Patrick Ayers v. William P. Foley

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

PATRICK AYERS, derivatively on )
behalf of Nominal Defendant FIDELITY )
NATIONAL FINANCIAL, INC., )
)
Plaintiff, )
)
v. ) C.A. No. 2025-0650-LWW
)
WILLIAM P. FOLEY, DOUGLAS K. )
AMMERMAN, HALIM DHANIDINA, )
THOMAS M. HAGERTY, DANIEL D. )
LANE, HEATHER H. MILLER, )
SANDRA D. MORGAN, JOHN D. )
ROOD, PETER O. SHEA, JR., and )
CARY H. THOMPSON, )
)
Defendants, )
)
and )
)
FIDELITY NATIONAL FINANCIAL, )
INC., )
)
Nominal Defendant. )

OPINION

Date Submitted: March 9, 2026
Date Decided: June 15, 2026

Stephen E. Jenkins & Tiffany Geyer Lydon, ASHBY & GEDDES, P.A., Wilmington,
Delaware; Gregory Mark Nespole, Daniel Tepper, & Cinar Oney, LEVI &
KORSINSKY, LLP, New York, New York; Counsel for Plaintiff Patrick Ayers
Michael A. Barlow & Hayden J. Driscoll, QUINN EMANUEL URQUHART &
SULLIVAN, LLP, Wilmington, Delaware; Michael Carlinsky, QUINN EMANUEL
URQUHART & SULLIVAN, LLP, New York, New York; Counsel for Defendants
William P. Foley, Douglas K. Ammerman, Halim Dhanidina, Thomas M. Hagerty,
Daniel D. Lane, Heather H. Miller, Sandra D. Morgan, John D. Rood, Peter O. Shea,
Jr., Cary H. Thompson, and Nominal Defendant Fidelity National Financial, Inc.

WILL, Vice Chancellor
This derivative action contests two compensation decisions made by a board

of directors: a one-time equity grant to the company’s founder and non-executive

chairman, and compensation the directors awarded to themselves.

The defendants have moved to dismiss the suit under Court of Chancery Rules

23.1 and 12(b)(6). At the center of the motion is the recently amended 8 Del. C.

§ 144. Applying the statute to the challenged awards highlights an important

distinction between conflicted transactions entrusted to a disinterested committee

and those approved by directors who are themselves parties to the transaction.

Because the two committees that approved the chairman’s equity grant were

composed of directors deemed to satisfy national stock exchange independence

standards, the plaintiff had to overcome the heightened presumption of

disinterestedness codified in Section 144(d)(2). In conjunction with Rule 23.1, this

statutory mandate elevates the burden to rebut a director’s impartiality, requiring

substantial and particularized allegations of a material interest or relationship. The

complaint falls short of this demanding standard.

The plaintiff also failed to plead that a majority of the board faces a substantial

likelihood of liability for approving the grant. Given the interlocking protections of

Section 144(a)(1)’s safe harbor and the company’s Section 102(b)(7) exculpatory

provision, the plaintiff was required to plead particularized facts supporting a
reasonable inference of bad faith. The complaint does not support such an inference.

Demand is not excused as to the equity grant-related claims, which are dismissed.

The directors’ self-compensation is a different matter because the approving

committee members are inherently interested. Absent a stockholder vote compliant

with Section 144(a)(2), the approval must meet the entire fairness standard. At the

pleading stage, the plaintiff sufficiently alleged that the compensation was the

product of unfair dealing and an unfair price. The breach of fiduciary duty claim is

viable against the directors who approved the compensation, but not those who only

passively received the awards. The related unjust enrichment claim concerning

director compensation also survives against all director defendants.

The motion to dismiss is therefore granted in part and denied in part.

I. FACTUAL BACKGROUND

The following facts are drawn from the Verified Stockholder Derivative

Complaint (the “Complaint”) and the documents it incorporates by reference.1

A. Fidelity National Financial, Inc. and Its Board

Nominal defendant Fidelity National Financial, Inc. (“FNF” or the

“Company”) is a Nevada corporation that trades on the New York Stock Exchange

1
Verified S’holder Deriv. Compl. (Dkt. 1) (“Compl.”); see In re Gen. Motors (Hughes)
S’holder Litig., 897 A.2d 162, 170 (Del. 2006). Documents attached to the Transmittal
Affidavit of Hayden J. Driscoll in Support of Defendants’ Opening Brief in Support of
Their Motion to Dismiss are cited as “Defs.’ Ex. __” unless otherwise defined. Trans. Aff.

2
(NYSE).2 It provides title insurance, mortgage loan servicing, and other real estate

services. FNF was a Delaware corporation until June 11, 2025, when it re-

domesticated to Nevada.3 The plaintiff filed this suit on June 10—one day before

the re-domestication took effect.4

At the time this suit was filed, FNF’s Board of Directors (the “Board”) had

eleven members. Nine are non-employee directors (“NEDs”) and were determined

by the Board to qualify as independent under NYSE rules.5 The other two are

William P. Foley and Raymond R. Quirk.6 Foley founded FNF in 1984, and

previously served as its President, Chief Executive Officer, and Executive

Chairman.7 He has been the Company’s Non-Executive Chairman since 2016, and

currently owns 3.6% of its outstanding shares.8 Quirk is the Executive Vice

Chairman of the Board, having assumed that role in February 2022. 9 Before then,

of Hayden J. Driscoll in Supp. of Defs.’ Opening Br. in Supp. of Mot. to Dismiss Verified
S’holder Deriv. Compl. (Dkt. 12). Certain documents were produced in response to a
demand under 8 Del. C. § 220 and are deemed incorporated by reference into the
Complaint. See 8 Del. C. § 220(b)(3).
2
Compl. ¶ 11; see Defs.’ Ex. 4.
3
See Defs.’ Ex. 4; see also Compl. ¶ 54.
4
See Dkt. 1.
5
Compl. ¶ 25; Defs.’ Ex. 2 (proxy statement) 14.
6
Compl. ¶¶ 2, 26.
7
Id. ¶ 12.
8
Id. ¶¶ 12, 88; see also Defs.’ Ex. 2 at 117.
9
Compl. ¶¶ 2, 26.
3
he was FNF’s Chief Executive Officer.10 All Board members except Quirk are

named as defendants in this suit.11

B. The Incentive Plan and the Compensation Committee

Under its charter, FNF’s Compensation Committee is tasked with setting

salaries and approving incentive compensation and equity grants for officers and

directors.12

Equity grants to Company directors and officers are subject to FNF’s

Amended and Restated 2005 Omnibus Incentive Plan (the “Incentive Plan”), which

was approved by FNF stockholders in 2016.13 The Incentive Plan’s objective is “to

optimize the profitability and growth of the Company through incentives” that link

the personal interests of participants “to those of the Company’s stockholders.”14

The Incentive Plan is meant “to provide flexibility to the Company . . . to motivate,

attract and retain the services of [p]articipants who make or are expected to make

10
Id. ¶ 26.
11
See id. ¶¶ 25-26.
12
See Defs.’ Ex. 2 at 18.
13
Compl. ¶¶ 27-28; Defs.’ Ex. 1 (“Incentive Plan”) § 3.2.
14
Incentive Plan § 1.2.
4
significant contributions to the Company’s success.”15 It vests the Compensation

Committee with plenary authority over awards, including the power to delegate.16

The Compensation Committee relies on outside advisors to fulfill its mandate.

In August 2022, the Compensation Committee engaged Strategic Compensation

Group LLC (“SCG”) as its compensation consultant.17 At a February 2023 meeting,

the Compensation Committee determined that SCG qualified as independent under

NYSE rules.18 But the plaintiff alleges that the engagement of SCG, which had ties

to other Foley-affiliated entities, was an abrupt switch from a prior advisor.19

For equity awards granted under the Incentive Plan, the Compensation

Committee established “title operating margin” as the operative performance

metric.20 The title operating margin (or adjusted pre-tax title margin) measures the

profitability of FNF’s title segment.21 The Compensation Committee chose this

15
Id.
16
Id. § 3.2.
17
Compl. ¶ 31; Defs.’ Ex. 8.
18
Defs.’ Ex. 12 at FNF_AYERS_220_00000121.
19
Compl. ¶ 31; Defs.’ Ex. 8 at FNF_AYERS_220_00000088.
20
Defs.’ Ex. 6 at FNF_AYERS_220_00000002; Defs.’ Ex. 9 at
FNF_AYERS_220_00000090; Defs.’ Ex. 13 at FNF_AYERS_220_00000125-0126.
21
Defs.’ Ex. 2 at 102 n.10. FNF calculates adjusted pre-tax title margin by dividing the
earnings before income taxes and non-controlling interests from its title segment, excluding
recognized gains and losses, purchase accounting amortization, and other unusual items,
by the total revenues of the title segment excluding recognized gains and losses. See id.
5
metric because it viewed it as “the best and most meaningful measurement goal to

determine whether management has achieved superior performance when

benchmarked against [FNF’s] title competitors.”22 Equity awards vest “if the title

operating margin threshold is achieved in two of the next five fiscal quarters

commencing in the fourth quarter of [each year] and ending in the fourth quarter of

[the next].”23

C. 2022 and 2023 Director Compensation

In November 2021, the Compensation Committee increased the title operating

margin threshold for 2021 equity grants to 12%, evaluated based on performance

from the fourth quarter of 2021 to the fourth quarter of 2022.24 In August 2022, the

committee was informed that FNF had achieved a 22.4% title operating margin for

the fourth quarter of 2021 and 17.1% for the first quarter of 2022.25 This exceeded

the margin performance of FNF’s competitors.26

22
Defs.’ Exs. 6, 9, 13.
23
E.g., Defs.’ Ex. 6 at FNF_AYERS_220_00000002.
24
Id.
25
Defs.’ Ex. 8 at FNF_AYERS_220_00000088.
26
Defs.’ Ex. 7 at FNF_AYERS_220_00000010 (“Excluding FNF, the average 2020 full
year adjusted pretax title margin for the national title insurers was 11.2%, and for the first
half of 2021[,] the average was 12.9%.”).
6
Based on that performance, in November 2022, the Compensation Committee

approved director compensation increases for 2022.27 Foley’s compensation

remained flat at $500,000 in cash and $500,000 in equity.28 The NEDs’ annual cash

retainer increased by $10,000 (from $80,000 to $90,000) and their annual equity

grants increased by $16,675 (from $248,325 to $265,000).29 The plaintiff alleges

that these increases were excessive because FNF’s revenue and net income placed it

near median among its peer group.30 Citing “rising interest rates and economic

recession expectations for 2023,” the Compensation Committee set the 2022 title

operating margin goal at 7.5%.31

In early 2023, the Compensation Committee was informed that FNF achieved

a margin of 12.3% in the fourth quarter of 2022.32 Later, in November 2023, the

committee approved a $15,000 boost to the NEDs’ equity grants for 2023, and a

$10,000 increase to their annual cash retainer starting in 2024.33 It also approved a

$30,000 increase to Foley’s equity grant (raising it to $530,000); his cash

27
See Defs.’ Ex. 9 at FNF_AYERS_220_00000091-092.
28
Compl. ¶ 34; Defs.’ Ex. 10 at FNF_AYERS_220_00000095.
29
Compl. ¶ 34; Defs.’ Ex. 9 at FNF_AYERS_220_00000091-092.
30
Compl. ¶¶ 33, 40.
31
Defs.’ Ex. 11 at FNF_AYERS_220_00000111.
32
Defs.’ Ex. 12 at FNF_AYERS_220_00000120.
33
Defs.’ Ex. 13 at FNF_AYERS_220_00000126.
7
compensation remained unchanged.34 The plaintiff avers that the 2023 director

compensation was again excessive and untethered to FNF’s financial performance

compared to its peers.35

D. 2024 Director Compensation

According to the Complaint, aspects of FNF’s 2024 performance—market

capitalization, revenue, and net income—remained mediocre.36 Yet the

Compensation Committee remained focused on the Company’s title operating

margin when determining whether the performance conditions for restricted stock

awards had been met.37 In the fourth quarter of 2023 and first quarter of 2024, FNF’s

title operating margin was 11.8% and 10.7%, respectively, exceeding the

Compensation Committee’s 7.5% goal.38 The Company’s 2025 proxy statement

reported an industry-leading 15.1% pre-tax title margin for 2024.39 Overall

performance was also buoyed by the financial success of F&G Annuities & Life,

34
Id.
35
Compl. ¶¶ 51-53.
36
See id. ¶ 59.
37
Defs.’ Ex. 15 at FNF_AYERS_220_00000155; Defs.’ Ex. 17 at
FNF_AYERS_220_00000161.
38
Defs.’ Ex. 15 at FNF_AYERS_220_00000155; Defs.’ Ex. 17 at
FNF_AYERS_220_00000161.
39
Defs.’ Ex. 2 at 66.
8
Inc., which had grown its market capitalization by $2.6 billion since FNF acquired

it in 2020.40

At an October 14, 2024 meeting, the Compensation Committee approved a

$20,000 increase to the NEDs’ annual cash retainer and a one-time special equity

grant of $100,000 for each NED, vesting over three years.41 The committee’s stated

rationale for the special grant was “FNF’s superior financial performance, including

the success of the F&G acquisition in 2020.”42 Foley did not receive the $20,000

cash increase or the $100,000 special equity grant.

E. The Equity Grant

On October 8, 2024, an article published in MarketWatch quoted Foley as

saying he was “going back to a private environment scenario and trying to move

away from [his] public companies.”43 Around this time, Compensation Committee

member Cary H. Thompson discussed with Foley a potential equity award to retain

Foley as Chairman through 2027 and reward his contributions to FNF and F&G.44

40
Id. at 66, 106; see Compl. ¶¶ 13(a), 74.
41
Defs.’ Ex. 17 at FNF_AYERS_220_00000163; Defs.’ Ex. 2 at 111; see Compl. ¶ 60.
42
Defs.’ Ex. 17 at FNF_AYERS_220_00000163; see Compl. ¶ 62.
43
Defs.’ Ex. 16 at FNF_AYERS_220_00000189.
44
Defs.’ Ex. 18 at FNF_AYERS_220_00000175; see Compl. ¶ 66.
9
Initially, Foley requested a $60 million grant of restricted shares.45 Thompson

and Compensation Committee Chair Thomas M. Hagerty discussed Foley’s ask and

sought market research from SCG.46 After reviewing the material, Thompson and

Hagerty determined that a $44 million grant aligned with market percentiles.47

Further discussions ensued, and Thompson negotiated the outline of a $50 million

equity grant vesting over three years, with 25% vesting on the grant date and 75%

vesting proportionately each subsequent year subject to Foley’s continued service as

FNF’s Chairman (the “Equity Grant”).48 As part of this arrangement, Foley would

not receive any additional FNF equity awards until 2027.49

On October 14, the Compensation Committee held a joint meeting with the

Related Person Transaction (“RPT”) Committee to discuss the potential award to

Foley.50 The directors sought to retain Foley as FNF’s Chairman “for at least the

next three years, especially in light of anticipated market conditions.”51 The

Compensation Committee reviewed SCG’s market research about comparable

45
Defs.’ Ex. 18 at FNF_AYERS_220_00000175.
46
Id.
47
Id.
48
Id. at FNF_AYERS_220_00000176; see Compl. ¶¶ 66, 85.
49
Compl. ¶ 66; Defs.’ Ex. 18 at FNF_AYERS_220_00000175; Defs.’ Ex. 2 at 107.
50
Compl. ¶ 58; Defs.’ Ex. 19 at FNF_AYERS_220_00000209.
51
Defs.’ Ex. 19 at FNF_AYERS_220_00000209; see Compl. ¶ 84.
10
awards granted to chairmen and executives at peer and other companies.52 It also

noted Foley’s “integral role in FNF’s strategic acquisition of F&G in 2020, which

has had a direct positive impact on FNF’s business performance and added over $2

billion to FNF’s market capitalization,” his “ongoing contributions to FNF and

F&G,” and that he remained a “driving force behind . . . FNF’s strategic direction.”53

The Compensation Committee determined that “in light of the significance”

of the Equity Grant, “the Compensation Committee’s approval would be subject to

the approval, disapproval, or modification of the Equity Grant by the” RPT

Committee.54 The Compensation Committee adopted a formal resolution to that

effect.55 Thompson abstained from the vote due to his involvement in the

negotiations with Foley and his role at Bank of America, which had a business

relationship with FNF.56

F. The RPT Committee’s Approval
The RPT Committee, consisting of the Honorable Halim Dhanidina (the

committee’s Chair) and Sandra Morgan, held a special meeting on October 16, 2024

52
Defs.’ Ex. 19 at FNF_AYERS_220_00000209; Compl. ¶ 69.
53
Defs.’ Ex. 19 at FNF_AYERS_220_00000209; Compl. ¶ 73.
54
Defs.’ Ex. 19 at FNF_AYERS_220_00000210; see Compl. ¶ 91.
55
Defs.’ Ex. 19 at FNF_AYERS_220_00000210; Compl. ¶ 89.
56
Compl. ¶ 90; Defs.’ Ex. 19 at FNF_AYERS_220_00000210.
11
to discuss the proposed Equity Grant.57 The committee discussed SCG’s

independence and requested the most recent copy of SCG’s independence report.58

It scheduled another meeting to review SCG’s materials and requested a legal

memorandum from FNF’s in-house counsel on applicable Delaware law.59

On October 21, the RPT Committee reconvened, with SCG in attendance.60

The committee reviewed SCG’s independence report.61 SCG also summarized its

market research and explained that the data supported the Equity Grant because

“Foley’s services and functions for FNF put him in closer alignment with

CEO/Executive Chairman peer group comparables than the Non-Executive

Chairman peer group comparables.”62

On October 22, the RPT Committee received the legal memorandum it had

requested from FNF’s General Counsel.63 On October 28, Dhanidina emailed FNF’s

counsel, copying Morgan:

On behalf of Sandra [Morgan] and myself, I wanted to thank you
for the legal brief you provided last week and to let you know
that after a review of the brief and our meeting with [SCG], the

57
Defs.’ Ex. 20 at FNF_AYERS_220_00000212; Compl. ¶¶ 17, 21, 91; Defs.’ Ex. 2 at 22.
58
Defs.’ Ex. 20 at FNF_AYERS_220_00000212.
59
Id.
60
Compl. ¶ 91.
61
Defs.’ Ex. 14; Defs.’ Ex. 21.
62
Defs.’ Ex. 21.
63
Defs.’ Ex. 22; Defs.’ Ex. 2 at 64.
12
RPT [C]ommittee concurs with the [C]ompensation
[C]ommittee’s determination that the proposed equity grant to
Mr. Foley of $50mm in stock over three years is appropriate and
in the best interests of FNF.64

The plaintiff characterizes the RPT Committee’s review as an empty formality.65 He

highlights that the RPT Committee’s approval of the Equity Grant was delivered by

email rather than a formal resolution at a duly convened meeting or by written

consent.66

G. This Litigation

Patrick Ayers, a stockholder of FNF, filed suit on June 10, 2025, after

receiving documents produced by the Company in response to his Section 220

demand.67 The parties agreed that the Company’s production could be considered

by the court in resolving any motion to dismiss.68 Ayers’ Complaint advances two

counts—breach of fiduciary duty and unjust enrichment—against the “Director

Defendants” in connection with their 2022, 2023, and 2024 compensation.69

64
Defs.’ Ex. 23; see Compl. ¶ 93.
65
Compl. ¶¶ 93-94.
66
Id. ¶ 93.
67
See Dkt. 1.
68
Defs.’ Ex. 24 ¶ 10; see supra note 1.
69
Compl. ¶¶ 118-28; see id. ¶ 25 (defining the “Director Defendants” as “Foley and the 9
NEDs ([Douglas K.] Ammerman, Dhanidina, Hagerty, [Daniel D.] Lane, Morgan,
[Heather H.] Miller, [John D.] Rood, [Peter O.] Shea[, Jr.], and Thompson)”).
13
The defendants moved to dismiss the Complaint on August 1, 2025. 70 The

plaintiff opposed the motion on October 10, and the defendants filed a reply brief in

further support of their motion on November 17.71 Oral argument was held on

March 9, 2026, after which the matter was taken under advisement.72

II. ANALYSIS

The defendants have moved to dismiss the Complaint under Court of

Chancery Rule 23.1 for failure to plead demand excusal and under Rule 12(b)(6) for

failure to state a claim upon which relief can be granted.

In the analysis that follows, I first resolve whether the plaintiff has adequately

pleaded that a demand on the Board would have been futile. I conclude that the

Complaint lacks particularized facts demonstrating demand futility regarding

Foley’s 2024 Equity Grant.

I then turn to whether the plaintiff has stated a viable claim regarding the

director compensation awarded in 2022, 2023, and 2024. I dismiss the claim as to

the directors who only passively received the compensation but sustain it as to the

Compensation Committee members who approved those awards. Finally, I address

70
See Defs.’ Opening Br. in Supp. of Mot. to Dismiss Verified S’holder Deriv. Compl.
(Dkt. 12) (“Defs.’ Opening Br.”).
71
Pl.’s Answering Br. in Opp’n to Defs.’ Mot. to Dismiss the Verified S’holder Deriv.
Compl. (Dkt. 19) (“Pl.’s Answering Br.”); Defs.’ Reply Br. in Further Supp. of Mot. to
Dismiss Verified S’holder Deriv. Compl. (Dkt. 24) (“Defs.’ Reply Br.”).
72
See Tr. of Mar. 9, 2026 Oral Arg. on Defs.’ Mot. to Dismiss (Dkt. 32) (“Hr’g Tr.”).
14
the unjust enrichment claim, which survives against all director defendants who

retained the challenged compensation.

A. Whether Demand Is Futile Regarding the Equity Grant

“The business and affairs of every corporation” is “managed by or under the

direction of a board of directors.”73 This managerial authority includes whether the

corporation should “initiate, or refrain from entering, litigation.”74 To preserve this

substantive principle of Delaware law, a stockholder seeking to direct a corporate

litigation asset must either make a pre-suit demand on the board to pursue the claims

or plead with particularity why doing so would be futile.75 Because the plaintiff did

not make a demand,76 he must show that demand should be excused.

“Plaintiffs who forgo making a demand must ‘comply with stringent

requirements of factual particularity’ when alleging demand futility.”77 Their

pleading must demonstrate, through particularized facts “on a director-by-director

basis,” that:

73
8 Del. C. § 141(a).
74
Zapata Corp. v. Maldonado, 430 A.2d 779, 782 (Del. 1981).
75
See United Food & Com. Workers Union & Participating Food Indus. Emps. Tri-State
Pension Fund v. Zuckerberg, 262 A.3d 1034, 1047 (Del. 2021).
76
See Compl. ¶ 106.
77
In re Camping World Hldgs., Inc. S’holder Deriv. Litig., 2022 WL 288152, at *6 (Del.
Ch. Jan. 31, 2022) (quoting Brehm v. Eisner, 746 A.2d 244, 254 (Del. 2000)), aff’d, 285
A.3d 1204 (Del. 2022).
15
(a) “the director received a material personal benefit from the alleged
misconduct that is the subject of the litigation demand;”
(b) “the director faces a substantial likelihood of liability on any of the
claims that would be the subject of the litigation demand;” or

(c) “the director lacks independence from someone who received a
material personal benefit from the alleged misconduct that would be the
subject of the litigation demand or who would face a substantial
likelihood of liability on any of the claims that are the subject of the
litigation demand.”78

“[I]f the answer to any of the questions is ‘yes’ for at least half of the members of

the demand board,” then demand is excused as futile at the pleading stage.79

Before applying the Zuckerberg test, I consider the scope of the “alleged

misconduct” at issue.80 The plaintiff asserts that the approvals of the 2024 director

compensation and Foley’s Equity Grant should be reviewed as a single Board act.81

In doing so, he seeks to extend Delaware law’s skepticism that a director can “fairly

and impartially consider” challenges to “his or her own compensation” to the

approval of the Equity Grant.82 This approach is flawed. Because the 2024 director

78
Zuckerberg, 262 A.3d at 1059.
79
Firemen’s Ret. Sys. of St. Louis v. Sorenson, 2021 WL 4593777, at *7 (Del. Ch. Oct. 5,
2021) (confirming that the court “counts heads” to determine whether a board majority is
“disinterested and independent” (citation omitted)).
80
Zuckerberg, 262 A.3d at 1059.
81
Pl.’s Answering Br. 17-20.
82
Calma v. Templeton, 114 A.3d 563, 576 (Del. Ch. 2015); see Pl.’s Answering Br. 35-36.
16
compensation and Foley’s Equity Grant are distinct transactions, they must be

analyzed separately for purposes of demand futility.

1. The Scope of the Alleged Misconduct

The plaintiff’s legal theory has shifted throughout this litigation. His

Complaint framed the 2024 compensation awards as a “quid pro quo” in which “the

NEDs agreed to Foley’s $50 million windfall, and Foley did not object to the NEDs

giving themselves an unjustified $100,000 gratuity.”83 He has since walked that

narrative back, conceding that Foley—a 3.4% stockholder—lacked the capacity to

set NED compensation.84 There are no allegations that Foley controlled the

Compensation Committee, that he had the power to award the NEDs $100,000, or

that the NED awards and Equity Grant were linked.85 Absent particularized facts

83
Compl. ¶ 8 (italics removed); see also id. ¶¶ 97, 110.
84
See Hr’g Tr. 61-62 (Plaintiff’s Counsel: “We are not arguing that this was a quid pro quo
in the sense that [the directors] gave something and Foley gave something . . . . Foley had
no capacity to give anything. He was a 3.4% stockholder.”); see also
Pl.’s Answering Br. 13 n.52 (noting that “the existence of a quid pro quo is not a
prerequisite for denying Defendants’ motion”).
85
The sole case that the plaintiff relies on for this argument, Elburn v. Albanese, is
inapposite. See Pl.’s Answering Br. 13 n.51. In Elburn, directors agreed to give up equity
awards in a settlement to secure an undisclosed agreement for the provision of replacement
awards in the future. 2020 WL 1929169, at *9 (Del. Ch. Apr. 21, 2020). Nothing similar
is alleged here.
17
demonstrating a specific agreement or quid pro quo, separate compensation

decisions cannot be conflated into a unitary transaction to excuse demand on both.86

The plaintiff now argues that because “everybody got something” in 2024, the

NED compensation and the Equity Grant should be viewed as one transaction.87 In

support, he relies on the Delaware Supreme Court’s decision in In re Investors

Bancorp, Inc. Stockholder Litigation.88 But that case is fundamentally different.

There, after a series of compensation committee meetings, “the entire board” met to

receive from compensation advisors and “approve all the components of the

incentive stock and stock option grants” to both executive and non-employee

directors.89 Given the unified process, the court held that demand was futile on all

compensation decisions because it “would require [non-employee] directors to call

into question the grants they made to themselves.”90

Here, by contrast, the record reflects two discrete decisions. The first was the

annual approval of the NEDs’ compensation.91 The second was a bespoke,

86
See In re Vaxart, Inc. S’holder Litig., 2022 WL 1837452, at *24-26 (Del. Ch.
June 3, 2022) (rejecting a quid pro quo theory where compensation decisions were separate
in time and process).
87
Hr’g Tr. 62; see also Pl.’s Answering Br. 17-20.
88
177 A.3d 1208, 1215 (Del. 2017).
89
Id. (citation omitted).
90
Id. at 1225-26.
91
See Vaxart, 2022 WL 1837452, at *26.
18
conditional grant to a differently situated director—the Company’s founder and

Chairman—to ensure his continued dedication to FNF after he publicly stated an

intention to shift his focus elsewhere.

Although the Compensation Committee considered both matters during the

same regularly scheduled October 14 meeting,92 the processes then diverged. The

NED compensation was definitively approved by the Compensation Committee on

October 14.93 But given the significance of the award, the Compensation Committee

conditioned its approval of the Equity Grant on the RPT Committee’s approval.94

The RPT Committee subsequently held meetings without the Compensation

Committee, reviewed SCG’s independence, evaluated the data provided by SCG,

was advised by FNF’s General Counsel, and reached its own decision to approve the

Equity Grant two weeks later.95 Because the NED compensation had already been

approved when the RPT Committee evaluated Foley’s Equity Grant, its

92
Compl. ¶¶ 60, 66; Defs.’ Ex. 17 at FNF_AYERS_220_00000162-0163.
93
Compl. ¶ 60; Defs.’ Ex. 17 at FNF_AYERS_220_00000163.
94
Defs.’ Ex. 19 at FNF_AYERS_220_00000210; see also Defs.’ Ex. 18 at
FNF_AYERS_220_00000180.
95
See Defs.’ Ex. 14; Defs.’ Exs. 21-23; see Vaxart, 2022 WL 1837452, at *26
(distinguishing Investors Bancorp when assessing contested compensation decisions
because each decision “occurred on [a] different day”).
19
consideration of his award could not “call into question” the committee members’

own awards.96

The plaintiff insists that the RPT Committee’s approval was “ultra vires” and

therefore irrelevant.97 Specifically, he contends that the Incentive Plan vests

exclusive authority over equity awards in the Compensation Committee, precluding

any delegation to the RPT Committee.98 The Incentive Plan says no such thing.

Rather, it permits the Compensation Committee to delegate its authority “[a]s

permitted by law.”99 There are also no particularized facts in the Complaint making

it reasonable to infer that the Compensation Committee’s decision to involve the

RPT Committee was “empty formalism.”100 Indeed, the referral was a business

96
Invs. Bancorp, 177 A.3d at 1226.
97
Hr’g Tr. 82; see also Pl.’s Answering Br. 14, 26 (calling the RPT Committee’s
approval “invalid ab initio” and “void ab initio”).
98
See Pl.’s Answering Br. 14.
99
Incentive Plan § 3.2 (“As permitted by law, the Committee may delegate its authority as
identified herein.”); see generally 8 Del. C. § 141(c). The plaintiff also alleges that the
Incentive Plan “expressly forbids” granting equity awards as a reward for past service.
Pl.’s Answering Br. 10. But the Incentive Plan contains no such express prohibition. And
regardless, its stated purpose is to help the Company “motivate, attract, and retain the
services” of participants. Incentive Plan § 1.2. That purpose is consistent with the rationale
for Foley’s Equity Grant as stated in the Compensation Committee minutes. See Defs.’
Ex. 19 at FNF_AYERS_220_00000210 (noting that the Equity Grant’s purpose was to
“incentivize and retain Mr. Foley’s services”).
100
Pl.’s Answering Br. 22.
20
judgment made by the Compensation Committee that reflects sound corporate

governance.

Finally, the plain text of 8 Del. C. § 144(a)(1) further supports treating the

awards as distinct. The statute provides a safe harbor for a specific “act or

transaction” authorized in good faith and without gross negligence by a majority of

the disinterested directors after the disclosure of the material facts.101 The

defendants invoke this provision regarding the approval of the Equity Grant.102 If I

were to adopt the plaintiff’s logic, the “act or transaction” language would mean that

a conflict in one action could disable the safe harbor for another action driven by

different motivations and governed by an independent process. This broad reading

would thwart the General Assembly’s intent that a single “act or transaction”

approved in accordance with the safe harbor is shielded from equitable relief or an

award of damages.103

The approval of the NED compensation and the adoption of Foley’s Equity

Grant are separate transactions, and they must be analyzed as such. The defendants

argue that demand is not excused regarding the Equity Grant; they do not contest

101
8 Del. C. § 144(a)(1).
102
See Defs.’ Opening Br. 47-48; infra Section II.A.4 (addressing Zuckerberg prong two).
103
See 8 Del. C. § 144(a)(1); see also infra notes 116-119 (discussing the principles of
statutory interpretation).
21
that demand would have been futile for the NED compensation.104 Accordingly, I

apply the Zuckerberg test solely to the approval of the Equity Grant.

2. Zuckerberg Prong One

The first prong of Zuckerberg asks whether a director “received a material

personal benefit from the alleged misconduct that is the subject of the litigation

demand.”105 As addressed above, the specific “misconduct” at issue is the approval

of the Equity Grant.106

The plaintiff has adequately pleaded—and the defendants do not dispute—

that the $50 million Equity Grant was a material personal benefit to Foley, disabling

him for demand purposes.107 But the plaintiff does not allege that any of the NEDs

profited from the Equity Grant, and the plaintiff’s quid pro quo theory was

abandoned and is meritless.108 Demand is not excused as to the nine NEDs on that

basis.

104
See Defs.’ Opening Br. 25-47.
105
Zuckerberg, 262 A.3d at 1059.
106
See supra Section II.A.1.
107
See Invs. Bancorp, 177 A.3d at 1217 (“[W]hen the board fixes its compensation, it is
self-interested in the decision because the directors are deciding how much they should
reward themselves for board service.”); see also Hr’g Tr. 24 (defendants’ counsel stating
that “Foley is in a spot by himself”).
108
See supra Section II.A.1. Because the NEDs are not parties to the Equity Grant and are
independent under NYSE rules, they are entitled to a heightened statutory presumption of
disinterestedness. See 8 Del. C. § 144(d)(2); infra notes 133-134. Had the plaintiff claimed
that NEDs received a material personal benefit from the Equity Grant implicating the first

22
3. Zuckerberg Prong Three

The third Zuckerberg prong asks whether “the director lacks independence

from someone who received a material personal benefit from the alleged misconduct

. . . or who would face a substantial likelihood of liability on any of the claims that

are the subject of the litigation demand.”109 The plaintiff concedes that five of the

Company’s eleven Board members (Dhanidina, Lane, Miller, Morgan, and Shea) are

independent of Foley. He questions the independence of the other five directors

(Ammerman, Hagerty, Rood, Thompson, and Quirk).110 If he were to succeed in

impugning these directors’ impartiality, then—combined with Foley—he would

have adequately pleaded demand futility under Rule 23.1. But he falls short of the

high bar set by Section 144(d)(2) to plead that three of the five challenged

directors—Ammerman, Hagerty, and Rood—have a material relationship with

Foley. Because establishing the independence of these three directors leaves the

plaintiff without a conflicted majority under the third prong, I decline to address the

plaintiff’s allegations regarding Thompson and Quirk.

Zuckerberg prong, he would have been required to plead “substantial and particularized
facts” to rebut this heightened presumption. Id.; see infra Section II.A.3 (analyzing the
heightened presumption of Section 144(d)(2) within the third Zuckerberg prong).
109
Zuckerberg, 262 A.3d at 1059.
110
Compl. ¶¶ 112-17.
23
a. Section 144(d)(2)’s Heightened Presumption of
Disinterestedness

Directors of Delaware corporations are “presumed to be independent,”

including in the demand excusal context.111 To overcome that presumption for

demand futility purposes, Rule 23.1 requires a plaintiff to plead particularized facts

creating “reasonable doubt” that a director could exercise impartial judgment.112

Recent amendments to 8 Del. C. § 144 strengthen the presumption of

independence and disinterestedness when a corporation has a class of stock listed on

a national securities exchange and the board determines that a director satisfies the

exchange’s independence criteria.113 Under Section 144(d)(2), the director is

entitled to a “heightened” presumption of disinterestedness “with respect to an act

111
Beam v. Stewart, 845 A.2d 1040, 1055 (Del. 2004).
112
See, e.g., Aronson v. Lewis, 473 A.2d 805, 815 (Del. 1984), overruled on other grounds
by Brehm, 746 A.2d 244; accord Invs. Bancorp, 177 A.3d at 1225; see also Zuckerberg,
262 A.3d at 1041 (explaining that Aronson “remain[s] good law”); Ct. Ch. R. 23.1.
113
8 Del. C. § 144(d)(2) (“Any director of a corporation that has a class of stock listed on
a national securities exchange shall be presumed to be a disinterested director with respect
to an act or transaction to which such director is not a party if the board of directors shall
have determined that such director satisfies the applicable criteria for determining director
independence from the corporation and, if applicable with respect to the act or transaction,
the controlling stockholder or control group, under the rules (and interpretations thereof)
promulgated by such exchange (treating the applicable controlling stockholder and control
group as if the controlling stockholder and control group were the corporation for purposes
of applying such criteria to determine independence from a controlling stockholder or
control group), which presumption shall be heightened and may only be rebutted by
substantial and particularized facts that such director has a material interest in such act or
transaction or has a material relationship with a person with a material interest in such act
or transaction.”).
24
or transaction to which such director is not a party.”114 This presumption “may only

be rebutted by substantial and particularized facts that such director has a material

interest in such act or transaction or has a material relationship with a person with a

material interest in such act or transaction.”115

Delaware courts have yet to interpret Section 144(d)(2). To do so,

“well[-]settled” principles of statutory interpretation apply.116 When interpreting a

statute, Delaware courts must “ascertain and give effect to the intent of the

legislature.”117 “If the statute is found to be clear and unambiguous, then the plain

meaning of the statutory language controls.”118 The statute must be read as a whole

in harmony and “to avoid surplusage if reasonably possible.”119

The application of Section 144(d)(2) is not confined to the safe harbors in

Sections 144(a), (b), and (c). Section 144(d)(2) speaks in terms of a “heightened

presumption of disinterestedness” and the facts necessary to rebut that

114
Id. The plaintiff argued that Section 144(d)(2) is inapplicable because the NEDs were
parties to the director compensation packages. Pl.’s Answering Br. 31-32. As explained
above, they were not parties to the Equity Grant. See supra Section II.A.1.
115
8 Del. C. § 144(d)(2).
116
Taylor v. Diamond State Port Corp., 14 A.3d 536, 538 (Del. 2011) (“The rules of
statutory construction are well settled.”).
117
Ingram v. Thorpe, 747 A.2d 545, 547 (Del. 2000).
118
Ins. Com’r of Del. v. Sun Life Assur. Co. of Can. (U.S.), 21 A.3d 15, 20 (Del. 2011); see
also CML V, LLC v. Bax, 28 A.3d 1037, 1041 (Del. 2011).
119
Salzberg v. Sciabacucchi, 227 A.3d 102, 117-18 (Del. 2020) (citation omitted).
25
presumption—not the insulation of conflicted transactions from monetary or

equitable relief.

Where the General Assembly intended a provision to apply only within

Section 144, it said so expressly. In Section 144(d) itself, the legislature took care

to confine a provision to specific paragraphs—and did so within paragraph (d)(7),

where it named three other paragraphs to which the rule applies.120 Similarly, the

preface to Section 144(e) states that its definitions are “[f]or purposes of this

section.”121 Section 144(d)(2) contains no such limiting language.

If “provisions are expressly included in one part of a statute, but omitted from

another, it is reasonable to conclude that the legislature was aware of the omission

and intended it.”122 The purposeful omission of limiting language in paragraph

(d)(2) illustrates the legislature’s intent that the heightened presumption apply

broadly, including when assessing director disinterestedness for purposes of Rule

120
8 Del. C. § 144(d)(7) (“Shares irrevocably accepted for purchase or exchange pursuant
to an offer contemplated by § 251(h) of this title shall be deemed voted in favor of the act
or transaction . . . for purposes of determining whether the act or transaction has been
approved for purposes of paragraphs (a)(2), (b)(2), and (c)(1) of this section.” (emphasis
added)).
121
See 8 Del. C. § 144(e) (providing definitions “[f]or purposes of this section”); see also,
e.g., 8 Del. C. §§ 145(c), 145(h), 145(i), 203(c) (using limiting language).
122
In re Adoption of Swanson, 623 A.2d 1095, 1097 (Del. 1993); see also Giuricich v.
Emtrol Corp., 449 A.2d 232, 238 (Del. 1982) (“The legislative body is presumed to have
inserted every provision for some useful purpose . . . , and when different terms are used
in various parts of a statute[,] it is reasonable to assume that a distinction between the terms
was intended.” (citation omitted)).
26
23.1.123 Reading paragraph (d)(2) to apply solely within Section 144 would also

deprive the limiting language in paragraph (d)(7) and subsection (e) of independent

meaning, contrary to settled principles of statutory construction.124

Although Rule 23.1 already requires particularized facts to rebut the

presumption of independence and disinterestedness, Section 144(d)(2) goes further

by requiring both “substantial and particularized facts.”125 The inclusion of the

additional modifier suggests a legislative intent to strengthen the presumption

beyond the Rule 23.1 standard.126 “Particularize” means “to state in detail” or

“specify.”127 And Delaware courts have long interpreted Rule 23.1’s particularity

standard in that way, rejecting generalized or conclusory allegations unsupported by

123
Evaluating Section 144(d)(2) when resolving demand futility is analogous to how courts
consider other DGCL provisions that bear on the inquiry, such as Section 102(b)(7) when
assessing whether directors face a substantial likelihood of liability under Rule 23.1. See
Zuckerberg, 262 A.3d at 1050; see also 8 Del. C. § 102(b)(7).
124
See supra note 119 and accompanying text. If Section 144(d)(2)’s heightened
presumption did not apply when assessing demand futility, a plaintiff could face a lesser
burden to plead director interest under Rule 23.1 than under Rule 12(b)(6).
125
8 Del. C. § 144(d)(2).
126
See Salzberg, 227 A.3d at 117-18 (explaining that Delaware courts must “give meaning
to every word in [a] statute” and presume that “the General Assembly purposefully chose
particular language” (quoting Sussex Cty. Dep’t of Elections v. Sussex Cty. Republican
Comm., 58 A.3d 418, 422 (Del. 2013))).
127
Particularize, Merriam-Webster, https://www.merriam-
webster.com/dictionary/particularize (last visited June 8, 2026); see also Particularity,
Black’s Law Dictionary (12th ed. 2024) (defining “particularity” as “the quality, state, or
condition of being both reasonably detailed and exact <the requirement of pleading with
particularity>”).
27
specific facts.128 The remaining question is what the legislature intended by

requiring that those facts also be “substantial.”

Black’s Law Dictionary defines “substantial” in several ways.129 Of the

definitions relevant here, one is quantitative—“[c]onsiderable in extent, amount, or

value; large in volume or number,” and another is qualitative—“important, essential,

and material; of real worth and importance.”130 Read in that context, Section

144(d)(2) uses “substantial” in the qualitative sense. The statute requires

“substantial and particularized facts” demonstrating either “a material interest” in a

transaction or “a material relationship” with an interested person.131 The General

Assembly’s focus on materiality indicates that the facts must be significant enough

to evidence a disabling conflict. Thus, to overcome Section 144(d)(2)’s heightened

presumption, a plaintiff must plead specific, non-conclusory facts of sufficient

128
E.g., Brehm, 746 A.2d at 254 (discussing that allegations of demand futility under Rule
23.1 “must comply with stringent requirements of factual particularity that differ
substantially from the permissive notice pleadings governed solely by Chancery Rule
8(a)”); In re Walt Disney Co. Deriv. Litig., 825 A.2d 275, 285 (Del. Ch. 2003) (explaining
that “mere speculation” does not satisfy Rule 23.1).
129
Substantial, Black’s Law Dictionary (12th ed. 2024).
130
Id.; see also Substantial, Merriam-Webster, https://www.merriam-
webster.com/dictionary/substantial (last visited June 8, 2026) (same); Substantial,
Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/substantial
(last visited June 8, 2026) (defining “substantial” as “large in size, value, or importance”).
131
8 Del. C. § 144(d)(2); see also id. § 144(e)(7), (8) (defining “[m]aterial interest” and
“[m]aterial relationship”).
28
qualitative significance to support a reasonable inference of a material interest or

relationship that would impair the director’s objective judgment.132

b. Ammerman, Hagerty, and Rood

The Board determined that Ammerman, Hagerty, and Rood each qualify as

independent under NYSE rules.133 They are therefore entitled to Section 144(d)(2)’s

“heightened” presumption of disinterestedness.134 To rebut that presumption for

purposes of the third Zuckerberg prong, the plaintiff must plead “substantial and

particularized facts” demonstrating that each director has a “material relationship”

with Foley.135 Section 144(e)(8) defines a “[m]aterial relationship” as a “familial,

financial, professional, employment, or other relationship that . . . would reasonably

132
See id. § 144(d)(2); Zuckerberg, 262 A.3d at 1061. This qualitative requirement aligns
with Delaware’s holistic approach to evaluating independence. The court assesses whether
the director “had ties to the person whose proposal or actions he or she is evaluating that
are sufficiently substantial” such that “he or she could not objectively discharge his or her
fiduciary duties.” Zuckerberg, 262 A.3d at 1061 (quoting Kahn v. M & F Worldwide Corp.,
88 A.3d 635, 649 (Del. 2014)). It reviews pleaded facts “in their totality and not in isolation
from each other.” Delaware Cty. Emps. Ret. Fund v. Sanchez, 124 A.3d 1017, 1019 (Del.
2015). But volume alone cannot substitute for materiality; a collection of trivial facts will
not satisfy Section 144(d)(2) simply by force of accumulation. The pleaded facts, taken
together, must be substantial enough to support a reasonable inference of a material interest
or relationship.
133
Defs.’ Ex. 2 at 14.
134
8 Del. C. § 144(d)(2).
135
Id.; see supra Section II.A.3.a (describing this heightened presumption). As noted
above, because the NEDs are not parties to the Equity Grant and received no material
personal benefit from it, they lack a “material interest” under the statute. See supra note
108 (discussing the absence of a material interest for the NEDs concerning the Equity
Grant); 8 Del. C. § 144(e)(7).
29
be expected to impair the objectivity of the director’s judgment when participating

in the negotiation, authorization, or approval of the act or transaction at issue.”136

The allegations in the Complaint do not meet this exacting standard.

The plaintiff asserts that Ammerman, Hagerty, and Rood cannot impartially

consider a demand regarding the Equity Grant because they have “extensive

business ties” with Foley.137 But their only alleged direct relationship with Foley

relates to overlapping service on FNF’s Board and the boards of other

Foley-affiliated companies (e.g., F&G, Cannae Holdings, Inc., and Dun &

Bradstreet, Inc.).138 These facts alone cannot rebut the directors’ presumed

independence.139

136
8 Del. C. § 144(e)(8).
137
Compl. ¶¶ 113-15.
138
Id. Specifically, Ammerman serves on the board of Cannae, F&G, and Dun &
Bradstreet; Hagerty sits on the Dun & Bradstreet board; and Rood sits on the F&G board.
Compl. ¶¶ 113-15; see Defs.’ Ex. 2 at 14-15. Foley serves as the Executive Chairman of
F&G; the Chairman, CEO, and Chief Investment Officer of Cannae; and the Executive
Chairman of Dun & Bradstreet. Compl. ¶ 13(a), (b), (d).
139
See, e.g., In re CBS Corp. S’holder Class Action & Deriv. Litig., 2021 WL 268779, at
*39 (Del. Ch. Jan. 27, 2021) (explaining that overlapping board service, standing alone,
does not compromise independence); Beam, 845 A.2d at 1051 (noting that allegations that
directors “moved in the same social circles” or “developed business relationships” as “a
result of collegial relationships among the board of directors” cannot “standing alone . . .
render pre[-]suit demand futile”); Orman v. Cullman, 794 A.2d 5, 27 (Del. Ch. 2002) (“The
naked assertion of a previous business relationship is not enough to overcome the
presumption of a director’s independence.”).
30
The plaintiff attempts to bolster his argument by aggregating the fees

Ammerman and Rood received for serving on these boards over the past 10 years.140

He neglected, however, to plead particularized facts explaining why they are

personally material to the directors—each of whom is a successful professional.141

Nor did the plaintiff’s opposition brief address the defendants’ argument that these

fees are immaterial to the directors, thereby waiving any opposition.142

The other relationships described in the Complaint are indirect business

connections—primarily co-investments in sports teams. In the plaintiff’s view,

Ammerman, Hagerty, and Rood lack independence because they “co-own the Vegas

Golden Knights” with Foley “through Black Knight Sports and Entertainment,” and

Ammerman and Rood co-invest alongside Foley in European soccer teams through

Black Knight Football and Entertainment.143

140
Compl. ¶¶ 113, 115.
141
See In re Trade Desk, Inc. Deriv. Litig., 2025 WL 503015, at *18 n.158 (Del. Ch.
Feb. 14, 2025) (holding that “[m]erely asserting that [a director’s company] stock
constitutes ‘a substantial portion of her net worth,’ without attempting to contextualize
those holdings or quantify her net worth, is conclusory and falls short of Rule 23.1’s
requirement that Plaintiffs plead with particularity” (citation omitted)), aff’d, 350 A.3d
1223 (Del. 2025); A.R. DeMarco Enters., Inc. v. Ocean Spray Cranberries, Inc., 2002 WL
31820970, at *5 (Del. Ch. Dec. 4, 2002) (“It is well established in Delaware law that
ordinary director compensation alone is not enough to show demand futility.”); see also
Defs.’ Ex. 2 at 27-28, 29 (describing the directors’ professional backgrounds).
142
See Emerald P’rs v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (“Issues not briefed are
deemed waived.”).
143
Compl. ¶¶ 113-15.
31
There are several problems with this contention. To start, the Complaint’s

characterization of these investment relationships is misleading.144 FNF’s 2025

proxy statement explains that Ammerman, Hagerty, and Rood own a “small non-

voting minority interest” in the entity that owns the Vegas Golden Knights, and

Ammerman and Rood own a “minority interest” in the entity that invests in the

soccer teams.145 More to the point, the plaintiff does not allege that these co-

investments give Foley any authority over Ammerman, Hagerty, or Rood, or make

them beholden to him. He also does not allege facts about the directors’ investment

terms, voting rights, or financial exposure, or explain how the investments create a

“bias-producing” relationship with Foley.146 Indeed, FNF’s Board considered these

co-investments and concluded that none disqualify the three directors from

satisfying NYSE independence rules.147

In response to these facts, the plaintiff resorts to a generalized claim that

co-owning a professional sports franchise necessarily creates a material conflict

144
See infra note 168 (discussing that the court does not accept unsupported allegations
contradicted by documents incorporated by reference into the complaint).
145
Defs.’ Ex. 2 at 14; see In re Gen. Motors, 897 A.2d at 170-71 (noting that courts may
take judicial notice of publicly filed SEC documents, such as proxy statements, on a motion
to dismiss). The 2025 proxy statement is referred to and relied on in the Complaint. See
Compl. ¶¶ 90, 116.
146
Zuckerberg, 262 A.3d at 1061.
147
Defs.’ Ex. 2 at 14-15.
32
because it is an “exceedingly rare and prestigious opportunity.”148 Yet there is

nothing legally unique about investing in a sports franchise that alters the

independence inquiry compared to other private ventures. Broad conjecture about

the exclusivity of indirect, minority co-investments in a sports franchise does not

satisfy Rule 23.1’s particularity standard, much less Section 144(d)(2)’s mandate of

“substantial and particularized” facts.149

The plaintiff also points to Hagerty’s role as a managing director at a private

equity firm (Thomas H. Lee Partners, L.P.) that has transacted with Foley-affiliated

entities, and Ammerman’s limited partnership interest in an entity (Star Parent)

where Foley serves as Chairman of the general partner.150 But he pleads no facts—

much less particularized ones—that Ammerman or Hagerty received material

personal benefits from Foley as a result of these roles.151 “Consistent with [the]

predicate materiality requirement, the existence of some financial ties between the

interested party and the director, without more, is not disqualifying.”152

148
Pl.’s Answering Br. 41; see also id. (arguing that investing in a sports team is “more
rarified and exclusive than co-owning a private airplane or sharing a beach house”).
149
See supra Section II.A.3.a.
150
Compl. ¶¶ 113-14.
151
The same deficiency applies to the allegation that Hagerty was elected to Dun &
Bradstreet’s board. See id. ¶ 114. The plaintiff pleads no particularized facts attributing
that election to Foley, much less showing that the role is material to Hagerty.
152
Zuckerberg, 262 A.3d at 1061.
33
Taken together, these minor co-investments and overlapping board seats do

not amount to “substantial and particularized facts” demonstrating a “material

relationship” that would reasonably be expected to impair the directors’ objective

judgment.153 The plaintiff has not, for example, alleged that Foley “has [the] means

to deprive” Ammerman, Hagerty, or Rood of their wealth, “let alone wealth that is

material to [them].”154 “Alleging that a director had a ‘personal friendship’ with

someone else, or that a director had an ‘outside business relationship,’ [is]

‘insufficient to raise a reasonable doubt’ that the director lacked independence.”155

Demand is not excused as to Ammerman, Hagerty, or Rood under Zuckerberg prong

three.

4. Zuckerberg Prong Two

The second Zuckerberg prong asks whether “the director faces a substantial

likelihood of liability on any of the claims that would be the subject of the litigation

demand.”156 The plaintiff has waived any argument under this prong. The “Demand

153
8 Del. C. §144(d)(2); see id. § 144(e)(8).
154
McElrath v. Kalanick, 2019 WL 1430210, at *18 (Del. Ch. Apr. 1, 2019), aff’d, 224
A.3d 982 (Del. 2020).
155
Zuckerberg, 262 A.3d at 1061 (citation omitted); see also Trade Desk,
2025 WL 503015, at *13 (“[M]ere recitation of the fact of past business or personal
relationships will not make the Court automatically question the independence of a
challenged director.”).
156
Zuckerberg, 262 A.3d at 1059.
34
Futility” section of his Complaint is silent on whether FNF directors are exposed to

a substantial likelihood of liability.157 The plaintiff also failed to address this prong

in his answering brief.158 And at oral argument, his counsel reiterated the

concession, stating that the second prong was “not relevant in the least” to the

plaintiff’s demand futility allegations.159

Regardless, the argument would fail on the merits. Any claim that the

directors face a substantial likelihood of liability for approving the Equity Grant

must overcome two interconnected hurdles: the statutory safe harbor of 8 Del. C. §

144(a)(1) and FNF’s exculpatory charter provision under 8 Del. C. § 102(b)(7).160

Together, these provisions narrow the circumstances in which directors can incur

personal liability for approving an interested transaction. Even if the plaintiff could

establish that the requirements of Section 144(a)(1) were not satisfied, he would

need to plead non-exculpated misconduct to survive Section 102(b)(7).

Section 144(a)(1) provides that a conflicted transaction “may not be the

subject of equitable relief, or give rise to an award of damages, against a director” if

157
See Compl. ¶¶ 102-17; see also Defs.’ Opening Br. 44.
158
See generally Pl.’s Answering Br.; see also Defs.’ Reply Br. 23 (pointing out the
concession).
159
Hr’g Tr. 53-54 (Plaintiff’s Counsel: “For the record, we are not arguing Zuckerberg
prong two—substantial likelihood of liability. . . . We’re not touching that. That is not
alleged in our [C]omplaint, and I do not believe it to be relevant in the least.”).
160
See Defs.’ Ex. 5 Art. XII; 8 Del. C. § 144(a)(1).
35
the material facts of the conflict are “disclosed or are known to” the approving

directors and the transaction is authorized “in good faith and without gross

negligence” by “the affirmative votes of a majority of the disinterested directors”

serving on the board or a committee.161 To bypass the safe harbor and show a

substantial likelihood of liability on a Rule 23.1 motion, the plaintiff must plead

particularized facts supporting a reasonable inference that the safe harbor’s

requirements were unmet.162

Here, a majority of the Board—as well as a majority of both approving

committees—is disinterested and independent for purposes of the Equity Grant.163

Had the plaintiff defeated the safe harbor by alleging that material facts of Foley’s

conflict were not disclosed or known to the approving committees, or that their

members approved the Equity Grant with gross negligence, the Section 102(b)(7)

provision in FNF’s charter would still exculpate those directors from personal

161
8 Del. C. § 144(a)(1). The legislative synopsis to the 2025 amendments to Section 144
confirms that when a board delegates approval power to a committee for a transaction, the
safe harbor applies only if the committee “consist[ed] of at least 2 directors, all of whom,
in the first instance, have been determined by the board of directors to be disinterested
directors.” Del. S.B. 21 syn., 153d Gen. Assem. (2025).
162
See Hr’g Tr. 43-44 (defense counsel addressing how Section 144 applies to the
Zuckerberg prong 2 analysis); see also infra note 168 (discussing the plaintiff’s burden to
plead noncompliance with the safe harbor).
163
See supra Section II.A.3 (discussing Zuckerberg prong 3).
36
liability.164 As a result, the plaintiff can only establish a substantial likelihood of

liability for the disinterested directors who approved the Equity Grant by pleading

particularized facts supporting a reasonable inference that they acted bad faith.165

Bad faith sets a “high hurdle” that “essentially requires the plaintiff to

demonstrate intentional wrongdoing by the board.”166 To do so, the plaintiff was

required to plead “particularized facts that demonstrate that the directors . . . had

‘actual or constructive knowledge’ that their conduct was legally improper.”167 He

made no attempt to do so.

In fact, the Board record incorporated into the Complaint undercuts any

reasonable inference that the committees that approved Foley’s Equity Grant failed

164
Even if a plaintiff alleges that the Section 144(a)(1) safe harbor is unavailable because
material facts were not disclosed to the approving committee or the committee was grossly
negligent, Section 102(b)(7) shields the disinterested directors from personal liability
unless the plaintiff sufficiently pleads that the directors’ failure to uncover the concealed
facts, or their complicity in the concealment, amounted to bad faith. See In re Cornerstone
Therapeutics Inc. S’holder Litig., 115 A.3d 1173, 1175-76 (Del. 2015) (“A plaintiff
seeking only monetary damages must plead non-exculpated claims against a director who
is protected by an exculpatory charter provision to survive a motion to dismiss, regardless
of the underlying standard of review for the board’s conduct[.]”).
165
See Stone, 911 A.2d 362, 370 (Del. 2006) (“[T]he fiduciary duty of loyalty is not limited
to cases involving a financial or other cognizable fiduciary conflict of interest. It also
encompasses cases where the fiduciary fails to act in good faith.”).
166
McElrath v. Kalanick, 224 A.3d 982, 993 (Del. 2020).
167
Wood v. Baum, 953 A.2d 136, 141 (Del. 2008) (citation omitted).
37
to comply with Section 144(a)(1).168 First, both the Compensation Committee and

RPT Committee were comprised of disinterested directors.169 Second, the plaintiff

has not pleaded that the “material facts as to [Foley’s] relationship or interest” and

“involvement in the initiation, negotiation, or approval of the act or transaction”

were kept from the committees.170 Finally, the Complaint is devoid of non-

168
The plaintiff argues that the court’s use of the Section 220 materials is limited to
“determin[ing] whether any documents are taken out of context, but not to weigh evidence
or make findings of fact.” Pl.’s Answering Br. 6. That is partly true. But it overlooks that
the court will not accept allegations contradicted by the incorporated documents and draws
only reasonable inferences in the plaintiff’s favor. See Orman, 794 A.2d at 16 n.9 (“If a
plaintiff’s complaint alleges a fact that is unambiguously contradicted by an integral
document incorporated into the complaint and there are no other facts in that document
supporting the allegation, the Court need not accept as true the fact as alleged in the
complaint. The Court may accept the fact as set forth in that incorporated document
because, by doing so, the Court is not choosing between alternate interpretations of an
ambiguous document but permissibly considering a fact recorded in a document integral
to the plaintiff’s claims.”); Beam v. Stewart, 833 A.2d 961, 970 (Del. Ch. 2003) (“The
Court will draw all inferences logically flowing from the amended complaint in favor of
the plaintiff but only if such inferences are reasonable.”), aff’d, 845 A.2d 1040. The
plaintiff bears the burden of pleading facts supporting a reasonable inference that Section
144’s statutory requirements were not satisfied. Where incorporated minutes reflect, for
example, disclosure of the material facts and approval by a majority of disinterested
directors, the court need not infer noncompliance. Though the court does not weigh
evidence at the pleading stage, a plaintiff cannot avoid dismissal by relying on conclusory
statements, unreasonable inferences, or characterizations that are belied by the
incorporated documents.
169
The Compensation Committee had three members—Hagerty, Lane, and Thompson—
when it approved the Equity Grant in 2024. Compl. ¶ 58. The plaintiff did not challenge
Lane’s independence, nor did he plead with particularity that Hagerty was interested. See
supra Section II.A.3.b. As for the RPT Committee, neither of its two members—
Dhanidina and Morgan—was challenged.
170
8 Del. C. § 144(a)(1).
38
conclusory facts placing in doubt that the committees acted “in good faith and

without gross negligence.”171

The minutes remove any reasonable inference otherwise. The Compensation

Committee received expert compensation guidance from SCG and—despite having

the authority to approve the deal—took the extra step of involving the RPT

Committee.172 It also negotiated more favorable terms for the Equity Grant, reducing

Foley’s original request by $10 million.173 The RPT Committee likewise received

expert compensation and legal advice, and evaluated the Equity Grant across

multiple meetings before approving it.174 Relying on an independent expert is far

from the “conscious disregard for one’s responsibilities” indicative of bad faith,175

171
Id.
172
See Defs.’ Ex. 18 at FNF_AYERS_220_00000173-_0182; Defs.’ Ex. 19 at
FNF_AYERS_220_00000209.
173
See Defs.’ Ex. 18 at FNF_AYERS_220_00000175-0176.
174
See Defs.’ Ex. 20 at FNF_AYERS_220_00000212; Defs.’ Ex. 21 at
FNF_AYERS_220_00000213; see also Defs.’ Ex. 23 (10/28/2024 Dhanidina email
providing approval).
175
Knight v. Miller, 2022 WL 1233370, at *7 (Del. Ch. Apr. 27, 2022) (citation omitted).
The plaintiff alleges as a “point of interest” that SCG had prior relationships with
FNF-affiliated companies. Compl. ¶ 92. But an “advisor’s prior dealings with a
counterparty to a transaction, standing alone, will not be adequate to plead a conflict of
interest.” In re Martha Stewart Living Omnimedia, Inc. S’holder Litig., 2017 WL 3568089,
at *22 n.104 (Del. Ch. Aug. 18, 2017); see also In re Inergy L.P., 2010 WL 4273197, at
*14 (Del. Ch. Oct. 29, 2010) (concluding that a financial advisor’s “prior dealings” with a
counterparty to the transaction at issue did “not show that [the special committee’s]
decision to retain [the advisor] . . . was unreasonable”). The plaintiff also did not plead
particularized facts suggesting that the aggregate fees SCG received from FNF and its

39
“or a deliberate disregard of the whole body of stockholders or actions which are

without the bounds of reason” necessary to demonstrate gross negligence.176

There are no particularized allegations in the Complaint supporting a

reasonable inference that the Compensation or RPT Committees approved the

Equity Grant in bad faith. Their members face no substantial likelihood of liability,

and demand is not excused under Zuckerberg prong two.

* * *

In sum, to successfully plead demand futility, the plaintiff had to establish that

at least six of FNF’s eleven directors were incapable of impartially considering a

litigation demand regarding the Equity Grant. He concedes that five directors are

independent of Foley and did not plead substantial and particularized facts

demonstrating that three more (Ammerman, Hagerty, and Rood) lack independence.

Because there are no particularized allegations that these eight directors received a

material personal benefit from the Equity Grant or face a substantial likelihood of

non-exculpated liability concerning it, a Board majority remains disinterested and

affiliates were material to SCG such that they would compromise its professional
objectivity. Furthermore, the Compensation Committee concluded that SCG was
independent under NYSE rules, and the RPT Committee specifically reviewed and
considered that decision. See Defs.’ Ex. 12 at FNF_AYERS_220_00000121; Defs.’ Ex.
15 at FNF_AYERS_220_00000156; Defs.’ Ex. 21 at FNF_AYERS_220_00000213.
176
Tomczak v. Morton Thiokol, Inc., 1990 WL 42607, at *12 (Del. Ch. Apr. 5, 1990)
(citation omitted).
40
independent with respect to the alleged misconduct. Demand is not excused, and

the plaintiff’s claims premised on the Equity Grant are dismissed under Rule 23.1.177

B. Whether the Plaintiff Stated a Claim Regarding Director
Compensation

The plaintiff also claims that the director defendants were unjustly enriched

and breached their duties of loyalty “by granting themselves and accepting

compensation in amounts that were excessive and unfair to [FNF].”178 The

defendants seek dismissal for failure to state a claim on which relief can be granted

under Rule 12(b)(6).

The governing standard on a Rule 12(b)(6) motion is one of reasonable

conceivability.179 The court must accept:

all well-pleaded factual allegations in the Complaint as true,
accept even vague allegations in the Complaint as “well-
pleaded” if they provide the defendant notice of the claim, draw
all reasonable inferences in favor of the plaintiff, and deny the
motion unless the plaintiff could not recover under any

177
This includes Count I as well as the portion of the unjust enrichment claim in Count II
concerning the Equity Grant. See Calma, 2015 WL 1951930, at *20 (viewing unjust
enrichment as duplicative of a breach of fiduciary duty claim where the plaintiff alleged no
“unjust enrichment separate or distinct from the alleged breach of fiduciary duty”); see also
Bamford v. Penfold, L.P., 2020 WL 967942, at *32 n.25 (Del. Ch. Feb. 28, 2020)
(explaining that where “allegations focus on self-dealing payments [the defendant] caused
[the corporation] to make . . . the claim is exclusively derivative”); infra Section II.B.2.
178
Compl. ¶¶ 121, 124-27.
179
See Savor, Inc. v. FMR Corp., 812 A.2d 894, 896 (Del. 2002).
41
reasonably conceivable set of circumstances susceptible of
proof.180

I first assess the breach of fiduciary duty claim against the Compensation

Committee directors who approved the 2022 to 2024 director compensation

packages (other than the Equity Grant). I conclude that the plaintiff has stated a

viable claim against them. I reach a different conclusion regarding the non-

Compensation Committee directors who merely received the compensation. Finally,

I address the unjust enrichment claim, which survives against all director defendants.

1. Breach of Fiduciary Duty

Section 141(h) of the DGCL authorizes a board to “fix the compensation of

directors.”181 But when directors make discretionary compensation awards to

themselves, they are necessarily interested in that act, placing it “outside the business

judgment rule’s presumptive protection.”182 As the Delaware Supreme Court held

in Investors Bancorp, “the receipt of self-determined benefits is subject to an

180
Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldgs. LLC, 27 A.3d 531, 536
(Del. 2011).
181
8 Del. C. § 141(h).
182
Telxon Corp. v. Meyerson, 802 A.2d 257, 265 (Del. 2002); see also Gottlieb v. Heyden
Chem. Corp., 90 A.2d 660, 663 (Del. 1952) (“[W]here a majority of the directors
representing the corporation are conferring benefits upon themselves out of the assets of
the corporation, we do not understand [the business judgment rule] to have any application
what[so]ever.”).
42
affirmative showing that the compensation arrangements are fair to the

corporation.”183

The defendants concede that neither Section 144(a)(1), which concerns

approval by disinterested directors, nor Section 144(a)(2), which concerns approval

by disinterested stockholders, applies to the challenged director compensation

awards.184 Instead, the defendants rely on Section 144(a)(3), which insulates an

interested director transaction from monetary or equitable relief if it is “fair as to the

corporation and the corporation’s stockholders.”185 In this context, the statutory

fairness inquiry tracks the common law entire fairness standard that traditionally

governs the review of discretionary director self-compensation decisions.186

“Delaware law is clear that even where . . . entire fairness review is in play,”

a “plaintiff must make factual allegations about the transaction in the complaint that

demonstrate the absence of fairness.”187 Because a conflict of interest “is not in itself

183
Invs. Bancorp, 177 A.3d at 1217 (quoting Telxon, 802 A.2d at 265).
184
See Defs.’ Reply Br. 24. Given that the Compensation Committee directors were setting
their own compensation, they were parties “to the act or transaction,” precluding the
application of Section 144(a)(1). 8 Del. C. § 144(e)(4).
185
8 Del. C. § 144(a)(3).
186
See Del. S.B. 21 syn., 153d Gen. Assem. (2025) (“The references in § 144 to an act or
transaction being ‘fair as to the corporation and the corporation’s stockholders’. . . is
intended to be consistent with the entire fairness doctrine developed in the common law.”);
see also Defs.’ Opening Br. 64-70.
187
Monroe Cnty. Emps.’ Ret. Sys. v. Carlson, 2010 WL 2376890, at *2 (Del. Ch.
June 7, 2010).
43
a crime or a tort or necessarily injurious to others,” the existence of a conflict alone

cannot carry a plaintiff’s pleading burden.188 He “must allege some facts that tend

to show that the transaction was not fair.”189 “Moreover, such a [pleading] burden

in the self-compensation area cannot be simply conclusory, in light of the power the

DGCL confers on directors to self-compensate.”190

“There are two components to the ‘unitary’ entire fairness standard: fair

dealing and fair price. Because the test is not a bifurcated one, a plaintiff must allege

facts supporting a reasonable inference of both unfair price and unfair dealing. The

failure to adequately plead either warrants dismissal.”191 The plaintiff’s claim must

be dismissed as to the director defendants who took no part in the approval of their

compensation. As for the Compensation Committee members who approved the

awards, however, the claim survives in part under binding precedent.192

188
In re Match Gp., Inc. Deriv. Litig., 315 A.3d 446, 461 (Del. 2024) (citation omitted).
189
Calma, 114 A.3d at 589 (citation omitted).
190
Stein v. Blankfein, 2019 WL 2323790, at *7 (Del. Ch. May 31, 2019).
191
Roofers Loc. 149 Pension Fund v. Fid. Nat’l Fin., Inc., 2025 WL 1354973, at *7 (Del.
Ch. May 9, 2025) (citation omitted).
192
The directors who took no part in approving the challenged compensation awards are
Ammerman, Dhanidina, Morgan, Rood, Shea, and Foley. As held above, the claims
against Foley concerning his Equity Grant are dismissed for failure to plead demand
futility. The claim must also be dismissed against Miller regarding 2024 compensation, as
he did not sit on the Compensation Committee that year. The breach of fiduciary duty
claim survives only against Hagerty, Lane, and Thompson for the 2022 to 2024
compensation, and against Miller for the 2022 and 2023 compensation.
44
a. The Compensation Committee Directors

The defendants assert that the plaintiff made no effort to plead unfair dealing

regarding annual director compensation and relied solely on his abandoned quid pro

quo theory regarding the $100,000 grant in 2024.193 They also note that the plaintiff

highlights no defect in the Compensation Committee’s process in 2022, 2023, or

2024. As a result, they argue—relying on this court’s decision in Roofers Local 149

Pension Fund v. Fidelity—that the plaintiff has not met his burden to plead facts

implying unfair dealing.194

Unlike in Fidelity, which concerned a committee awarding a purported benefit

to a controlling stockholder, this case concerns directors awarding compensation to

themselves. Delaware courts recognize that when directors exercise discretionary

authority to set their own pay, they are necessarily interested and none of the

procedural safeguards in an arm’s-length transaction are present.195 As a result,

Delaware courts generally view the unfair dealing component to be effectively

193
Defs.’ Opening Br. 65-66.
194
Id. at 66 n.269 (citing Fidelity, 2025 WL 1354973, at *7).
195
See Calma, 114 A.3d at 578 (“This is not a case where disinterested directors approved
the compensation of other directors; the Compensation Committee approved their own
compensation and that of the other non-employee directors. Thus, in my view, Plaintiff
has rebutted the presumptive business judgment standard of review.”).
45
satisfied at the pleading stage for self-compensation claims.196 This reality explains

why the court in Stein v. Blankfein could acknowledge that the complaint was “silent

as to unfair process” and still deny the motion to dismiss.197

As for unfair price, the plaintiff’s allegations also meet his burden. He alleges

that the directors’ compensation consistently and significantly outpaced FNF’s peer

group while FNF underperformed.198 In 2022, the directors’ mean compensation

was over 21% above the peer median, despite FNF ranking in the 35th, 45th, and

51st percentiles for market capitalization, income, and revenue, respectively.199

In 2023, the directors’ mean compensation rose to 38% above the peer median, while

the Company’s metrics allegedly dropped to the 33rd, 5th, and 37th percentiles.200

196
See Invs. Bancorp, 177 A.3d at 1212, 1224-25; Calma, 114 A.3d at 589-90; see also
Manti Hldgs., LLC v. Carlyle Gp. Inc., 2022 WL 1815759, at *8 (Del. Ch. June 3, 2022)
(“Because the entire fairness inquiry is fact-intensive, a determination that the entire
fairness standard applies to a transaction ‘normally will preclude dismissal of a complaint
on a Rule 12(b)(6) motion to dismiss.’” (citation omitted)).
197
Stein, 2019 WL 2323790, at *7-8.
198
Compl. ¶¶ 38, 52, 59, 100, 101.
199
Id. ¶¶ 32-40.
200
Id. ¶¶ 42-52.
46
And in 2024, bolstered by the $100,000 special equity grants, the directors’ mean

compensation was allegedly 67% higher than the peer median.201

The defendants counter that the marginal increases from the 2021 baseline

were routine and that setting salaries above a peer average is not evidence of

excessive compensation.202 They also emphasize that the compensation was

appropriate because FNF vastly outperformed its peers in title operating margin,

achieving an industry-leading adjusted pre-tax title margin of 15.1% in 2024 despite

a difficult mortgage market.203 These are persuasive points that may well pose a

formidable barrier to the plaintiff’s ultimate success and dampen expectations for a

significant recovery. But they present a factual dispute inappropriate for resolution

on a motion to dismiss.

At present, I cannot adopt the defendants’ preferred performance metric (title

operating margin) and ignore the plaintiff’s identified metrics (market capitalization,

revenue, and net income). By pleading that the directors’ compensation rose to a

large premium over the peer median while FNF lagged in key financial metrics, the

plaintiff has pointed to “‘some facts’ implying lack of entire fairness.”204 The claim

201
Id. ¶¶ 59-60, 100.
202
Defs.’ Opening Br. 67-68.
203
Id. at 69; see also id. at 5, 19.
204
Stein, 2019 WL 2323790, at *8 (quoting Solomon v. Pathe Commc’ns Corp.,
1995 WL 250374, at *5 (Del. Ch. Apr. 21, 1995), aff’d, 672 A.2d 35 (Del. 1996)).
47
against the Compensation Committee members who fixed the compensation

therefore survives.

b. The Non-Compensation Committee Directors

Though the plaintiff’s claim survives against the Compensation Committee

members who approved the compensation, the same is not true for the directors who

merely received it. “Delaware law . . . prescribes that a director who plays no role

in the process of deciding whether to approve a challenged transaction cannot be

held liable on a claim that the board’s [or a committee’s] decision to approve that

transaction was wrongful.”205

The Complaint acknowledges that the Compensation Committee—and not the

Board as a whole—approved director compensation for 2022 to 2024.206 The

plaintiff does not allege that five directors (Ammerman, Rood, Shea, Dhanidina, and

Morgan) played any role in the Compensation Committee’s approval of the 2022,

205
In re Tri-Star Pictures, Inc., Litig., 1995 WL 106520, at *2 (Del. Ch. Mar. 9, 1995); see
also Citron v. E.I. du Pont de Nemours & Co., 584 A.2d 490, 499 (Del. Ch. 1990) (holding
that “because the [directors] played no role in the Merger Committee’s, or the Board’s,
decision[-]making process . . . plaintiff has failed to establish a factual or legal basis for a
claim against [them]”).
206
See Compl. ¶¶ 35-37 (alleging that the Compensation Committee approved Foley’s and
the NEDs’ 2022 compensation and “no Board meeting was required under the terms of the
Incentive Plan”); id. ¶¶ 46-47 (alleging that the Compensation Committee approved
Foley’s and the NEDs’ 2023 compensation, which was issued with no other alleged Board
action); id. ¶¶ 59-60, 89 (alleging that the Compensation Committee approved the NEDs’
2024 compensation and awards with no allegation of further Board action); see also Defs.’
Exs. 9, 13, 17.
48
2023, or 2024 compensation.207 Foley played no role in approving his annual 2022,

2023, or 2024 compensation, and Miller had none in the 2024 package.208

To sustain a breach of fiduciary duty claim against passive recipients of

compensation, a plaintiff must allege that they accepted the awards with awareness

that the compensation was wrongful.209 The Complaint lacks non-conclusory facts

establishing that these directors accepted their annual compensation with the

knowledge that it was improper or violated the Incentive Plan.210 The breach of

207
Compl. ¶¶ 16, 17, 21, 22, 23.
208
Id. ¶¶ 20, 30-41, 42-53.
209
See Howland v. Kumar, 2019 WL 2479738, at *4-5 (Del. Ch. June 13, 2019) (sustaining
a claim where recipients accepted repriced options knowing of an impending, unannounced
patent issuance); Pfeiffer v. Leedle, 2013 WL 5988416, at *10 (Del. Ch. Nov. 8, 2013)
(sustaining a claim where the complaint supported a reasonable inference that a director
accepted options in violation of a hard cap in the stock plan); see also Knight v. Miller,
2022 WL 1233370, at *12 (Del. Ch. Apr. 27, 2022) (applying Kumar and Leedle to hold
that a plaintiff must plead a “knowingly wrongful acceptance of compensation” to support
a bad faith claim).
210
The plaintiff alleges that the 2024 special equity awards violated the forward-looking
purpose of the Incentive Plan because they were for past performance in 2023. See Pl.’s
Answering Br. 27-28. But even if that were true, it would not support a reasonable
inference that the recipient directors accepted the awards with knowledge of a blatant
violation of the Incentive Plan. See Knight, 2022 WL 1233370, at *12 (dismissing a similar
claim for failure to allege “nonpublic facts known to the company and the Defendants that
give rise to an inference of ‘clearly improper’ compensation” or any “allegation that the
awards violated the Stock Incentive Plan [and] that the Defendants were aware of the
same”); see also supra note 99. Again, the Complaint lacks any such allegations.
49
fiduciary duty claim is therefore dismissed against the directors for the compensation

cycles in which they played no role in the approval process.211

2. Unjust Enrichment

Finally, the plaintiff claims that the director defendants were unjustly enriched

by accepting their “excessive” 2022, 2023, and 2024 compensation.212 The

defendants seek dismissal of this theory as duplicative of the breach of fiduciary duty

claim.213

Unjust enrichment is the “unjust retention of a benefit to the loss of

another.”214 It requires: “(1) an enrichment; (2) an impoverishment; (3) a relation

between the enrichment and impoverishment; [and] (4) the absence of

justification.”215 At the pleading stage, an unjust enrichment claim that is duplicative

of a breach of fiduciary duty claim is often treated in the same manner.216 The

Complaint states a reasonably conceivable claim that the Compensation Committee

211
See supra note 192 (summarizing the directors against whom the claim is dismissed and
against whom it survives).
212
Compl. ¶¶ 124-27.
213
Defs.’ Opening Br. 70.
214
Jackson Nat’l Life Ins. v. Kennedy, 741 A.2d 377, 393 (Del. Ch. 1999) (citation
omitted).
215
Capano v. Ecofibre Ltd., 2025 WL 419494, at *1 (Del. Ch. Feb. 5, 2025) (citation
omitted).
216
See, e.g., Calma, 114 A.3d at 591-92.
50
members breached their fiduciary duties by awarding unfair compensation.217 It

follows that the plaintiff has stated a viable claim that the committee members were

unjustly enriched by retaining those awards.

Although the breach of fiduciary duty claim is dismissed as to the directors

who only passively received the compensation, restitutionary relief for unjust

enrichment may still be available against a defendant who retains a benefit, even if

they are not a wrongdoer.218 As Vice Chancellor Glasscock explained in Knight v.

Miller, where a fiduciary duty claim survives against committee defendants who

approved compensation awards, an unjust enrichment claim against the passive

recipients is not “truly duplicative” and may proceed based on the reasonable

inference that those defendants were “enriched, unjustly.”219 That inference is

supported by the Compensation Committee’s alleged setting of the awards in an

unfair manner, which impoverished FNF and enriched the passive recipients.220

The unjust enrichment claim therefore survives against all director defendants

who received the challenged compensation.221

217
See supra Section II.B.1.
218
See Schock v. Nash, 732 A.2d 217, 232-33 (Del. 1999).
219
Knight, 2022 WL 1233370, at *13.
220
See id.
221
The nine NEDs who received the challenged compensation and remain subject to the
unjust enrichment claim are Ammerman, Dhanidina, Hagerty, Lane, Miller, Morgan,

51
III. CONCLUSION

For these reasons, the defendants’ motion to dismiss is granted in part and

denied in part. The motion to dismiss the breach of fiduciary duty claim (Count I)

regarding Foley’s Equity Grant is granted under Rule 23.1 for failure to adequately

plead demand futility. Under Rule 12(b)(6), the motion to dismiss the breach of

fiduciary duty claim regarding the remaining challenged director compensation

(Count I) is denied as to the Compensation Committee members who approved the

challenged compensation and granted as to the director defendants who passively

received the awards. Finally, the motion to dismiss the unjust enrichment claim

(Count II) is granted as to Foley regarding the Equity Grant under Rule 23.1, but

denied as to all director defendants (including Foley) who retained their

compensation.

Rood, Shea, and Thompson. Foley also remains subject to the unjust enrichment claim
related to his annual compensation for 2022, 2023, and 2024 (excluding the Equity Grant).
52