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In re Dole Food Co., Inc. Stockholder Litigation

Court of Chancery of Delaware, New Castle

February 27, 2015

IN RE DOLE FOOD CO., INC. STOCKHOLDER LITIGATION. IN RE APPRAISAL OF DOLE FOOD COMPANY, INC

Submitted February 19, 2015

Page 1258

Stuart M. Grant, Nathan A. Cook, Bernard C. Devieux, Kimberly A. Evans, GRANT & EISENHOFER, P.A., Wilmington, Delaware; Randall J. Baron, A. Rick Atwood, Jr. Maxwell R. Huffman, ROBBINS GELLER RUDMAN & DOWD LLP, San Diego, California; Class Counsel for Plaintiffs in In re Dole Food Co., Inc. Stockholder Litigation.

Stuart M. Grant, Nathan A. Cook, Bernard C. Devieux, Kimberly A. Evans, GRANT & EISENHOFER, P.A., Wilmington, Delaware; Counsel for Petitioners Hudson Bay Master Fund Ltd., Hudson Bay Merger Arbitrage Opportunities Master Fund Ltd., and Ripe Holdings LLC in In re Appraisal of Dole Food Company, Inc.

Kevin G. Abrams, J. Peter Shindel, Jr., Daniel R. Ciarrocki, ABRAMS & BAYLISS LLP, Wilmington, Delaware; Counsel for Petitioners Merion Capital LP, Merion Capital II, LP, Magnetar Capital Master Fund Ltd., Spectrum Opportunities Master Fund Ltd., Magnetar Global Event Driven Master Fund Ltd., and Blackwell Partners LLC in In re Appraisal of Dole Food Company, Inc.

J. Clayton Athey, Patrick W. Flavin, PRICKETT, JONES & ELLIOTT, P.A., Wilmington, Delaware; Peter M. Stone, Edward Han, PAUL HASTINGS LLP, Palo Alto, California; Counsel for Defendants David H. Murdock and DFC Holdings, LLC.

Bruce Silverstein, Elena C. Norman, YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware; Andrea E. Neuman, Colin B. Davis, GIBSON, DUNN & CRUTCHER LLP, New York, New York; William B. Dawson, GIBSON, DUNN & CRUTCHER LLP, Dallas, Texas; Counsel for Defendants C. Michael Carter and David A. DeLorenzo and Respondent Dole Food Company, Inc.

Stephen C. Norman, Matthew F. Davis, POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; David B. Hennes; Joshua D. Roth; Jesse Ryan Loffler; Andrew B. Cashmore, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP; Counsel for Defendants Deutsche Bank AG, New York Branch and Deutsche Bank Securities Inc.

OPINION

Page 1259

LASTER, Vice Chancellor.

The defendants designated a corporation to serve as their expert witness. The plaintiffs objected, arguing that an expert witness must be a biological person. According to the plaintiffs, the distinction matters because a corporate expert witness could claim to rely on the collective knowledge and experience of all of its employees and agents, while a biological person only can rely on the more limited knowledge and experience that a living mind might accumulate.

This decision holds that an expert witness must be a biological person. The defendants therefore cannot rely on the corporation that they designated. To mitigate the prejudice that the defendants would suffer if forced to proceed without an expert, the defendants may substitute as their testifying expert the biological person whom they intended to call as the corporation's agent to testify on its behalf.

I. FACTUAL BACKGROUND

The parties are litigating a breach of fiduciary duty case that has been coordinated with an appraisal proceeding. Both arise out of a take-private transaction involving ...


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