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In re Xura, Inc. Stockholder Litigation

Court of Chancery of Delaware

December 10, 2018

IN RE XURA, INC. STOCKHOLDER LITIGATION

          Date Submitted: September 11, 2018

          A. Thompson Bayliss, Esquire and David A. Seal, Esquire of Abrams & Bayliss LLP, Wilmington, Delaware, Attorneys for Plaintiff Obsidian Management LLC.

          Robert S. Saunders, Esquire, Arthur R. Bookout, Esquire, Matthew P. Majarian, Esquire and Haley S. Stern, Esquire of Skadden, Arps, Slate, Meagher & Flom LLP, Wilmington, Delaware, Attorneys for Defendants Frank Baker, Michael Hulslander and Siris Capital Group, LLC.

          John L. Reed, Esquire, Ethan H. Townsend, Esquire, Peter H. Kyle, Esquire and Harrison S. Carpenter, Esquire of DLA Piper LLP (US), Wilmington, Delaware and Rudolf Koch, Esquire, Susan M. Hannigan, Esquire and Anthony M. Calvano, Esquire of Richards, Layton & Finger, Wilmington, Delaware, Attorneys for Defendant Philippe Tartavull.

          MEMORANDUM OPINION

          SLIGHTS, VICE CHANCELLOR

         What began as an appraisal case has become, with the benefit of appraisal discovery, a breach of fiduciary duty case. The plaintiff here, Obsidian Management LLC, is a former stockholder of Xura, Inc. When an affiliate of Siris Capital Group, LLC acquired Xura via merger, Obsidian dissented and sought appraisal. According to Obsidian, in the discovery that followed the filing of its petition for appraisal in this Court, Obsidian uncovered evidence that Xura's former CEO, Philippe Tartavull, breached his fiduciary duties to Xura stockholders in the sale process leading up to the merger. It initiated this breach of fiduciary duty and aiding and abetting action individually, on its own behalf, against Tartavull and Siris, respectively, soon after.

         The appraisal and fiduciary duty actions have been consolidated and the appraisal action stayed pending final adjudication of the breach of fiduciary duty and aiding and abetting claims. Defendants, Tartavull and Siris, have moved to dismiss those claims with prejudice under Court of Chancery Rule 12(b)(6). While Defendants base their principal merits defense on the so-called Corwin doctrine, [1]they also challenge Plaintiff's standing to bring this fiduciary duty action given that Plaintiff purportedly seeks identical relief in its pending appraisal action. If the Court determines that Plaintiff has standing, and that Corwin does not apply at the pleading stage, then Defendants challenge whether Plaintiff has stated viable claims-Tartavull challenges the sufficiency of Plaintiff's Revlon, care and loyalty claims and Siris challenges the sufficiency of the pled aiding and abetting claim.

         In this Memorandum Opinion, I conclude (1) Plaintiff has standing to pursue these claims notwithstanding its pending appraisal action; (2) Plaintiff has pled facts that support a reasonable inference that the stockholder vote approving the merger was uninformed; (3) Plaintiff has pled a viable breach of fiduciary duty claim against Tartavull as Xura's CEO; and (4) Plaintiff has failed to plead a viable aiding and abetting claim against Siris. My reasons follow.

         I. FACTUAL BACKGROUND

         I draw the facts from the allegations in the Complaint, [2] documents incorporated by reference or integral to the Complaint and judicially noticeable facts available in public Securities and Exchange Commission filings.[3] For the purposes of this Motion to Dismiss, I accept as true the Complaint's well-pled factual allegations and draw all reasonable inferences in Plaintiff's favor.[4]

         A. Parties and Relevant Non-Parties

         Plaintiff, Obsidian Management LLC, is a Delaware Limited Liability Company and former Xura, Inc. stockholder at all times relevant to this litigation.[5]Obsidian owned 933, 555 shares of Xura common stock prior to the Merger.[6] As noted, Obsidian is also currently pursuing an appraisal of its Xura shares in this Court (the "Appraisal Action").[7]

         Defendant, Philippe Tartavull, was Xura's CEO from 2012 until December 19, 2016.[8] He served as a director of Xura from 2012 until August 19, 2016-when an affiliate of Defendant, Siris Capital Group, LLC, acquired all outstanding shares of Xura by merger (the "Transaction").[9] Xura terminated Tartavull as CEO on December 19, 2016, four months after the Transaction closed.[10]

         Defendant, Siris, is a Delaware Limited Liability Company. Defendant, Frank Baker, is Siris's co-founder and one of its Managing Partners.[11] Defendant, Michael Hulslander, is a principal of Siris, having been promoted after the Transaction's closing.[12] For the sake of clarity, I refer to claims against these defendants collectively as claims against the "Siris Defendants."

         Non-party, Xura, Inc. (or "the Company"), [13] was a publicly traded Delaware Corporation. Non-party, Jacky Wu ("Wu"), was Xura's CFO from April 2015 until August 26, 2016.[14] Non-party, Hank Nothhaft, was Xura's Chairman of the Board from October 2012 until August 19, 2016.[15] Non-party, Matthew Drapkin, was a director of Xura from March 2014 until August 19, 2016.[16] Drapkin was a partner of Northern Right Capital Management, L.P., an activist investor that held a significant amount of Xura stock and routinely sought board seats on small-cap, public companies.[17] Non-party, Goldman Sachs & Co. ("Goldman"), was Xura's longtime financial advisor and served in that capacity in connection with the Transaction.[18]

         B. Tartavull's First Contacts with Siris

         Tartavull first met Baker in Barcelona in 2012. Tartavull sought out Siris as a potential financial sponsor for an acquisition involving the Company the following year. In the discussions that ensued, the parties contemplated that Tartavull would remain as the CEO of the post-acquisition Xura and would serve as chair of an operating committee that would also include Siris executive partners and members of Xura's senior management. While nothing came of these discussions in 2013, the two kept in touch.

         In late 2014, Siris and Tartavull met again to discuss a potential acquisition of Xura. Tartavull had lunch with Hubert de Pesquidoux, a Siris Executive Partner, and Baker on November 17, 2014. Three days later, Tartavull joined Siris representatives for dinner where discussions about a possible acquisition continued. Later that month, Siris representatives attended a meeting at Xura's Wakefield, Massachusetts headquarters.

         On January 7, 2015, Siris submitted a letter of interest in which it proposed to acquire Xura for $24 per share.[19] The letter underscored that Siris "continue[d] to be impressed by the senior leadership team and is excited about the prospect of partnering with them."[20] Xura's board of directors (the "Board") discussed Siris's expression of interest at its January 13, 2015 meeting. Before the Board could formally respond, however, Siris decreased its offer to $20-$22 per share citing significant execution risks and deteriorating financials. The Board rejected the offer and, again, the negotiations ended.

         C. Xura Focuses Inward

         Following this second failed negotiation, Xura looked inward and endeavored to enhance shareholder value. On April 14, 2015, Xura entered into a Master Service Agreement with Tech Mahindra and began to outsource a significant portion of its workforce in exchange for payments totaling $211 million over six years. Two weeks later, on April 29, 2015, Xura sold its billing systems and support business (at the time this made up approximately half of Xura's revenues) to Amdocs for $272 million. Then, on August 6, 2015, Xura acquired Acision Global Limited for $136 million in cash and 3.14 million shares of common stock. The transformation ultimately led the Company to its new name-Xura.

         D. Siris Circles Back

         On October 19, 2015, Siris contacted Tartavull directly with an offer to acquire the new and improved Xura for $30-$32.50 per share. Once again, Siris made clear that it was "excited about the prospect of working with the management team to help Xura reach its full potential."[21] Tartavull and Baker immediately began discussing Siris's offer amongst themselves.[22] On October 21, 2015, Baker texted Tartavull looking for the Board's feedback on Siris's offer. According to the Proxy, Tartavull advised the Board of Baker's outreach at the time or soon after it occurred.[23]

         The Board considered Siris's offer at its October 22, 2015 meeting and directed management to communicate to Siris that the offer was inadequate and the Company was not for sale. Tartavull provided this feedback to Baker in a telephone conversation on October 29, 2015.

         Siris was undeterred. On the day it received news of the Board's rejection from Tartavull, Siris representatives, Tartavull and Wu continued to discuss a possible acquisition, including a discussion of Xura's forecasts and other non-public information. Siris raised its offer to $35 per share the next day. In its offer letter, Siris stated that it was "excited about the opportunity of working with the Company and its leadership team to accelerate Xura's transformation without the scrutiny and pressures of the public markets."[24] Siris followed its letter with a request directed to Tartavull for an exclusivity period of four to six weeks. Tartavull promptly relayed the request to the Board.

         E. Siris Negotiates Directly with Tartavull and Management

         The Board discussed Siris's revised proposal at its November 5, 2015 meeting. This time the Board "authorized management to continue discussing a potential transaction with Siris" and "authoriz[ed] the engagement of Goldman to assist the Company in the process."[25] The Board also authorized Xura's management to agree to a three-week period of exclusivity with Siris if Siris could confirm a deal price and provide assurances regarding financing.[26]

          On November 12, 2015, Goldman emailed Siris a contract extending the terms of the non-disclosure agreement Siris and Xura previously executed back in 2013.[27] That agreement stated:

You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures, will be submitted or directed only to the Chief Executive Officer of the Company or any designee thereof (the "Designated Officer"). You further agree that, subject to paragraph 11, under no circumstances will you or your Representatives discuss or otherwise communicate any aspect of the Transaction to any member of the management of the Company without the express written permission of the Designated Officer.[28]

         Goldman and Xura management participated in discussions and due diligence sessions with Siris throughout November 2015.

         In response to various data requests from Siris directed to Wu, on November 19, 2015, Goldman asked Hulslander to ensure that Siris copied Goldman on all transaction-related communications with Xura moving forward. On November 29, 2015, Hulslander forwarded Baker an email from Goldman offering to coordinate a call with Wu. Although Hulslander indicated he would participate in the call orchestrated by Goldman, internally he was working with his Siris team to come up with a plan to exclude Goldman and work directly with Xura management to "get the remaining high priority data."[29]

         Siris reiterated its $35 per share offer in a December 2, 2015 letter. Consistent with its previous communication, Siris again emphasized that it was "excited about the opportunity of working with the Company and its leadership team to accelerate Xura's transformation without the scrutiny and pressures of the public markets."[30]

         The Board held a meeting on December 3, 2015, with Goldman and its legal advisor, DLA Piper LLP (US), to discuss Siris's December 2 letter. At the meeting, the Board created a committee consisting of Tartavull, Nothhaft and Drapkin (the "Strategic Committee"). According to the Proxy, the mandate of the Strategic Committee was to "review, evaluate and negotiate the terms of a potential transaction with Siris and to make certain decisions between meetings of the board of directors."[31] Despite its mandate, the Strategic Committee never met with Siris, never took any formal action and never kept minutes nor any written record of its activities. Instead, the Strategic Committee functioned essentially as a weekly check-in with Tartavull. Indeed, one of the three Special Committee members, Nothhaft, did not even realize that the Special Committee existed or that he was a member of the committee until he learned about it at his deposition in the appraisal litigation.

         Later in December, Xura missed the filing deadline for its 10-Q when it encountered technical difficulties incorporating Acision's UK-based accounting system with Xura's system. Xura eventually filed its 10-Q on December 28, 2015.

         Throughout January 2016, Xura's senior management and Goldman engaged in various meetings and due diligence sessions with Siris. Siris received access to the Company's data room on January 15, 2016. Management presentations highlighting Xura's revenue, bookings, expenses and product pipeline occurred during due diligence meetings on January 12 and 20-22, 2016.

         All the while, Tartavull communicated directly with Siris on a regular basis without keeping Goldman informed-despite Goldman's stated preference that "communications go through [Goldman]."[32] Tartavull's regular communications with Siris troubled Wu, the Company's CFO. Accordingly, Wu asked Goldman to speak with Tartavull about channeling communications through Goldman. Goldman agreed, but Tartavull ignored the admonition. Siris likewise ignored Goldman's request that it be included in all communications with Xura. Indeed, at his deposition, Hulslander acknowledged that, even though Goldman "smacked us on the hand," the direct communications with Tartavull continued.[33]

         F. Goldman Shops Xura Unsuccessfully

         During the last week of January 2016, Goldman worked with the Board and senior management to identify nine potential parties that might have an interest in acquiring the Xura.[34] The interested parties included five financial sponsors and four strategic buyers.[35] After initial contacts, three financial sponsors (Bain Capital, Carlyle, and Thoma Bravo) and one strategic buyer (Nokia) executed confidentiality agreements and moved to the next stage of the sale process.[36]

         The second stage of the process proved to be an effective filter.[37] Bain Capital never attended any presentations and never responded to Goldman's efforts to schedule a call.[38] Xura made management and financial presentations to Nokia, Thoma Bravo and Carlyle.[39] Soon after, Nokia and Thoma Bravo informed Goldman they were no longer interested.[40]

         The last potential bidder standing-Carlyle-soon followed the other suitors out of the process. On March 8, 2016, Goldman had a call with Carlyle to discuss the Company's long-term model and to answer diligence questions.[41] In doing so, Goldman did not hide the fact that Xura was a "complicated story."[42] Prior to obtaining full diligence, on March 13, 2016, Carlyle provided Goldman with a verbal indication of interest in the range of $26-$27 per share.[43] Nevertheless, Carlyle stated that it "[had] a lot of work to do to confirm."[44] Goldman informed Carlyle that the offering price would at least have to match Siris's offer of $28 per share.[45]Carlyle maintained it could not bid at that price and exited the bidding process thereafter.[46]

         While Goldman was courting other bidders, Siris held firm and showed no sign of concern. From Hulslander's vantage point, "the Company [was] not 'for sale' and [Siris] ha[d] a proprietary angle on the deal . . . ."[47]

         G. Tartavull Lends Siris A Helping Hand

         Despite Xura's business transformation, its fortunes did not noticeably improve. On December 15, 2015, Xura announced disappointing preliminary third quarter results and disclosed the delay in filing of its Form 10-Q for the quarter ending October 31, 2015.[48] The Company's stock closed at $22.53 per share that day.[49] The trend of declining share value continued into 2016. On February 17, 2016, Xura's stock closed at $19.12 per share, marking a nearly 15% drop in the span of two months.[50] By February 24, 2016, the Company's common stock was trading at $18.64 per share.[51] At the time of the Transaction, Xura's stock was trading at $18.94 per share.[52]

         During the course of due diligence, Siris grew uneasy about Xura's outlook, particularly its cash flow projections and the historic and pending liabilities.[53] Siris informed Goldman on February 18, 2016, that it intended to submit a revised indication of interest that incorporated these concerns.[54]

         Meanwhile, an industry trade show, Mobile World Congress, convened from February 22 through 25, 2016 in Barcelona, the site of the original Tartavull-Siris encounter.[55] Baker planned to attend and to meet with "Xura personnel" while there.[56] Hulslander was on board, saying it made "sense to get together with [Tartavull] and part of his team in some capacity."[57] By the first day of the trade show, Baker and Tartavull had scheduled a lunch meeting.[58]

         During that February 24 lunch, Baker and Tartavull discussed Siris's latest offer, the timing of the Transaction and possible additional M&A transactions.[59] Baker indicated Siris would offer $27 per share.[60] With a gentle nudge, Tartavull told Baker that the offer price should be $28 per share.[61] Baker later acknowledged that the parties "agreed" upon $28 in advance of Siris sending a letter to Tartavull memorializing that price.[62]

         Tartavull did not inform anyone at Xura or Goldman about his meeting with Baker, either before or after it occurred.[63] Neither Baker nor Tartavull recalled this meeting at their depositions.[64] Moreover, none of this appeared in the Proxy or any other public filing.[65] The only evidence of the meeting is an internal communication between two lower-level Siris employees.[66]

         The next day, Siris submitted a revised offer of $28 per share.[67] The letter echoed Siris's statement that it was "excited about the opportunity of working with the Company and its leadership team to accelerate Xura's transformation without the scrutiny and pressures of the public markets."[68] Siris also renewed its request for exclusivity.[69]

         H. Exclusivity and Tartavull's Continued Negotiations with Siris

         On February 29, 2016, the Board, along with its legal and financial advisors, met to discuss Siris's revised proposal-oblivious to Tartavull's side conversations with Siris.[70] The Board discussed the terms of Siris's proposal, the downward adjustment of Xura's financial projections and forecasts, the underperformance of the Acision business and the Company's ability to execute its strategic plan.[71] The Board then "authorized management to continue discussing a potential transaction with Siris."[72] The Board also authorized management to negotiate the length of a "go-shop" period and the amount of the termination fee in exchange for a grant of exclusivity.[73] Tartavull participated in a due diligence call on March 5, 2016, and

          Xura representatives attended meetings with Siris and their respective advisors from March 7 through March 11, 2016.[74]

         Siris reiterated its revised indication of interest at $28 per share and again requested exclusivity on March 14, 2016.[75] On the following day, the Board authorized management to enter into an exclusivity agreement until April 8, 2016.[76]

         In the meantime, Wu continued to express concern to Goldman regarding Tartavull's contacts with Siris. Indeed, he stated internally that Tartavull "appears to be working directly with Siris on his own."[77] On March 17, 2016, one day after he executed Siris's exclusivity agreement, Tartavull told Siris privately that Wu told "white lies."[78] He even suggested that Siris assign someone to take over Wu's modeling functions during the transaction process.[79] This prompted Baker to instruct his team to "triple check" Xura's numbers and to plan a "mind meld" between Wu and a possible replacement.[80]

         I. Siris Retrades Again

         On March 23, 2016, Michael Ronen from Goldman predicted Siris's next move: "[h]ere comes the price renegotiation . . . [w]e are in exclusivity and now [S]iris will create a crisis to take price down[.]"[81] Wu saw the price reduction coming too, noting that Siris was going to "try to retrade."[82]

         The day after Goldman predicted Siris's retrade, Siris retraded. Siris advised Goldman it might not be able to offer more than $24 per share. Siris confirmed its position with Tartavull on April 6, 2016, stating it could no longer support its prior offer of $28 per share.

         That same day, the Board met to discuss the status of the sale process. At the meeting, management advised the Board that it might not be able to file Xura's Form 10-K for fiscal year ended January 31, 2016 on time. The Board instructed Goldman to disclose the potential delay to Siris. Goldman did so and then, to make matters worse, Goldman had to provide Siris with downward revisions to the Company's financial projections.

         On April 7, 2016, Goldman and the Board decided that the right response to Siris's retrade strategy was to go "radio silent."[83] Tartavull, however, apparently thought otherwise. He contacted Baker directly to discuss next steps. When Siris contacted Wu to follow up, Wu lamented to Goldman, "[w]e are bidding against ourselves."[84]

         On April 9, 2016, Siris offered $24.75 per share after speaking with Tartavull. Siris justified this price move by emphasizing the material decline in projected cash flow and the overall underperformance of the Company's businesses. The Board discussed the revised offer at its April 12, 2016 meeting and instructed Goldman that Siris must raise its price to $25 per share to extend exclusivity. Siris agreed to the $25 price, and Xura extended the exclusivity period for two weeks.

         J. An Interested Seller Is Diverted to Buy Side

         On April 15, 2016, Xura publicly announced that it would not meet its 10-K filing deadline again and that it was in negotiations with a potential buyer for a sale at $25 per share. In that announcement, Xura stated that it missed the 10-K filing deadline due to "complex strategic negotiations for the potential sale of the company."[85] Immediately following the announcement, Keith Geeslin of Francisco Partners contacted Tartavull to let him know that "if Xura is going to be sold, [Francisco Partners] would appreciate the opportunity to bid."[86] For reasons not coincidental by Plaintiff's lights, Francisco Partners never made a bid because, somehow, it learned Siris was the potential buyer.[87] Instead, Francisco Partners contacted Siris about a potential co-investment on the buy-side of the transaction.

         K. The Merger Agreement, the Unfruitful Go-Shop and Stockholder Litigation

         On May 19, 2016, Xura's Board held a special meeting to discuss the terms of the proposed transaction with Siris. During the meeting, the Board deliberated Siris's request that Xura do without a go-shop or at least limit it to 30 days. The Board declined and insisted on a 45-day go-shop. Goldman also presented its preliminary financial analysis of the proposed transaction. The Board met again on May 22, 2016. DLA Piper LLP (US) discussed the material terms of the proposed Transaction and Goldman presented an oral fairness opinion.

         On May 23, 2016, Xura and Siris executed a definitive merger agreement at $25 per share (the "Merger Agreement"). The Merger Agreement provided for a 45-day go-shop (the "Go-Shop"), a 2% termination fee (or $0.50 per share) if a superior proposal was submitted during the Go-Shop and a 3.5% termination fee (or $0.875 per share) if a superior proposal was submitted after the Go-Shop.

         On May 25, 2016, Siris executed an NDA with Neuberger Berman ("Neuberger"), which at the time held over 5% of Xura's stock. By the end of June 2016, Neuberger had sold nearly all of its Xura stock. Instead of exiting its investment in Xura, however, Neuberger was co-investing its equity with Siris. Neuberger-controlled entities ultimately co-invested $16, 985, 345 on the buy-side of the Transaction. Thus, by the time of closing, both Neuberger and Francisco Partners had joined Siris on the buy-side.

         During the Go-Shop, Goldman contacted 26 prospective buyers, including Francisco Partners and all of the other parties contacted during the pre-signing market check. While three parties entered into confidentiality agreements during the Go-Shop, none submitted acquisition proposals. By June 15, 2016, Goldman reported that there were no parties participating in the Go-Shop. Regarding Francisco Partners, Tartavull said at his deposition: "since Siris was engaged, I don't think [Francisco Partners] want[ed] to go to battle seriously in a go-shop."[88] Indeed, Plaintiff alleges that Tartavull approved Francisco Partners as a financing source for Siris before the Go-Shop period expired.[89]

         On July 11, 2016 and July 22, 2016, Xura stockholders filed lawsuits in the United States District Court for the District of Massachusetts seeking to enjoin the Merger (the "Massachusetts Actions"). On July 26, 2016, Xura, Siris and the Massachusetts plaintiffs reached an agreement whereby Xura would issue a supplemental proxy statement in exchange for a release of all claims related to the Merger against Xura, its directors and Siris.

         On August 16, 2016, a majority of Xura's stockholders voted to approve the Merger. The Transaction closed on August 19, 2016. After closing, Tartavull negotiated a long-term incentive plan that could have paid him over $25 million.[90]That plan yielded no benefits for Tartavull, however, because Xura terminated Tartavull after closing on December 19, 2016, before the plan could be executed.

         L. Tartavull Faces Job Uncertainty

         As Tartavull negotiated the Xura/Siris combination, Xura stockholders and the Board contemplated Tartavull's future with the Company in the event a transaction was not consummated. Major stockholders, including Wellington Asset Management and Steinberg Asset Management, openly questioned Tartavull's performance. In early March, before Xura and Siris agreed to exclusivity, Obsidian indicated that it intended to launch a proxy contest and made clear to both Tartavull and the Board its view that Xura should find a new CEO. In April, Nothhaft privately advised Tartavull that the Board was considering major changes if there was no deal, including changes at the Board level and the highest ranks of management.[91] Thus, as Tartavull engaged in private negotiations with Siris, he was facing a genuine risk that he would lose his job at Xura if the Company was not acquired. And he knew it.

         M. Lost Cell Phones, Lost Data and Claims of Spoliation

         Throughout the process that led to the Merger, Tartavull, Baker and Hulslander exchanged text messages on various personal and business devices. Many if not most of those messages have been either lost or destroyed.[92] As alleged, Tartavull was under a duty to preserve documents no later than May 30, 2016, when Xura received a litigation demand letter relating to the Merger.[93] The Siris Defendants were obliged to preserve documents, as alleged, no later than July 11, 2016, when the first of the Massachusetts complaints named them as parties.[94] It is alleged that those preservation obligations continued after Plaintiff filed the Appraisal Action and after Plaintiff served discovery seeking text messages.[95]

         Tartavull used multiple phones during the Merger negotiations. He turned over one of his phones to Xura when he departed in December 2016.[96] Xura then restored the factory settings on the phone and thereby wiped its data. To date, the parties have had no success mining data from that phone.[97] In the Appraisal Action, Tartavull produced some text messages from a different unwiped phone, but that production did not include pre-Closing texts, some of which were mentioned in emails that were produced.[98]

         Baker initially indicated that he damaged his Blackberry in March 2017, at least eight months after he incurred a duty to preserve.[99] He stated that he disposed of the Blackberry after it stopped working, though Siris stated in a verified interrogatory response that the device was lost.[100] In January 2018, after the Court heard argument on Obsidian's Motion for an Adverse Inference in the Appraisal Action, Baker found his Blackberry in a ski bag.[101] Because Baker cannot remember the password, however, no one has been able to recover any data from that device either.[102]

         Hulslander inadvertently "cleared" his phone in June 2017, at least eleven months after he incurred a duty to preserve.[103] More specifically, he incorrectly entered the password on his phone too many times thereby triggering a feature that automatically wiped the data from memory.[104]

         N. Procedural Posture

         Plaintiff filed its Appraisal petition on August 29, 2016. On January 29, 2018, the Massachusetts plaintiffs abandoned the proposed settlement of the Massachusetts Actions and dismissed their complaints. Plaintiff filed this fiduciary duty action soon after, on March 30, 2018. On April 18, 2018, the Court continued the appraisal trial and informed the parties that it would consolidate the Appraisal Action and this action. Siris moved to dismiss this action on April 30, 2018. Tartavull filed his motion to dismiss on May 14, 2018.

         II. ...


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