Mack Brothers v. Keypoint Intelligence, LLC

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

MACK BROTHERS, )
)
Plaintiff, )
)
v. )
) C.A. No. 2025-0422-DH
KEYPOINT INTELLIGENCE, LLC, a )
Delaware limited liability company, )
)
Defendant. )
)
)
)
)

FINAL POST-TRIAL REPORT

Report: October 29, 2025
Date Submitted: October 15, 2025

Patrick C. Gallagher, JACOBS & CRUMPLAR, P.A., New Castle, Delaware; David
I. Brody, Eyal Schwartz, SHERIN & LODGEN LLP, Boston, Massachusetts;
Attorneys for Plaintiff Mack Brothers.

Peter J. Walsh, Jr., Tyler J. Leavengood, Samuel G. Gustafson, POTTER
ANDERSON & CORROON LLP, Wilmington, Delaware; Stephen L. Ram, Morgan
Williams, STRADLING YOCCA CARLSON & RAUTH LLP, Newport Beach,
California; Attorneys for Defendant Keypoint Intelligence, LLC.

HUME, M.
In the legal profession, language is our craft. Precise, consistent use of terms

when negotiating business affairs avoids simple disputes and burdensome litigation.

This action solely concerns the meaning of “member.” But for Defendant’s casual

use of “member” and “membership interest” in hiring, employing, terminating, and

arbitrating against Plaintiff, the following analysis would be moot. Plaintiff Mack

Brothers filed suit to compel the inspection of books and records belonging to

Defendant Keypoint Intelligence, LLC, his former employer. When Keypoint hired

Brothers, it assigned him a contingent economic interest subject to vesting

requirements it called the “profits-incentive pool.” In the course of dealing,

Keypoint called Brothers a profits-interest member. The dispositive question is

whether such profits-interest membership granted Brothers the requisite standing to

compel inspection of books and records as provided under 6 Delaware Code Section

18-305. Following an analysis of the factual background of the litigation, the LLC’s

Operating Agreement, the communication between the parties, and the default

provisions of the Delaware LLC Act, the Court holds that Brothers is not a member

and lacks standing to sustain the action.

2
I. BACKGROUND

Plaintiff Mack Brothers initiated this action against Defendant Keypoint

Intelligence, LLC. The following facts were either stipulated to by the parties or

found by a preponderance of the evidence at trial.1

A. Factual Development

Keypoint Intelligence, LLC is a Delaware Limited Liability Company with its

principal place of business in the state of New Jersey founded in 2011 under the

name Buyers Laboratory, LLC.2 In 2016, Buyers Laboratory changed its name to

Keypoint Intelligence, LLC (KPI) and adopted an operating agreement still in effect

to date.3 Three years later, Keypoint Holdings, LLC (KPH) acquired a 100%

1
See Pre-Trial Stipulation and Order, D.I. 70 (“PTO”). The trial record comprises 19 joint
exhibits and three deposition transcripts. The trial was conducted on the paper record,
without live witness testimony. Joint exhibits are cited as “JX ___.” Lodged depositions
not included in the joint exhibits are cited as “[Name] Dep. Tr. __.” References to the
docket index are cited as “D.I. __.” I grant evidence the weight and credibility I find it
deserves. See Lynch v. Gonzalez, 2020 WL 4381604, at *5 (Del. Ch. July 31, 2020) (“[The
Court’s] credibility determinations are based on the testimony and evidence submitted to
make up the record.”) (citing Eagle Force Hldgs., LLC v. Campbell, 2019 WL 4072124, at
*13 (Del. Ch. Aug. 29, 2019), aff’d in part, rev’d in part, 2020 WL 3866620 (Del. July 8,
2020)).
2
Complaint, D.I. 1, ¶ 6; JX 5, at 2.
3
JX 13, 44:6-20. The 2016 Operating Agreement slightly modified the 2011 Operating
Agreement, most notably changing the entity’s name. JX 16. The 2016 Operating
Agreement remains in force at the time of this decision. See Compl., D.I. 1, ¶ 7; JX 16.

2
membership interest in Keypoint Intelligence, LLC.4 Following the purchase, KPH

was the sole member of KPI.5

Atar Capital, LLC, is a private equity firm that holds KPH in its

portfolio. KPH has two owners: Atar KPI Investors (25%) and KPI Investors LLC

(75%).6 Cyrus Nikou serves as Chief Executive Officer of KPH and is a managing

partner of Atar.7 Stanley Huang is director of Atar and serves on KPH’s Board of

Directors.8

In 2019, Cyrus Nikou hired Mack Brothers on KPI’s behalf. Brothers signed

an Employment Agreement that delineated some of Brothers’s compensation and

executive rights.9 The Agreement informed Brothers of his rights to participate in a

profits incentive pool.10 KPH allocated 5% of its equity interest in KPI to the

4
PTO ¶ 13.
5
JX 13, 127:17-19. KPI maintains that KPH remains the sole member.
6
JX 6, at 4.
7
Id. at 5.
8
Id.
9
See JX 5. In this opinion, the Court refers interchangeable to the Employment Offer and
Employment Agreement.
10
Id. at 2.

3
pool.11 Brothers could retain up to 4% of the pool for himself with discretion to

allocate up to 1% of the pool to other senior management.12

At the time KPI entered into employment negotiations with Brothers, Brothers

served as the Chief Products Officer at Forrester Research, Inc.13 After receiving

the Employment Agreement, Brothers sought clarification about the profits incentive

pool. Because Brothers expected to receive $7.1 million over the next four years in

his position at Forrester, and KPI could not guarantee such salary compensation,

Brothers wanted to confirm that the profits incentive pool could provide comparable

compensation.14

To understand the profits incentive pool, Brothers corresponded with Gustav

Brown, a recruiter who communicated on behalf of KPH management.15 Brown

described the profits incentive plan as “a form of equity ownership that is

traditionally employed in LLC ownership situations where the ownership is

generally in the form of ‘membership interests’ instead of shares like you would find

in the case in a C-Corporation.”16 Brown described that Brothers’s equity interest

11
JX 13, 75:9-12.
12
JX 5, at 2.
13
JX 9, at 4.
14
See JX 6, at 6-7.
15
JX 4.
16
Id. at 2.

4
would vest once “a particular hurdle or value has been met upon a transaction or

exit.”17 To illustrate the valuation of Brothers’s expected distribution, Brown

provided the following “generic” formula:

Profit distribution to Mack = (Enterprise value at exit – (minus)
company debt – (minus) return of initial share capital – (minus)
preferred interest on initial share capital – (minus customary transaction
fees – (minus) any specific working capital adjustments * [multiplied
by] (Mack’s profit interest ownership).18

The email exchange between Brothers and Brown solely focused on

Brothers’s economic rights under the employment offer. The two never discussed

Brothers’s management rights or responsibilities. Brothers also discussed the profits

interest with KPI’s CFO, Stanley Huang. Huang explained that the profits interest

was “a form of equity with the company,” which needed to contain an “economic

aspect to it . . . to qualify under IRS rules . . . as a capital gain rather than an ordinary

gain.”19

Brothers signed the Employment Agreement and served as KPI’s CEO for

just over a year.20 While employed at KPI or thereafter, Brothers never received a

17
Id. Brothers understood the hurdle as a reference to a liquidity event, such as a
transaction, sale, or recapitalization of the entity. JX 14, 50:10-21.
18
JX 4, at 2.
19
JX 14, 45:2-6. Brothers understood the tax implications that Huang referred to, as he
ultimately filed an IRC Section 83(b) election. See JX 17.
20
JX 14, at 27:4-7.

5
K-1 for his profits interest.21 KPI was a disregarded entity because it was solely

owned by KPH.22 On June 31, 2021, KPI terminated Brothers’s employment.23 The

next day, Huang called Brothers to discuss the profit interest and KPI’s position on

the vesting schedule.24 In the severance agreement, KPI stated that 0.8% of

Brothers’s interest in the profits interest incentive pool had vested at the time of

Brothers’s termination.25 The agreement further proposed that in exchange for

Brothers’s signing an Amended and Restated Limited Liability Company

Agreement, KPI would “agree to waive the Company’s rights to repurchase”

Brothers’s vested profits interest.26 Brothers declined to sign the Amended LLC

Agreement.27 Brothers objected to the Agreement’s incorrect memorialization of

his profits interest percentage. Brothers contended that he had a 1% already vested

profits interest (which would become 4% at the termination of the vesting period),

not the 0.8% contained in the amended agreement.28 Brothers also objected to the

21
Brothers Dep. Tr., D.I. 72, 89:19-22. Brothers was familiar with K-1s because he had
received them from other entities in which he had ownership interests. See id., 90:5-16.
22
JX 13, 160:20-161:3.
23
Brothers Dep. Tr., 38:17-21.
24
JX 19.
25
JX 7, at 2.
26
Id.
27
Huang Dep. Tr., D.I. 72, 114:15-22.
28
Brothers Dep. Tr., 67:6-14.

6
Amended Agreement’s provision for (1) two distinct classes of shares not present in

the 2011 agreement and (2) a “self-dealing” clause.29 Brothers later declined to

sign a 2024 amendment to the LLC Operating Agreement.30

To contest KPI’s position on Brothers’s vested interest, Brothers initiated

arbitration proceedings to establish his profits interest.31 Brothers contended that, as

of August 2021, “he is vested in 1.0% of the profits interest . . . and that vesting has

continued and will continue at the rate of .067 per month through May 2025.”32

Applying New York contract law, the Arbitrator determined that while the

Employment Agreement was ambiguous, extrinsic evidence indicated that

Brothers’s profits interest had vested and would continue to vest in the following

years.33

29
Id. at 68:7-16.
30
Id. 100:8-10.
31
See JX 9.
32
Id. at 1.
33
Id. at 19, 24-5. Brothers first characterized the arbitrator as declaring that Brothers “held
a 4% Membership interest in KPI . . . .” Compl. ¶¶19-20. In his opening brief, however,
Brothers claimed that the membership issue “was not fully or fairly litigated in the
Arbitration,” so this Court is not precluded from determining that he is a member of KPI.
Pl’s Opening Pre-Trial Br., D.I. 62, at 21. The opening brief plays fast and loose in
representing the Arbitrator’s language. Brothers wrote that “the Award found that the ‘only
written communications by and between’ the partis regarding the transfer are ‘the
Employment Agreement . . . and the email exchange[] . . . .” Pl.’s Opening Pre-Trial Br.,
21 (citing the Arbitration decision, JX 9, at 11). KPI notes that the Arbitrator referred to
the “profits interest,” not the “transfer,” in the cited section. Def.’s Answering Pre-Trial
Brief, D.I. 65, at 22. While Brothers omitted “transfer” from the Arbitrator’s quoted
language, the alteration suggests that the Arbitrator found that the transfer was ambiguous.

7
After prevailing in arbitration, Brothers filed an IRC Section 83(b) election

with the Internal Revenue Service for his profits interest in KPI.34 In the election,

Brothers referred to the restricted property as “4% profits interest Keypoint

Intelligence LLC.”35

On March 3, 2025, Brothers, acting through counsel, made a demand to inspect

KPI’s books and records.36 In the demand, Brothers asserted that he had a

membership interest in KPI, and that he exercised his rights under 6 Del. C. 18-305

and Article IV, Section 4.1 of the LLC Operating Agreement to inspect certain books

and records. Brothers articulated that his purpose for inspection was to “verify[] and

confirm[] the valuation of KPI, which “directly affects the value of Mr. Brothers’

membership interest . . . .”37 Brothers then identified six categories of records to

which he required access:

1. Records reflecting KPI’s business status and financial
condition, including but not limited to quarterly performance
results/reviews and annual audited results;
2. KPI’s federal, state, and local income tax returns for the years
2021 through 2024;
3. A current list of the name and last known business, residence,
or mailing address of each member and manager;

Not so. The Arbitration decided the amount Brothers’s profits interest had vested and his
entitlement to continued vesting, nothing more. See JX 9, at 25.
34
JX 17.
35
Id.
36
JX 10.
37
Id. at 1.

8
4. KPI’s articles of organization, all its amendments and
restatements, and any powers of attorney used to execute those
documents;
5. KPI’s operating agreement and its amendments and
restatements; and
6. Information regarding each member’s past and agreed-upon
future contribution to KPI, including the amount of cash and a
description of property or services contributed, and the date on
which each member became a member.38
KPI’s counsel responded to Brothers’s request by offering to provide him with

access to the records in Santa Barbara, where counsel’s offices were located. 39 The

proposed inspection never took place. Soon following, Brothers filed this action,

seeking to compel inspection of the same six categories of documents identified in

his demand letter.40

B. Procedural Posture

Brothers filed his complaint to compel the inspection of books and records

under Section 18-305 of the Delaware Limited Liability Act on April 18, 2025.

Brothers also sought declaratory judgment that he was entitled to indemnification

from KPI based on KPI’s anticipatory breach of contract.41 Almost one month later,

KPI moved to dismiss pursuant to Court of Chancery Rule 12(b)(6) for failure to

38
Id. at 2.
39
JX 11. Brothers objected to the location of inspection in part because Section 4.2 of the
operating agreement required that the Manager maintain the records “at the principal office
of the Company.” JX 1, at 4.
40
Compl., ¶ 35.
41
Id. ¶¶ 43-44.

9
state a claim because Brothers was not a KPI member and therefore lacked standing.

On June 24, 2025, the Court heard oral argument on the motion to dismiss. The

Court dismissed Brothers’s indemnification claims without prejudice and deferred

ruling on the inspection claim until trial under Court of Chancery Rule 12(i). The

Court determined a complete trial record would clarify the factual issues surrounding

the standing question.42 A one-day trial took place on October 15, 2025, and the

Court took the matter under advisement.

II. ANALYSIS

Under 6 Delaware Code Section 18-305(a), “Each member of a[n LLC] . . .

has the right” to obtain books and records from the LLC. The right to obtain such

records is status related so only members and managers may compel inspection. See

Gill v. Regency Holdings, LLC, 2023 WL 4607070, at *10 (Del. Ch. June 26, 2023).

Any party who fails the status requirement cannot proceed with a suit under the

books and records statute. Section 18-305(a) further subjects inspection rights to a

“purpose reasonably related to the member’s interest” as an LLC member. The LLC

operating agreement may expand or limit such statutory rights. See Gill, 2023 WL

4607070, at *9.

42
See MTD Tr. Ruling, D.I. 54, at 8:4-9 (quoting Mickman v. Am. Int’l Processing, L.L.C.,
2009 WL 891807, at *2 (Del. Ch. Mar. 23, 2009) (“Based on the flexible and less formal
nature of LLCs, it is reasonable to consider evidence beyond the four corners of the
operating agreement . . . .”).

10
The question at the heart of this case concerns whether Brothers is a member

of KPI following participation in the “profits-incentive pool.” Brothers contends

that the profits interest constitutes a form of membership. KPI counters that the

profits interest constituted an assignment of certain economic rights, but did not

confer full membership rights to Brothers.

A. KPI’s inclusion of Brothers on its list of Members is insufficient to
demonstrate Brothers’s standing.

In Section 18-305 actions, as well as in its corporate Section 220 and

partnership 17-305 analogs,43 the Court often assesses standing by “rel[ying] on the

corporation’s existing stock ledger.” Knott Partners L.P. v. Telepathy Labs, Inc.,

2021 WL 5493092, at *4 (Del. Ch. Nov. 23, 2021). The ledger functions as prima

facie evidence that the member is a “holder of record.” Pogue v. Hybrid Energy,

Inc., 2016 WL 4154253, at *3 (Del. Ch. July 7, 2016) (assessing standing in the

Section 220 context). Even though the ledger is prima facie evidence of

membership, the Court may consider evidence beyond the ledger where “the prima

facie case is rebutted by other evidence.” See Gill, 2023 WL 4607070, at *10 (citing

Pogue, 2016 WL 4154253, at *3). While Section 220 cases long used the stock

43
Because Sections 18-305 and 17-305 are based on Section 220, “Delaware courts have
interpreted Section 18-305 by looking to cases interpreting similar Delaware statutes
concerning corporations and partnerships, such as Section 220 . . . .” Gill, 2023 WL
4607070, at *10 n.66 (citing Riker v. Teucrium Trading, LLC, 2020 WL 2393340, at *4
(Del. Ch. May 12, 2020), judgment entered, (Del. Ch. 2020) (internal citations omitted)).

11
ledger as the sole means of assessing standing, this Court departed from such rigidity

in the LLC context, recognizing that “LLCs generally are created on a less formal

basis than corporations and are basically creatures of contract.” Mickman v.

American International Processing, L.L.C., 2009 WL 891807, at *2 (Del. Ch.

2009).44 In the few cases where the Court has inquired beyond the ledger to assess

standing, the Court has adopted a narrow view, resolving the case on “factual

admissions or contract interpretation.” Gill, 2023 WL 4607070, at *10; see

Prokupek v. Consumer Capital Partners LLC, 2014 WL 7452205, at *3-4 (Del. Ch.

Dec. 20, 2014) (employing contract interpretation to assess the plaintiff’s lack of

standing in a books and records action).

Brothers contends that he is a member of KPI because his name is included

on KPI’s list of members.45 The list includes KPH as a “capital interest member,”

with Mr. Brothers, Mr. Dazo, and Mr. Sci also named.46 At trial, KPI’s counsel

44
In Mickman, the Court distinguished Section 18-305 from Section 220 with reference to
the Delaware Supreme Court’s then-precedential opinion in Shaw v. Agri-Mark, Inc. 663
A.2d 464 (Del. 1995), superseded by statute, 74 Del. Laws ch. 84, §§ 5-8 (2003), as
recognized in Cent. Laborers Pension Fund v. News Corp., 45 A.3d 139, 143-44 (Del.
2012) (discussing the amendment to Section 220(b) extending inspection rights to
beneficial owners of stock). The expansion of Section 220 standing does not affect the
flexible Section 18-305 inquiry.
45
JX 13, 148:17-149:10. The parties did not produce the list in their trial exhibits and the
only evidence of this list comes from Huang’s deposition.
46
Id. at 149:1-3. Dazo and Sci are the two other parties who received a profits interest
from KPI. See id. at 80:2-9. The parties did not provide a copy of this list in their Joint
Exhibits.

12
contended that the list functioned as a capitalization table.47 Because Brothers and

the other parties stood to receive a financial benefit “in the event of an exit,” KPI

recorded a list to remain apprised of such rights.48 Huang further confirmed the

capitalization function of this list by noting that he updated Brothers’s profits interest

from 0.8% to 4% after Brothers’s favorable arbitration award.49

The capitalization explanation holds water because the practice is internally

consistent with how KPH records economic interests in its own entity.50 KPH’s LLC

Operating Agreement includes an Appendix C, which lists all parties with economic

interests.51 KPI Investors, LLC holds 750 Preferred Units with a capital contribution

of $4.5 million.52 Atar KPI Investors, LLC holds 250 Common Units with $0 in

capital contributions.53 Huang understood Atar KPI to hold a “profit interest

membership interest” in KPH.54

47
Trial Tr., 60:15-61:9.
48
Id. at 60:19-21.
49
JX 13, 149:7-10.
50
See JX 2.
51
See id. at BROTHERS 0688.
52
Id.
53
Id.
54
JX 13, 21:8-13. Brothers’s counsel used the term “profits interest membership interest”
in Huang’s deposition. Neither Huang nor the KPH Operating Agreement call it such.
KPH’s Operating Agreement explicitly grants voting rights to holders of “common units,”
although holders have no capital contribution requirement. See JX 2, at BROTHERS 0648.
KPI’s Operating Agreement, by contrast, neither provides for multiple classes of stock nor
discusses voting rights. See JX 1.

13
Atar KPI Investors, LLC also maintains a list of all economically

interested parties.55 The list includes five parties, four of which are profits-interest

holders and one is not.56 One of these parties, BCK Capital, Inc., is controlled by

Mr. Huang.57 Huang testified that his interest is a profits-interest membership, but

that he lacks management rights: “I am not the manager. I don’t have rights . . . to

vote, right. . . . [W]e just share in the profits interest.”58 Atar too lists all parties with

an economic interest in the entity, irrespective of management rights.

It is reasonable to conclude that Atar-affiliated entities—Atar, KPH, and

KPI—maintain a practice of listing all parties with an economic interest in the entity.

The function of the list is not linked to voting or management rights, although they

may coincide. Thus, reference to the list alone cannot be dispositive to determine

Brothers’s membership status for the purpose of Section 18-305 standing. The

flexible nature of LLCs recognized by the Mickman court is on full display.

Different entities maintain different records for various purposes. Brothers’s

presence on KPI’s list is as consistent with contingent economic interest KPI claims

55
JX 3.
56
Id., at BROTHERS 0642. Huang stated that the Cyrus Nikou Living Trust is not a
profits-interest member, as designated by the lack of an asterisk beside its name, unlike the
other four profits-interest holders. See Huang Dep. Tr., 32:11-15.
57
JX 3, at BROTHERS 0642. The full listing is “BCK Capital, Inc. c/o Stanley Huang.”
Id.
58
Huang Dep. Tr. 34:12-15.

14
he has as it is with a possible membership interest. The Court’s inquiry must

continue.

Brothers also contends that he is a member because KPI listed him as a

member on its 2021 draft LLC agreement. An unsigned draft LLC agreement is

insufficient evidence that Brothers is a member. To assess standing, Delaware courts

examine the “existing stock ledger” in section 220 cases and by analog, the existing

membership list for LLCs. Knott Partners L.P., 2021 WL 5493092, at *4.59 An

unsigned LLC draft agreement cannot provide prima facie evidence of membership

because the document has no legal effect.

B. Brothers did not receive a membership interest under the terms of the
operating agreement because he made no capital contribution, and the
employment agreement does not evidence mutually agreed-upon terms
and conditions.

As Brothers cannot demonstrate his standing as a member by reference to the

LLC membership list, the Court next considers the terms of the LLC operating

agreement. Under Delaware’s contractarian scheme for LLCs, the terms of the

59
Section 220 is strictly construed because it is “in derogation of common law.” Knott,
2021 WL 5493092, at *4 (citing Rainbow Nav, Inc. v. Pan Ocean Nv., Inc., 535 A.2d 1357,
1359 (Del. 1987). The Supreme Court in Rainbow Nav held that the stock ledger
requirement cannot be frustrated by “nonfeasance,” i.e., failure to accurately maintain the
ledger. Id. By analogy, overinclusion in a membership list, which appears to be maintained
for capitalization purposes, does not expand standing for books and records inspections,
because the language of the operating agreement and the default provisions of the LLC Act
prevail. Brothers has cited no authority for this capacious conception of standing, and the
Court declines to provide such authority here.

15
operating agreement normally dictate membership terms and its corresponding

rights.

All considerations of an LLC’s internal governance commence by examining

the LLC agreement. See In re Coinmint, LLC, 261 A.3d 867, 900 (Del. Ch. 2021).

Because LLCs are “creatures of contract,” the policy of the Delaware LLC Act gives

“maximum effect to the principle of freedom of contract and to the enforceability of

limited liability company agreements.” 6 Del. C. § 18-1101(b); see Holifield v. XRI

Investment Holdings LLC, 304 A.3d 896, 922 (Del. 2023). The gap-filling measures

of the Delaware LLC act apply where the LLC agreement is ambiguous or silent on

the governance issue. Godden v. Franco, 2018 WL 3998431, at *7 (Del. Ch. Aug.

21, 2018).

The Court will analyze the LLC Operating Agreement chronologically,

beginning with KPH’s creation of the profits interest pool. KPI admits that the

profits incentive pool comprises interests transferred from KPH into the pool.60 The

operating agreement contains provisions governing the transfer of interests and

admission of additional members to the LLC.61 No other provision of the operating

60
See Huang Dep. Tr., 68:6-11. Huang stated that KPH “tried to” transfer this interest, but
that the transfer lacked “formal documentation. Id., at 68:10-11. Under KPH’s theory, the
two amended operating agreements that Brothers declined to sign would have formalized
the interest transfer. See id., at 70:10-13. Under the 2021 proposed Amended Agreement,
Brothers would have become a member with both inspection and management rights. See
JX 8, at 16, 31.
61
JX 1, at 8-9.

16
agreement discusses membership interests or classes of members. Section 13.1

provides:

The Member’s Membership Interest is transferable either voluntarily or
by operation of law. The Member may Dispose of all or a portion of
the Member’s Membership Interest. In the event of the Transfer of less
than all of the Member’s Membership Interest, the transferee shall be
Admitted on such terms and conditions upon which the Member and
the transferee may agree. In the event of the Transfer of the Member’s
entire Membership Interest, the transferee shall succeed to all the
Member’s rights under this LLC Agreement and shall be Admitted upon
the effectiveness of such Transfer.62

Further, section 13.2 of the Operating Agreement permits admission of additional

members: “The Company may, to the extent and on the terms and conditions

determined by the Member, Admit Additional Members and determine the Capital

Contributions, rights and duties of such Additional Member.”63

When read together, the relevant provisions of the operating agreement

contemplate that (1) one class of membership shares exist; (2) members may transfer

their membership shares in or whole or in part; (3) the transferee will be admitted to

the membership upon mutually agreed upon terms and conditions; and (4) a member

will make a capital contribution into the LLC.64

62
Id. at 9.
63
Id.
64
Article X, section 10.1 of the Operating Agreement provides the scope of the initial
capital contribution: “The Member will make an initial Capital Contribution of $100.00.”
JX 1, at 8. While section 13.2 states that the member may determine the capital
contributions of new members, the two sections read together contemplate that a new

17
Neither party disputes that KPH transferred an interest to Brothers.65 The

dispositive question concerns which rights accompanied the transfer. Brothers

contends that when KPH transferred Brothers a profits interest, it was “required to

[a]dmit Mr. Brothers” upon the terms and conditions to which both parties agreed.66

Under this theory, the transfer of the profits interest rendered Brothers a full member,

with full management and economic rights excepting those explicitly excluded in

the terms and conditions.67 In contrast, KPI argues the profits-interest transfer

granted Brothers “contingent economic rights to share in the profits upon a liquidity

event, nothing more.”68 In Brothers’s view, the profits interest represented a full

transfer of rights, with the exception that Brothers’s economic rights were contingent

to a vesting period.69

member will make a capital contribution, although the value is subject to modification. Id.
at 8-9.
65
See Pl.’s Reply Pre-Trial Brief, D.I. 68, at 5 (“[W]hile the parties dispute the extent of
the rights transferred, Defendant concedes that KPH did in fact Transfer to Mr. Brothers
a portion of its Membership Interest pursuant to the Operating Agreement.”) (emphasis in
original); Def.’s Answering Pre-Trial Brief, at 28 (“The crux of the dispute here is: what
rights accompanied the transfer of a profits interest?”) (emphasis added).
66
Pl.’s Reply Pre-Trial Brief, at 4 (emphasis in original).
67
Under Brothers’s theory, this is why Brothers is a full member without the duty to make
a capital contribution. The agreement tailored Brothers’s economic rights (contingent
profits interest), but no such limit existed for the management rights. Brothers contends
that a party receives all rights except those specifically delimited.
68
Def.’s Answering Pre-Trial Brief, at 28.
69
See Tr. 7:15-19 (“Because what KPH did was transfer the membership interest that they
had.”).

18
KPH was the sole member of KPI when Brothers was hired. Under the LLC

Agreement, one type of membership existed.70 KPH could transfer shares in whole

or part. That does not mean a mere percentage of the LLC. It could include, as here,

only a portion of the rights carved from the membership. KPH could transfer a

financial-only portion of the rights.71 The terms and conditions of any transfer of

membership are determined by the member, KPH.72 KPH only transferred the

profits interest, a financial-only interest, to Brothers through the employment

agreement. The assignment failed to meet the mutually agreed upon terms and

conditions requirement.

Put otherwise, Brothers theorizes that he presumptively receives all rights

except those specifically stipulated. But Brothers’s understanding does not comport

with the terms of the Operating Agreement itself. While the Operating Agreement

provided for one class of membership, the agreement also imposed conditions to the

admission of new members. Two requirements were not met in KPI’s transfer of a

70
See JX 16.
71
Unless otherwise provided in the LLC agreement, members may freely transfer or assign
economic rights of membership, whereas members need express consent to transfer or
assign managerial powers and duties. See Milford Power Co., LLC v. PDC Milford Power,
LLC, 866 A.3d 738, 760 (Del. Ch. 2004) (recognizing Delaware’s policy preference to
rather tolerate “a new passive co-investor . . . than to endure a new co-manager without
consent). Delaware codified this policy in 6 Del. C. §§ 18-702(b)(3), 18-304.
“Membership Interest,” under KPI’s Operating Agreement, represents the entire interest
“including such Member’s economic interest, management rights and such other rights and
privileges that the Member may enjoy by being a Member.” JX 1, at 3.

19
profits interest to Brothers: (1) mutually agreed-upon terms and conditions and (2)

the capital contribution. As a result, Brothers is not a full member with management

rights. The Court next addresses each of these conditions in turn.

1. KPI’s Employment Offer does not constitute mutually agreed-upon
terms and conditions for a new member.

Section 13.1 of KPI’s Operating Agreement mandates admission of a new

member upon “transfer of less than all of the Member’s Membership Interest . . . on

such terms and conditions upon which the Member and the transferee may agree.”

Brothers has relied on KPI’s employment offer and the email discussion between

Brothers and Brown as the written record of such terms and conditions.73

When interpreting a contract, “the role of a court is to effectuate the parties’

intent.” Lorillard Tobacco Co. v. American Legacy Foundation., 903 A.2d 728, 739

(Del. 2006). The Court assesses a reasonable reading of the contract by reading it

“in full and situated in the commercial context between the parties.” Chicago Bridge

& Iron Co. N.V. v. Westinghouse Electric Co. LLC, 166 A.3d 912, 926-7 (Del. 2017).

Such commercial context cannot override the plain language of the agreement. See

Florida Chemical Co., LLC v. Floket Industries Inc., 262 A.3d 1066, 1080 (Del. Ch.

73
See Pl.’s Opening Pre-Trial Brief, at 13 (“Here, the agreed upon ‘terms and conditions’
appear in the Employment Agreement and the February 2020 emails. . . . Those documents
show that KPH and Mr. Brothers agreed to limit his economic rights . . . .” (internal
quotations omitted).

20
2021) (citing Town of Cheswold v. Central Delaware Business Park, 188 A.3d 810,

820 (Del. 2018)).

The Employment Agreement and emails show no discussion of Brothers’s

purported full membership interest. Instead, the materials that Brothers relies on

reflect his interest in economic rights and KPI’s articulation of Brothers’s position

as CEO.

The Employment Offer constitutes a contract offer describing Brothers’s

responsibilities and rights as CEO of KPI, nothing more. The offer first describes

Brothers’s right to observe all Board of Managers meetings and to access all

documentation provided to the Board of Managers. Next, the offer detailed

Brothers’s salary and signing bonus. The letter further described an additional bonus

structure, the Management Incentive Plan, which compensated Brothers if KPI met

certain EBITDA benchmarks under his management. Critically, the letter’s

description of Brothers’s profits interest directly follows the previous discussion of

financial compensation. The letter clarifies that the pool was reserved for “the

Company’s senior leadership team,” with 4% going to Brothers (subject to a vesting

schedule) and 1% to be apportioned among other senior executives at Brothers’s

discretion. The pool structure is not corroborative of a full membership interest. It

would be incongruous with the member approval of transfers in the LLC agreement

to allow Brothers to deploy 1% of full membership rights to his leadership team of

21
unspecified identity. The pool structure and Brothers’ flexibility to assign his profits

interest is consistent with a financial interest, not a full membership interest.

The letter concludes by discussing other practicalities surrounding Brothers’s

employment: vacation time, place of work, indemnification, and rights to

termination. The offer letter focuses on matters pertinent to Brothers’s employment

as CEO. The letter never uses the term “member” or “membership” and includes

rights restrictions that do not apply to members under the terms of the Operating

Agreement.74 The offer letter also fails to give Brothers any of the indicia of full

membership: capital contributions, management rights, voting, and the ability to

inspect books and records, except as a board observer.

Brothers attempts to explain the explicit restrictions in the offer letter by

distinguishing between his rights as a CEO and his rights as a member. This theory

relies on the principle that Brothers simultaneously held two positions, CEO and

member, each with corresponding rights.75 The Employment Offer primarily spelled

out Brothers’s rights as CEO, such as “access to all documentation and other

information provided to the Board of Managers” and attendance to “all meetings of

74
For example, Section 9.1 of the operating agreement gives the manager the right to
determine “all decisions concerning the business affairs of the Company . . . .” JX 1, at 6.
The operating agreement makes the member the default manager in lieu of an appointment.
See id. (Article VIII). The Employment Offer states that Brothers can observe (but not
vote) at Board of Directors meetings. JX 5.
75
See Tr. 9:10-11 (“And so [Brothers], like so many owner executives, wears multiple
hats.”).

22
the Board of Managers . . . in an observer capacity.”76 Under this theory, Brothers

has a distinct bundle of rights as a member, including the right to vote and the right

to access the books and records.77

Unfortunately, Brothers’s interpretation relies on silence. Under Brothers’s

theory, the Employment Offer was explicit on his rights and responsibilities as CEO,

but completely devoid of membership detail. The offer cannot be reasonably read

to convey Brothers’s claimed bundle of management rights. Even considering the

extrinsic evidence of Brothers’s conversation with the recruiter about the

Employment Agreement does not bolster his argument.

Nor does the Court find plausible that KPH agreed on membership terms with

Brothers via documents that expressly convey no such intent. The plain language of

the Employment Agreement does not support Brothers’s interpretation that KPI

expressly limited his rights as CEO, while silently conveying those same rights in

Brothers’s capacity as member.

Brothers’s subjective understanding of his profits interest does not support the

conclusion that he holds a membership interest in KPI.78 Brothers’s primary interest

76
JX 5, at 1; see Tr. 7:4-7 (“[T]he language . . . in the employment agreement speaks to
[Brothers’s] role as CEO as ex officio status as an observer.”).
77
See Tr. 7:8-12 (“[Brothers’s] actual membership interest and his rights that flow
therefrom are not delineated in the employment agreement at all, and in fact only arise
subsequently once his interest was allocated to him and then vested.”).
78
As Defendant notes in its pre-trial brief, Delaware adheres to the objective theory of
contracts, so one party’s subjective understanding cannot control. See Leaf Invenergy Co.

23
was in compensation comparable to what he expected to receive at Forrester

Research. In his email correspondence with Brown, Brothers understood that the

“‘profits incentive pool’ is the substitute for equity.”79 Brown ends the email chain

by writing, “[t]hanks for your quick turnaround - answers to your financial questions

follow below.”80 Brothers’s focus was the financial import. Brothers’s perspective

shifted by the time of his deposition when he articulated his conception of the

standard rights of an equity holder in an LLC to include “the rights to access books

and records of the firm . . . [and] the rights to vote on certain matters.”81 Brothers

admitted that when he considered his profits interest, he did not think about his

voting rights and set forth no understanding of his expected equity rights.82 But KPI

insisted from the outset that Brothers received neither of these rights. After receiving

the Employment Offer from KPI, Brothers sought clarification about the profits-

incentive pool, presuming that it was a “substitute for equity.”83 KPI’s agent, Gustav

v. Invenergy Renewables LLC, 210 A.3d 688, 696 (Del. 2019) (“When we interpret
contracts, our task is to fulfill the ‘parties’ shared expectations at the time they contracted.’
‘[B]ut because Delaware adheres to an objective theory of contracts, the contract’s
construction should be that which would be understood by an objective, reasonable third
party.’” (quoting Exelon Generation Acquisitions, LLC v. Deere & Co., 176 A.3d 1262,
1267 (Del. 2017)).
79
JX 4, at 2.
80
Id. at 1.
81
Brothers Dep., 35:7-15.
82
Id. 35:3-16.
83
JX 4, at 2.

24
Brown, clarified that it was a “form of equity ownership” traditional in LLCs and

proceeded to discuss the economics of the arrangement.84 While Brown used

imprecise language, analogizing the profits interest to “shares . . . in a C-

Corporation” and a “form of ‘membership interests,’” Brown constrained his

description to economic, not management rights.85 Following the email exchange,

Brothers signed the Employment Agreement.

The Employment Offer represented a binding contract between Brothers and

KPI concerning Brothers’s position as CEO. The contractual language detailed

Brothers’s rights and responsibilities. The Offer never speaks to Brothers’s role,

rights, or responsibilities as member. The Offer therefore does not constitute

mutually agreed upon terms and conditions precedent to Brothers becoming a

member. Because the parties failed to meet the terms and conditions requirement,

Brothers could not have received a full membership interest as contemplated under

the terms of the Operating Agreement. Brothers’s argument that he is a member of

KPI fails in this regard.

2. Brothers never made a capital contribution, as required of members
under Article X and section 13.2 of KPI’s operating agreement.

84
Id.
85
Id. Inconsistent and casual use of “member” and “membership interest” plagued KPI
throughout the controversy. Huang testified that he did not always use these terms to mean
a technical “Membership Interest” in KPI LLC. See, e.g., JX 13, 155:21-156:11. But mere
confusion does not a member make.

25
Putting aside the absence of mutually agreed-upon terms and conditions

between Brothers and KPI, the disclaimer of Brothers’s obligation to make a capital

contribution by both parties establishes that KPI never intended nor effectuated

Brothers’s receipt of a membership interest, and Brothers never accepted the

responsibilities of full membership.

The Operating Agreement too is a contract. As such, “[it] must be construed,

where possible, so that all of its provisions may be read together and harmonized.”

Cerberus International Ltd. v. Apollo Management, L.P., 1999 WL 33236239, at *4

(Del. Ch. Nov. 4, 1999). A reasonable interpretation requires internal consistency

and full effect to the constitutive provisions. See id.

As addressed above, Article X governs capital contributions.86 Section 10.1

mandates an initial Capital Contribution by the member.87 Section 10.2 prescribes

the possibility of future, non-mandatory capital contributions.88 Section 13.2

contemplates a determination of “the Capital Contributions, rights and duties of such

Additional Member.”89 Capital Contribution is a defined term, meaning “cash, cash

equivalents or the agreed fair market value of Property which a Member contributes

86
JX 1, at 8.
87
Id.
88
Id.
89
Id. at 9.

26
to the Company . . . .”90 Capital Contribution does not include services as a

permissible contribution.

Brothers understood that KPI never required him to make a capital

contribution. He neither made a capital contribution nor participated in subsequent

capital calls.91 After KPI terminated Brothers, Stanley Huang spoke with him on the

phone to discuss the future of Brothers’s profits interest.92 Again, the conversation

centered on the economic consequences of the profits interest, distinguishing it from

the capital interest that had a preferred rate of return.93 Huang clarified that the

“capital interest” holder is subject to a capital call, but the profits interest holder is

not.94 Huang’s statements confirm that Brothers could not be a full member as

contemplated under the Operating Agreement. Brothers did not make a capital

contribution nor was he subject to a capital call pursuant to his vested profits equity

interest.95

90
Id. at 2.
91
See Brothers Dep., 83:1-7.
92
See id. 40:9-17.
93
Id. at 41: 6-11. Huang used the term “capital membership” and “ordinary membership”
to distinguish the two types of interest. Huang, like Gustav Brown, used the term
“membership” loosely. Huang clarified in his deposition that the term “profits
membership” does not refer to full “ownership.” See Huang Dep., 34:11-18.
94
JX 6, at BROTHERS 0088. This exhibit reflects Brothers’s handwritten notes from calls
with different members of Atar KPI Investors.
95
See JX 6, at BROTHERS 0089 (“I am not subject to a capital call.”).

27
3. KPI did not breach the requirement of its operating agreement by not
making Brothers a member.

Brothers contends that KPI had to make him a member following transfer of

less than all of its membership interest. Seeking to strictly construe Section 13.1 of

KPI’s operating agreement, Brothers focuses on the following language: “In the

event of the Transfer of less than all of the Member’s Membership Interest, the

transferee shall be Admitted on such terms and conditions . . . .”96 Brothers reasons

that KPH transferred less than all of its 100% membership interest. So, Brothers

must be admitted. Shall, after all, conveys that the action is mandatory. See Zurich

America Insurance Co. v. St. Paul Surplus Lines, Inc., 2009 WL 4895120, at *7 n.55

(Del. Ch. Dec. 10, 2009), as revised (Apr. 14, 2010) (citing Stockman v. Heartland

Industrial Partners, L.P., 2009 WL 2096213, at *6 (Del. Ch. July 14, 2009)). But

Brothers overreads the term “Transfer” in the Operating Agreement.

Article I of the Operating Agreement includes transfer as a defined term:

Any sale, assignment, conveyance, exchange or other absolute transfer
(including dispositions by operation of law), but not including any
mortgage, pledge, grant, hypothecation as security or encumbrance,
except with respect to an absolute transfer in payment or by way of
foreclosure of the obligation secured by such mortgage, pledge, grant
hypothecation or other security or encumbrance.97

96
JX 1, at 8-9 (emphasis added).
97
Id. at 3.

28
The agreement too defines “Dispose,” which is broader than a “Transfer” and

contemplates something less than a full transfer: “Any transfer or any mortgage,

pledge, grant, hypothecation of other transfer as security or encumbrance.”98 The

agreement contemplates either a full assignment of the membership interest, “a

Transfer,” or something less, “Disposition.”

Reading the operating agreement as a whole, the mandatory “shall” language

of section 13.2 is only triggered by a transfer—a full assignment of membership,

which includes economic and management rights. Viewed through this lens, the

concert of Defendant’s behavior is reasonable. KPI understood itself to assign

Brothers contingent economic rights in up to 4% of the entity. KPI never undertook

the formalities of mutually agreed-upon terms and conditions nor the economic buy-

in of a capital contribution because KPI never intended to make Brothers a member.

Although the language of the Operating Agreement is vague, KPI’s course of

conduct does not violate its binding language.

B. Because the operating agreement does not provide for the limited
assignment of membership rights, the default rules of the Delaware LLC
Act govern the transaction.

The Delaware LLC Act is a “flexible statute” that encourages “private

ordering” among the members to govern their relationship. Elf Atochem North

98
Id. at 2.

29
America, Inc. v. Jaffari, 727 A.2d 286, 290 (Del. 1999) (quoting JAMES D. COX,

THOMAS LEE HAZEN & FOREST HODGE O’NEAL, CORPORATIONS § 1.12 (1999)).

Based on the Delaware Revised Uniform Limited Partnership Act (DRULPA), both

statutes provide “default rules . . . [that] cover a variety of potential omissions in the

limited liability company agreement.” Achain, Inc. v. Leemon Family LLC, 25 A.3d

800, 803 n.10 (Del. Ch. 2011) (quoting ROBERT L. SYMONDS, JR. & MATTHEW J.

O’TOOLE, SYMONDS & O’TOOLE ON DELAWARE LIMITED LIABILITY COMPANIES §

1.03[A][2] (2007)). The language of the LLC Act unambiguously reflects this intent

by often including within the statutory text, “except as provided in a limited liability

company agreement.” Achain, Inc., 25 A.3d at 803 (Del. Ch. 2011) (citing 6 Del. C.

§ 18-702(a), (b)(2) (2010)).99

The Delaware LLC Act in Section 18-702(a) provides the default rule for

assignment of interests:

A limited liability company interest is assignable in whole or in part
except as provided in a limited liability company agreement. The
assignee of a member’s limited liability company interest shall have no
right to participate in the management of the business and affairs of a
limited liability company except as provided in a limited liability
company agreement or, unless otherwise provided in the limited
liability company agreement, upon the vote or consent of all of the
members of the limited liability company.

99
Although the Delaware Legislature amended the statute in 2016, the “except as provided”
language is unchanged. See 80 Del. Laws ch. 271 (2016).

30
Under the statute’s terms, the assignment of a membership interest is by default only

an economic assignment with no accompanying management rights. See Achain,

Inc., 25 A.3d at 804-05.

In In re Carlisle Etcetera LLC, an assignee of a membership interest

petitioned for dissolution. 114 A.3d 592 (Del. Ch. 2015). Under the LLC Act, only

members can petition for dissolution and under Sections 18-702(a)-(b), an assignee

of a membership interest is not “entitle[d] . . . to exercise any rights or powers of a

member.” Id. (citing the statute). There, the assignee contended that it became a de

facto member by consent of the parties, arguing that “tax forms and [the] draft

agreement that identified [assignee] as a member were records of the company.” Id.

(analyzing Section 18-301(b)(1) of the LLC Act).100 The Carlisle court rejected the

assignee’s argument by applying Section 18-704(a), which permits an assignee to

become a member:

(1) As provided in the limited liability company agreement; or

100
As in Carlisle, the parties here have raised arguments based on the tax records. While
tax records are not dispositive—classification for federal tax purposes does not control
Delaware business entity law—Brothers presents weaker evidence than the petitioner in
Carlisle, who had entity tax forms referring to his membership. Despite claiming a full
membership interest, Brothers never received a K-1 from KPI. Brothers Dep. 89:19-22.
Brothers had, however, received K-1s from other LLCs in which he was a member. Id.,
90:5-7. KPI filed no tax forms because it had a single member, KPH, which claimed all
KPI’s gains and losses on a pass-through basis. JX 13, 160:20-21.

31
(2) Unless otherwise provided in the limited liability company
agreement, upon the affirmative vote or written consent of all of the
members of the limited liability company.101

Id. at 599. Because the Carlisle LLC agreement did not speak to assignment,

the Court applied the default rules under the Delaware LLC Act.

KPI’s assignment of a profits interest to Brothers is a transaction not

contemplated under the terms of the Operating Agreement.102 Because the

Operating Agreement does not speak to the consequences of assigning an

economic interest to a third party without discussion of accompanying

management rights, this Court turns to the Delaware LLC Act to fill in the

gaps.

101
77 Del. Laws, ch. 287, § 24 (2010). The Delaware Legislature amended Section 18-
704 in 2016, the year following the Carlisle decision. The 2016 amendment added 18-
704(a)(3):
Unless otherwise provided in the limited liability company agreement by a
specific reference to this subsection or otherwise provided in connection with
the assignment, upon the voluntary assignment by the sole member of the
limited liability company of all of the limited liability company interests in
the limited liability company to a single assignee. An assignment will be
voluntary for purposes of this subsection if it is consented to by the member
at the time of the assignment and is not effected by foreclosure or other
similar legal process.
80 Del. Laws, ch. 271, § 8 (2016). Because the transaction at issue here does not concern
the voluntary assignment of all of KPI’s interests, the applicability of the Carlisle analysis
to the present facts is unchanged.
102
The Court recognizes that this whole litigation may have been avoided had KPI
amended its operating agreement prior to or during Brothers’s tenure as CEO. See Huang
Dep. Tr. 86:10-24 (stating KPI’s intentions to amend the agreement, which was delayed
because of KPI’s recent acquisition and the COVID pandemic).

32
As in Carlisle, KPI’s LLC operating agreement lacks any provision describing

how an assignee with limited economic interests may become a full member. There

has also been no affirmative vote or written consent of KPI’s members to admit

Brothers as a member. Carlisle applied Section 18-302(d) of the LLC act to interpret

“affirmative vote or written consent,” noting that the phrase “appears rarely in the

LLC Act” and all such appearances “involve similar occasions for formal member

action.” While KPI did not appear to hold regular votes, no evidence presented to

this Court indicates formal member action to admit Brothers as a member.

Applying the default provisions of the LLC Act, KPI’s transfer of a profits

interest to Brothers constituted an assignment of economic rights, and not a full

membership transfer. Because Brothers is not a member, he lacks standing to

compel inspection of KPI’s books and records.

C. The bad faith exception to the American Rule does not apply. KPI
is awarded costs under Court of Chancery Rule 54(d).

Brothers argues that KPI should pay his legal fees and costs because of its

“persistent bad-faith efforts to thwart . . . [his] access to the Records and various

misrepresentations to the Court . . . .”103 Having held that Brothers lacks standing to

compel inspection for books and records, the Court rejects Brothers’s request for

inspection costs and fee shifting.

103
Pl.’s Opening Pre-Trial Brief, at 24.

33
Delaware courts follow the American Rule, where the prevailing party

ordinarily pays its own fees and costs. Haywood v. Ambase Corp., 2005 WL

2130614, at *8 (Del. Ch. Aug. 22, 2005) (citing Montgomery Cellular Holding. Co.

v. Dobler, 2005 WL 1936157, at *15 (Del. Aug. 1, 2005)). The American Rule

admits an exception in cases where a party engaged in bad faith conduct, such as

unnecessarily prolonging litigation or “knowingly assert[ing] frivolous claims.”

Nagy v. Bistricer, 770 A.2d 43, 64-5 (Del. Ch. 2000) (citing Johnston v. Arbitrium

(Cayman Islands) Handels AG, 720 A.2d 542, 546 (Del. 1998)). Invoking the bad

faith exception is exceedingly rare, and this Court will only invoke it to “deter

abusive litigation and to protect the integrity of the judicial process. Montgomery

Cellular, 2005 WL 1936157, at *15; see Johnston, 720 A.3d 542 (applying the

exception where defendants delayed litigation, brought frivolous motions, and

falsified evidence). Court of Chancery Rule 54(d) awards costs “as of course to the

prevailing party unless the Court otherwise directs.” The presence of “close and

complex” issues does not change the award under 54(d). See Adams v. Calvarese

Farms Maintenance Corp., 2011 WL 383862, at *5 (Del. Ch. Jan. 13, 2011).

The facts of this action do not support application of the bad faith exception.

First, KPI’s success in challenging Brothers’s standing vindicates its behavior in

denying Brothers access to the records. Although Brothers contests KPI’s insistence

that he could only view the books and records in Santa Barbara, KPI had no duty to

34
provide him the records at all, much less in a more convenient location. KPI’s

conduct does not resemble the actions proscribed in Montgomery Cellular: KPI

provided meritorious defenses, presented relevant motions, and relied on credible

evidence. KPI’s behavior does not show bad faith.

KPI is the prevailing party on the merits. It successfully argued that Brothers

lacked standing to compel inspection of KPI’s books and records. As such, KPI is

entitled to recover its costs. Each party bears its own expenses, including attorneys’

fees.

III. CONCLUSION

For these reasons, Plaintiff lacks standing to compel inspection of KPI’s

books and records and his complaint should be dismissed. The parties shall meet

and confer about shifting costs to Brothers. If the parties cannot agree, they may

submit competing proposals. The Court will not delay the time for exceptions

pending a decision on costs. The Court designates this a final report, and exceptions

may be filed under the expedited schedule in Court of Chancery Rule 144(d)(2).

35