Jack L. Marchand II v. John W. Barnhill, Jr.

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

ROSEANN MARCHAND, as administrator )
of the Estate of JACK L. MARCHAND II, )
)
Plaintiff, )
)
v. ) C.A. No. 2017-0586-NAC
)
JOHN W. BARNHILL, JR., GREG
)
BRIDGES, RICHARD DICKSON, PAUL A.
)
EHLERT, JIM E. KRUSE, PAUL W.
)
KRUSE, W.J. RANKIN, HOWARD W.
)
KRUSE, PATRICIA I. RYAN, and
)
DOROTHY MCLEOD MACINERNEY,
)
Defendants, )
)
and, )
)
BLUE BELL CREAMERIES U.S.A., INC., )
)
Nominal Defendant. )

MEMORANDUM OPINION

Date Submitted: October 8, 2025
Date Decided: December 10, 2025

Robert J Kriner, Jr., Scott M. Tucker, Benjamin P. Hodges, CHIMICLES SCHWARTZ
KRINER & DONALDSON-SMITH LLP, Wilmington, Delaware; Counsel for Plaintiff
Roseann Marchand as administrator of the Estate of Jack J. Marchand II.

Rolin P. Bissell, James M. Yoch, Jr., Nicholas J. Rohrer, M. Paige Valeski, Jillian A.
Tyson, YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware; Counsel
for Defendants John W. Barnhill, Jr., Paul A. Ehlert, Howard W. Kruse, Jim E. Kruse,
Dorothy McLeod MacInerney, and William J. Rankin.

Lewis H. Lazarus, Albert J. Carroll, Kristen A. Zeberkiewicz, Barnaby Grzaslewicz,
Samuel E. Bashman, MORRIS JAMES LLP. Wilmington, Delaware, David Schertler,
Lisa H. Schertler, SCHERTLER ONORATO MEAD & SEARS LLP, Washington DC; Counsel
for Defendant Richard Dickson.
Lisa M. Zwally, Bryan T. Reed, GREENBERG TRAURIG, LLP, Wilmington, Delaware, C.
Mark Stratton, GREENBERG TRAURIG, LLP, Austin, Texas; Counsel for Defendant
Patricia I. Ryan.

Srinivas M. Raju, Kevin M. Gallagher, Jason J. Rawnsley, Kaitlyn R. Zavatsky,
Brendan W. Clark, RICHARDS, LAYTON & FINGER, PA, Wilmington, Delaware,
Lawrence Finder, R. MCCONNELL GROUP PLLC, Houston, Texas; Counsel for
Defendant Greg Bridges.

Srinivas M. Raju, Kevin M. Gallagher, Jason J. Rawnsley, Kaitlyn R. Zavatsky,
Brendan W. Clark, RICHARDS, LAYTON & FINGER, PA, Wilmington, Delaware, Chris
Flood, Lisa Sternschuss, FLOOD & FLOOD, Houston, Texas; Counsel for Defendant
Paul W. Kruse.

Bruce E. Jameson, John G. Day, PRICKETT, JONES & ELLIOTT, P.A., Wilmington,
Delaware, Hugh C. Connor II, KELLY HART & HALLMAN, LLP, Fort Worth, Texas;
Counsel for Nominal Defendant Blue Bell Creameries, U.S.A., Inc.

Jon E. Abramczyk, D. McKinley Measley, Lauren K. Neal, Alec F. Hoechel, MORRIS,
NICHOLS ARSHT & TUNNELL LLP. Wilmington, Delaware; Counsel for the Special
Litigation Committee.

COOK, V.C.
Roughly five years ago, this Court approved a settlement of a related derivative

case. The defendants in this action, including the nominal defendant, were also

named defendants in that related action and parties to the settlement. Now, the

individual defendants in this action argue the prior release bars the plaintiff’s claims

here. They filed a motion for judgment on the pleadings on that basis, seeking

complete dismissal of this action.

The defendants essentially concede that no one at the time–neither the parties

nor the Court–understood or intended the related action release to release the claims

here. The settling parties’ contemporaneous actions evidence that lack of intent. No

one raised, and thus my predecessor did not consider or rule on, whether the prior

release would be fair to the nominal defendant in this action. Indeed, no one

mentioned any potential effect on this case at all.

This silence has a seemingly straightforward explanation. At the time the

related action settled, the board of directors of the nominal defendant in this action

had vested the corporation’s power over this action, including the authority to settle

claims, in a special litigation committee. The individual defendants, as directors,

would of course have known of the special litigation committee’s establishment and

authority, as did the Court. And the defendants acknowledge that the special

litigation committee did not execute or approve the prior settlement or otherwise

participate in the settlement negotiations. Quite to the contrary, the special litigation

committee filed a status update in this action reporting that it was actively

investigating the claims here.

1
After the related proceeding settled, this action continued for over five years

without anyone raising the prior release as a defense. The defendants represent that

in January of this year they first discovered that the plain text of the settlement they

signed five years ago compels dismissal of plaintiff’s claims here. The defendants

thus filed their motion.

Having considered the arguments, I conclude that, although the plain text of

the at-issue settlement may be read in the way defendants assert, questions

regarding the legal viability of defendants’ interpretation and estoppel prevent

granting judgment on the pleadings. Accordingly, and for the reasons discussed

herein, the motion for judgment on the pleadings is denied.

I. BACKGROUND

The atypical circumstances underlying Defendants’ Motion for Judgment on

the Pleadings (“Motion”) warrant an extensive factual discussion. That discussion

includes certain facts that may go slightly beyond the pleadings for the purpose of

providing context only. 1 Of course, when deciding a Rule 12(c) motion the Court only

considers the facts alleged in the pleadings and exhibits attached thereto or

1 See Llamas v. Titus, 2019 WL 2505374, *3 n.6 (Del. Ch. June 18, 2019) (relying on extrinsic

evidence not “to make any factual findings pertinent to the case, but only to provide context”).
See also SI Management L.P. v. Wininger, 707 A.2d 37, 43 (Del. 1998) (“There may be
occasions where it is important for the trial court to consider some undisputed background
facts to place the contractual provision in its historical setting without violating [] the
principle that extrinsic evidence may be considered only in the presence of contractual
ambiguity.”).

2
incorporated by reference therein. 2 Thus, any facts outside the pleadings discussed

as background do not impact the Court’s decision.

A. The Parties, Relevant Non-Parties, and the Listeria Outbreak

Plaintiff Roseann Marchand is the administrator of the estate of Jack L.

Marchand II, a record stockholder of Nominal Defendant Blue Bell Creameries U.S.A.,

Inc. (“BB USA”). 3 BB USA is a Delaware corporation in the ice cream sector with its

principal place of business in Brenham, Texas. 4 BB USA owns over 69% of

partnership units in non-party Blue Bell Creameries, L.P. (“BB LP”), the operating

subsidiary that runs the ice cream business. 5 BB USA also owns 100% of the common

stock of non-party Blue Bell Creameries, Inc. (“BB GP”, collectively with BB USA and

BB LP, “Company”), BB LP’s general partner. 6 Plaintiff has no ownership stake in

BB LP or BB GP, and instead brings derivative claims in her capacity as a BB USA

stockholder. 7 Defendants were members of BB USA’s Board of Directors at the time

of the events underlying Plaintiff’s claims. 8

Federal and state agencies regulate the Company as an ice cream

manufacturer to ensure food safety. 9 Starting in February 2015, those regulatory

2 Village Practice Management Company, LLC v. West, 342 A.3d 295, 313 (Del. 2025).

3 Dkt. 1 (“Compl.”) ¶ 6.

4 Id. ¶¶ 7, 20-25.

5 Id. ¶ 8.

6 Id.

7 Id. ¶¶ 6, 142-50.

8 Id. ¶¶ 9-19

9 See id. ¶¶ 26-39.

3
agencies detected a Listeria outbreak at the Company’s three manufacturing

plants. 10 As alleged, Defendants’ failure to implement sufficient safety controls and

oversight, despite their knowledge of contamination risks, allowed the Listeria

outbreak to occur. 11 Plaintiff claims that oversight failure constituted a breach of

Defendants’ fiduciary duties to BB USA. 12 The Listeria outbreak led to a massive

product recall, extreme operational upheaval, and a Company-wide liquidity crisis. 13

The liquidity crisis necessitated an emergency private equity investment, on terms

that Plaintiff alleges were unfair to other BB USA stockholders. 14 The Listeria crisis

also spawned numerous lawsuits, including two in Delaware. 15

B. The Wenske Action and the Wenske Settlement

In the wake of the Listeria outbreak, equity owners filed two derivative actions

in this Court. 16 Plaintiff filed this Action in August 2017 alleging Defendants

breached their fiduciary duties owed to BB USA. 17 As discussed, Plaintiffs claims are

10 Id. ¶¶ 59-68. Investigative authorities determined the Company’s ice cream was the source

of several Listeria cases, including three that resulted in death. See id. ¶¶ 61, 63.
11 See id. ¶¶ 48-58, 94-119.

12 Id. ¶¶ 142-50.

13 Id. ¶¶ 64, 69-71.

14 See id. ¶¶ 73-86.

15 See id. ¶¶ 87-93; see generally id.; Dkt 207 (“Dillione Aff.”), Ex. A (“Wenske Compl.”)
(complaint in the second Delaware case related to the Listeria outbreak). See also Nelson v.
Emerson, 2008 WL 1961150, at *2 n.2 (Del. Ch. May 6, 2008) (noting courts can take judicial
notice of “documents filed in [] related [] court proceedings” when ruling on a pleading stage
motion); Aequitas Solutions, Inc. v. Anderson, 2012 WL 2903324, at *7 (Del. Ch. June 25,
2012) (same); Baca v. Insight Enterprises, Inc., 2010 WL 2219715, at *1 (Del. Ch. June 3,
2010) (same).
16 See generally Compl.; Wenske Compl.

17 See generally Compl.

4
based on Defendants’ alleged failure to implement sufficient health and safety

oversight concerning the Company’s ice cream business. 18 Two months later, BB LP

unitholders filed a similar lawsuit, ultimately alleging BB GP and its directors 19

breached fiduciary duties imposed by BB LP’s limited partnership agreement

(“Wenske Action”). 20 As in this case, the Wenske Action’s claims were rooted in the

alleged failure to implement sufficient health and safety operational oversight. 21

Notably, all the individual defendants here—as well as the nominal defendant, BB

USA—were named defendants in the Wenske Action. 22

The Wenske Action and this case proceeded simultaneously. In the Wenske

Action, this Court partially granted a motion to dismiss and thereafter allowed the

Wenske Plaintiffs to amend their complaint. 23 Thereafter, BB USA’s counsel

requested a status conference in both actions to discuss “overlapping factual and

evidentiary issues in both cases” as well as possible consolidation. 24 After denying a

18 See id. ¶¶ 48-58, 94-119.

19 The individual “Director Defendants” in the Wenske Action, who are all also Defendants

here, were members of both BB GP’s Board of Directors and BB USA’s Board of Directors.
Wenske Compl. ¶¶ 9-22; see generally Compl.
20 See Wenske Compl. ¶¶ 58-79. Although the Wenske complaint initially alleged breaches of
common law fiduciary duties, that claim was later dismissed. See Wenske v. Blue Bell
Creameries, Inc., 2018 WL 3337531, at * 9-18 (Del. Ch. July 6, 2018). The Wenske Action
plaintiffs’ relied on a veil piercing theory to allege liability on the part of the individual
defendants in that action. See Dillione Aff., Ex. B (“Wenske Am. Compl.”) ¶¶ 88-116.
21 See id. ¶¶ 25-48.

22 See generally id.; Compl.

23 See Wenske, 2018 WL 3337531, at * 9-18; Wenske Am. Compl. At that point BB GP formed
a special litigation committee to investigate the Wenske Action’s claims and asked the Court
to stay the case. See Transaction ID 63311442.
24 Dkt. 57. That request came the day after the Delaware Supreme Court issued its ruling in
this action. See id.; Marchand v. Barnhill, 212 A.3d 805, 807-09 (Del. 2019).

5
motion to stay in the Wenske Action, 25 the Court held the requested status

conference. 26 In preparation for the hearing, the parties submitted a joint status

report in which the Wenske Plaintiffs argued this action is “an indemnification

case.” 27 At the status conference, the Court: (1) directed the parties in both actions

to coordinate to avoid duplicative discovery; and (2) expressed the view that the

Wenske Plaintiffs’ arguments suggested that “case ought to proceed first to trial.” 28

With discovery ongoing in the Wenske Action, the parties to that action

successfully mediated their dispute on December 19-20, 2019—accepting “a

mediator’s proposal providing the basis for . . . settlement.” 29 The Wenske Action

parties, including BB USA, executed and filed a stipulation for a proposed settlement

(“Wenske Settlement”), with this Court on April 24, 2020. 30 BB LP’s limited partners,

but not BB USA stockholders, received notice of the proposed Wenske Settlement. 31

25 See Wenske v. Blue Bell Creameries, Inc., 214 A.3d 958 (Del. Ch. Aug. 28, 2019).

26 See Dkt. 77.

27 Dkt.75. Specifically, the Wenske Action plaintiffs argued “the only [] damages that
Marchand could recover on BB USA’s behalf from BB USA’s directors and officers are
indemnification damages resulting from the Wenske Plaintiffs’ claims against BB USA in the
Wenske Action.” Id. at 5.
28 Dkt. 84 16:24-21:5.

29 See Dillione Aff., Ex. C (“Wenske Settlement”) at 8. See also Brex Inc. v. Su, 2024 WL

2956861, at *1 (Del. Ch. June 12, 2024) (noting the Court can consider “documents integral”
to “affirmative defenses” when ruling on a motion for judgment on the pleadings.).
30 See generally id.

31 See Dillione Aff., Ex. D (“Final Judgment”) ¶ 1; Tr. 56:9-20, 84:1-86:18 (noting BB USA

stockholders did not receive notice of the Wenske Settlement or the fact that the Wenske
Release could purportedly release this Action). Defendants argue that lack of notice is
immaterial, because “notice [to BB USA’s stockholders] and due process was not required for
BBUSA to individually execute a release against claims that are its litigation assets[.]” Id.
84:1-86:18 (citing Feuer v. Dauman, 2017 WL 4817427, at *1-2, 5 (Del. Ch. Oct. 25, 2017); In
re Primedia, Inc. Stockholders Litigation, 2015 WL 3401283, at *1-4 (Del. Ch. May 26, 2015)).

6
In July 2020, the Court held a hearing concerning whether to approve the Wenske

Settlement. 32 At that hearing, no one raised this action or suggested to Vice

Chancellor Slights, who was also presiding over this case, that the Wenske Release

would bar Plaintiff’s claims here. 33 The Court approved the Wenske Settlement via

an order and final judgment (“Final Judgment”) on July 13, 2020. 34

The Wenske Settlement’s terms are central to Defendants’ Motion. Specifically,

Defendants argue the Wenske Settlement’s release of claims (“Wenske Release”) bars

Plaintiff’s claims here. 35 Under the Wenske Release’s terms,

Blue Bell LP, and all the Blue Bell LP limited partners have fully, finally,
and forever released . . . the Released Claims against the Released
Persons and any and all claims arising out of, relating to, or in
connection with, the defense, settlement or resolution of the Action
against the Released Persons. 36

The “Action” means “the action captioned Wenske v. Blue Bell Creameries, Inc.,

C.A. No. 2017-0699-JRS.” 37 The “Released Persons” are “(i) each of the Individual

Defendants; (ii) Blue Bell LP; (iii) Blue Bell GP; (iv) Blue Bell USA; and (v) each and

all of their Related Persons.” 38 The Wenske Settlement defines “Released Claims” as

32
See also Transaction ID 65817765 (transcript of Wenske Settlement hearing).
33 See Dkt. 331 (“Tr.”) 69:3-70:20 (the Court raising, without objection, “that this was not

brought to Vice Chancellor Slights’ attention.”). See also Transaction ID 65817765.
34See Final Judgment. See also Brex, 2024 WL 2956861, at *1. Under the Wenske
Settlement’s terms, BB USA received no monetary consideration. See generally Wenske
Settlement; Final Judgment. Instead, BB USA funded the monetary recovery received by
other parties to the Wenske Settlement. See Wenske Settlement at 23-28.
35 See generally Dkt. 206 (“Opening Br.”).

36 Id. ¶ 7.

37 Wenske Settlement § V.A.1.

38 Final Judgment ¶ 9.

7
any and all claims . . . including but not limited to, claims for . . . breach
of duty of care, breach of duty of loyalty, . . . breach of fiduciary duty, . . .
breach of contract, [and] unjust enrichment, . . . whether fixed or
contingent, accrued or unaccrued, liquidated or unliquidated, at law or
in equity, matured or unmatured, including both known claims and any
Unknown Claims that have been, or could have been asserted in the
Action by Plaintiff, Blue Bell LP, or any Blue Bell LP limited partner,
individually or derivatively on behalf of Blue Bell LP against any of the
Released Persons that are based upon, arise out of, or are related to: the
allegations, transactions, facts . . . alleged, involved, or set forth in the
[Wenske] Amended Complaint through and including the date of the
[Wenske Settlement] Stipulation[.] 39

The definition of “Released Claims” expressly provides that, “[n]otwithstanding the

foregoing, . . . nothing in the Stipulation releases any claim by any of the Individual

Defendants (A) for recovery of insurance proceeds or any other claim against any

insurer under any policy of insurance or (B) for exculpation, indemnification, and/or

advancement against Blue Bell LP, Blue Bell GP, Blue Bell USA or any of their

affiliates[.]” 40 “Individual Defendants” does not include Blue Bell USA.

The Wenske Settlement does not define to term “releasor.” 41 Nevertheless,

Defendants maintain BB USA released any claim related to the Listeria outbreak

such that Plaintiff’s derivative claims must be dismissed.

C. This Action

This case charted a different course than the Wenske Action. In September

2018, this Court dismissed the entirety of Plaintiff’s Complaint for failure to plead

39 Id. ¶ 8.

40 Id.

41 See generally id.; Wenske Settlement.

8
demand futility. 42 The Delaware Supreme Court reversed that decision, holding that

the Complaint states a well-pled Caremark claim and alleges particularized facts

creating a reasonable inference that demand was futile. 43 After our high court

remanded for further proceedings, BB USA’s Board appointed an independent special

litigation committee (“SLC”) to investigate Plaintiff’s allegations in August 2019. 44 A

month later, the parties filed a letter with the Court representing that they had

agreed to stay this Action. 45 Yet, the Court never entered a stay and the parties never

followed-up. 46 The SLC investigated the matter for five years. 47 In all that time, no

one raised the Wenske Settlement as a possible defense to Plaintiff’s claims. 48

In September 2023, the Court realigned BB USA as Plaintiff in this Action at

the SLC’s request. 49 In April 2024, the Court granted the SLC’s motion to return

control of the action to Plaintiff. 50 As discovery progressed, the Court granted

Defendants’ request to file amended answers. 51 In February 2025, Defendants filed

42 See Marchand, 2018 WL 4657159, at *11-19 (Del. Ch. Sept. 27, 2018).

43 See Marchand, 212 A.3d at 807-09.

44 See Dkt. 69.

45 Dkt. 78.

46 During this period, the case was reassigned to me due to Vice Chancellor Slights’
retirement. See Dkt. 101.
47 See Dkt 69; Tr. 34:16-35:9.

48 See Tr. 37:10-38:1, 38:5-12 (noting that in their interrogatory response “Defendants stated

they ‘first identified the Wenske Settlement and Final Judgment as a potential defense or
bar . . . in or around January 2025.’”), 44:21-45:23 (“the parties didn’t do anything for five
years while the Marchand SLC was doing it work.”).
49 See Dkt. 113.

50 See Dkt. 121.

51 See Dkt. 187.

9
their Amended Answers—which raised the Wenske Release affirmative defense

central to the Motion for the first time. 52 Specifically, Defendants asserted BB LP

and its limited partners, including BB USA, “provided a full complete release to

Defendant[s]” that includes Plaintiff’s derivative claims based on the Listeria

outbreak. 53 Accordingly, Defendants filed the Motion in May 2025 seeking dismissal

of all Plaintiffs’ claims. 54

The day before oral argument on the Motion, Plaintiff filed a Motion to

Supplement her Complaint. 55 Plaintiff seeks to add three new breach of fiduciary

duty claims related to the Wenske Settlement. 56 At bottom, Plaintiff’s proposed

additions allege that if the Wenske Release bars Plaintiff’s Listeria-based claims, the

members of BB USA’s Board of Directors who approved the Wenske Settlement

breached their fiduciary duties. 57

The Court held oral argument concerning the Motion on October 8, 2025. 58

Oral argument illuminated several key points. 59 First, Defendants clarified that the

Motion relies on both BB USA and BB LP’s releases of claims in the Wenske

52 E.g., Dkt. 190.

53 E.g., id. at 82.

54 See Dkt. 205.

55 See Dkt. 324.

56 See id, Ex. A ¶¶ 186-205.

57 See id.

58 See generally Tr.

59 See generally id.

10
Settlement. 60 Second, all parties confirmed that no one raised the Wenske Settlement

as a possible defense to this Action prior to Defendants filing their amended

Answers. 61 Third, Plaintiff and Defendants each acknowledged that accepting either

of their respective interpretations of the Wenske Settlement and Final Judgment

could create internal, textual inconsistency. 62 Fourth, Defendants represented that

the Wenske Settlement was intended to be a “general release.” 63 Finally, Defendants

pointed out that the SLC “never [voiced] what their position is” concerning the

Motion’s release argument. 64

60 See id. 5:3-24:3 (“[I]t is important to note that what we refer to as the release are really

two separate releases.”). Specifically, Defendants contend that BB USA’s release of claims
related to the Listeria outbreak in the Wenske Settlement precludes Plaintiff’s derivative
claims on BB USA’s behalf in this action. See Dkt. 279 (“Reply Br.) at 7-17. Alternatively,
Defendants argue BB LP’s release independently bars Plaintiff’s clams, because all the
alleged harm occurred at the BB LP level. See Tr. 5:3-24:3. Defendants also asserted at oral
argument that even if neither release applies, Plaintiff’s claims are still barred by the rule
against double recovery. See id. 24:19-30:1 (citing Wood v. U.S. Bank Nat. Ass’n, 2018 WL
4643801, at *1-3 (Del. Ch. Sept. 26, 2018), interlocutory appeal denied, 196 A.3d 1253 (Del.
2018). Yet, Defendants also conceded that addressing the double recovery argument
“requires factual resolution, which would seem to preclude judgment on the pleadings.” Tr.
67:17-68:4; see Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund, II, L.P., 624
A.2d 1199, 1206 (Del. 1993) (“a motion for judgment on the pleadings cannot be granted when
a material question of fact exists.”).
61 See Tr. 37:10-38:1, 38:5-12, 69:3-71:7.

62 See id. 57:12-62:18, 76:21-82:7.
If that is the case, well-settled principles of Delaware law
suggest granting judgment on the pleadings is inappropriate. See, e.g., Village, 342 A.3d at
313 (“Judgment on the pleadings is improper when contractual provisions have multiple
reasonable interpretations because at the pleadings stage . . . the Court cannot choose
between two different reasonable interpretations[.]” (internal quotes omitted)).
63 Tr. 87:8-90:11.

64 See id. 82:8-83:4.

11
II. STANDARD OF REVIEW

Courts grant a motion for judgment on the pleadings “only when no material

issue of fact exists and the movant is entitled to judgment as a matter of law.” 65 When

considering such a motion, “the Court will take the well-pleaded facts contained in

the operative pleadings and view the facts pleaded and inferences to be drawn from

such facts in a light most favorable to the non-moving party.” 66 The pleadings the

Court may consider “are not limited to complaints or counterclaims, but also include

answers and affirmative defenses.” 67 Although a motion for judgment on the

pleadings can be “a proper framework for enforcing unambiguous contracts,” 68 the

Court will not grant such a motion if the nonmovant’s interpretation is reasonable.69

Critically, when “the court finds non-frivolous bases for [a nonmovant’s] affirmative

65 Desert Equities, 624 A.2d at 1205.

66 Jimenez v. Palacios, 250 A.3d 814, 827 (Del. Ch. 2019) (cleaned up). The Court may also
consider documents “integral to a plaintiff’s claims and incorporated into the complaint” by
reference. Windsor I, LLC v. CWCapital Asset Mgmt. LLC, 238 A.3d 863, 873 (Del. 2020). A
document “is integral to [a] claim if it is the ‘source for the . . . facts as pled in the complaint.’”
In re Gardner Denver, Inc., 2014 WL 715705, at *3 (Del. Ch. Feb. 21, 2014) (quoting Orman
v. Cullman, 794 A.2d 5, 16 (Del. Ch. 2002)).
67 Id. (citations omitted). See also Menna v. Weidhaas, 2023 WL 4851547, at *7 (Del. Ch. July

28, 2023) (“When a pleading-stage dispositive motion relies upon affirmative defenses, such
as waiver and release, the Court may dismiss a claim if the plaintiff includes in its pleadings
facts that incontrovertibly constitute an affirmative defense to a claim.” (emphasis added)
(internal quotes omitted)).
68 Standard Gen. L.P. v. Charney, 2017 WL 6498063, at *10 (Del. Ch. Dec. 19, 2017).

69 See Village Practice, 342 A.3d at 313.

12
defense which, if proven, could entitle [nonmovant] to relief from its [at-issue]

contractual obligations,” judgment on the pleadings is improper. 70

III. ANALYSIS

The atypical facts discussed above make resolving several of the parties’

arguments concerning the Motion difficult. The Motion argues the Wenske

Settlement released Plaintiff’s claims here. 71 Yet, Defendants represented that when

the Court approved the Wenske Settlement no one intended to release this action or

understood that to be the Wenske Release’s effect. 72 Defendants’ position in that

regard comports with the parties’ contemporaneous actions—namely that: (1) the

parties continued litigating this case for over five years without raising the release; 73

(2) BB USA stockholders did not receive the Wenske Settlement notice, which did not

discuss this action; 74 and (3) no one brought the supposed release of this case to Vice

70 L-5 Healthcare Partners, LLC v. Alphatec Holdings, Inc., 2020 WL 6021536, at *8 (Del. Ch.

Oct. 12, 2020). For a party to stave-off judgment on the pleadings, it must support its
affirmative defenses “with more than just summary pleadings. The rhythmic incantation of
multiple affirmative defenses . . . cannot, alone, defeat an otherwise well-supported motion
for judgment on the pleadings.” GreenStar IH Rep, LLC v. Tutor Perini Corporation, 2017
WL 5035567, at *8 (Del. Ch. Oct. 31, 2017).
71 See generally Opening Br.; Reply Br.

72 See Tr. 37:10-38:1, 38:5-12 (discussing Defendants’ interrogatory responses to that effect).

73 Had Defendants truly intended to secure a global release that included a release of this

Action, one would expect them to have sought dismissal of this Action as soon as the Court
approved the Wenske Settlement. This is especially so given that the individual defendants
in each action were identical.
74 It seems reasonable to think the settling parties in Wenske would, at a minimum, have

included reference to the compromise of this action in the notice—and even sent that notice
to BB USA stockholders—to avoid a possible collateral attack down the line, if they truly
intended to the release to reach this action.

13
Chancellor Slight’s attention during the Wenske Settlement approval process. 75

Nevertheless, Defendants insist the Wenske Settlement’s plain text releases

Plaintiff’s claims. 76

The parties advance competing interpretations of the Wenske Settlement and

Release. Plaintiff argues BB USA is not a “releasor” of claims under the Wenske

Settlement because “BB USA entered into the settlement to extinguish claims it was

defending against and not as a BB LP limited partner.” 77 Plaintiff points out that

the Wenske Settlement defines the “Released Claims” with reference to the Wenske

Action alone. 78 Critically, Plaintiff argues the inclusion of claims that “could have

75 See Tr. 69:3-70:9 (asking whether, if Defendants’ argument were to prevail here, this might

in turn raise questions about candor to the tribunal in connection with the Wenske Settlement
proceeding).
76 See Opening Br. at 14-29; Reply Br. 5-17. Defendants’ argument basically amounts to a
suggestion that, regardless of anyone’s intentions as to contractual meaning at the time, the
plain meaning of the words on the page now compel the release and bar of the claims in this
Action. Defendants do not dispute the extraordinary sophistication of their counsel in
negotiating—and contemporaneously understanding—the text of the Wenske Settlement.
Their argument instead has more of a kaleidoscopic feel, as though someone five years after
the fact happened to pick up the viewing tube and give one last twist that by chance revealed
the new picture Defendants now present. It is frankly hard not to find this line of argument
discomfiting. But that does not necessarily justify departing from the Wenske Release’s plain
text. Salama v. Simon, 328 A.3d 356, 366 (De. Ch. Nov. 27, 2024) (“If a contract is
unambiguous, ‘the Court must give effect to [its] clear language.’” (quoting Kaiser Aluminum
Corp. Matheson, 681 A.2d 392, 395 (Del. 1996) (edits in original))). See also See Nemec v.
Shrader, 991 A.2d 1120, 1126 (Del. 2010) (“Parties have a right to enter into both good and
bad contracts, the law enforces both.”).
77 Dkt 260 (“Opp’n Br.”) at 29-30. Plaintiff points out that BB USA is defined as a “Defendant”

in the Wenske Settlement and “is specifically excluded from the definition of ‘Designated
Limited Partners.’” Id. at 30 (quoting Wenske Settlement § V.A.1). Similarly, Plaintiff notes
that the Wenske Settlement defines BB LP, BB GP, and BB USA, but not Wenske or the BB
LP limited partners, as “Released Person[s].” See id. at 30-31; Wenske Settlement § V.A.29.
78 See Wenske Settlement §§ V.A.29, V.B.2; Opp’n Br. at 31-33. Plaintiff asserts the inclusion
of claims that “‘could have been asserted in the [Wenske] Action by Plaintiff,’” in the
“‘Released Claims’” definition is of no moment, because “as a BB LP unitholder and not a BB

14
been asserted in the [Wenske] Action by . . . any [BB LP] limited partner” in the

“Released Claims” definition79 does not cover BB USA, because other provisions of

the Wenske Settlement reference “Defendants,” including BB USA, 80 and the BB LP

limited partners separately. 81 Thus, Plaintiff insists the Wenske Settlement did not

release the claims asserted derivatively on behalf of BB USA in this Action. 82

Defendants take the opposite position, arguing BB USA released any claims it

had related to the Listeria outbreak in the Wenske Settlement. 83 Defendants

maintain that the inclusion of “any [BB LP] limited partner” in the Wenske Release

shows BB USA is a “releasor of claims.” 84 Defendants assert that interpretation does

not create any internal inconsistency, because “the terms ‘Defendants and BB LP

USA stockholder, Mrs. Wenske had no standing or authority to assert or litigate, much less
resolve, claims on behalf of BB USA for breaches of fiduciary duties and damages to BB USA
and its stockholders caused by the Individual Defendants.” Opp’n Br. at 31-33 (quoting §
V.A.29 (edits in original)).
79 Wenske Settlement § V.A.29.

80 Id. § V.A.1

81 Opp’n Br. at 33 (citing Wenske Settlement § V.F.1; Hill v. LW Buyer, LLC, 2019 WL
3492165, at *7 n.70 (Del. Ch. July 31, 2019) (“A contract should be read to give effect to all
the provisions of the contract and not render one provision superfluous or redundant.”). Thus,
Plaintiff maintains it is irrelevant that the Wenske Settlement’s definition of “Non-released
Person and Entities” excludes BB USA, because “BB USA was not a ‘releasor’ of [] claims . . .
[and] the scope of the Wenske Action . . . was inherently and legally limited to claims for
breaches of duty owed to BB LP alone[.]” Id. at 34.
82 Id. 29-37. As part of that argument, Plaintiff reject’s Defendants’ assertion that the Wenske

Release constitutes a global release. See id. at 33-34.
83 See Opening Br. at 20-27; Reply Br. at 7-17. As discussed, Defendants also argue the BB
LP release in the Wenske Settlement bars Plaintiff’s claims but concede that position relies
on factual determinations unsuited for resolution at the pleading stage. See supra n.60.
84 Reply Br. at 8-10.

15
‘limited partners’ are not mutually exclusive.” 85 Defendants argue the Wenske

Release “is not limited to derivative claims on behalf of BB LP” and includes

Plaintiff’s claims here – which arise out of the same facts underlying the Wenske

Action. 86 Thus, Defendants maintain the Wenske Release’s “clear and unambiguous”

language bars Plaintiff’s claims. 87

Reviewing the Wenske Settlement and Release shows Defendants’ have a

compelling textual basis for their Motion. The Wenske Settlement releases “any and

all claims . . . [that] could have been asserted in the [Wenske] Action by . . . any [BB

LP] limited partner, individually or derivatively on behalf of BB LP . . . [that] are

related to” the Listeria outbreak. 88 As owner of over 69 percent of BB LP’s

partnership units, BB USA is clearly a BB LP limited partner. 89 Plaintiff’s

response—that including BB USA creates internal textual inconsistency—is not

convincing given that “any [BB LP] limited partner” and “Defendants” are not

mutually exclusive.

85 Id. at 8.Similarly, Defendants argue that “Plaintiff’s admission that BB USA is expressly
excluded from being a ‘Designated Limited Partner’ confirms that BB USA is a ‘releasor,’”
because “[t]he defined term ‘Designated Limited Partners’ consists of a subset of ‘Blue Bell
LP limited partners.’” Id. at 8-9. Defendants also maintain the carve-out of indemnification
claims from the Wenske Release shows “all BB LP limited partners are ‘releasors.’” Id. at 9-
10 (citing Wenske Settlement ¶ 55).
86 Id. at 10-14.

87 See id. at 7-17.

88 Final Judgment ¶ 8 (emphasis added).

89 Compl. ¶ 8.Indeed, at bottom, Plaintiff asks the Court to read the phrase “any [BB LP]
limited partners” as not including BB USA despite its ownership of most of the BB LP
partnership units.

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Defendants’ interpretation is also consistent—or at least not inconsistent—

with the Wenske Action Plaintiff’s contemporaneous view of this Action as an

indemnification action for BB USA’s benefit. If all BB LP limited partners are

releasors, the plain text of the Wenske Release would act to bar indemnification

claims by Defendants, absent a carve-out, given their status as BB LP limited

partners signing the settlement papers. 90 It makes sense, then, that the Wenske

Settlement includes just such a carve-out. In particular, the Wenske Release includes

an express carve-out for certain indemnification claims, but quite notably limits the

carve-out to the “Individual Defendants.” 91 In other words, the carve-out does not

extend to BB USA. That the carve-out was drafted not to include BB USA, despite

the Wenske Action Plaintiff’s contemporaneous description of this case as what

amounts to an indemnification action for the benefit of BB USA, lends further textual

support Defendants’ plain text reading of the release. Thus, the Wenske Release’s

text suggests Defendants interpretation of the Wenske Settlement as releasing this

action could be correct from a textual perspective. Yet, that does not end the analysis.

Even if Defendants’ interpretation of the Wenske Release is correct, the

question remains whether the Wenske Settlement could validly release Plaintiff’s

claims here. Broadly speaking, the answer is yes. Defendants cite Feuer v. Dauman

for the well-settled proposition that, because “‘Delaware courts recognize the validity

90 Wenske Settlement ¶ 28; see Dkt. 75 at 5 (Wenske Plaintiff arguing “the only [] damages

that Marchand could recover on BB USA’s behalf from BB USA’s directors and officers are
indemnification damages resulting from the Wenske Plaintiffs’ claims against BB USA in the
Wenske Action.”).
91 Final Judgment ¶ 9.

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of general releases,’” a company can execute a release in one case that bars fiduciary

duty claims asserted in a later, related derivative action. 92 The decision recognized

that directors’ decision to execute a global release on behalf of the corporation

exculpating themselves from liability in a possible related derivative action could be

a “self-interested transaction[.]” 93 Nevertheless, Chancellor Bouchard reaffirmed

that the Court will enforce such a release’s plain terms unless the “facts concerning

the circumstances under which it was entered . . . [cause] the Court [to] second-guess

its enforceability.” 94

Here, the facts concerning the Wenske Settlement’s negotiation and approval

give the Court reason to question whether BB USA’s alleged release of derivative

claims would be valid as a matter of law. When the parties negotiated the Wenske

Settlement, the BB USA SLC already had full authority to control the prosecution

and disposition of this action. 95 Thus, the decision of whether to settle this action

“plainly fell within the SLC’s authority.” 96 Yet, the BB USA SLC did not participate

92 2017 WL 4817427, at *4-5 (Del. Ch. Oct. 25, 2017) (quoting Deuley v. DynCorp. Int’l, Inc.,

8 A.3d 1156, 1163 (Del. 2010)).
93 Id. at *4.

94 Id.; see also id. at *5 (suggesting that, if the release was enforceable, then claims that the

director defendants “breached their fiduciary duties by approving the [s]ettlement
[a]greement” as a self-interested transaction might be available); Dkt. 324, Ex. 1 (Plaintiff’s
motion to supplement the complaint by adding claims alleging that, if Defendants’ release
argument is correct, the members of BB USA’s Board of Directors who approved the Wenske
Settlement breached their fiduciary duties).
95
See Dkt. 69. As discussed, the members of BB USA’s Board of Directors who established
the SLC were individual defendants in both this case and the Wenske Action. The existence
of the BB USA SLC at the time of the Wenske Settlement is a factor that differentiates this
case from Feuer, which concerned a derivative action that was not in the hands of a special
litigation committee when the prior-filed action that led to the at-issue release settled.
96 Harris v. Harris, 2023 WL 193078, at *13 (Jan. 6, 2023).

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in negotiations concerning the Wenske Settlement or agree to its terms. 97 The SLC’s

non-participation suggests it is at least reasonably conceivable that the directors who

executed the Wenske Settlement on BB USA’s behalf releasing claims in the Wenske

Action lacked authority to release Plaintiff’s claims here. 98

Further, this action was a separate derivative claim, brought on behalf of a

different nominal defendant, pending before this Court at the time of the Wenske

Settlement. Under Rule 23.1, the Court must expressly approve the settlement and

release of derivative claims. 99 The Rule 23.1 approval process ensures a proposed

derivative settlement and release is “fair, reasonable, adequate, and in the best

interest of the [releasing company] [] and its stockholders.” 100 Case law holds that

the Court will not enforce a derivative settlement, or the release therein, absent Rule

23.1 approval. 101

Here, Wenske Settlement parties did not raise the possible release of this action

at the settlement hearing. Thus, Vice Chancellor Slights did not consider whether

97 See Tr. 34:7-36:5, 46:1-8. Instead, the SLC was active investigating the claims in this
Action during the Wenske Settlement proceedings (see Dkt. 92), spent the next three years
after the Wenske Settlement investigating the claims in this Action, realigned BB USA as the
plaintiff in this action, and then eventually transferred authority to prosecute the Action
back to Plaintiff.
98 See Zapata Corp. v. Maldonado, 430 A.2d 779, 785-88 (Del. 1981); Blue v. Tilray Brands,

Inc., 2025 WL 519848, *2, *8 (Del. Ch. Feb. 17, 2025).
99 Ch. Ct. R. 23.1.

100 In re Activision Blizzard, Inc. Stockholder Litigation, 2015 WL 2415559, at *1-2 (Del. Ch.

May 20, 2015).
101 See, e.g., Off v. Ross, 2008 WL 5053448, at *8 (Del. Ch. Nov. 26, 2008) (“Because any

settlement or compromise of a class or derivative action requires court approval under Rule
23.1 [] [], Defendants’ ability to obtain a release of the claims against them depend on receipt
of such approval.”).

19
the Wenske Settlement was fair and reasonable from BB USA’s perspective. 102 That

the Court did not approve the Wenske Settlement as fair and reasonable to BB USA

suggests the Wenske Release cannot bar Plaintiff’s claims as a matter of law. 103

Even if Vice Chancellor Slights had undertaken that analysis, it seems at a

minimum questionable that he would have approved the Wenske Settlement as fair

to BB USA. Specifically, BB USA’s “get” – the release of a “difficult to plead and

prove” alter ego claim 104 – does not seem proportional to its “give” – a $15 million cash

payment, cancelling $45 million in debt, and the broad Wenske Release. 105 That

further bolsters the Court’s conclusion that it is at least reasonably conceivable that

the Wenske Settlement cannot be interpreted as releasing Plaintiff’s claims as a

matter of law. That compels denying Defendants’ Motion. But even if the Wenske

Settlement satisfied Rule 23.1 concerning BB USA, judgment on the pleadings would

still be improper because it is reasonably conceivable that the acquiescence doctrine

applies here and indeed may present a prototypical example of its application. 106

102 See Transaction ID 65817765 32:23-45:14.

103 See, e.g., Off, 2008 WL 5053448, at *8.

104 Id. 39:16-24.

105 See Wenske Settlement at 23-28; In re Trulia, Inc. Stockholder Litigation, 129 A.3d 884,

890-91 (Del. Ch. 2016) (holding “the court evaluates . . . the reasonableness of the ‘give’ and
the ‘get’” when determining whether to approve a derivative settlement). Indeed, if
Defendants’ reading is correct, BB USA would have released arguably valuable
indemnification claims in exchange for zero monetary compensation, while paying
substantial sums for the privilege of doing so. See Wenske Settlement at 23-28.
106 See Lehman Brothers Holdings Inc. v. Spanish Broadcasting System, Inc., 2014 WL
718430, at *7 (Del. Ch. Feb. 25, 2014), aff’d, 105 A.3d 989 (Del. 2014) (“Because I find that
the Plaintiffs’ claims for relief are barred by the doctrine of acquiescence, I need not address
the substantive arguments the parties have raised regarding the interpretation of the
contractual provision in dispute[.]”).

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The acquiescence doctrine is a type of estoppel, akin to “estoppel by silence.” 107

This court has recognized that estoppel can bar a party from asserting a particular

affirmative defense. 108 The acquiescence doctrine is rooted in the principle that

“inaction or silence . . . can bar a [party] from relief both equitable and legal.” 109 A

party acquiesces when, with knowledge of a right and the material facts, it “(1)

remains inactive for a considerable time; [] (2) freely does what amounts to

recognition of the complained of act; or (3) acts in a manner inconsistent with the

subsequent repudiation, which leads the other party to believe the act has been

approved.” 110 Restated, “where a plaintiff has remained silent with knowledge of her

rights, and the defendant has knowledge of the plaintiff’s silence and relies on that

107 Id. at *9 & n.54. Although acquiescence is an equitable doctrine, it is available as a
defense to legal claims, such as breach of contract. See XRI Investment Holdings LLC v.
Holifield, 283 A.3d 581, 628-41 (Del. Ch. 2022), aff’d in part, rev’d in part on other grounds,
Holifield v. XRI Investment Holdings LLC, 304 A.3d 896 (Del. 2023).
108 E.g., Heckman v. Nero, 1999 WL 182570, at *3 (Del. Ch. Mar. 26, 1999). Of course, “[t]he
existence of a contractual bar to suit, such as a release . . . is an affirmative defense[.]” New
Enterprise Associates 14, L.P. v. Rich, 295 A.3d 520, 535 (Del. Ch. 2023). Although the Court
has not had occasion to consider whether the acquiescence doctrine can bar an affirmative
defense of release, considering the nature of a release shows the answer is yes. This Court
has repeatedly recognized that “a release is a contract like any other.” E.g., Namdar v. Fried,
340 A.3d 1184, 1209 (Del. Ch. 2025) (citing Carlyle Inv. Mgmt. L.L.C. v. Moonmouth Co. S.A.,
2015 WL 5278913, at *15 (Del. Ch. Sept. 10, 2015)). Anyone may forego a beneficial
contractual right. See In re Coinmint, LLC, 261 A.3d 867, 892 (Del. Ch. 2021). Acquiescence
is one doctrine by which the Court evaluates whether a party has relinquished a contractual
right. See, e.g., In re PNC Delaware v. Berg, 1997 WL 720705, at *4 (Del. Super. Oct. 22, 1997)
(“[H]owever one characterizes the behavior of the [claimant], whether it be in terms of waiver,
acquiescence, estoppel, abandonment, or novation, the evidence is overwhelming that the
[claimant] forewent its claim on the contractual rights[.]”). Thus, the Court can apply the
acquiescence doctrine to find a party is precluded from asserting a release-based affirmative
defense.
109 Lehman Brothers, 2014 WL 718430, at *9; see In re Coinmint, 261 A.3d at 892.

110 Klaassen v. Allegro Def. Corp., 106 A.3d 1035, 1047 (Del. 2014) (internal quotes omitted).

21
silence to the defendant’s detriment, the plaintiff will be estopped from seeking

protection of those rights.” 111

As with any equitable defense, the party asserting acquiescence must prove

the defense by a preponderance of the evidence. 112 Critically, determining whether

acquiesce applies “is fact intensive, often depending [] [] on an evaluation of the

knowledge . . . of the acquiescing party.” 113

The acquiescence doctrine focuses on the party that has a right to object to

action or inaction and fails to do so. 114 A party failing to assert a contractual right in

response to a breach need not have a “conscious intent” to relinquish its right or suffer

“a change of position or resulting prejudice.” 115 But, equity demands the claimant

“knowingly fail[] to act” before a court applies acquiescence. 116 Delaware caselaw is

unclear regarding the knowledge required to find acquiescence. 117 Notably, the

Delaware Supreme Court has endorsed the proposition that constructive knowledge

supports applying the acquiescence doctrine. 118 Accordingly, this Court has enforced

111 Lehman Brothers, 2014 WL 718430, at *7.

112 Walker v. FRP Investors GP, LLC, 336 A.3d 542, 568 (Del. Ch. Apr. 15, 2025).

113 Julin v. Julin, 787 A.2d 82, 84 (Del. 2001).

114 See, e.g., Brevan Howard Credit Catalyst Master Fund Limited v. Spanish Broadcasting

System, Inc., 2015 WL 2400712, at *2 (Del. Ch. May 19, 2015) (“Acquiescence is a doctrine
focused on the Defendant and its understanding that complained-of acts were acquiesced
in[.]”); Fotta v. Morgan, 2016 WL 775032, at *8 (Del. Ch. Feb. 29, 2016) (same).
115 Klaassen, 106 A.3d at 1047.

116 State v. Sweetwater Point, LLC, 2022 WL 2349659, at *6 (Del. Ch. June 30, 2022).

117 Lehman Brothers, 2014 WL 718430, at *10 (“Our caselaw is inconsistent regarding the

quality of knowledge required for a finding of acquiescence.”).
118 Id. (citing Cornerstone Brands, Inc. v. O’Steen, 2006 WL 2788414, at *3 n.12 (Del. Ch. Sept.

20, 2006) (holding “knowledge, actual or constructive, of the real facts and the other party’s

22
the acquiescence doctrine where a claimant had access to “all information necessary

for [an] [] assessment of [its] rights . . . and where the crucial fact . . . is uniquely

within the interest of the [claimant].” 119 Similarly, acquiescence applies when a

contractual right holder repeatedly participated in the allegedly breaching action. 120

Under that standard, it is, at a minimum, reasonably conceivable that

acquiescence applies such that granting the Motion would be improper. 121

Defendants remained silent for over five years after executing the Wenske Settlement,

never raising the Wenske Release as a possible defense to Plaintiff’s claims until they

filed their Amended Answers. 122 After the BB USA SLC concluded its investigation

and returned the case to Plaintiff, Defendants’ silence continued. Assuming

Defendants’ are correct, they actively participated in conduct inconsistent with their

interpretation of the Wenske Release by continuing to litigate this case despite what

they now argue is “the unambiguous release language contained in both the [Wenske]

[S]ettlement [] and this Court’s final judgment.” 123 Defendants’ silence and

lack of knowledge and the means of discovering the truth” is sufficient to prove “equitable
estoppel.”)).
119 Id. at *10-11; see In re Coinmint, 261 A.3d at 896.

120 Julin, 787 A.2d at 84 (“Wife’s acceptance of the revised payment arrangement for more

than five years constituted acquiescence and she was thereby estopped from asserting a right
to additional payments.”).
121 See, e.g., In re Ebix, Inc. Stockholder Litigation, 2014 WL 3696655, at *9-10 (Del. Ch. July

24, 2014) (holding the Court will not grant a pleading stage motion where it is reasonably
conceivable that an affirmative defense applies); Intermec IP Corp. v. TransCore, LP, 2021
WL 3620435, at *21-24 (Del. Super. Aug. 16, 2021).
122 See Tr. 37:10-38:1, 38:5-12, 44:21-45:23, 69:3-71:7; Dkt. 190 at 82.

123 Opening Br. at 1-2. See also Final Judgment ¶ 7 (enjoining releasors from prosecuting “the

Released Claims against the Released Persons[.]”).

23
participation caused Plaintiff and BB USA a detriment – namely, the continued

expenditure of time and resources to litigate this allegedly released Action. These

undisputed facts suggest this case may present a textbook example of the

acquiescence doctrine.

Defendants’ assertion that they did not have knowledge of the Wenske

Settlement’s release of this Action falls flat. As discussed, it is difficult to wrap one’s

mind around the notion that Defendants and their sophisticated counsel—in the

same court before the same judge—continued to litigate this Action for years somehow

unaware that they already had an absolute defense. 124

But even if the Court accepts Defendants’ profession of actual ignorance, the

acquiescence doctrine still compels denying the Motion because it is, at a minimum,

reasonably conceivable that Defendants’ had constructive knowledge of the alleged

release under Lehman Brothers. 125 Defendants, as signatories, unquestionably had

access to the Wenske Settlement which contains the at-issue release. 126 It is well-

settled that “a party who enters into a contract governed by Delaware law will be

charged with knowledge of the contents of the instrument and will be deemed to have

knowingly agreed to the plain terms of the instrument[.]” 127 Moreover, as the parties

124 See Malcom v. Sears, 1990 WL 9500, at *2 (Del. Super. Jan. 26, 1990) (“The execution of a

general release by which a party is released from any claims which may arise on account of
an accident, is an absolute bar to that party bringing an action based upon the accident.”
(citing Adams v. Jankouskas, 452 A.2d 148, 156 (Del. 1982))).
125 See Lehman Brothers, 2014 WL 718430, at *10-11.

126 Wenske Settlement at 39-40.

127 E.g., Chapter 7 Tr. Constantio Flores v. Strauss Water Ltd., 2016 WL 5243950, at *6 (Del.

Ch. Sept. 22, 2016). See also Restatement (Second) of Contracts § 157 cmt. b (1981)

24
facing potential liability, it was “uniquely within the interest of” Defendants to know

they had already secured a release covering Plaintiff’s claims. 128

Of course, the extent of Defendants’ knowledge, constructive or otherwise, is a

factual issue. 129 Thus, the Court does not affirmatively hold that the acquiescence

doctrine applies and precludes Defendants from arguing the Wenske Settlement

released Plaintiff’s claims. Instead, it is sufficient to conclude that for purposes of

this pleading-stage motion, under the unique circumstances described above, it is

reasonably conceivable that Defendants knowingly acquiesced to this action

proceeding notwithstanding the Wenske Release. This precludes entering judgment

on the pleadings in Defendants’ favor concerning the scope of the Wenske Release.

Therefore, Defendants’ Motion for Judgment on the Pleadings is denied.

IV. CONCLUSION

For the reasons discussed, Defendants’ Motion for Judgment on the Pleadings

is denied.

(“Generally, one who assents to a writing is presumed to know its contents and cannot escape
being bound by its terms . . . his assent is deemed to cover unknown as well as known terms.”).
Defendants concede “[t]he [Wenske] release is clear and unambiguous.” E.g., Reply Br. at 14.
128 Lehman Brothers, 2014 WL 718430, at *10-11.

129 Julin, 787 A.2d at 84.

25