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In re Gardner Denver, Inc. Shareholders Litigation

Court of Chancery of Delaware

February 21, 2014


Date Submitted: November 26, 2013

Joel Friedlander, Esquire, Jeffrey M. Gorris, Esquire, and Jaclyn Levy, Esquire of Bouchard, Margules & Friedlander, P.A., Wilmington, Delaware; Stuart A. Davidson, Esquire and Cullin A. O'Brien, Esquire of Robbins Geller Rudman & Dowd LLP, Boca Raton, Florida; and Randall J. Baron, Esquire and David T. Wissbroecker, Esquire of Robbins Geller Rudman & Dowd LLP, San Diego, California, Attorneys for Plaintiff.

Robert S. Saunders, Esquire, Amy C. Huffman, Esquire, and Arthur R. Bookout, Esquire of Skadden, Arps, Slate, Meagher & Flom LLP, Wilmington, Delaware, Attorneys for Defendants Michael M. Larsen, Michael C. Arnold, Donald G. Barger, Jr., John D. Craig, Raymond R. Hipp, David D. Petratis, Diane K. Schumacher, Charles L. Szews, Richard L. Thompson, and Garden Denver, Inc.

Raymond J. DiCamillo, Esquire and Scott W. Perkins, Esquire of Richards, Layton & Finger, P.A., Wilmington, Delaware, and Paul C. Curnin, Esquire, Peter E. Kazanoff, Esquire, Daniel J. Stujenske, Esquire, and Joshua M. Slocum, Esquire of Simpson Thacher & Bartlett LLP, New York, New York, Attorneys for Defendants Renaissance Parent Corp., Renaissance Acquisition Corp., and Kohlberg Kravis Roberts & Co. L.P.


NOBLE, Vice Chancellor

Before the Court is an apparently novel, procedural request. In short, the plaintiff has moved to strike, from the defendants' brief in support of a motion to dismiss, references to the expedited discovery record, which was developed in advance of a preliminary injunction hearing, that are beyond the selected quotations from, and characterizations of, that record in the amended complaint. Although the Court will address the present motion in isolation, it recognizes that there may be other, and perhaps more appropriate, ways to resolve this procedural issue in the future.[1]

A stockholder (the "Plaintiff") of Gardner Denver, Inc., ("Gardner Denver") filed this class action seeking to enjoin preliminarily a merger (the "Merger") between Gardner Denver and an affiliate of Kohlberg Kravis Roberts & Co. L.P. ("KKR"). After conducting expedited discovery, which involved the production of documents and the depositions of several witnesses, the Plaintiff withdrew his petition for a preliminary injunction in exchange for the waiver of certain contractual provisions governing the Merger and for additional disclosures to stockholders.[2]

Over a month after Gardner Denver stockholders approved the Merger, [3] the Plaintiff filed an amended complaint (the "Amended Complaint") alleging that the directors of Gardner Denver (the "Board, " and, together with KKR, the "Defendants") breached their fiduciary duties with respect to the Merger and that KKR aided and abetted these breaches.[4] The Amended Complaint includes several quotations from, and numerous characterizations of, selected portions of deposition testimony obtained in expedited discovery. The Defendants moved to dismiss the Amended Complaint under Court of Chancery Rule 12(b)(6) for failure to state a claim (the "Motion to Dismiss") and filed a joint opening brief (the "Opening Brief"). In their Opening Brief, the Defendants quote and characterize portions of deposition testimony and certain documents other than those explicitly or implicitly referenced in the Amended Complaint.[5]

In response, the Plaintiff moved to "strik[e] references to matters outside the pleadings from Defendants' Opening Brief" (the "Motion to Strike").[6] Specifically, the Plaintiff seeks to strike references to: (i) extraneous portions of five deposition transcripts; (ii) an email chain; (iii) printouts of two pages from Gardner Denver's website; (iv) two Gardner Denver filings with the Securities and Exchange Commission ("SEC"); and (v) the purported replacement of Gardner Denver senior management after the Merger.[7]

For the following reasons, the Motion to Strike is granted in part and denied in part.


A. The "Universe of Facts" Upon a Rule 12(b)(6) Motion

With the allegations of the complaint, the plaintiff "ordinarily defines the universe of facts"[8] from which the Court is to determine, upon a motion to dismiss under Rule 12(b)(6), whether there is a "reasonably conceivable" basis for recovery.[9] At this stage, the Court accepts the non-conclusory allegations of the complaint as true and draws all reasonable inferences in the plaintiff's favor.[10]"[C]onsidering facts not before the court . . . on a motion to dismiss is inappropriate."[11] Thus, the universe of facts is typically limited to the allegations of the complaint and any documents attached to it.[12] One harm from the Court's examination of extraneous documents is "the lack of notice [to the plaintiff] that the material may be considered."[13]

But, the Delaware Supreme Court has recognized three exceptions to this rule by which the Court may consider certain documents extraneous to a complaint "for carefully limited purposes": (i) "when the document is integral to a plaintiff's claim and incorporated into the complaint";[14] (ii) "when the document is not being relied upon to prove the truth of its contents";[15] and (iii) when the document, or a portion thereof, is an adjudicative fact subject to judicial notice.[16] The public policy behind these exceptions is plain: allegations largely predicated upon documents not presented to the Court in the ...

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