Ryan West v. Village Practice Mgmt. Co., LLC

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
MORGAN T. ZURN LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734

August 24, 2023

Shaun Michael Kelly, Esquire A. Thompson Bayliss, Esquire
Connolly Gallagher Abrams & Bayliss LLP
1201 North Market Street 20 Montchanin Road
20th Floor Suite 200
Wilmington, DE 19801 Wilmington, DE 19807

RE: Ryan West v. Village Practice Mgmt. Co., LLC,
C.A. No. 2022-0562-MTZ

Dear Counsel:

Thank you for your briefing and your patience as Terrell v. Kiromic

Biopharma, Inc. wound its way through this Court and the Delaware Supreme

Court.1 I write to address whether, under Terrell I and Terrell II, proceedings on

plaintiff Ryan West’s Motion for Judgment on the Pleadings (the “Motion”) should

be stayed in order to compel West to submit his legal claims to the Committee,

mentioned in Section 4(d) of the Management Incentive Plan (the “Plan”), for an

expert determination as to (1) whether defendant Village Practice Management

Company, LLC (the “Company”) breached the terms of the Plan and (2) whether

the forfeiture provision in that Plan is enforceable. The Company asserts a stay is

1
Terrell v. Kiromic Biopharma, Inc. (Terrell I), 2022 WL 3083229 (Del. Ch.
Jan. 20, 2022); Terrell v. Kiromic Biopharma, Inc. (Terrell II), 297 A.3d 610 (Del.
May 4, 2023).
Ryan West v. Village Practice Mgmt. Co., LLC
C.A. No. 2022-0562-MTZ
August 24, 2023
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warranted because Section 4(d) is functionally similar to the dispute resolution

provision in Terrell’s Stock Option Agreement.2 The provisions are similar, but

not in a way that warrants a stay. The Plan does not contain a dispute resolution

procedure that would divest this Court of jurisdiction to hear West’s declaratory

judgment claim. It does not contain a dispute resolution procedure at all. I

conclude these proceedings should not be stayed and ask that you contact

chambers for a hearing date on the Motion.

The Company “requests that the Court enter an order staying these

proceedings pending a decision by [the Company’s] Compensation Committee (or

the Board where no such committee is appointed).”3 An order compelling an

expert determination “is in fact an order compelling specific performance” of an

alleged duty arising from and, indeed, governed by the contractual term creating

2
Docket Item (“D.I.”) 34 at Br. 2–3.
3
Id. at 5.
Ryan West v. Village Practice Mgmt. Co., LLC
C.A. No. 2022-0562-MTZ
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it.4 In requesting to compel specific performance, the Company bears the burden

of showing that the Agreement clearly and convincingly creates such a duty.5

“Determining what type of dispute resolution mechanism the parties have

agreed to presents a question of contract interpretation.”6 Where a provision

“contemplates a process other than arbitration, such as when parties have entrusted

a discrete decision to an expert” or a committee of experts, standard contract

interpretation principles determine the provision’s scope.7 Standard rules of

contract interpretation require a court to “determine the intent of the parties from

the language of the contract.”8 Under Delaware law, the language of the contract

4
Pettinaro Const. Co. v. Harry C. Partridge, Jr., & Sons, Inc., 408 A.2d 957, 962 (Del.
Ch. 1979) (declaring an order to stay judicial proceedings pending arbitration is an order
for specific performance of a duty arising from and governed by contract).
5
See Clymer v. DeGirolano, 2023 WL 4613036, at *10 (Del. Ch. July 5, 2023) (declaring
the burden on the requesting party for specific performance is clear and convincing
evidence); see also E.I. du Pont de Nemours & Co. v. Bayer CropScience L.P., 958 A.2d
245, 252 (Del. Ch. 2008) (inquiring whether a plaintiff seeking specific performance
would likely establish the agreement established the alleged duty by clear and convincing
evidence).
6
Penton Bus. Media Hldgs., LLC v. Informa, PLC, 252 A.3d 445, 461 (Del. Ch. 2018).
7
Terrell I, 2022 WL 3083229, at *5.
8
Salamone v. Gorman, 106 A.3d 354, 368 (Del. 2014) (quoting Twin City Fire Ins. Co. v.
Del. Racing Ass’n, 840 A.2d 624, 628 (Del. 2003)).
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C.A. No. 2022-0562-MTZ
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will be construed objectively, “meaning that a ‘contract’s construction should be

that which would be understood by an objective, reasonable third party.”9

Section 4(d) reads as follows:

Interpretation. Except as otherwise expressly provided in the Plan, the
Committee shall have all powers with respect to the administration of
the Plan, including, without limitation, full power and authority to
interpret the provisions of the Plan and any Award Agreement, and to
resolve all questions arising under the Plan. All decisions of the
Committee shall be conclusive and binding on all persons.10

Unlike the dispute resolution provision in Terrell I and II, nothing in Section

4(d) states that disputes over the Plan shall be submitted to the Committee.11 The

provision does not refer to “disputes.” Reserving for the Committee “powers with

respect to the administration of the plan” does not clearly and convincingly remove

dispute resolution from the courts. Nothing in Section 4(d) expressly indicates that

the Committee’s “powers with respect to the administration of the plan” should be

9
Cox Commc’ns, Inc. v. T-Mobile US, Inc., 273 A.3d 752, 760 (Del. 2022) (quoting
Exelon Generation Acq., LLC v. Deere & Co., 176 A.3d 1262, 1267 (Del. 2017)).
10
D.I. 1, Ex. 1 § 4(d).
11
See Terrell II, 297 A.3d at 615 (“Any dispute regarding the interpretation of this
Agreement shall be submitted by Optionee or the Company to the Committee for review.
The resolution of such a dispute by the Committee shall be final and binding on the
Company and Optionee.”).
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broadly construed to include the authority to resolve legal disputes.12 Reserving

legal determinations, such as liability, to an expert’s determination would be highly

unusual.13 Section 4(d) did not put West on notice that the Company intended to

submit all disputes to the Committee.

Courts interpreting contractual provisions also “read the specific provisions

of the contract in light of the entire contract.”14 The “[Class B Units Award

Agreement] (including the Notice of Grant, Schedule A and the Investment

Representation Statement), the Plan and the Operating Agreement constitute the

12
See Ray Beyond Corp. v. Trimaran Fund Mgmt., LLC, 2019 WL 366614, at *5–6 (Del.
Ch. Jan. 29, 2019) (“Nothing on the face of Section 6.17(g) expressly indicates whether
the Settlement Accountant’s authority to determine ‘appropriate distribution’ should be
broadly construed to include the authority to resolve all questions, including legal
questions, affecting distributions.”).
13
See Penton, 252 A.3d at 464 (“The parties are not, however, normally granting the
expert the authority to make binding decisions on issues of law or legal claims, such as
legal liability.” (quoting N.Y.C. Bar Comm’n on Int’l Com. Arb., Purchase Price
Adjustment Clauses and Expert Determinations: Legal Issues, Practical Problems and
Suggested Improvements (2013))); see also Terrell II, 297 A.3d at 615 (noting issues of
legal liability are not well suited for expert determinations).
14
Ray Beyond Corp., 2019 WL 366614, at *5 (quoting Chi. Bridge & Iron Co. N.V. v.
Westinghouse Elec. Co. LLC, 166 A.3d 912, 913–14 (Del. 2017)).
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entire agreement between the parties . . . .”15 Reading the entire agreement reveals

the parties acknowledged the possibility of litigation about the Plan in court.16

Accordingly, I believe this Court can hear West’s Motion without further

ado. Counsel shall contact chambers to schedule a hearing date.

Sincerely,

/s/ Morgan T. Zurn

Vice Chancellor
MTZ/ms

cc: All Counsel of Record, via File & ServeXpress

15
D.I. 1, Ex. 3 § 14(e).
16
See D.I. 1, Ex. 1 § 18; see also D.I. 1, Ex. 2 § 14(d) (“Should any provision of this
Agreement be determined by a court of law to be illegal or unenforceable . . . . Each of
the parties submits to the nonexclusive jurisdiction of any state or federal court in the
State of Delaware in any action or proceeding arising out of or relating to this Agreement
and agrees that all claims in respect of the action or proceeding may be heard and
determined in any such court; provided, however, that the Participant agrees that he or
she will only commence action in the State of Delaware.”); see also id. § 14(l) (“NO
PARTY TO THIS AGREEMENT . . . SHALL SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIATION
PROCEDURE BASED UPON OR ARISING OUT OF THIS AGREEMENT.”).