class B shares into Class A shares and sold them for aggregate 

proceeds of $435,481,252.95 

91 Id. ¶ 104.

92 Id. ¶ 115.

93 Id.

94 Id. ¶ 117.

95 Id. ¶ 119.
21

F. The Proposed Equity Award

On December 3, 2020, a few days before the Special Meeting, TTD’s 

Compensation Committee, which includes Wells and Rajaram, considered a stock 

option grant to Green in his capacity as TTD’s CEO.96 A presentation from the 

committee’s compensation advisor, Compensia, outlined potential grant options 

including an award amounting to 5% of the Company’s equity.97 Plaintiff complains 

that stockholders were not aware at this time of these discussions regarding this 

possible award.98 Almost a year later, on October 8, 2021, the Compensation 

Committee recommended and the Board approved a stock option grant to Green (the 

“2021 Grant”).99 Under the 2021 Grant terms, Green may receive options allowing 

him to purchase up to 19.2 million shares of Class A common stock, at an exercise 

price of $68.29 per share, if specified target goals are achieved and other vesting 

96 Id. ¶ 113; Dkt. 55 (the “Supp. to Compl.”) ¶ 160.

97 Compl. ¶ 114.

98 Supp. to Compl. ¶ 161.

99 Id. ¶ 166. Plaintiff does not assert any claims challenging the 2021 Grant itself. Instead, 

Plaintiff treats the 2021 Grant as evidence that the TTD Board operates with a “controlled 

mindset” and that the stockholder vote on the Dilution Trigger Amendment was 

uninformed. Id. ¶¶ 161, 171, 197. The 2021 Grant is currently the subject of separate 

litigation in this court. Huizenga v. Green, et al., C.A. No. 2022-0461-PAF; Int’l Union of 

Operating Eng’rs Local 137, 137A, 137B & 137R Pension & Annuity Funds, et al. v. 

Green, et al., C.A. No. 2022-0560-PAF. This opinion does not consider the claims asserted 

in those actions.
22

conditions are satisfied.100 This option grant only becomes exercisable and vested 

in eight tranches over a ten-year term if certain stock price achievements are met.101

G. Procedural History

On June 28, 2021, Plaintiff filed its Complaint asserting breach of fiduciary 

duty claims against Green in his capacity as a controlling stockholder (Count I), the 

Officer Defendants (Count II), and the Director Defendants (Count III).

102 Each 

claim is based on the respective defendants’ actions “imposing the unfair Trigger 

Amendment on Trade Desk and the Company’s public stockholders” and “failing to 

disclose to stockholders Green’s desire to sell Trade Desk shares and the date of the 

anticipated sunset of the dual class capitalization structure.”103

On August 27, 2021, Defendants moved to dismiss the Complaint pursuant to 

Court of Chancery Rule 12(b)(6).

104 After the parties filed opening and answering 

briefs, Plaintiff sought leave to supplement the Complaint, which the court granted 

as unopposed.

105 Plaintiff filed its Verified Supplement to the Complaint (the 

100 Supp. to Compl. ¶ 167.

101 Id. ¶ 168.

102 Dkt. 1.

103 Compl. ¶¶ 143, 148, 154.

104 Dkt. 17; Dkt. 28; Dkt. 38.

105 Dkt. 53 & 54.
23

“Supplement”) on November 29, 2021.

106 On February 1, 2022, Defendants moved

to dismiss the Complaint, as supplemented.

107 Following full briefing, the court held 

oral argument on these motions on April 11, 2021.108

II. ANALYSIS

On a motion to dismiss under Court of Chancery Rule 12(b)(6): 

(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 non-moving party; and ([iv]) dismissal is inappropriate 

unless the plaintiff would not be entitled to recover under any 

reasonably conceivable set of circumstances susceptible to proof.

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

quotation marks omitted). At this stage, the pleading standards are “minimal,” 

Central Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldgs. LLC, 27 A.3d 531, 536 

(Del. 2011), but the court need not “simply accept conclusory allegations 

unsupported by specific facts, nor do we draw unreasonable inferences in the 

plaintiff's favor.” Clinton v. Enter. Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009).

106 Dkt. 55.

107 Dkt. 61; Dkt. 62; Dkt. 63; Dkt. 68.

108 Dkt. 91; Dkt. 95.
24

A. The Defendants’ Exhibits 

In preparing the Complaint, Plaintiff utilized documents that the Company 

produced in response to Plaintiff’s demand to inspect books and records pursuant to 

8 Del. C. § 220.109 In resolving the books and records demand, the parties entered 

into a Confidentiality and Non-Disclosure Agreement whereby the documents

would “be deemed incorporated by reference in any complaint relating to the subject 

matter referenced in the Demands.”110 Plaintiff cited, but did not attach as exhibits 

to its Complaint and Supplement, 38 documents provided in the 220 production. 

Defendants responded by attaching 71 documents as exhibits to their motions to 

dismiss, only 13 of which are cited in the Complaint.

Notwithstanding their arrangement, the parties may not rely on private 

agreement to change the pleading standard at the motion to dismiss stage: 

[O]ur courts must regulate how far down the road of incorporation by 

reference a defendant may go when plaintiff has well-pled something 

as fact . . . even if another document might suggest the facts are 

otherwise. Section 220 documents may or may not comprise the 

entirety of the evidence on a particular point. Until that is tested, 

Defendants cannot ask the court to accept their Section 220 documents 

as definitive fact and thereby turn pleading stage inferences on their 

head. That is not, and should not be, the state of our law.

109 Compl. at 3; Supp. to Compl. at 3.

110 Dkt. 66, Ex. 63.
25

In re Clovis Oncology, Inc. Deriv. Litig., 2019 WL 4850188, at *14 n.216 (Del. Ch. 

Oct. 1, 2019).

“The incorporation-by-reference doctrine does not enable a court to weigh 

evidence on a motion to dismiss. It permits a court to review the actual documents 

to ensure that the plaintiff has not misrepresented their contents and that any 

inference the plaintiff seeks to have drawn is a reasonable one.” Voigt v. Metcalf, 

2020 WL 614999, at *9 (Del. Ch. Feb. 10, 2020). This doctrine therefore permits 

the court to consider extrinsic documents only for a limited purpose.

“Where a defendant improperly and extensively uses Section 220 Documents 

in support of a Chancery Rule 12(b)(6) motion to support factual inferences that run 

counter to those supported in the complaint, the court may either exclude the 

extraneous matter from its consideration or convert the Chancery Rule 12(b)(6) 

motion into a motion for summary judgment.” In re CBS Corp. S’holder Class 

Action & Deriv. Litig., 2021 WL 268779, at *18 (Del. Ch. Jan. 27, 2021), as 

corrected (Feb. 4, 2021). Therefore, instead of converting the present motions to 

dismiss into motions for summary judgment, the court declines to consider any 

extraneous documents submitted by Defendants that are not referenced in or integral 

to Plaintiff’s pleadings or otherwise subject to judicial notice.
26

B. The Presumptive Standard of Review

Under Delaware law, a controlling stockholder owes fiduciary duties to the 

Company and its minority stockholders. eBay Domestic Hldgs, Inc. v. Newmark, 16 

A.3d 1, 26 (Del. Ch. 2010). A stockholder owning “more than 50% of the voting 

power of a corporation” will be deemed a “controller” under Delaware law. In re 

KKR Fin. Hldgs. LLC S'holder Litig., 101 A.3d 980, 991 (Del. Ch. 2014), aff'd sub 

nom. Corwin v. KKR Fin. Hldgs. LLC, 125 A.3d 304 (Del. 2015). At all relevant 

times, Green controlled more than 50% of the voting power of TTD’s outstanding 

voting stock.111 Defendants do not dispute Green’s status as a controlling 

stockholder.

“When a transaction involving self-dealing by a controlling shareholder is 

challenged, the applicable standard of judicial review is entire fairness, with the 

defendants having the burden of persuasion.” Americas Mining Corp. v. Theriault, 

51 A.3d 1213, 1239 (Del. 2012). The entire fairness standard applies to “any 

transaction between a controller and the controlled corporation in which the 

controller receives a non-ratable benefit.” In re EZCORP Inc. Consulting Agreement 

Deriv. Litig., 2016 WL 301245, at *11 (Del. Ch. Jan. 25, 2016). This is because 

Delaware courts are aware that a controller enjoys a “uniquely advantageous 

111 Compl. 3; see also Dkt. 63 (“Green Opening Br.”) at 9 (“Green has held more than 50% 

of the Company’s voting power since at least early 2018 . . .”).
27

position for extracting differential benefits from the corporation at the expense of 

minority stockholders.” Id. “The risk is thus created that those who pass upon the 

propriety of the transaction might perceive that disapproval may result in retaliation 

by the controlling shareholder.” Kahn v. Tremont Corp., 694 A.2d 422, 428 (Del. 

1997). Therefore, the entire fairness standard applies to “ensure that all parties to 

the transaction have fulfilled their fiduciary duties to the corporation and all its 

shareholders.” Id.

The Dilution Trigger Amendment eliminated the Dilution Trigger, extended 

the duration of the dual-class structure, and enabled Green to maintain voting 

control. Defendants do not dispute that the Dilution Trigger Amendment is a 

transaction that is presumptively subject to review under the entire fairness standard. 

See IRA Tr. FBO Bobbie Ahmed v. Crane, 2017 WL 7053964, at *9 (Del. Ch. Dec. 

11, 2017) (concluding that a reclassification under which the controlling stockholder 

ensured that it would retain voting control “well into the future” was presumptively 

subject to entire fairness review). Therefore, the court’s analysis of the motions to 

dismiss begins with that presumption.

112

112 In its brief, Plaintiff argued that the Dilution Trigger Amendment implicated the voting 

rights of TTD stockholders and, therefore, was subject to “heightened scrutiny.” Dkt. 76 

(“Pl.’s Ans. Br.”) at 36–37 (citing Coster v. UIP Cos., Inc., 255 A.3d 952 (Del. 2021)). In 

Coster, the Delaware Supreme Court held that even though a stock sale which diluted one 

of two equal stockholders below 50% satisfied the entire fairness standard, it was otherwise 

also subject to further review to assess whether it was otherwise inequitable or taken for 
28

C. MFW Analysis

In the seminal case of MFW, the Delaware Supreme Court endorsed a 

framework that would alter the standard of review in a conflicted controlling 

stockholder transaction from entire fairness to the more lenient business judgment 

standard. To avoid entire fairness scrutiny through this doctrinal escape hatch, the 

following conditions must be met: 

(i) the controller conditions the procession of the transaction on the 

approval of both a Special Committee and a majority of the minority 

stockholders;

(ii) the Special Committee is independent;

(iii) the Special Committee is empowered to freely select its own 

advisors and to say no definitively;

(iv) the Special Committee meets its duty of care in negotiating a fair 

price;

(v) the vote of the minority is informed; and

(vi) there is no coercion of the minority.

MFW, 88 A.3d at 645 (formatting altered).

the primary purpose of thwarting the plaintiff’s vote to elect directors. Id. at 953, 963 n.66. 

In so holding, the Court invoked the well-settled doctrines of Schnell v. Chris-Craft 

Industries., Inc., 285 A.2d 437, 439 (Del. 1971) (“inequitable action does not become 

permissible simply because it is legally possible”), and Blasius Industries., Inc. v. Atlas 

Corp., 564 A.2d 651, 661 (Del. Ch. 1988) (recognizing that if the board acts for the primary 

purpose of impeding stockholders’ franchise rights, the board must prove a “compelling 

justification” for its actions). At oral argument, however, Plaintiff here acknowledged that 

it was not contending that the court must apply a Schnell analysis to the Dilution Trigger 

Amendment if Defendants have satisfied MFW. Dkt. 95 (“Hrg. Tr.”) at 103–04.
29

If Defendants satisfy MFW, then the transaction will be subject to business 

judgment review. But if Plaintiff can plead a reasonably conceivable set of facts 

showing that any one of the enumerated conditions is not satisfied, then, the entire 

fairness standard governs. Id.

Although MFW was decided at the summary judgment stage and involved a 

freeze-out merger, the MFW framework is not limited to those scenarios. The court 

has applied MFW at the motion to dismiss stage and in transactions other than freezeout mergers. See, e.g., Crane, 2017 WL 7053964, at *12–21 (applying MFW to a 

stock reclassification on a motion to dismiss); see also Tornetta v. Musk, 250 A.3d 

793, 800 (Del. Ch. 2019) (reasoning that the MFW framework could apply to review 

a challenge to executive compensation paid to a controlling stockholder); In re 

Martha Stewart Living Omnimedia, Inc. S’holder Litig., 2017 WL 3568089, at *18–

19 (Del. Ch. Aug. 18, 2017) (holding MFW framework applicable to claims alleging 

controlling stockholder obtained a non-ratable benefit in a sale to an unaffiliated 

third party); In re Books-A-Million, Inc. S’holders Litig., 2016 WL 5874974, at *8 

(Del. Ch. Oct. 10, 2016) (applying MFW at motion to dismiss stage), aff'd, 164 A.3d 

56 (Del. 2017); Swomley v. Schlecht, C.A. No. 9355-VCL at 64–79 (Del. Ch. Aug. 

27, 2014) (TRANSCRIPT) (same), aff'd, 128 A.3d 992 (Del. 2015) (TABLE). 

Plaintiff here contends that Defendants have not satisfied the elements of 

MFW; it does not contend it is otherwise inapplicable. Plaintiff alleges that 
30

Defendants have failed to satisfy elements (ii) and (v) of the MFW framework. It 

argues that the Special Committee was not independent and that the stockholder vote 

was uninformed. If it is reasonably conceivable under the well-pleaded facts of the 

Complaint and Supplement that either element is not satisfied, then Defendants will 

be unable to benefit from the deferential business judgment standard of review. 

Martha Stewart, 2017 WL 3568089, at *1. The court next considers Plaintiff’s 

arguments.

1. Special Committee’s Independence

Plaintiff’s challenge to the independence of the Special Committee is twofold. First, Plaintiff impugns the independence of the Special Committee’s chair and 

argues she undermined the independence of the committee as a whole. Second, 

Plaintiff insists the Special Committee lacked independence because it labored under 

a “controlled mindset,” bending to Green’s wishes.

The MFW framework contemplates that the Special Committee will act as an 

“independent negotiating agent whose work is subject to stockholder approval.” 

Flood v. Synutra Int'l, Inc., 195 A.3d 754, 767 (Del. 2018). To plead that a director 

is not independent “in a manner sufficient to challenge the [MFW] framework, a 

plaintiff must allege facts supporting a reasonable inference that a director is 

sufficiently loyal to, beholden to, or otherwise influenced by an interested party so 

as to undermine the director’s ability to judge the matter on its merits.” Books-A-
31

Million, 2016 WL 5874974, at *9; accord In re Dell Techs. Inc. Class V S’holders 

Litig., 2020 WL 3096748, at *35 (Del. Ch. June 11, 2020).

“The pleading standard that governs under Rule 12(b)(6) is less stringent and 

more plaintiff friendly than the standard that governs under Rule 23.1.” Dell, 2020 

WL 3096748, at *35. The Plaintiff need not plead facts supporting its allegations of 

conflict with particularity; instead the question is whether the pleaded facts make it 

“reasonably conceivable” that the Special Committee members were not 

independent. Id.

The Special Committee consisted of three members: Buyer, Rajaram, and 

Wells,113 with Buyer serving as its chairperson.114 “Directors are presumed to be 

independent.” Friedman v. Dolan, 2015 WL 4040806, at *6 (Del. Ch. June 30, 

2015). Plaintiff does not meaningfully challenge the independence of either Rajaram 

or Wells. The Complaint notes that both Rajaram and Wells served on the 

Company’s Compensation Committee and that, in December 2020, the 

Compensation Committee was considering a stock option grant to Green.115 Plaintiff 

views this as “demonstrating both their controlled mindset and their entrenchment 

113 Compl. ¶ 67.

114 Pl.’s Ans. Br. 43.

115 Compl. ¶ 113. 
32

motive.”116 A large option award, contingent on various stock achievements and 

vesting conditions over a ten-year period, was eventually approved by the 

Compensation Committee in October 2021.

117 As noted earlier, this grant is not 

being challenged in this litigation and there are no allegations that Rajaram or Wells 

made any fiduciary decision concerning the option grant prior to October 2021. The 

Complaint lacks well-pleaded allegations creating a reasonable inference 

undermining their independence while serving on the Special Committee.

118

116 Id. ¶ 17.

117 Supp. to Compl. ¶ 166.

118 Beyond his role on the committees, the only other allegation specific to Wells is the 

May 27, 2020 email he received from Green requesting a thirty-minute conversation 

regarding “[s]omething . . . quite urgent and important.” Compl. ¶ 62. This allegation 

leads to a reasonable inference that the conversation occurred and that it concerned the 

Dilution Trigger. When the conversation occurred is unclear, but two days after sending 

this email, Green contacted the entire board to schedule a meeting about the Dilution

Trigger. Id. ¶ 63. That meeting occurred on June 3, 2020. Id. ¶ 66. Without more, the 

allegation that Green had a conversation about the Dilution Trigger with Wells does not 

create a reasonable inference that Wells was conflicted or lacked independence from 

Green. See In re MFW S’holders Litig., 67 A.3d 496, 509 (Del. Ch. 2013) (“[A] plaintiff 

seeking to show that a director was not independent must meet a materiality standard, under 

which the court must conclude that the director in question's material ties to the person 

whose proposal or actions she is evaluating are sufficiently substantial that she cannot 

objectively fulfill her fiduciary duties”), aff'd sub nom. Kahn v. M & F Worldwide Corp., 

88 A.3d 635 (Del. 2014). In In re Rouse Properties, Inc., 2018 WL 1226015, at *14 (Del. 

Ch. Mar. 9, 2018), this court acknowledged that conversations between a controller and 

director regarding the director’s employment post-merger may raise a reasonable doubt as 

to the director’s independence from the controller for that transaction. Plaintiff has not 

pleaded any allegations in this case making it reasonable to infer that the substance of the 

conversation between Wells and Green involved such innately conflicting topics.
33

Plaintiff’s challenge to the independence of the Special Committee focuses 

solely on the chair—Buyer. Defendants argue that the allegations as to Buyer are 

meritless, but even if they had merit, the Complaint does not allege facts supporting 

a reasonable inference that a majority of the committee was not disinterested and 

independent. Therefore, according to Defendants, Plaintiff has not alleged facts to 

call into question the independence of the Special Committee.

a. Compensation

Plaintiff’s challenge to Buyer’s independence is limited to the compensation 

that she derived from TTD as a consultant in 2016, when she was not a director of 

the Company, and her director compensation in 2019 and 2020.119 The main area of 

dispute is whether Buyer’s director compensation is material to her. 

In 2016, Green hired Buyer as a consultant for TTD’s IPO.120 In return for 

her work on this project, Buyer received $175,000 and 2,500 options to acquire Class 

A stock.121 As a director of the Company, she has received compensation of 

$535,558 in 2019 and $408,492 in 2020.122 Plaintiff implies that this compensation 

119 Supp. to Compl. ¶ 196.

120 Id. ¶ 195.

121 Id.

122 Id. ¶ 196. Plaintiff’s brief notes that, in 2019, “Buyer’s compensation was $535,558 in 

2019 and $408,492 in 2020, making her the Company’s highest-paid director by a wide 

margin.” Pl.’s Ans. Br. 41 (emphasis added). In 2019, Buyer received the highest total 

compensation for a non-employee director due to “an initial director equity award [granted 
34

is material to Buyer, alleging that Buyer’s TTD director compensation is her only 

source of income besides what she earns from her consulting company, whose 

annual revenue is allegedly $244,223.

123 The sole factual basis for this allegation is 

an online-reference to Dun & Bradstreet.124 Defendants argue that the speculation 

of marketing companies such as Dun & Bradstreet regarding the revenue of private 

companies cannot satisfy Plaintiff’s pleading burden. Buyer’s director 

questionnaire, cited by both parties, notes that “[s]ince August 2006, Ms. Buyer has 

served as principal of Class V Group, LLC, a consulting firm that advises companies 

on initial public offerings and other market strategies.”125 Prior to Class V Group, 

LLC, Buyer served in a variety of hefty roles, including as Director of Business 

Optimization at Google, General Partner of a venture capital firm, and Director of 

Internet/New Media Research at Credit Suisse First Boston.126 Buyer also served as 

director of a publicly traded online survey company from 2004 until it was acquired 

by Microsoft.127

to new director’s] upon initial election to our board.” 2020 Annual Proxy at 44–45. As 

shown in Plaintiff’s pleadings, Buyer was the only new director join the Board that year. 

Compl. ¶ 28. The following year, Buyer’s compensation was in line with that received by 

the other directors. 2021 Proxy at 46. 

123 Supp. to Compl. ¶ 196.

124 Id.

125 Dkt. 64, Ex. 13 at TTD0000185.

126 Id.; Supp. to Compl. ¶ 196 (noting that Buyer retired from Google in 2005).

127 Dkt. 64, Ex. 13 at TTD0000185.
35

This court is hesitant to infer materiality of compensation absent well-pleaded 

facts. The determination of whether a director’s compensation from the Company 

is sufficient to raise a reason to doubt her independence is a fact intensive inquiry. 

See In re MFW S’holders Litig., 67 A.3d at 510–13 (observing that a plaintiff must 

allege facts “showing that a specific director’s independence is compromised by 

factors material to her” and that fees paid to a director are material to the director); 

see also McElrath on behalf of Uber Techs., Inc. v. Kalanick, 2019 WL 1430210, at 

*17 (Del. Ch. Apr. 1, 2019) (“The materiality inquiry must focus on the financial 

circumstances or personal affinities of the particular director in question.”), aff'd, 

224 A.3d 982 (Del. 2020); Freedman v. Adams, 2012 WL 1345638, at *7 (Del. Ch. 

Mar. 30, 2012) (applying a materiality inquiry in the Rule 23.1 context and finding 

“with the facts as they are, the Plaintiff simply leaves the Court to speculate as to 

whether the Outside Directors’ compensation so far exceeded what was customary 

that it was disabling. This argument fails.”); Chester Cnty. Empls.’ Ret. Fund v. New 

Residential Inv. Corp., 2017 WL 4461131, at *8 (Del. Ch. Oct. 6, 2017) (declining 

to infer, under a Rule 23.1 analysis, that compensation was material to certain 

directors when plaintiff pleaded that the one was retired and the other’s 

“employment background indicate[d] he ha[d] not accumulated great wealth.”). 
36

Even under the more plaintiff-friendly standard of the MFW framework, the 

plaintiff must still allege well-pleaded facts supporting a reasonable conceivability 

of compensation materiality to the specific director. As this court recently observed:

Generally, serving as a director on the board of a Delaware corporation 

is not a pro bono gig; Delaware law recognizes that directors will be 

paid a fair and reasonable amount. For that reason, when director fees 

are not excessive, mere allegations of payment of director fees are 

insufficient to create a reasonable doubt as to the director's 

independence.

Simons v. Brookfield Asset Mgmt. Inc., 2022 WL 223464, at *15 (Del. Ch. Jan. 21, 

2022). 

Each side has cited cases supporting their respective position.128 The court 

need not wade into the issue here. Even assuming that Buyer’s TTD compensation 

128 In addition to taking issue with the Dun & Bradstreet estimate, the Special Committee 

argues that merely pointing to one’s director fees alone is not sufficient to create a 

reasonable inference that a director lacks independence or that it is the sole source of her 

income. Dkt. 62 (“SC Opening Br.”) at 17 (citing In re Kraft Heinz Co. Deriv. Litig., 2021 

WL 6012632, at *12 n.124 (Del. Ch. Dec. 15, 2021) (noting that a director’s publicly 

reported income does not always contextualize a director’s wealth), and Simons, 2022 WL 

223464, at *15 (noting that the fact that a director was retired and his directorship “is his

sole source of current employment does not give rise to a reasonable inference that his 

[director] fees are material to him.”)). On the other hand, Plaintiff cites cases for the 

proposition that the court has inferred reason to doubt the independence of directors 

drawing fees that were much lower than what Buyer received in the last two years. Pl.’s 

Ans. Br. 43 (citing Del. Cnty. Empls. Ret. Fund v. Sanchez, 124 A.3d 1017, 1020–21 (Del. 

2015) (inferring at the pleading stage that director fees of $165,000 were material when 

they constituted 30% to 40% of the defendants’ total annual income); In re Oracle Corp. 

Deriv. Litig., 2018 WL 1381331, at *177 (Del. Ch. Mar. 19, 2018) (inferring at the pleading 

stage that director fees of $468,645 were material)); see also Voigt, 2020 WL 614999, at 

*15 & n.14 (citing cases where director fees in amounts lower than what Buyer received 

were inferred as material at the pleading stage, and observing that “[s]pecific information 
37

creates a reasonable inference that her director compensation was material to her and 

that she was, therefore, not independent, the Plaintiff has not alleged facts that create 

a reason to doubt that a majority of the committee lacked independence or that Buyer 

so dominated the committee process that it undermined its integrity as a whole.

b. Buyer’s Effect on the Committee 

As a general rule, outside the MFW framework, a plaintiff must plead facts 

supporting a reason to doubt the independence or disinterestedness of a majority of 

the board or a special committee. See, e.g., Beam ex rel. Martha Stewart Living 

Omnimedia, Inc., 845 A.2d 1040, 1046 n.8 (Del. 2004) (observing that in 

considering whether demand is excused in a derivative action, demand is futile 

unless there is a majority of independent directors); Beneville v. York, 769 A.3d 80, 

85–87 (Del. Ch. 2000) (holding that demand is excused where a board is evenly 

divided between interested and disinterested directors). “Where . . . a plaintiff 

alleges only a minority of special committee members are incapable of 

disinterestedly and independently considering a transaction, a plaintiff must proffer 

at the pleading stage some factual predicate from which the court can infer the 

compromised director(s) somehow infected the special committee’s process.” In re 

GGP, Inc. S’holder Litig., 2021 WL 2102326, at *15 (Del. Ch. May 25, 2021), aff'd 

about the wealth of particular individuals is not generally available and is also not 

something that can usually be obtained using Section 220.”).
38

in part, rev'd in part and remanded, 2022 WL 2815820 (Del. July 19, 2022).

129 

Although GGP did not involve the application of the MFW framework, the Plaintiff 

here acknowledges that it must meet this burden.130 

Plaintiff argues that the court should infer that Buyer’s lack of independence

“somehow infected the special committee’s process.”131 Plaintiff relies on In re 

MAXXAM, Inc./Federated Development Shareholders Litigation, 1997 WL 187317, 

129 For this proposition, the GGP opinion from this court relied on numerous cases from 

this court and the Delaware Supreme Court. GGP, 2021 WL 2102326 at *15 n.179 (citing

Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 363 (Del. 1993) (“This Court has never 

held that one director's colorable interest in a challenged transaction is sufficient, without 

more, to deprive a board of the protection of the business judgment rule presumption of 

loyalty.”); In re Alloy, Inc., 2011 WL 4863716, at *8–9 (Del. Ch. Oct. 13, 2011) (holding 

that the allegation that an allegedly conflicted corporate fiduciary “was in a position” to 

influence other members of a special committee was inadequate to support an inference 

that the special committee's process was tainted by undue influence); Telxon Corp. v.

Meyerson, 802 A.2d 257, 264 (Del. 2002) (“Where only one director has an interest in a 

transaction, however, a plaintiff seeking to rebut the presumption of the business judgment 

rule under the duty of loyalty must show that the interested director controls or dominates 

the board as a whole” (quotations omitted)).

130 Pl.’s Ans. Br. 43 (citing and partially quoting the foregoing sentence from GGP). In 

AmTrust Financial Services, Inc. Stockholder Litigation, 2020 WL 914563 (Del. Ch. Feb. 

26, 2020), the plaintiffs contended that for MFW to apply all members of the special 

committee must have been disinterested and independent. Id. at *10 n.105. The AmTrust

court did not need to reach that issue because the court concluded that a majority of the 

special committee had a material self-interest in the transaction. Id. This court’s opinion 

in GGP acknowledged this seemingly open question of Delaware law, but did not need to 

reach it because GGP did not involve application of the MFW framework. The court does 

not need to reach that issue here, either, because the Plaintiff did not address in its 

complaint or brief whether MFW can apply only if every member of the special committee 

is independent and disinterested. Accordingly, that argument was waived. See Emerald

P'rs v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (“Issues not briefed are deemed waived.”).

131 Pl.’s Opening Br. 43 (quoting GGP, 2021 WL 2102326, at *15).
39

at *1 (Del. Ch. Apr. 4, 1997), for the proposition that a non-independent chair’s 

“dominant role” in the special committee process “accentuates the Court’s concerns” 

regarding the independence of the committee as a whole. True enough, but 

MAXXAM does not move the needle for Plaintiff in this case. In MAXXAM, the chair 

of the special committee dominated negotiations of the challenged transaction, bore 

significant financial ties to the controller, and undermined the special committee 

process by selecting and hiring advisors before obtaining the approval of the 

committee. Id. at *6, *20. Plaintiff does not plead anything close to those allegations 

here.

The only well-pleaded fact concerning Buyer’s individual conduct concerns 

the selection of Centerview as one of the Special Committee’s two advisors. 

Plaintiff contends that “Buyer pressed the Special Committee to hire Centerview as 

its advisor.”132 This characterization is based on a single email with the subject line 

“For what it’s worth,” wherein Buyer informed the Special Committee: “I just 

received a strong recommendation on Centerview Partners (as a third option to PW 

and Moelis).”133 In a follow up email, Buyer wrote, “Right on the web page, they 

talk about special committee advisory on this very topic.”134 None of this is 

132 Pl.’s Ans. Br. 43 n.14.

133 Dkt. 64, Ex. 29.

134 Id.
40

contained in the pleadings. The single footnote in a brief dedicated to this email 

does not create a reasonable inference that Buyer dominated the Special Committee 

or lacked independence. There is no allegation that Buyer unilaterally selected 

Centerview. Indeed, the only reasonable inference from the email is that she 

suggested Centerview as a third potential candidate to consider as a financial advisor 

and that the full Special Committee chose Centerview, a firm with relevant 

experience to the Special Committee’s mission. That is what the meeting minutes 

reflect, and Plaintiff does not suggest otherwise. Buyer’s email to her fellow 

committee members does not support an inference that she dominated the 

Committee or steered it in a direction under circumstances that undermined its 

independence.135

Plaintiff has not pleaded sufficient facts alleging that Buyer’s conduct 

dominated or subverted the Special Committee process so as render the entire 

committee defective, even if she was determined to be lacking in independence.

135 The MAXXAM case is further distinguishable from this action because, in MAXXAM, 

the court found that “the members of the Special Committee all had significant financial 

and/or business ties with [the controller].” Id. at *20 (emphasis added). Therefore, in 

MAXXAM, the court had several reasons for ultimately finding the special committee’s 

process “infected.” 
41

c. Controlled Mindset

In its final effort to undermine the Special Committee, Plaintiff argues that the 

committee “labored under a controlled mindset and knew that securing Green’s 

control would ingratiate themselves with Green and ensure their continued 

directorships at the Green-controlled Company.”136 Defendants have framed this 

issue as a further challenge to the committee’s independence.137 Plaintiff insists that 

its challenge goes beyond the independence of the Special Committee.138 Regardless 

of how the argument is framed, it is without merit.

The “controlled mindset” principle has been applied where, “from inception, 

the Special Committee fell victim to a controlled mindset and allowed [the 

controller] to dictate the terms and structure of the [transaction].” In re S. Peru 

Copper Corp. S'holder Deriv. Litig., 52 A.3d 761, 798 (Del. Ch. 2011), aff'd sub 

nom. Americas Mining Corp. v. Theriault, 51 A.3d 1213 (Del. 2012). “When 

analyzing director independence in the presence of a controlling stockholder, ‘the 

focus . . . is on domination of the board with regard to the transaction at issue.’” In 

re Viacom Inc. S’holders Litig., 2020 WL 7711128, at *23 (Del. Ch. Dec. 29, 2020), 

as corrected (Dec. 30, 2020) (citation omitted).

136 Compl. ¶ 112.

137 See Green’s Opening Br. 51; SC Opening Br. 12–22.

138 See Hrg. Tr. at 68.
42

Plaintiff’s “controlled mindset” assertion is not supported by any well-pleaded 

allegations that the Special Committee members were beholden to Green or that they 

suffered from any disabling personal interest in the Dilution Trigger Amendment. 

Rather, Plaintiff insists the Special Committee’s lack of independence is self-evident 

because it decided to maintain the dual-class structure: “[N]o independent 

fiduciaries acting in good faith would take affirmative action to perpetuate a dual 

class structure when the company and minority investors have an imminent 

opportunity to eliminate a super-voting class of stock.”139 This ipse dixit does not 

carry the day. Merely because the committee recommended that the Board and 

stockholders vote to maintain the dual-class structure, albeit in modified fashion, 

does not render them lacking in independence. As this court has emphasized:

A director could believe in good faith that it is generally optimal for 

companies to be controlled by their founders and that this governance 

structure is value-maximizing for the corporation and its stockholders 

over the long-term. Others might differ. As long as an otherwise 

independent and disinterested director has a rational basis for her belief, 

that director is entitled (indeed obligated) to make decisions in good 

faith based on what she subjectively believes will maximize the longterm value of the corporation for the ultimate benefit of its residual 

claimants.

139 Compl. ¶ 2.
43

United Food & Commercial Workers Union & Participating Food Indus. Empls. 

Tri-State Pension Fund v. Zuckerberg, 250 A.3d 862, 895 (Del. Ch. 2020), aff'd, 

2021 WL 4344361 (Del. Sept. 23, 2021).

Plaintiff’s controlled mindset theory relies on two cases that did not involve 

an MFW analysis. Neither case is remotely applicable to the facts of this case. In 

Berteau v. Glazek, 2021 WL 2711678, at *12 (Del. Ch. June 30, 2021), this court 

held that a merger between a controlling stockholder and a subsidiary was subject to 

entire fairness review. In holding that the complaint stated non-exculpated claims 

against the two special committee members of the subsidiary, the court focused on 

the unique facts of that case, including: (1) the committee allowed management to 

select its legal advisor, which had also advised the full board; (2) the committee 

inexplicably did not push back on the controlling stockholder after it had first agreed 

to a majority-of-the-minority vote, but then reneged; and (3) the special committee 

provided the full board, including conflicted dual-fiduciaries, an “update” on its 

negotiations, at a meeting that appears to have been a pressure tactic, after which 

price negotiations abruptly ended. Id. at *22–24. Viacom also involved a controlling 

stockholder interfering with a special committee’s process. 2020 WL 7711128, at 

*2. In that case, the court concluded that the Viacom special committee members 

were conflicted because they had close personal relationships with the principals of 

the controller, the controller was known to be retributive and to remove directors 
44

that disagreed with its approach, and the committee members acted with a 

“controlled mindset” where the committee members were hand-picked by the 

controller after “disloyal” members were removed. Id. at *21–23. In addition, the 

committee refused to push back on CBS’s refusal to condition the deal on a majority 

of the minority vote, the committee members refused to obtain any minority 

protections, and the controller dominated the committee’s negotiation strategy. Id.

at *22–23; see also CBS, 2021 WL 268779, at *40 (finding it “inexplicable” that a 

special committee did not attempt to secure a majority-of-the-minority vote after the 

controller indicated it would not agree to such a condition).

Plaintiff here offers no comparable allegations impugning the TTD Special 

Committee members or their process. There are no allegations that Green sought to

interfere with or pressure the committee. At bottom, Plaintiff’s challenge to the 

Special Committee is grounded in Plaintiff’s belief that maintaining the dual-class 

structure through the Dilution Trigger Amendment was a bad deal for TTD 

stockholders. Maybe it was. But the Delaware Supreme Court has clarified that this 

court’s role in applying the MFW framework is limited to a process analysis, not 

second guessing the ultimate “give” and “get”: “To lard on to the due care review a 

substantive review of the economic fairness of the deal approved by a Special 

Committee, as the plaintiff advocates, is to import improperly into a due care 
45

analysis the type of scrutiny used in entire fairness review and in appraisal cases.” 

Synutra, 195 A.3d at 756.

At their core, Plaintiff’s allegations do not substantively challenge the Special 

Committee’s independence. Instead, they infer wrongdoing from business judgment 

decisions. As our Supreme Court confirmed in Synutra, “Disagreeing with the 

special committee’s strategy is not a duty of care violation.” Synutra, 195 A.3d at

768 (citing Swomley v. Schlecht, 2014 WL 4470947, at *21, aff'd, 128 A.3d 992 

(Del. 2015)) (quotation marks and brackets omitted). To state a claim against the 

Special Committee for a duty of care violation in negotiating the Dilution Trigger

Amendment, they must plead facts showing that the Special Committee acted with 

“gross negligence.” Id. They have failed to do so here. Accordingly, it is not 

reasonably conceivable under the well-pleaded allegations in the Complaint or 

Supplement that the Special Committee lacked independence or failed to satisfy its 

duty of care.

2. The Stockholder Vote

Plaintiff also alleges that the stockholder vote on the Dilution Trigger 

Amendment was uninformed, thus rendering MFW inapplicable.

140 Plaintiff insists 

there were six material disclosure deficiencies in the 2020 Special Proxy. They can 

140 Compl. ¶ 121.
46

be summarized as the failure to disclose: (i) Green’s desire to sell Class B stock; (ii) 

the Company’s expectations as to when the Dilution Trigger would likely be tripped; 

(iii) advice that Centerview provided to the Special Committee; (iv) Green’s 

counsel’s acknowledgement that a business rationale would be needed to justify any 

amendment to the Dilution Trigger; (v) the Special Committee’s efforts to obtain 

stockholder support for the Dilution Trigger Amendment; and (vi) the Compensation 

Committee’s consideration of an equity grant to Green in December 2020.

141 

According to Plaintiff, each of these material omissions rendered the stockholders 

uninformed, depriving them of the ability adequately to assess the transaction’s 

fairness. 

The analysis here turns on the “well-recognized proposition that directors of 

Delaware corporations are under a fiduciary duty to disclose fully and fairly all 

material information within the board’s control when it seeks shareholder action.” 

Stroud v. Grace, 606 A.2d 75, 84 (Del. 1992). 

An omitted fact is material if there is a substantial likelihood that a 

reasonable shareholder would consider it important in deciding how to 

vote . . . Put another way, there must be a substantial likelihood that the 

disclosure of the omitted fact would have been viewed by the 

reasonable investor as having significantly altered the “total mix” of 

information made available.

141 Id. ¶¶ 122–27; Supp. to Compl. ¶ 161.
47

Rosenblatt v. Getty Oil Co., 493 A.2d 929, 944 (Del. 1985) (quoting TSC Indus., Inc. 

v. Northway, Inc., 426 U.S. 438, 449 (1976)); accord Arnold v. Soc'y for Sav. 

Bancorp, Inc., 650 A.2d 1270, 1277 (Del. 1994). 

The question of materiality is a “context-specific inquiry.” Dell, 2020 WL 

3096748, at *39 (citation omitted). “So long as the proxy statement, viewed in its 

entirety, sufficiently discloses and explains the matter to be voted on, the omission 

or inclusion of a particular fact is generally left to management’s business 

judgment.” In re 3Com S’holders Litig., 2009 WL 5173804, at *1 (Del. Ch. Dec. 

18, 2009).

For the reasons stated below, the six alleged omissions, individually and 

collectively, did not result in an uninformed stockholder vote on the Dilution Trigger 

Amendment.

a. Green’s Desire to Sell Class B Shares

Plaintiff argues the stockholder vote was uninformed because the proxy did 

not disclose “Green’s weak bargaining position.”142 According to Plaintiff, “during 

the spring of 2020 Green was desperate to sell a significant portion of this Trade 

Desk equity,” but could not do so without tripping the Dilution Trigger and thus 

losing majority control over the Company.143 Plaintiff contends that this information 

142 Pl.’s Ans. Br. 52.

143 Compl. ¶ 122.
48

was material because “it reveals that the Special Committee should have had 

substantial negotiating leverage against Green and could have negotiated for a 

dramatically more stockholder-friendly Dilution Trigger Amendment and/or other 

concessions from Green.”144 

Plaintiff anchors this allegation to an email from Toth to Green on May 23, 

2020, which was around the time that Green learned the Dilution Trigger could be 

tripped in a matter of months if he continued to sell Class B shares. Toth’s email 

stated, in pertinent part: “We may have more leverage that we think. Externally no 

one knows you want to sell shares.”145 Plaintiff points to this email, Green’s recent 

sale of approximately 283,000 shares the prior week, and his subsequent sale of 

shares after approval of the Dilution Trigger Amendment as evidence of Green’s 

dire need for liquidity, which, if known to the Special Committee, could have led to 

a better deal for stockholders.146

Defendants contend that this allegation is conclusory and immaterial. Plaintiff 

alleges no facts supporting a reasonable inference that Green had a desperate need 

for liquidity. There are no allegations that he required cash for any immediate 

144 Id. ¶ 123.

145 Id. ¶¶ 7, 49.

146 Notably, the Plaintiff does not allege that the stockholder vote was uninformed due to 

the failure to disclose Green’s initiation of the process to amend the TTD Certificate to 

remove the Dilution Trigger.
49

investment or looming debt. The week before Toth’s email, Green had sold TTD 

stock for proceeds of around $80 million.147 The stockholder vote on the Dilution 

Trigger Amendment was not held until six months later, and there is no allegation 

of Green’s having pressured the Special Committee to accelerate the process or that 

he was in dire need for liquidity.

Green’s email to Wells, seeking to discuss a “quite urgent and important” 

issue does not support a reasonable inference that Green had a desperate need for 

liquidity. Instead, it demonstrates that Green feared that he could lose control in the 

relatively near future due to the tripping of the Dilution Trigger, either as a result of 

his own continued disposition of Class B stock—which he had just ceased—the 

147 The Complaint alleges Green initially sought to convert and sell 282,906 Class B shares, 

but then settled the trade by converting and selling approximately 125,764 Class B shares, 

with the remainder consisting of preexisting Class A shares. See Compl. ¶¶ 55, 59. 

According to a Form 4 filed with the SEC on May 20, 2020, Green converted 282,906 

Class B shares into Class A shares between May 18 and 20, 2020 and sold them during that 

period at prices between $301 and $311 per share. The Trade Desk, Inc., Statement of 

Changes in Beneficial Ownership (Form 4) (May 20, 2020). In an amended Form 4, Green 

reported that instead of converting 254,883 Class B shares on May 18, 2020, he converted 

only 125,764 Class B shares. The Trade Desk, Inc., Statement of Changes in Beneficial 

Ownership (Form 4/A) (June 12, 2020). The court takes judicial notice of these Form 4s 

and these stock sales. See Hughes, 897 A.2d at 170 (“This Court has recognized that, in 

acting on a Rule 12(b)(6) motion to dismiss, trial courts may consider hearsay in SEC 

filings to ascertain facts appropriate for judicial notice under [Delaware Rule of Evidence] 

201.” (internal quotations omitted)); Parseghian v. Frequency Therapeutics, Inc., 2022 

WL 2208899, n.45 (Del. Ch. June 21, 2022) (taking judicial notice of SEC Form 4 

reflecting a director’s stock holdings); In re Primedia, Inc. S’holders Litig., 2013 WL 

6797114, at *11 (Del. Ch. Dec. 20, 2013) (taking judicial notice of SEC Form 4s for 

purposes of establishing the dates of stock purchases).
50

Company’s issuance of additional Class A stock, or the exercise of Class A options 

by others.

Green’s desire to sell TTD stock would not have significantly altered the total 

mix of information available to stockholders when deciding how to vote on the 

Dilution Trigger Amendment. Arnold, 650 A.2d at 1277. The purpose of the 

Dilution Trigger Amendment was to maintain the existence of the high-vote Class 

B stock (98% owned by Green) without an automatic conversion to Class A upon 

the Class B falling below the 10% threshold. The obvious effect of the amendment 

was that Green could dispose of Class B shares without risk of causing the automatic 

conversion of his remaining Class B shares.148

The 2020 Special Proxy disclosed that the Class B stock represented only 

10.7% of the total stock outstanding, i.e., 0.07% above the Dilution Trigger.

149 It 

also disclosed that the Dilution Trigger could be reached as early as March 2021.150 

Plaintiff does not dispute that the 2020 Special Proxy disclosed that Green proposed 

the Dilution Trigger Amendment. The amendment would have been unnecessary if 

it was not likely to be triggered in the near term, either due to the conversion and 

148 Green also beneficially owned 138,289 shares of Class A stock. 2020 Special Proxy at 

34.

149 2020 Special Proxy at 2 (“On the record date, there were 41,947,749 shares of our Class 

A common stock outstanding and 5,015,339 shares of our Class B common stock 

outstanding.”).

150 Id. at 13.
51

sale of Class B stock by Green and other holders of Class B, the Company’s issuance 

of Class A stock, or the exercise of options for Class A stock held by employees and 

other option holders.

Plaintiff likens the failure to disclose Green’s supposed desperate need for 

liquidity to the non-disclosure of the infamous Arledge and Chitiea report 

in Weinberger v. UOP, Inc., 457 A.2d 701, 703 (Del. 1985). The analogy fails.

Weinberger involved a controlling stockholder (Signal Companies, Inc.) 

acquiring the remaining shares of UOP that it did not already own in a long-form 

cash-out merger. Signal had placed seven of the 13 directors on the UOP board. Id.

at 704. Two of them, Charles Arledge and Andrew Chitiea, also served on the Signal 

board. Id. at 705. Arledge and Chitiea performed a study using information obtained 

from UOP that determined it would be in Signal’s interest to acquire the remaining 

UOP stock for anything under $24 per share. Id. The Signal board decided to offer 

between $20–$21 per share and never disclosed the Arledge-Chitiea report. Id. at 

707. The Delaware Supreme Court concluded that Signal’s withholding of the 

Arledge-Chitiea report from the UOP board and its stockholders indicated a lack of 

fair dealing. Id. at 711.

Even crediting the Complaint’s allegation of Green’s dire liquidity need as 

more than speculative, it is not comparable to the Arledge-Chitiea report. The 

Arledge-Chitiea report was prepared by two conflicted directors using UOP 
52

information obtained solely in their capacities as UOP directors. Id. at 705. Here, 

Green’s purported need for liquidity was not based on Company information that 

was secretly withheld from the other directors. Instead, it was, at best, Green’s 

subjective motivation for proposing the Dilution Trigger Amendment. See Rabkin 

v. Olin Corp., 1990 WL 47648, at *10 (Del. Ch. Apr. 17, 1990) (rejecting analogy 

to Weinberger where the complaint failed to allege that undisclosed information 

contained sensitive company data as did the Arledge-Chitiea document), aff’d, 586 

A.2d 1202 (Del. 1990) (TABLE); see also, e.g., Herd v. Major Realty Corp., 1990 

WL 212307, at *10 (Del. Ch. Dec. 21, 1990) (“the general rule is that alleged 

motives need not be disclosed”); In re MONY Grp., Inc. S’holder Litig., 853 A.2d 

661, 682 (Del. Ch. 2004) (directors’ “subjective motivation or opinions are not per 

se material, as long as the Board fully and accurately discloses the facts material to 

the transaction”).

As Defendants aptly put it, “anyone reading the Proxy would understand both 

that Green desired to retain control through the Trigger Amendment and that the 

amendment would enable him to continue his (disclosed) historical practice of 

selling shares without losing that control.”151 The omission of Green’s desire to sell 

151 Green’s Opening Br. 38. Green’s disposition of TTD stock is reflected in Form 4s filed 

with the SEC, of which the court can take judicial notice. See Hughes, 897 A.2d at 170.
53

TTD stock did not render the stockholder vote on the Dilution Trigger Amendment 

uninformed.

b. The Estimated Dilution Trigger Date

Plaintiff contends that the 2020 Special Proxy “misleadingly disclosed that 

‘the Dilution Trigger could occur as early as March 2021’ and suggested that any 

crossing of the threshold was uncertain and could be delayed far longer (even by 

years).”152 The 2020 Special Proxy’s disclosures on this topic were neither 

misleading nor false. “[A]s a general rule, proxy materials are not required to state 

‘opinions or possibilities, legal theories or plaintiff’s characterization of the facts.’” 

MONY, 853 A.2d at 682 (quoting Seibert v. Harper & Row, Publ’rs, Inc., 1984 WL 

21874, at *6 (Del. Ch. Dec. 5, 1984)). The 2020 Special Proxy identified the current 

number of shares outstanding as of the record date.153 It also disclosed, in 

conjunction with an illustrative stock ownership chart, that “there ha[d] been a 

significant change in the ownership of [the Company’s] Class B common stock in a 

relatively short time since [the Company’s] initial public offering.”154 It stated that 

the Dilution Trigger could be tripped “as early as March 2021.”155 Most important, 

152 Compl. ¶ 124.

153 2020 Special Proxy at 2.

154 Id. at 13.

155 Id.
54

the 2020 Special Proxy explained that the Company could not definitively predict or 

control when the Dilution Trigger would be tripped: 

Under our current governance structure, our board of directors does not 

control the occurrence of the Triggering Events (as defined in Proposal 

One) that will result in the elimination of our dual class capital 

structure. The timing of the Dilution Trigger, for example, will vary 

widely depending on various factors. Our board of directors can 

influence the Dilution Trigger through issuances of Class A common 

stock, but the occurrence of the Triggering Events is largely outside of 

our board of directors’ control because conversion of the Class B 

common stock has the most significant effect on the Dilution 

Trigger.156

The Plaintiff does not allege any inaccuracies in this disclosure. 

The Dilution Trigger date was not knowable due to the factors identified in 

the 2020 Special Proxy. The Plaintiff does not allege material information that was 

withheld from the Proxy. See Weiss v. Rockwell Int’l Corp., 1989 WL 80345, at *7 

(Del. Ch. July 19, 1989), aff'd, 574 A.2d 264 (Del. 1990) (finding that defendants 

“were not required to add their subjective opinion as to whether that particular [stock 

sale] scenario (over which they had no control) would or would not occur,” 

especially when “the possible scenario and its likely effect were in fact disclosed”); 

see also Shaev v. Adkerson, 2015 WL 5882942, at *10 (Del. Ch. Oct. 5, 2015) 

(“[N]ot only is Plaintiffs desired disclosure immaterial, but it might have been 

inappropriate to include in the proxy materials such a speculative conclusion.”). The 

156 Id. at 20.
55

Board was not obligated to provide additional possibilities, opinions, or 

characterizations as to a Dilution Trigger date that it did not have. MONY, 853 A.2d 

at 682. Therefore, the Complaint does not contain any well-pleaded allegations 

rendering the Proxy’s disclosure on the estimated Dilution Trigger date materially

misleading or incomplete.

c. The Centerview Slide

Plaintiff asserts that the 2020 Special Proxy “fail[ed] to disclose a fair 

summary of Centerview’s advice and recommendations to the Special 

Committee.”157 This argument is focused on one slide of a presentation. On July 2, 

2020, shortly after being retained as financial advisor to the Special Committee, 

Centerview provided a “Preliminary and Confidential” presentation regarding a

potential amendment to the Dilution Trigger.158 The presentation contained a slide 

identifying “Potential Levers,” including “Goodwill,” “Economic Considerations,” 

and “Governance Incentives.”159 Economic Considerations reflected in the slide 

included “‘Sunset Provisions’” which provided the “Least Value” and “Financial 

Incentive” which provided the “Most Value,” “based upon precedent control 

157 Compl. ¶ 125.

158 Dkt. 64, Ex. 32.

159 Id. at TTD0000381.
56

extension.”160 Plaintiff claims that “[t]his information is particularly material” 

because the Dilution Trigger Amendment failed to provide the Company’s 

stockholders with economic consideration.161

Defendants argue that they were not required to disclose all preliminary 

guidance that the Special Committee received from its advisors and Plaintiff cites 

no authority to support such an obligation. Defendants also note that this case does 

not involve a merger where the committee obtained and relied on a financial 

advisor’s fairness opinion and underlying valuation analysis. See In re Pure Res., 

Inc., S’holders Litig., 808 A.2d 421, 449 (Del. Ch. 2002) (holding that “stockholders 

are entitled to a fair summary of the substantive work performed by the investment 

bankers upon whose advice the recommendations of their board as to how to vote 

on a merger or tender rely”). That distinction, which the Plaintiff does not address, 

is a meaningful one. But the court need not decide the pending motions on that basis. 

The court is not persuaded under the facts of this case that a single Centerview slide, 

containing generalized information regarding what stockholders might find more 

appealing in considering a proposal to extend a dual-class structure was material 

information. 

160 Id.

161 Compl. ¶ 125.
57

The 2020 Special Proxy described the terms of the proposals and 

counterproposals between Green and the Special Committee. None of the proposals 

or counterproposals contained economic terms, such as Green surrendering stock or

the Company making a payment to unaffiliated stockholders. Stockholders were 

able to assess for themselves whether the deal struck by the Special Committee was 

in the best interests of the stockholders and the Company. The additional disclosure 

that the Special Committee could have demanded economic consideration, but did

not do so, would have been obvious to any reasonable stockholder reading the 2020 

Special Proxy. The omission of information contained in one slide of Centerview’s 

preliminary presentation mentioning that financial incentives provide the most value

does not render the stockholder vote on the Dilution Trigger Amendment 

uninformed.

d. The Business Rationale

Plaintiff next argues the 2020 Special Proxy should have disclosed that 

Green’s counsel told the Special Committee “on multiple occasions” that Green 

would be providing a “business rationale” for the Dilution Trigger Amendment.162 

A rational business purpose serves as the foundation to the business judgment rule. 

Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946, 954 (Del. 1985). Green’s 

162 Compl. ¶ 126.
58

acknowledgement of the need for a business rationale to justify eliminating the 

Dilution Trigger is not a material fact, but an ordinary course of proper fiduciary 

conduct.

Plaintiff argues that Green’s acknowledgement that a business rationale was 

needed shows that there was none and that stockholders should have been so 

informed.163 That is not a reasonable inference from the facts alleged in the 

Complaint. As the Plaintiff alleges, proxy advisory services such as ISS generally 

do not support dual-class structures.164 The communication from Green’s counsel 

to the Special Committee’s counsel merely confirmed that Green needed to make 

his case to the Special Committee that repealing the Dilution Trigger was justified 

and that the rationale for the amendment was sufficient to persuade a majority of the 

unaffiliated stockholders to vote for it. 

The 2020 Special Proxy included Green’s August 3, 2020 letter to the Special 

Committee explaining his rationale for the Initial Green Proposal to eliminate the 

Dilution Trigger.

165 The 2020 Special Proxy also disclosed the Special Committee’s 

reasons for approving the amendment.166 Although Plaintiff challenges the 

163 Compl. ¶ 126.

164 Id. ¶ 73.

165 2020 Special Proxy at D-1.

166 Id. at “LETTER FROM THE SPECIAL COMMITTEE.”
59

legitimacy of the Special Committee’s support for extending Green’s ability to 

control the Company, Delaware law does not render the committee’s position per se

illegitimate. See Zuckerberg, 250 A.3d at 895 (“As long as an otherwise independent 

and disinterested director has a rational basis for her belief [that it is optimal for the 

company to be controlled by its founder], that director is entitled (indeed obligated) 

to make decisions in good faith based on what she subjectively believes will 

maximize the long-term value of the corporation for the ultimate benefit of its 

residual claimants.”).

The TTD stockholders were fully capable of assessing the bona fides of

Green’s and the Special Committee’s fully disclosed rationales and assessing

whether the terms of the transaction were worthy of the stockholders’ support. 

Green’s counsel’s recognition that a proposal to eliminate the Dilution Trigger

needed a business rationale was not material in light of the disclosures taken as a 

whole. See Crane, 2017 WL 7053964, at *13 (“[D]irectors are ‘not required to 

disclose all available information,’ but only that information necessary to make the 

disclosure of their recommendation materially accurate and complete.”). 

e. The Special Committee’s Marshalling of Stockholder

Support

Plaintiff contends that the 2020 Special Proxy wrongfully failed to disclose 

that the Special Committee “actively worked to get significant Trade Desk 
60

stockholders” to vote “yes” on the Dilution Trigger Amendment.167 Plaintiff infers

that this marshaling of support “reveals” the Special Committee’s intent to “override 

the will of the Company’s public stockholders.”168

This allegation lacks merit. Notably, this argument focuses on events 

occurring after the issuance of the 2020 Special Proxy. Thus, if the Special 

Committee’s efforts to obtain sufficient votes needed to be disclosed, it would 

necessarily have required a proxy supplement.169 To that end, the Company filed 

supplemental proxy materials with the SEC on December 7, 2020 explaining: “The 

special meeting was adjourned to allow the Company additional time to solicit votes 

in favor of the proposals to be acted on by stockholders at the meeting.”170 Plaintiff 

does not allege that the supplemental proxy materials were false or misleading. Nor 

does Plaintiff attempt to argue that further disclosure specifically identifying the 

Special Committee as among those garnering votes for the proposal would have 

167 Compl. ¶ 127.

168 Id.

169 The Delaware Supreme Court has summarized a fiduciary’s duty to supplement its 

disclosure as follows: “[S]ubsequent events may have significance, and thus require 

disclosure, only as they relate to information originally disclosed. If subsequent events 

impart a new and significant slant on information already discussed, their disclosure is 

mandated. If the subsequent event is tentative, ill defined or adds little to material already 

disclosed, the duty of fresh disclosure is limited.” Kahn v. Household Acq. Corp., 591 

A.2d 166, 171 (Del. 1991). Plaintiff does not address this standard or attempt to meet it.

170 The Trade Desk, Inc., Schedule 14A (Dec. 7, 2020).
61

“significantly altered the ‘total mix’ of information made available” to TTD’s 

stockholders. Arnold, 650 A.2d at 1277.

Plaintiff also ignores that the Board was fully within its authority to adjourn 

the meeting to obtain the requisite votes to approve the Dilution Trigger 

Amendment. The 2020 Special Proxy included a proposal for stockholder 

“[a]pproval of one or more adjournments of the Special Meeting, if necessary, to 

solicit additional proxies if there are insufficient votes at the time of the Special 

Meeting to approve any of the proposals to be considered at the meeting.”171 At the 

December 7, 2020 meeting, a majority of the stockholder votes cast approved this 

adjournment proposal.172 Therefore, the Board possessed the legal authority to do 

so.

Delaware law does not require that directors remain neutral regarding the

matters they propose for stockholder action. Mercier v. Inter-Tel (Del.), Inc., 929 

A.2d 786, 808–09 (Del. Ch. 2007) (“As a matter of fiduciary duty, directors should 

not be advising stockholders to vote for transactions . . . unless the directors believe 

those measures are in the stockholders' best interests. And when directors believe 

that measures are in the stockholders' best interests, they have a fiduciary duty to 

171 2020 Special Proxy at 6.

172 See The Trade Desk, Inc., Form 8-K Amendment No. 1 (Dec. 10, 2020) at Item 5.07 

(69,932,843 cast “for” the proposal, 7,373,591 votes cast “against,” and 88,030 votes 

abstained).
62

pursue the implementation of those measures in an efficient fashion.”). In fact, the

law provides directors with broad authority to expend company resources garnering 

support for proposals that they have deemed to be in the best interests of the 

company. MONY, 853 A.2d at 675 (“Directors can spend the corporation's money 

on printing and distributing a proxy statement explaining their judgment as to the 

benefits of the merger proposal. The[y] can retain experts to solicit proxies and 

publicize their views. They can hire lawyers and other advisors to defend their 

actions in court or in front of administrative or legislative bodies.”). The Special 

Committee’s efforts to obtain sufficient votes to approve the Dilution Trigger 

Amendment was not a fact that required supplemental disclosure.

f. The Compensation Committee’s Consideration of an 

Equity Grant to Green in December 2020

Finally, Plaintiff complains that the Company’s stockholders were not 

informed that the Company’s Compensation Committee met on December 3, 2020 

to consider issuing Green a “mega [stock option] grant” (the “Contemplated Green 

Award”).173 At this meeting, the Compensation Committee “considered . . . granting 

options to Green amounting to 5% of the Company’s equity.”174 There is no 

allegation that the Compensation Committee took any action at this meeting or at 

173 Supp. to Compl. ¶ 161.

174 Id. ¶ 160.
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any time prior to October 2021 concerning this potential option grant. Plaintiff 

admits that, at the time of filing its Complaint, the Board had not yet approved any 

such grant.175 Indeed, an options grant was not awarded to Green until October 6, 

2021, a full 10 months after the Compensation Committee meeting that forms the 

basis for this disclosure claim.176

 Plaintiff nonetheless argues that knowledge of the contents of the 

Compensation Committee’s December 3, 2020 meeting would have materially 

altered the total mix of information provided to stockholders deciding how to vote 

on the Dilution Trigger Amendment: “Had Trade Desk stockholders known that the 

Board and Compensation Committee were strongly considering the near-term 

bestowal of a windfall on Green, stockholders may have decided to vote against the 

perpetuation of control.”177

The 2021 Special Proxy was filed with the SEC on October 27, 2021, over a 

month before the Compensation Committee’s December 3 meeting wherein they 

discussed the Contemplated Green Award. Given this timing, any disclosure 

regarding the meeting would have necessarily been a supplement to the 2021 Special 

Proxy. As explained by the Delaware Supreme Court, the Board bears a duty to 

175 Compl. ¶ 19.

176 Supp. to Compl. ¶ 166.

177 Id. ¶ 161.
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supplement its disclosure only when “subsequent events impart a new and 

significant slant on information already discussed.” Household, 591 A.2d at 171. 

In December 2020, the TTD stockholders were being asked to vote on the 

continuation of its existing governance structure, i.e. the dual-class stock structure, 

which enabled its founder to retain voting control of the Company.178 The 

Contemplated Green Award was not one of the proposals presented to the 

stockholders for their vote in December 2020. In fact, the Contemplated Green 

Award was entirely speculative at the time the adjourned and reconvened

stockholder meetings were held.

179 “Delaware law does not require disclosure of 

inherently unreliable or speculative information which would tend to confuse 

stockholders.” Arnold, 650 A.2d at 1280; accord Crane, 2017 WL 7053964, at *13; 

see also In re Columbia Pipeline Gp., Inc., 2017 WL 898382, at *5 (Del. Ch. Mar. 

7, 2017) (“As a matter of Delaware law, a board does not have a fiduciary obligation 

to disclose preliminary discussions, much less an analysis of preliminary 

discussions.”). Plaintiff’s argument that disclosure of a potential large equity grant 

was required because it was being considered as an “alternative to the then-uncertain 

178 Compl. ¶ 86; 2020 Special Proxy at Appendix D-1.

179 Supp. to Compl. ¶ 160 (“The Compensation Committee considered, as of its December 

3, 2020 meeting, granting options to Green”) (emphasis added); Id. ¶ 161 (“the Board and 

Compensation Committee were strongly considering the near-term bestowal of a windfall 

on Green”) (emphasis added). 
65

Trigger Amendment”180 is equally unpersuasive. See In re 3Com, 2009 WL 

5173804, at *6 (“Delaware law does not require management to discuss the panoply 

of possible alternatives to the course of action it is proposing.” (internal quotations 

omitted)); accord Crane, 2017 WL 7053964, at *13.

Plaintiff has failed to explain how a reasonable shareholder would have 

considered the Compensation Committee’s preliminary consideration of an option 

grant to its CEO on December 3, 2020 “important in deciding how to vote” on the

Dilution Trigger Amendment. Rosenblatt, 493 A.2d at 944; see Household, 591 

A.2d at 171 (holding supplemental disclosure not required about an agreement that 

was not definitive); In re Vaxart, Inc. S’holder Litig., 2022 WL 1837452, at *15–19

(Del. Ch. June 3, 2022) (holding that the company’s selection to participate in a 

government-funded research program that was subject to further negotiation was not 

material information requiring supplemental disclosure).

Therefore, Plaintiff has failed to allege facts to support a reasonable inference 

that the failure to disclose preliminary discussions regarding the Contemplated 

Green Award rendered the stockholders’ vote on the Dilution Trigger Amendment 

uninformed.

* * *

180 Pl.’s Ans. Br. 66 (emphasis omitted).
66

Plaintiff has failed to plead facts sufficient to challenge the application of the 

MFW framework. “Thus, the [Dilution Trigger Amendment] is subject to the 

business judgment rule.” Crane, 2017 WL 7053964, at *21. Under the version of 

the business judgment rule earned by proper implementation of the MFW

framework, only a well-pleaded claim for waste may survive. Dell, 2020 WL 

3096748, at *14. Plaintiff has not pleaded a claim for waste and has made no effort 

to overcome the business judgment rule. 

III. CONCLUSION

For the foregoing reasons, the Defendants’ Motions to Dismiss are

GRANTED, and the Complaint is dismissed with prejudice.

IT IS SO ORDERED.