Submitted: March 7, 2018
Below: Court of Chancery of the State of Delaware C.A. No.
STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR,
Justices, constituting the Court en Banc.
Strine, Jr. Chief Justice
affirm this decision on the grounds that the Court of
Chancery properly found that the pled facts did not support a
rational inference that any of the directors faced a
non-exculpated claim for breach of fiduciary duty on the
theory that merger consideration was improperly diverted into
payments for two management directors. The pled facts do
not support a rational inference to that effect, and the
transaction at issue resulted from a thorough market check
and was to a buyer without any prior ties to
management. To the extent, however, that the Court of
Chancery's decision suggests that it is an invariable
requirement that a plaintiff plead facts suggesting that a
majority of the board committed a non-exculpated breach of
its fiduciary duties in cases where Revlon duties
are applicable,  but the transaction has closed and the
plaintiff seeks post-closing damages, we disagree with that
statement. Likewise, to the extent that the Court of
Chancery's decision might be read as suggesting that a
plaintiff in this context must plead facts that rule out any
possibility other than bad faith, rather than just pleading
facts that support a rational inference of bad faith, we
disagree with that statement as well. With these concerns
expressed, we affirm the judgment of the Court of Chancery.
THEREFORE, IT IS ORDERED that the judgment of the Court of
Chancery is hereby AFFIRMED.
 In his opening brief, the plaintiff
framed his singular argument as follows: The defendants
"acted in bad faith in approving a Merger that diverted
consideration from stockholders to the Stern brothers."
Appellant's Opening Br. 18.
 Kahn v. Stern, 2017 WL
3701611, at *4 (Del. Ch. Aug. 28, 2017).
 The presence of an exculpatory charter
provision does not mean that Revlon duties no longer
apply. Rather, Revlon remains applicable as a
context-specific articulation of the directors' duties
but directors may only be held liable for a non-exculpated
breach of their Revlon duties. See RBC Capital
Mkts, LLC v. Jervis, 129 A.3d 816, 874 (Del. 2015);
McMillan v. Intercargo Corp., 768 A.2d 492, 502
(Del. Ch. 2000); In re Lear Corp. S'holder
Litig., 967 A.2d at 655.
 For example, there are iconic cases,
such as MacMillan, that are premised on independent
board members not receiving critical information from
conflicted fiduciaries. Mills Acquisition Co. v.
Macmillan, Inc., 559 A.2d 1261, 1283 (Del. 1989)
("Given the materiality of these tips, and the silence
of [the conflicted directors] in the face of their rigorous
affirmative duty of disclosure at the September 27 board
meeting, there can be no dispute but that such silence was
misleading and deceptive. In short, it was a fraud upon the
board."). And there are also cases where impartial board
members did not oversee conflicted members sufficiently.
MacMillan itself has a famous passage pointing to
this possibility. Id. at 1280 ("The board was
torpid, if not supine, in its efforts to establish a truly
independent auction, free of [the CEO and Chairman's]
interference and access to confidential data. By placing the
entire process in [his] hands . . . through his own chosen
financial advisors, with little or no board oversight, the
board materially contributed to the unprincipled conduct of
those upon whom it looked with a blind eye."). See
also In re Toys "R" Us, Inc. S'holder
Litig., 877 A.2d 975, 1002 (Del. Ch. 2005) ("[T]he
paradigmatic context for a good Revlon claim . . .
is when a supine board under the sway of an overweening CEO
bent on a certain direction, tilts the sales process for
reasons inimical to the stockholders' desire for the best
In fairness to the Vice Chancellor, the plaintiff
himself embraced the majority formulation the decision used
and also conceded to us that he argued the case below as if
the business judgment rule applied. We nonetheless feel
obliged to affirm on narrow grounds lest the decision below,
which came on an unusual set of pled facts and a specific
framing of the issues by the parties that itself was unusual,
be read too sweepingly.
Brinckerhoff v. Enbridge Energy
Co., Inc., 159 A.3d 242, 258-60 (Del. 2017), as
revised (Mar. 28, 2017) ("Relying on Parnes v.
Bally Entertainment Corporation, and corporate notions
of waste, we held [in Brinkerhoff III] that to state
a claim based on bad faith, [the general partner's]
decision to enter into the Joint Venture Transaction must be
so far beyond the bounds of reasonable judgment that it seems
essentially inexplicable on any ground other than bad faith.
. . . [W]e depart from [that] decision . . . and hold that to
plead a claim that [the general partner] did not act in good
faith, [the plaintiff] must plead facts supporting an
inference that [the general partner] did not reasonably
believe that the . . . transaction ...