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Morris v. Spectra Energy Partners (De) GP, LP

Court of Chancery of Delaware

June 27, 2017

PAUL MORRIS, Plaintiff,
v.
SPECTRA ENERGY PARTNERS (DE) GP, LP; SPECTRA ENERGY CORP Defendants, and SPECTRA ENERGY PARTNERS, LP, Nominal Defendant.

          Date Submitted: May 12, 2017

          Stuart M. Grant, Michael J. Barry, Michael T. Manuel, of GRANT & EISENHOFER P.A., Wilmington, Delaware; Peter B. Andrews, Craig J. Springer, of ANDREWS & SPRINGER LLC, Wilmington, Delaware; OF COUNSEL: Jeremy Friedman, Spencer Oster, David Tejtel, of FRIEDMAN OSTER & TEJTEL PLLC, New York, New York, Attorneys for Plaintiff.

          Edward P. Welch, Jenness E. Parker, Bonnie W. David, of SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, Wilmington, Delaware; OF COUNSEL: Noelle M. Reed, of SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, Houston, Texas, Attorneys for Defendant Spectra Energy Partners (DE) GP, LP.

          C. Barr Flinn, Tammy L. Mercer, of YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware; OF COUNSEL: Karl S. Stern, of QUINN EMANUEL URQUHART & SULLIVAN, LLP, Houston, Texas, Attorneys for Defendant Spectra Energy Corp.

          MEMORANDUM OPINION

          GLASSCOCK, Vice Chancellor

         When a romantically-involved couple marries, they receive a basket of rights and responsibilities. Their legal duties, up to and including through a death or divorce, are defined by statute and case-law.[1] When couples forgo formal bonds, and pursue connubial pleasures au naturel, however, they are free to set their own bounds on the relationship. Behavioral flexibility is increased, of course, but so too is uncertainty, unless their agreements are explicit in a way unusual under the influence of mutual attraction. Litigation in this Court over jointly-owned property is one unfortunate result.

         As with romantic parties, so with investing parties. Like a groom, an equity holder buying stock in a Delaware Corporation thereby receives strictures and rights, in that case provided by the Delaware General Corporation Law and a rather vast body of common law, and he can be reasonably confident of what to expect should his relationship with the company and its management and directors become a matter of tears and recriminations.

         A buyer of equity in an alternative entity, on the other hand, is free-to the extent the counterparty has agreed-to set the terms of the relationship as the parties find satisfactory. Again, flexibility is enhanced, but uncertainty may lurk unless the express terms of the relationship-the terms of the entity agreement-are both clear and understood by the investor. If the relationship grows less than affectionate, it is frequently the terms of that contract, and not corporate fiduciary duties, that control. This case presents the latest of many such forays by this Court into the relationships that such parties have created for themselves, here involving a master limited partnership ("MLP") and a conflicted transaction with the MLP's general partner and its parent. Unlike in the corporate setting, where such a transaction would be subject to the strictures of entire fairness review, the parties agreed in advance that they would countenance such conflicted transactions;[2] indeed, the MLP structure is created to accommodate them. Nonetheless, the Plaintiff, a unitholder in the MLP, complains here that a particular self-dealing transaction between the MLP and the parent was unfair on its face. The Defendants have moved to dismiss. The contractual standard for evaluating liability with regard to such transactions, as agreed by the parties, is subjective bad faith, and it is undisputed that the general partner availed itself of a safe-harbor provision that establishes (at least) a rebuttable presumption of good faith. Nonetheless, the fact that the parent of the general partner had already agreed to invest the assets acquired from the MLP with a third party, in a transaction that implied substantially greater value than was paid to the MLP, is sufficient, on these facts and at the pleading stage, to make it reasonably conceivable that the general partner acted in bad faith. The Motion to Dismiss, accordingly, is denied in part. My reasoning follows.

         I. BACKGROUND[3]

         A. The Parties and Relevant Non-parties

         The Plaintiff, Paul Morris, owns common units of Spectra Energy Partners, LP ("SEP" or the "Partnership") and has owned the common units at all relevant times.[4] He brings this action derivatively on behalf of Nominal Defendant SEP.

         Nominal Defendant SEP is a Delaware limited partnership whose units trade on the New York Stock Exchange ("NYSE").[5] "SEP is a pipeline and energy transportation company that owns interests in pipeline systems throughout the United States and western Canada."[6] SEP was formed in 2007 by Spectra Energy Corp. ("SE Corp") as an MLP.[7] SEP is managed by Spectra Energy Partners (DE) GP, LP ("SEP GP"), and the board of directors of SEP GP's General Partner, Spectra Energy Partners GP, LLC ("SEP GP LLC").[8] I will adopt the Complaint's shorthand and simply refer to SEP GP and SEP GP LLC together as "SEP GP" for clarity.[9] As an MLP "SEP has no officers, directors or employees. Instead, it is managed by SEP GP and the SEP GP Board of Directors."[10]

         Defendant SEP GP is a Delaware limited partnership and the general partner of SEP.[11] SEP GP is "a wholly owned subsidiary of SE Corp" and SEP, as noted above, is controlled by its general partner SEP GP, LLC, a Delaware limited liability company.[12]

         Defendant SE Corp is a Delaware corporation and is the ultimate parent of SEP GP.[13] SE Corp is a $33 billion energy infrastructure company, that is listed on the NYSE.[14] "As of September 30, 2015, SE Corp owned an approximate 80% equity interest in SEP."[15] SE Corp's Chairman, President and CEO is a director of SEP GP and also the CEO and Chairman of SEP GP.[16] Other high-ranking SE Corp employees and former employees also sit on SEP GP's board.[17]

         To recapitulate: The Plaintiff is a unit holder in an MLP. SEP is the MLP, managed by its General Partner SEP GP. SEP GP is a wholly owned subsidiary of SE Corp. Further, SEP is managed by SEP GP LLC's board of directors. As mentioned above, SEP GP LLC is combined with SEP GP for clarity here and referred to as SEP GP or the "General Partner." SE Corp formed SEP, and is the ultimate parent of SEP GP. Further, SE Corp owns approximately 80% of the equity in SEP. The general relation among these entities is depicted in the figure below:

         (IMAGE OMITTED)

         Non-party Simmons & Company International ("Simmons") provided financial advice to the Conflicts Committee regarding the challenged transaction.[18]

         B. The Challenged Transaction

         The transaction at issue is a "reverse dropdown"[19] between SE Corp and SEP whereby SE Corp obtained a one-third interest in the two pipeline companies from SEP that SE Corp had already publicly promised to contribute to a joint venture with a third party at an implied value of $1.5 billon. According to the Complaint, SE Corp actually tendered to SEP consideration valued at under $1 billion.

         DCP Midstream LLC ("DCP"), formed in 2000, is a fifty-fifty joint venture between SE Corp and Phillips 66.[20] DCP was formed for the purpose of developing two pipeline companies: DCP Sand Hills Pipeline, LLC ("Sand Hills") and DCP Southern Hills Pipeline, LLC ("Southern Hills").[21] Prior to September 2015, SEP, Phillips 66, and DCP each owned one third interests in the Sand Hills and Southern

         Hills companies.[22]

         On September 8, 2015, SE Corp and Phillips 66 announced in a press release that the two companies would each contribute assets to DCP to address DCP's financial needs "amid a downturn in the energy sector" (the "Joint Contribution").[23]The press release stated that Phillips 66 would contribute $1.5 billion in cash, and SE Corp would contribute "'its ownership interest' in Sand Hills and Southern Hills."[24] A September 9, 2015 Fitch Ratings article on the Joint Contribution reported that SE Corp and Phillips 66 "announced that they have agreed to make a $3 billion asset contribution to their 50/50 JV DCP" and described SE Corp's contribution as a "$1.5 billion asset contribution."[25] Further, a November 2015 investor presentation by DCP also characterized the Joint Contribution as $3 billion of cash and assets contributed to DCP.[26] In addition, at a November 4, 2015 analyst conference call, SE Corp's CFO described SE Corp's contribution of its interests in the pipeline companies as "'matching' Phillips 66's $1.5 billion cash contribution."[27]Simmons, the Conflicts Committee's financial advisor, visually depicted the Joint Contribution as set out below:[28]

         (IMAGE OMITTED)

         As alluded to above, SE Corp did not own the Sand and Southern Hills assets it promised to transfer when it announced the Joint Contribution on September 8, 2015. In November 2013, SE Corp had transferred its one third interests in Sand Hills and Southern Hills, which it held at the time, to SEP in a dropdown transaction.[29] Thus, to effectuate the promised contribution to DCP, SE Corp first had to obtain the assets back from SEP in a reverse dropdown transaction.[30]

         On September 4, 2015, SE Corp sent a letter to SEP GP proposing a transaction (the "Transaction") in which SEP would transfer its interests in Sand Hills and Southern Hills to SE Corp in exchange for SE Corp (through its affiliates) (i) returning "20 million SEP limited partner units to SEP for redemption" (the "LP Unit Redemption") and (ii) waiving "its right to receive up to $4 million" in Incentive Distribution Rights ("IDRs") per quarter for twelve quarters (the "IDR Give-back").[31] On September 7, 2015, pursuant to the Agreement of Limited Partnership (the "LPA"), the SEP GP directors authorized the establishment of a Conflicts Committee (the "Committee") to evaluate the Transaction and appointed two independent directors to the Committee.[32] The written consent establishing the Committee (the "Written Consent") contained several recitals, most relevant from the Plaintiff's prospective is the following:

WHEREAS, the Company has received a formal non-binding proposal from Spectra Corp in which Spectra Corp has proposed that the Partnership transfer its membership interests in Sand Hills and Southern Hills to Spectra Corp in exchange for certain consideration from Spectra Corp to the Partnership, with the aim of holding the Partnership net cash neutral (the 'Transaction').[33]

         As discussed later, the Plaintiff argues this recital improperly restrained the Conflicts Committee from pursuing a transaction in the best interest of the Partnership, and rendered the "'Special Approval' process ineffective."[34] The Committee met and discussed the Transaction on September 8, 2015.[35] That same day, the Committee retained McGuireWoods LLP as legal advisor and Simmons as financial advisor.[36]

         Simmons' initial presentation to the Committee (the "September Presentation"), allegedly recognized that "SE Corp would immediately flip these assets to DCP in a transaction that valued" the interests in the two pipeline companies at $1.5 billion.[37] Simmons also initially identified three "components of value" that SEP would receive as "consideration": (1) the LP Unit Redemption valued at $832 million; (2) the IDR Give-back valued at $53 million; and (3) "Reduced GP Cash Flow" or "Reduced GP Distributions" which Simmons valued at $575 million.[38] The "Reduced GP Distributions, " a component not itself offered as consideration in SE Corp's opening offer, was described by Simmons to be the "reduced distributions from SEP [to SEP GP] after the sale of Sand Hills and Southern Hills."[39] Pursuant to the LPA, as SEP met certain distribution targets an increased proportion of cash flows were contractually obligated to be distributed to SEP GP. The "Reduced GP Distributions" in question were expected reductions in future payments from SEP to SEP GP as SEP became less profitable upon the removal of the assets.[40] Accordingly, Simmons initially calculated the "Value of Total Consideration" to be $1.46 billion, which was "essentially on par with SE Corp's expected benefit from flipping the assets to DCP."[41]

         Subsequent to its September Presentation to the Committee, Simmons allegedly "changed tack" and focused more on the value of LP Unit Redemption and the IDR Give-back in later analyses of the consideration to SEP.[42] Nevertheless, the Complaint alleges that "'Reduction of GP Cash Flow' remained a focal point in the Committee's consideration and ultimate approval of the Transaction itself."[43]

         From September 8 to October 7, 2015, the Committee met six times to consider the Transaction, and on October 7, 2015, the Committee recommended approval of the Transaction to the full board of SEP GP.[44] On October 8, 2015, the SEP GP board approved the Transaction based upon the Committee's recommendation.[45]

         The final terms of the Transaction provided that SEP would transfer its interest in Sand Hills and Southern Hills to subsidiaries of SE Corp in exchange for (i) 21.56 million LP Units and 440, 000 GP Units, and (ii) a reduction in IDRs payable to SEP GP of "$4 million per quarter through September 30, 2018."[46] Thus, the Committee had successfully bargained for some additional consideration beyond SE Corp's initial offer: SE Corp added to its initial proposal the redemption of 440, 000 GP Units (the "GP Unit Redemption"), along with approximately 1.56 million additional LP Units. The "Reduced GP Distributions, " a component of value to SEP in Simmons' September Presentation, was not explicitly included in the final terms of the Transaction.

         In an October 2015 presentation to the Committee (the "October Presentation"), Simmons calculated the value of the LP Unit Redemption at $41.95 per unit (the market price of the units as of October 6, 2015) which totaled $904 million.[47] Simmons then ascribed $42 million to the IDR Give-Back-that is, the cancellation of quarterly distribution rights associated with the IDRs.[48] However, Simmons did not assign any value to GP Unit Redemption.[49] With respect to SEP's one-third interests in Sand Hills and Southern Hills, Simmons concluded that the value to the limited partners was $700 to $800 million "implied by comparable companies" and $750 to $875 million under a discounted cash flow analysis.[50]Based on these valuations, Simmons opined that "[t]otal LP consideration value of $946 million is accretive to SEP."[51] The Committee accepted the deal at this amount of actual consideration aware of the implied and announced market price of the assets of $1.5 billion.[52] The Complaint alleges that Simmons "specifically ignored" the implied $1.5 billion valuation in its determination of fairness.[53]

         Notably Simmons did not directly include the "Reduced GP Cash Flow" as part of the "value of consideration to LP" in the October Presentation.[54] Simmons did indicate-though only in the Appendix of the October Presentation materials- that the "Reduced GP Distributions" were a component of the "total value of consideration."[55] As compared to the September Presentation, Simmons allegedly reduced the valuation of the "Reduced GP Distributions" from $575 million to $525 million and clarified that the Reduced GP Distributions arose from both the GP Unit Redemption and the sale of Sand Hills and Southern Hills.[56] While there is some apparent inconsistency between the Complaint and the briefing in this matter, it appears from the presentations incorporated by the Complaint that the Reduced GP Cash Flows were not included by Simmons, in its final presentation, in the value of the consideration exchanged from SE Corp to SEP, but continued to be counted as part of the total value of the deal to SEP.[57]

         C. Most Relevant Provisions of the LPA

         1. Distribution Waterfall of SEP

         SEP is organized as an MLP. MLPs issue publicly traded securities to investors and are typically required by the relevant partnership agreements to "pay out to their unitholders in quarterly cash distributions, all earnings not needed for current operations and maintenance of capital assets."[58]

         Section 6.4 of SEP's LPA describes the distribution waterfall for any quarterly operating surplus of SEP.[59] Under the LPA, any "Available Cash"[60] will be distributed first to SEP GP and the limited partners proportionally to their respective "Percentage Interests" in SEP.[61] Once certain distribution targets contemplated by the LPA are reached, SEP GP receives, on top of the percentage it is entitled to through its "Percentage Interest, " an additional proportion of the incremental cash distribution from the "Available Cash" by way of its IDRs.[62] In other words, any distribution above the target amounts set by the LPA triggers an obligation to pay SEP GP's IDRs, which in turn consume some portion of the incremental distribution that the limited partners would receive absent the IDRs. As SEP became more profitable, SEP GP's IDRs would increase. Conversely, sale of a productive asset would, all else equal, reduce future IDR payments. Again, this is the theoretical basis for Simmons' invocation of the value of "Reduced GP Distributions" inherent in the Transaction.

         2. Duty Modification and Conflict of Interest Provisions in the LPA

         As is typical in modern alternative entities, Section 7.9(e) of the LPA eliminates common law fiduciary duties and replaces them with contractual standards.[63]

         Section 7.9(b) of the LPA imposes a general, overarching, obligation of "good faith" on SEP GP and the Conflicts Committee whenever they "make [a] determination or take or decline to take such other action . . . ."[64] Under the LPA, in order for a determination to be made in "good faith, " the person acting "must believe that the determination or other action is in the best interests of the Partnership."[65]That is, subjective good faith is the applicable standard.

         Section 7.9(a) of the LPA provides for the "Resolution of Conflicts of Interest" when there is a potential conflict of interest between SEP GP "or any of its Affiliates, on the one hand, and the Partnership, any Group Member, any Partner Assignee, on the other."[66] The LPA defines "Affiliates" such that it includes SEP GP and SE Corp.[67]

         Section 7.9(a) offers several contractual safe harbors to a conflicted transaction. It states, in part, that any resolution or course of action by SEP GP or its Affiliates in respect of a conflict of interest "shall not constitute a breach of this [LPA] . . . or of any duty stated or implied by law or equity if the resolution or course of action" is (i) approved by "Special Approval, " (ii) approved by a vote of the majority of the common units (excluding common units owned by SEP GP and its affiliates), (iii) "on terms no less favorable to the Partnership than those generally being provided to or available from unrelated third parties, " or (iv) "fair and reasonable to the Partnership, taking into account the totality of the relationships between the parties involved (including other transactions that may be particularly favorable or advantageous to the Partnership)."[68] The safe harbor utilized in the present litigation is "Special Approval, " which is defined in the LPA as an "approval by a majority of the members of the Conflicts Committee."[69] The Conflicts Committee, to be contractually compliant, must consist of two or more directors of SEP GP, each of whom must meet the independence and disinterested criteria in the LPA.[70]

         Section 7.9(a) provides that the Conflicts Committee is presumed to satisfy the good faith obligation if Special Approval is received.[71] That presumption is rebuttable; Section 7.9(a) places the burden of overcoming the presumption of good faith of the Conflicts Committee upon a person challenging the Special Approval.[72]

         Also relevant to this dispute, according to the Defendants, is Section 7.10 of the LPA titled "Other Matters Concerning the General Partner" which provides in subsection (b) that:

[t]he General Partner may consult with legal counsel, accountants, appraisers, management consultants, investment bankers and other consultants and advisors selected by it, and any act taken or omitted to be taken in reliance upon the opinion (including an Opinion of Counsel) of such Persons as to matters that the General Partner reasonably believes to be within such Person's professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such opinion.[73]

         Thus, Section 7.10 provides a general and broad conclusive presumption of good faith to SEP GP when it acts in reliance on professional advisors. Which presumption applies-the rebuttable presumption of Section 7.9(a), or the conclusive presumption of Section 7.10(b)-is in dispute here.

         D. Procedural Background

         The Complaint pleads six counts, with Counts II, IV, and VI asserting derivative actions that mirror direct claims pled in Counts I, III, and V. However, due to a recent clarification of the law by our Supreme Court, the Plaintiff has abandoned the direct Counts.[74]

         Count II asserts breach of the LPA against SEP GP. It alleges that SEP GP breached its "good faith" obligation under the LPA by approving the alleged "patently unfair and unreasonable" terms of the Transaction and by "improperly constraining the Conflicts Committee's authority" to a determination whether the Transaction would hold SEP "net cash neutral" via a whereas clause in the resolution establishing the Conflicts Committee.[75]

         Count IV asserts a claim against SEP GP for an alleged breach of the implied covenant of good faith and fair dealing. The Plaintiff makes clear that Count IV is only a gap filler-it becomes relevant if this Court finds that either (i) SEP GP "was not contractually required by the terms" of the LPA to act in good faith, or (ii) reliance on Simmons' fairness opinion "alters the relevant standard of conduct (or any presumption relating thereto) for purposes of evaluating SEP GP's, the Board's, or the Conflicts Committee's conduct in approving the Transaction."[76] The Plaintiff alleges that SEP GP violated the implied covenant of good faith and fair dealing when it (1) allowed SE Corp to "engineer the Transaction on terms that are patently unfair and unreasonable to SEP, " (2) constrained the Committee's authority in considering the Transaction via the net cash neutral whereas clause, and (3) relied on an improper Special Approval and/or Simmons' flawed fairness opinion.[77]

         Count VI asserts a claim against SE Corp for tortious interference with the LPA. It alleges that SE Corp has "intentionally caused SEP GP to violate its obligations under the Partnership Agreement by, in bad faith, causing SEP to enter into the Transaction."[78]

         Defendants SEP GP and SE Corp each moved to dismiss the respective Counts. The Defendants' Motions were fully briefed and oral argument followed. After oral argument, I asked the parties to submit supplemental briefing on two specific questions: whether SEP's interests in Sand Hills and Southern Hills could have been sold to a third party and if so, whether the proceeds of a third-party sale would be paid out through the LPA's distribution waterfall. This prompted further oral argument on these issues, and no clear resolution. Additionally, in April I requested supplemental submissions on the parties' positions regarding a recent Supreme Court decision pertinent to this matter. Supplemental submissions were received on May 12, 2017. My decision on the Defendants' Motions follows.

         II. ANALYSIS

         The Defendants have moved to dismiss this action pursuant to Court of Chancery Rule 12(b)(6). The standard of review for a Rule 12(b)(6) motion is well settled:

(i) all well-pleaded factual allegations are accepted as true; (ii) even vague allegations are well-pleaded if they give the opposing party notice of the claim; (iii) the Court must draw all reasonable inferences in favor of the nonmoving party; and (iv) dismissal is inappropriate unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof.[79]

         When reviewing a motion to dismiss, the Court may take into consideration documents "incorporated into the pleadings by reference and may take judicial notice of relevant public filings."[80]

         Below I review the three remaining Counts of the Complaint: first, that the Transaction breached the LPA; second, that SEP GP breached the implied covenant of good faith and fair dealing, and; third, that SE Corp tortiously interfered with the LPA and the implied covenant. For the reasons that follow I grant the Defendants' Motions in part and deny them in part.

         A. The Breach of the LPA Claim

         1. Applicable Standards

         It is well settled that the "Delaware Revised Uniform Limited Partnership Act ('DRULPA') gives 'maximum effect to the principles of freedom of contract.'"[81]The freedom provided by DRULPA "permits the LPA drafter to disclaim fiduciary duties, and replace them with contractual duties."[82] When "fiduciary duties have been validly disclaimed, the limited partners cannot rely on traditional fiduciary principles to regulate the general partner's conduct. Instead, they must look exclusively to the LPA's complex provisions to understand their rights and remedies."[83] Such is the case in the LPA here: Section 7.9(e) disclaims common law fiduciary duties in favor of contractual duties.[84]

         When fiduciary duties are disclaimed, "a threshold matter when evaluating a proposed transaction under the LPA" is what provision of the LPA controls and whether the plaintiff has stated a claim that the defendants breached such provision.[85]To make such a determination, I am to construe the LPA "to give effect to the parties' intent, " interpreting words according to their plain meaning "unless it appears that the parties intended a special meaning, " and read the LPA as a whole to "give effect to every provision if it is reasonably possible to do so."[86] Prior precedent often proves unhelpful in this endeavor, and our Supreme Court has repeatedly recognized that the broad contractual freedoms provided by DRULPA necessitate a nuanced look at each particular LPA's provisions.[87] In LPA's such as this, "investors can no longer hold the general partner to fiduciary standards of conduct, but instead must rely on the express language of the partnership agreement to sort out the rights and obligations among the general partner, the partnership, and the limited partner investors."[88] To the extent a provision of the LPA is ambiguous, since the limited partners did not bargain for its terms, ambiguities will be interpreted against the general partner, and the Court will give effect to the reasonable expectation of investors.[89]

         Here, the Transaction was a reverse dropdown between SEP and SE Corp. SE Corp, as the ultimate parent of SEP GP, is an "Affiliate" of SEP GP under the terms of the LPA. The threshold issue is whether the rebuttable presumption under Section 7.9(a) attaches to the Transaction via Conflicts Committee approval, or as the Defendants suggest, the conclusive presumption of good faith attaches since the Conflicts Committee relied on a financial advisor. For the reasons discussed below, I find that the Transaction is subject to Section 7.9(a), the conflict-of-interest provision under the LPA, rather than the more general provision of Section 7.10(b). Section 7.9(a) provides an optional safe-harbor to satisfy the contractual good faith standard. I find it contrary to the plain terms of the contract and the reasonable expectations of the contracting parties to read the more general provision of Section 7.10(b) to attach here. Therefore, the Defendants are entitled to the rebuttable presumption that they acted in good faith rather than the conclusive presumption of good faith.

         Section 7.9(b) imposes on SEP GP and the Conflicts Committee an overarching obligation to make determinations "in good faith."[90] Section 7.9(b)'s overarching good faith standard is subjective: it defines good faith to mean "the Person . . . must believe that the determination or other action is in the best interests of the Partnership."[91] The question for purposes of Defendants' Motions is whether the Plaintiff has alleged sufficient facts to make it reasonably conceivable that SEP GP, with the presumption of good faith provided by its satisfaction of a safe harbor provided by Section 7.9(a), has nonetheless breached its contractual "good faith" obligation in regards to the Transaction. For the reasons that follow, I find the Complaint pleads facts, which together with all reasonable inferences therefrom provide at least one "reasonably conceivable set of circumstances susceptible of proof" upon which the Plaintiff could recover.[92]

         2. Section 7.10(b)'s Conclusive Presumption is Inapplicable Here

         SEP GP argues that Section 7.10(b) establishes a "conclusive presumption" that the approval of the Transaction was in good faith because the Conflicts Committee relied on the Simmons' fairness opinion, and SEP GP relied on the Conflicts Committee.[93] According to SEP GP, the plain language in Section 7.10(b), which provides the general partner with a conclusive presumption of good faith where it acts in reasonable reliance on certain professional opinions, [94] leaves no room to rebut the presumption with "substantive attacks on an advisor's methodology."[95] The Plaintiff counters that Section 7.10(b) is inapplicable as a more general provision of the LPA that "cannot logically apply to conflict-of-interest transactions" governed by the more specific provision of Section 7.9.[96] To support this interpretation, the Plaintiff invokes the principle of contract construction that specific provisions of a LPA control over the more general ones.[97] The Defendants counter that this contractual construction aid only applies when there is a conflict between two provisions, and this aid need not be invoked because there is no conflict between the provisions. According to the Defendants, Section 7.9(a) and Section 7.10(b) can be read in harmony.[98]

         It is helpful to note how Section 7.9(a) and Section 7.10(b) interact with one another. On its face, Section 7.10, entitled "Other Matters Concerning the General Partner, " appears to cover all matters related to SEP GP that other sections of the LPA do not address.[99] Reaching safe harbor in conflict transactions is explicitly laid out in another section: Section 7.9(a) specifically sets forth safe harbors in conflicts situations and grants a rebuttable good faith presumption if a safe harbor is met. The language and structure of the agreement implies that the "good faith" presumption in conflicts situations is intended to be rebuttable, and not as SEP GP insists, "conclusive." Further, as the Plaintiff correctly points out, "the settled rules of contract interpretation" counsel the Court to prefer Section 7.9(a), a specific provision, over the more general Section 7.10.[100]

         The Defendants argue, however, that the perceived linguistic conflicts between Section 7.9(a) and Section 7.10(b) should be viewed as more apparent than real. Section 7.10(b) could be read to afford additional protection to SEP GP when a Conflicts Committee seeks guidance from advisors, thus heightening the Plaintiff's burden in overcoming the good faith presumption resulting from a Special Approval.[101]

         SEP GP cites cases where courts favored a conclusive presumption when clauses resembling Section 7.10(b) were at issue.[102] Principally, [103] they rely on Norton v. K-Sea Transp. Partners L.P., [104] in which the Supreme Court found that a contractual provision generally providing an irrebuttable presumption of good faith upon reliance on professional advice trumped a specific and otherwise applicable provision with a rebuttable presumption. Norton is undoubtedly on point. I am not, however, persuaded that the case is dispositive to the issue under the LPA present here. The LPA provisions here, I note, are very similar to those presented in a subsequent Supreme Court case, Allen v. Encore Energy Partners, L.P.[105]

         The Supreme Court in Allen stated the precise issue before me, i.e. whether a general conclusive presumption of good faith arising from reliance on advisors trumped the specific conflict provision's rebuttable presumption of good faith.[106]The Allen Court recognized the holding in Norton, [107] and Gerber v. Enterprise Products Holdings, LLC, [108] (which reached a conclusion similar to that in Norton), but also cited to a trial court ruling contrary to Norton and Gerber, [109] and ultimately avoided a decision on the issue.[110] Allen, to my mind, indicates that our Supreme Court does not intend that Norton be construed as a totemic statement that general provisions of irrebuttable good faith, in all instances, overcome specific clauses to the contrary. As I read the case law, there is no binding authority that this LPA requires Section 7.10(b)'s conclusive presumption be read to alter the standard under Section 7.9(a). I note that it is not clear that the LPAs in the cases the Defendants rely upon were identical, in all important respects, to the governing document here.[111]

         I find helpful a recent case of this Court. The Defendants relied heavily in briefing[112] upon Employees Retirement System of City of St. Louis v. TC Pipelines GP, Inc., [113] which tends, however, to my mind illustrate a weakness with the Defendants' position here. In TC Pipelines, the conclusive presumption was contained within the special approval safe-harbor.[114] That is, the LPA in TC Pipelines specifically provided that valid special approval by a conflicts committee of a conflicted transaction invoked a conclusive presumption of good faith.[115] This Court held such a conclusive presumption barred judicial review of a breach of the LPA claim, and the Supreme Court affirmed on that ground.[116] Here, the conclusive presumption sought to be invoked is not within the Conflicts Committee portion of the LPA, rather it is in a separate provision referring generally to "other matters" concerning the General Partner. The Defendants encourage me to apply the conclusive presumption of good faith in favor of the General Partner, due to the Committee's reliance on Simmons as a financial advisor. I decline that reading: what TC Pipelines tends to demonstrate, to my mind, is that when sophisticated entities intend to provide a conclusive presumption in a conflicts situation, they know how to draft such a provision.[117]

         Here the conclusive presumption is absent from the conflicts safe-harbor section of the LPA. To the extent there is any ambiguity regarding the presumption that should apply here, our case law teaches that because of the nature of these entities and their broad contractual freedoms, coupled with the unitholders' limited bargaining power and the fact that the unitholders' sole protections flow from the text of the LPA, ambiguities should be resolved in favor of the unitholder.[118]

         Here, I find the reasonable expectation of an investor reading the plain language of this LPA requires the attachment of the rebuttable good faith presumption provided by Section 7.9. Under the Defendants' reading of the LPA, the conflicted General Partner would be better situated in a conflicts situation by eschewing review by an independent committee in favor of unilaterally hiring an investment banker. Assuming the banker could be persuaded to render a fairness opinion, under Defendants' reading the General Partner would thereby garner a conclusive presumption of good faith, despite the more specific provisions of Section 7.9 regarding conflicts situations. Those provisions, of course, offer various safe harbors for the General Partner that provide a rebuttable presumption of good faith. Pursuant to the Defendants' reading, the protection of an independent Conflicts Committee, vigorously reviewing the transaction and bargaining on behalf of the unitholders, or of a majority approval of un-conflicted common units, would result in only a rebuttable presumption. By contrast, a process where those unitholder protections were absent would result in a higher irrebuttable presumption of good faith, conditioned solely on the General Partner's reliance on a banker opinion it reasonably believed was within that banker's field of competence. That, to my mind, is an unlikely result, and one which the unitholders would not expect based on a reasonable reading of this LPA, as structured. Further, I note that, as was the case here, it is common practice for special committees of this sort to retain professional counsel and advisors: to the extent SEP GP intended such retention to invoke thereby a conclusive presumption, the LPA could have easily been drafted to include a conclusive presumption in the conflicts section.[119] It was not, however.

         Finally, I note were this LPA read to attach the conclusive presumption, it may be necessary to revisit the implied covenant claim which I reject below in light of my finding that only the rebuttable presumption attaches and there is therefore no gap to fill.[120]

          3. The Complaint Rebuts the Presumption of Good Faith

         The Plaintiff concedes that Special Approval as defined by the LPA was received, and that no procedural barriers prevent it from attaching.[121] Therefore, a rebuttable presumption that the approval of the Transaction was made in good faith attaches under Section 7.9(a), and the burden is on the Plaintiff to rebut that presumption.

         While the Plaintiff may ultimately face difficulty overcoming the presumption of good faith supplied by the Conflicts Committee's approval, that is not the standard he faces here on a 12(b)(6) motion. To defeat this motion, the Complaint must plead facts making it reasonably conceivable that a set of circumstances exist upon which he could recover upon a developed record. Here, the Plaintiff alleges that the Transaction was approved in the face of a half-a-billion-one-third-gulf in value, and the concomitant implication that approval was in bad faith. For the reasons below, this apparent valuation gulf, on the facts pled here, gives rise to a pleading stage inference of subjective bad faith.

         The Plaintiff relies on his allegations that the Conflicts Committee (1) was "constrained" by the net cash neutral mandate in the Written Consent and (2) relied on a "fatally flawed fairness opinion in approving a manifestly unfair transaction" to rebut the presumption and state a breach of the LPA claim.[122] Resolution of this issue requires an answer to the first-order question of what needs to be pled in order to overcome a contractual presumption of good faith. Section 7.9(b) of the LPA defines "good faith" to mean that the person "must believe that the determination or other action is in the best interests of the Partnership."[123] Our Supreme Court has made clear that "believe, " as opposed to "reasonably believe, " imports a subjective standard.[124] Accordingly, a successful rebuttal, at this stage, depends on ...


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