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Ryan v. Gifford/Opinion of the Court

[p345]

CHANDLER, Chancellor

On March 18, 2006, The Wall Street Journal sparked controversy throughout the investment community by publishing a one-page article, based on an academic's statistical analysis of option grants, which revealed an arguably questionable compensation practice. Commonly known as backdating, this practice involves a company issuing stock options to an executive on one date while providing fraudulent documentation asserting that the options were actually issued earlier. These options may provide a windfall for executives because the falsely dated stock option grants often coincide with market lows. Such timing reduces the strike prices and inflates the value of stock options, thereby increasing management compensation. This practice allegedly violates any stock option plan that requires strike prices to be no less than the fair market value on the date on which the option is granted by the board. Further, this practice runs afoul of many state and federal common and statutory laws that prohibit dissemination of false and misleading information.

After the article appeared in the Journal, Merrill Lynch issued a report demonstrating that officers of numerous companies, including Maxim Integrated Products, Inc., [p346] had benefited from so many fortuitously timed stock option grants that backdating seemed the only logical explanation. The report engendered this action.

Plaintiff Walter E. Ryan alleges that defendants breached their duties of due care and loyalty by approving or accepting backdated options that violated the clear letter of the shareholder-approved Stock Option Plan and Stock Incentive Plan ("option plans"). Individual defendants move to stay this action in favor of earlier filed federal actions in California ("federal actions"). In the alternative, they move to dismiss this action on its merits.

In this Opinion, I grant individual defendants' motion to dismiss all claims arising before April 11, 2001. I deny the remainder of the individual defendants' motion to stay or dismiss.

I.FACTS
Maxim Integrated Products, Inc. is a technology leader in design, development, and manufacture of linear and mixed-signal integrated circuits used in microprocessor-based electronic equipment. From 1998 to mid-2002 Maxim's board of directors and compensation committee granted stock options for the purchase of millions of shares of Maxim's common stock to John F. Gifford, founder, chairman of the board, and chief executive officer, pursuant to shareholder-approved stock option plans filed with the Securities and Exchange Commission. Under the terms of these plans, Maxim contracted and represented that the exercise price of all stock options granted would be no less than the fair market value of the company's common stock, measured by the publicly traded closing price for Maxim stock on the date of the grant. Additionally, the plan identified the board or a committee designated by the board as administrators of its terms.

Ryan is a shareholder of Maxim and has continuously held shares since his Dallas Semiconductor Incorporated shares were converted to Maxim shares upon Maxim's acquisition of Dallas Semiconductor on April 11, 2001. He filed this derivative action on June 2, 2006, against Gifford; James Bergman, B. Kipling Hagopian, and A.R. Frank Wazzan, members of the board and compensation committee at all relevant times; Eric Karros, member of the board from 2000 to 2002, and M.D. Sampels, member of the board from 2001-2002. Ryan alleges that nine specific grants were backdated between 1998 and 2002, as these grants seem too fortuitously timed to be explained as simple coincidence. All nine grants were dated on unusually low (if not the lowest) trading days of the years in question, or on days immediately before sharp increases in the market price of the company.

A. Genesis of these Claims
As practices surrounding the timing of options grants for public companies began facing increased scrutiny in early 2006, Merrill Lynch conducted an analysis of the timing of stock option grants from 1997 to 2002 for the semiconductor and semiconductor equipment companies that comprise the Philadelphia Semiconductor Index. Merrill Lynch measured the aggressiveness of timing of option grants by examining the extent to which stock price performance subsequent to options pricing events diverges from stock price performance over a longer period of time. "Specifically, it looked at annualized stock price returns for the twenty day period subsequent to options pricing in comparison to stock price returns for the calendar year in [p347] which the options were granted." In theory, companies should not generate systematic excess return in comparison to other investors as a result of the timing of options pricing events. "[I]f the timing of options grants is an arm's length process, and companies have [not] systematically taken advantage of their ability to backdate options within the [twenty] day windows that the law provided prior to the implementation of Sarbanes Oxley in 2002, there shouldn't be any difference between the two measures." Merrill Lynch failed to take a position on whether Maxim actually backdated; however, it noted that if backdating did not occur, management of Maxim was remarkably effective at timing options pricing events.

With regard to Maxim, Merrill Lynch found that the twenty-day return on option grants to management averaged 14% over the five-year period, an annualized return of 243%, or almost ten times higher than the 29% annualized market returns in the same period.

B. Similar Pending Actions
The Merrill Lynch report formed the bases for other derivative lawsuits. Robert McKinney filed a federal action in the Northern District of California on May 22, 2006, three weeks before this action was filed. Eugene Horkay, Jr. followed suit, filing an identical action in the same court two days later. The Northern District of California entered an order on June 14, 2006, consolidating these suits and all subsequently filed suits. Under this order, two more actions were consolidated. All four derivative plaintiffs have stipulated to consolidate and agreed to a lead plaintiff and lead counsel structure. Further, defendants and plaintiffs have entered into a stipulated scheduling order approved by that court.

The federal action is similar to the Delaware action. The federal plaintiffs posit claims of backdating based on the Merrill Lynch report. They specifically challenge ten option grants, alleging that backdating occurred. Further, they contend that this violation of their options plan exposes Maxim to adverse tax consequences.

The federal action differs in some respects, however. First, that action alleges that other officers, in addition to Gifford, benefited from backdated options. Further, the federal action names more director defendants. In addition to breach of fiduciary duty claims, the federal plaintiffs assert claims for aiding and abetting breach of fiduciary duty, abuse of control, gross mismanagement, constructive fraud and corporate waste. The federal plaintiffs also allege violations of sections 10(b) and 14(a) of the Securities Exchange Act of 1934 and of Rules 10b-5 and 14a-9.

In addition to the Delaware action and the federal action, Louisiana Sheriff's Pension & Relief Fund filed a derivative action in California state court that makes similar allegations as the federal derivative action and this action. The California state court action, filed on June 16, 2006, names sixteen defendants, including all defendants in the Delaware action. The judge in the state court action granted a stay in that proceeding.

II. CONTENTIONS
Plaintiff contends that all defendants breached their fiduciary duties to Maxim and its shareholders. The shareholder-approved 1983 Stock Option Plan and 1999 [p348]  Stock Incentive Plan bound the board of directors to set the exercise price according to the terms of the plans. The 1999 plan allowed the board to designate a committee to approve the plans. The designated compensation committee, consisting of Bergman, Hagopian, and Wazzan, approved option grants after 1999. Plaintiff alleges that from 1998 to 2002, the board actively allowed Maxim to backdate at least nine option grants issued to Gifford, in violation of shareholder-approved plans, and to purposefully mislead shareholders regarding its actions. As a result of the active violations of the plan and the active deceit, plaintiff contends that Maxim received lower payments upon exercise of the options than would have been received had they not been backdated. Further, Maxim suffers adverse effects from tax and accounting rules. The options priced below the stock's fair market value on the date of the grant allegedly bring the recipient an instant paper gain. At the time, such compensation had to be treated as a cost to the company, thereby reducing reported earnings and resulting in overstated profits. This likely necessitates revision of the company's financial statements and tax reporting. Moreover, Gifford, the recipient of the backdated options, is allegedly unjustly enriched due to receipt of compensation in clear violation of the shareholder-approved plans.

Defendants respond with a motion asserting three theories under which this Court should stay this action in favor of the federal action or, in the alternative, numerous theories under which this Court should dismiss this action. First, defendants move to stay this action pursuant to the Supreme Court of Delaware's ruling in McWane Cast Iron Pipe Corp. v. McDowell-Wellman Engineering Co. They assert that because this is a second-filed action, I should grant a stay under principles of comity. In the alternative, defendants contend that the doctrine of forum non conveniens supports a stay because the California action provides a more convenient forum. Finally, defendants insist that this case should be stayed because the result in California may render the Delaware action moot.

Defendants also seek dismissal under numerous theories. First, defendants allege that plaintiff fails to meet his burden of pleading demand futility with particularity because plaintiff does not show that the companies' directors were incapable of making an impartial decision regarding litigation. Second, defendants state that plaintiff lacks standing to assert seven of his nine claims because he was not a shareholder when those challenged transactions occurred. Third, defendants assert that plaintiff fails to state a claim for breach of fiduciary duty because plaintiff fails to rebut the business judgment rule. Fourth, defendants contend that the statute of limitations bars plaintiff's claims and that plaintiff cannot save his claims by relying on any tolling doctrines because all relevant information was public. Finally, defendants assert that plaintiff's unjust enrichment claim fails because plaintiff does not allege the manner in which Gifford was unjustly enriched. Ryan never suggests that Gifford has exercised any of the allegedly backdated options or sold any stock. Thus, defendants argue, there is no enrichment.

I will address these assertions in turn.

A. McWane Doctrine
Defendants move to stay this action pursuant to the McWane doctrine, arguing [p349]  that the "McWane doctrine is most useful in derivative actions because such actions present the greatest probability for identical claims to be presented to multiple courts at the same time." Thus, this Court should use its broad discretion under the first-filed rule to grant a stay.

The Supreme Court of Delaware strongly encourages this Court to freely exercise its discretion "in favor of the stay when there is a prior action pending elsewhere, in a court capable of doing prompt and complete justice, involving the same parties and the same issues." Further, it recognizes that "considerations of comity and the necessities of an orderly and efficient administration of justice" often require that "litigation should be confined to the forum in which it first commenced, and a defendant should not be permitted to defeat the plaintiff's choice of forum in pending suit." The application of this doctrine, however, presents great difficulty in shareholder derivative actions.

A shareholder plaintiff does not sue for his direct benefit. Instead, he alleges injury to and seeks redress on behalf of the corporation. Further, the board or any shareholder with standing may represent the injured party. Thus, this Court places less emphasis on the celerity of such plaintiffs and grants less deference to the speedy plaintiff's choice of forum. Because the plaintiff is not the directly injured party, this Court proceeds cautiously when faced with the question of whether to defer to a first-filed derivative suit, "examin[ing] more closely the relevant factors bearing on where the case should best proceed, using something akin to a forum non conveniens analysis."

For example, in Biondi v. Scrushy, Vice Chancellor Strine declined to stay a later-filed Delaware action where he determined that the first-filed Alabama complaint was substandard compared to the Delaware action. Conversely, in Derdiger v. Tollman, I granted a stay in favor of a non-Delaware action where that complaint was more fulsomely pleaded than the Delaware complaint. Thus, this Court has recognized that the adequacy of the complaint is a more important factor than time of filing in a McWane analysis of shareholder derivative actions, so much so that this Court will, in certain instances, grant or deny a stay based on this factor alone.

A similarly important factor in determining whether a stay is appropriate in a derivative action is a court's ability to render justice. Rendering justice necessarily entails accurately applying controlling law, in this case Delaware law. In many instances, this Court has recognized without hesitation that sister state courts and federal courts are capable of applying Delaware law and providing complete justice to parties. At the same time, however, Delaware courts have a "significant and substantial interest in overseeing the conduct of those owing fiduciary duties to shareholders of Delaware corporations." [p350] This interest increases greatly in actions addressing novel issues. In In re Chambers Development Co., this Court noted, as it has in the past, that "novel and substantial issues of Delaware corporate law are best resolved in Delaware courts." Thus, while the application of Delaware law in most cases is not determinative, more weight must be accorded to this factor where the law is novel. Such is the case here.

The allegations in this case involve backdating option grants and whether such practice violates one or more of Delaware's common law fiduciary duties. This question is one of great import to the law of corporations. It encompasses numerous issues, including the propriety of this type of executive compensation, requisite disclosures that must accompany such compensation, and the legal implications of intentional non-compliance with shareholder-approved plans (if such practices are deemed non-compliant), to name only a few. Investors are challenging this very practice in many courts throughout the United States, including this Court. Delaware courts have not as yet addressed these fundamental issues. Nevertheless, Delaware law directly controls and affects many of the option backdating cases. An answer regarding the legality of these practices pursuant to Delaware law plainly will affect not only the parties to this action, but also parties in other civil and criminal proceedings where Delaware law controls or applies. By directly stating the fiduciary principles applicable in this context, Delaware courts may remove doubt regarding Delaware law and avoid inconsistencies that might arise in the event other state or federal courts, in applying Delaware law, reach differing conclusions. Because Delaware has an overwhelming interest in resolving questions of first impression under Delaware law, I deny defendants' McWane-based stay request.

B. Forum Non Conveniens
Defendants also seek a stay pursuant to the doctrine of forum non conveniens. Specifically, they contend that the pendency of the first-filed federal derivative action warrants a stay because '"it makes little sense to duplicate the efforts of the federal court.'" Defendants assert that: there is no reason to burden the defendants or waste the resources of the court with dual litigation of the same matters; the federal forum offers greater ease of access to proof because potential witnesses [p351]  and documents are located in California; the federal forum allows for compulsory process over a greater number of potential witnesses; and federal courts have proven their ability to appropriately apply Delaware law.

This Court examines six factors when assessing whether stay or dismissal is appropriate under a forum non conveniens analysis: "1) the applicability of Delaware law, 2) the relative ease of access of proof, 3) the availability of compulsory process for witnesses, 4) the pendency or non-pendency of a similar action or actions in another jurisdiction, 5) the possibility of a need to view the premises; and 6) all other practical considerations that would make the trial easy, expeditious, and inexpensive." A showing of mere convenience, however, will not warrant stay or dismissal under forum non conveniens. Instead, a party seeking to stay or dismiss on the grounds of forum non conveniens must demonstrate that litigating in Delaware would subject it to overwhelming hardship. The facts of this case show no such insurmountable burden.

First, Delaware law controls. Thus, the applicability of Delaware law clearly favors denial of the motion. Second, most corporate litigation in the Court of Chancery involves companies with documents and witnesses located outside of Delaware. Defendants point to no documents they will be unable to produce and no witnesses who will be subjected to overwhelming hardship by testifying in Delaware. While it is true that California might provide a more convenient location, motions to dismiss a plaintiff's choice of forum are not granted for defendants' mere convenience. Thus, there is no showing that the "ease of access of proof standard supports a stay or dismissal. Third, "the availability of compulsory process of witnesses" while convenient in California, is not determinative. Defendants fail to identify necessary witnesses not subject to process; nor will this Court presume that such witnesses exist. Fourth, while a separate pending action exists, defendants provide no evidence that litigating both matters will cause the type of overwhelming hardship necessary under the forum non conveniens doctrine. Fifth, there is no indication that a view of any premises will be necessary. Nor do defendants assert any other considerations that would make trial in Delaware a real hardship, let alone a substantial and overwhelming hardship. Therefore, the doctrine of forum non conveniens does not require that I grant a stay in favor of the first-filed action.

C. California Actions Will Render Delaware Actions Moot
In a final effort to convince this Court to stay this action, defendants state that adjudication of the California actions will render the Delaware action moot. Defendants fail, however, to provide any explanation as to why they make this assertion. Without more, I cannot hold that this action should be stayed. Thus, I deny a motion to stay on the grounds that adjudication of the California actions will render the Delaware action moot.

A. Futility of Demand Under Rule 23.1
Defendants state that plaintiff has failed to make demand or prove demand futility. [p352] That is, defendants contend that the complaint lacks particularized facts that either establish that a majority of directors face a "substantial likelihood" of personal liability for the wrongdoing alleged in the complaint or render a majority of the board incapable of acting in an independent and disinterested fashion regarding demand.

When a shareholder seeks to maintain a derivative action on behalf of a corporation, Delaware law requires that shareholder to first make demand on that corporation's board of directors, giving the board the opportunity to examine the alleged grievance and related facts and to determine whether pursuing the action is in the best interest of the corporation. This demand requirement works "to curb a myriad of individual shareholders from bringing potentially frivolous lawsuits on behalf of the corporation, which may tie up the corporation's governors in constant litigation and diminish the board's authority to govern the affairs of the corporation."

This Court has recognized, however, that in some cases demand would prove futile. Where the board's actions cause the shareholders' complaint, "a question is rightfully raised over whether the board will pursue these claims with 100% allegiance to the corporation, since doing so may require that the board sue itself on behalf of the corporation." Thus, in an effort to balance the interest of preventing "strike suits motivated by the hope of creating settlement leverage through the prospect of expensive and time-consuming litigation discovery [with the interest of encouraging] suits reflecting a reasonable apprehension of actionable director malfeasance that the sitting board cannot be expected to objectively pursue on the corporation's behalf," Delaware law recognizes two instances where a plaintiff is excused from making demand. Failure to make demand may be excused if a plaintiff can raise a reason to doubt that: (1) a majority of the board is disinterested or independent or (2) the challenged acts were the product of the board's valid exercise of business judgment.

The analysis differs, however, where the challenged decision is not a decision of the board in place at the time the complaint is filed. In Rales v. Blasband, the Supreme Court of Delaware held that "[w]here there is no conscious decision by the corporate board of directors to act or refrain from acting, the business judgment rule has no application." Stated differently, "the absence of board action … makes it impossible to perform the essential inquiry contemplated by Aronson." [p353] Accordingly, where the challenged transaction was not a decision of the board upon which plaintiff must seek demand, plaintiff must "create a reasonable doubt that, as of the time the complaint is filed, the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand."

Here, the compensation committee, not the board, approved the challenged option grants. Plaintiff concedes that the option plans provided the board with express authority to delegate to a committee its power to grant options according to the plans. Additionally, 8 Del. C. § 141(c) provides that the board of directors may designate committees and "[a]ny such committee ? shall have and may exercise all powers and authority of the board of directors in the management of the business and affairs of the corporation." Further, "a member of the board of directors … shall, in the performance of such member's duties, be fully protected in relying in good faith upon the records of the corporation and upon any such information, opinions, reports or statements presented … by committees of the board of directors." At first glance, it appears that because this decision was not a board decision, plaintiff must comply with Rales, alleging facts that raise a reason to doubt that the board members could have properly exercised their independent and disinterested business judgment in responding to a demand. The unique facts here, however, present a different situation. Maxim's board consisted of six members at all relevant times. The compensation committee, at all relevant times, consisted solely of three members, Bergman, Wazzan, and Hagopian. Thus, one half of the current board members approved each challenged transaction. Where at least one half or more of the board in place at the time the complaint was filed approved the underlying challenged transactions, which approval may be imputed to the entire board for purposes of proving demand futility, the Aronson test applies.

The spirit of Rales, if not the letter, supports this conclusion. In Rales, the current board was not the same board that originally made the decision on which the action was based. Consequently, the Supreme Court of Delaware held that the usual test for determining a derivative plaintiff's compliance with the demand obligation did not apply. Because the current board did not make the underlying challenged decision, it became impossible to test whether the current directors acted in conformity with the business judgment rule in approving the challenged transaction. That impossibility is not present here.

[p354]

1. Demand is Futile Under the Second Prong of Aronson
Because the compensation committee attacked by plaintiff constitutes a majority of the board, the business judgment analysis under the second prong of Aronson may be readily applied. Plaintiffs may prove demand futility by raising a reason to doubt whether the challenged transactions were a valid exercise of business judgment.

Plaintiff alleges that the challenged transactions raise a reason to doubt whether the option grants were a valid exercise of business judgment. Specifically, plaintiff states that the terms of the stock option plans required that "[t]he exercise price of each option shall be not less than one hundred percent (100%) of the fair market value of the stock subject to the option on the date the option is granted." The board had no discretion to contravene the terms of the stock option plans. Altering the actual date of the grant so as to affect the exercise price contravenes the plan. Thus, knowing and intentional violations of the stock option plans, according to the plaintiff, cannot be an exercises of business judgment. I conclude that the unusual facts alleged raise a reason to doubt that the challenged transactions resulted from a valid exercise of business judgment.

In Sanders v. Wang, then-Vice Chancellor Steele addressed the demand futility issue in a similar factual context. There, shareholders filed a derivative suit alleging that directors granted stock in excess of the number authorized by the employee stock ownership plan. Then-Vice Chancellor Steele held that "the plaintiffs have sufficiently alleged facts which, taken as true, show that the CA board violated an express KESOP provision limiting the number of shares they were authorized to award . . . . Thus, the facts raise doubt that the board's actions resulted from a valid exercise of business judgment." A board's knowing and intentional decision to exceed the shareholders' grant of express (but limited) authority raises doubt regarding whether such decision is a valid exercise of business judgment and is sufficient to excuse a failure to make demand.

The situation here closely mirrors that in Sanders v. Wang. Plaintiff supports his claim that backdating occurred by pointing to nine option grants over a six-year period where each option was granted during a low point. That is, every challenged option grant occurred during the lowest market price of the month or year in which it was granted. In addition to pointing specifically to highly suspicious timing, plaintiff further supports his allegations with empirical evidence suggesting that backdating occurred. The Merrill Lynch analysis measured the extent to which stock price performance subsequent to options pricing events diverged from stock price performance over a longer period of time to measure the aggressiveness of the timing of option grants and found that Maxim's average annualized return of 243% on option grants to management was almost ten times higher than the 29% annualized market returns in the same period. This timing, by my judgment and by support of [p355]  empirical data, seems too fortuitous to be mere coincidence. The appearance of impropriety grows even more when one considers the fact that the board granted options, not at set or designated times, but by a sporadic method.

Plaintiff supports his breach of fiduciary duty claim and his assertion that demand is futile by pointing to the board's decision to ignore limitations set out in the company's stock options plans. The plans do not grant the board discretion to alter the exercise price by falsifying the date on which options were granted. Thus, the alleged facts suggest that the director defendants violated an express provision of two option plans and exceeded the shareholders' grant of express authority.

Plaintiff here points to specific grants, specific language in option plans, specific public disclosures, and supporting empirical analysis to allege knowing and purposeful violations of shareholder plans and intentionally fraudulent public disclosures. Such facts, in my opinion, provide sufficient particularity in the pleading to survive a motion to dismiss for failure to make demand pursuant to Rule 23.1.

2. Demand is Futile Under Rales
Even if the decision by the compensation committee was not imputable to the entire board, thereby implicating Aronson, demand would remain futile under the Rales test. Where the board has not yet made a decision, demand is excused when the complaint contains particularized facts creating a reason to doubt that a majority of the directors would have been independent and disinterested when considering the demand. Directors who are sued have a disabling interest for pre-suit demand purposes when "the potential for liability is not a mere threat but instead may rise to a substantial likelihood."

A director who approves the backdating of options faces at the very least a substantial likelihood of liability, if only because it is difficult to conceive of a context in which a director may simultaneously lie to his shareholders (regarding his violations of a shareholder-approved plan, no less) and yet satisfy his duty of loyalty. Backdating options qualifies as one of those "rare cases [in which] a transaction [p356]  may be so egregious on its face that board approval cannot meet the test of business judgment, and a substantial likelihood of director liability therefore exists." Plaintiff alleges that three members of a board approved backdated options, and another board member accepted them. These are sufficient allegations to raise a reason to doubt the disinterestedness of the current board and to suggest that they are incapable of impartially considering demand. Nor do defendant directors' concerns necessarily end with consideration of the duty of loyalty. Were the board to pursue a derivative suit, it might unearth facts that would subject directors to further civil and criminal liability. Four board members, Gifford, Bergman, Wazzan, and Hagopian were familiar with Maxim's stock option plans. In 1999, they recommended the most recent options plan and submitted it for shareholder approval accompanied by their own directorial stamps of approval. In 2000 and 2001 proxy statements filed pursuant to section 14(a) of the Securities Exchange Act of 1934, Bergman, Wazzan, and Hagopian, representing half of the board, verified that they bore direct responsibility for granting options and that they granted all options according to the options plan. ''See Wal-Mart Stores v. AIG Life Ins. Co., 860 A.2d 312, 320 n.28 (citing DiLorenzo v. Edgar,'' 2004 U.S. Dist. LEXIS 4991, 2004 WL 609374, at *2 (D. Del. Mar. 24, 2004) for the proposition that "[o]n a motion to dismiss, the court may take judicial notice of the contents of documents required by law to be filed, and actually filed, with federal or state officials"). Further, Bergman, Wazzan, and Hagopian were also members of the audit committee, and as such, directly responsible for approving any false financial statements that resulted from mischaracterization of these option grants. Thus, they might be exposed to potential criminal liability for securities fraud, tax fraud, and mail and wire fraud. See Martha Boersch and Renee Beltranena Bea, The Criminal Implication of Backdating Stock Options, The Metropolitan Corp. Counsel, Nov. 2006, at 8 (discussing potential criminal liability associated with backdating options and detailing criminal charges presently filed against executives associated with backdating options); see also Linda Chatman Thomsen, Speech by SEC Staff in Washington, D.C.: Options Backdating: The Enforcement Perspective (Oct. 30, 2006), available at http://www.sec.gov/news/speech/2006/ spch1030061ct.htm; Kenneth Winer, Elizabeth Gray and Pamela Johnson, Options Backdating: A Practical Guide to the Controversy, Vol. 20 Insights No. 9, p. 2 (Sept. 2006).

B. Failure To State a Claim Upon Which Relief Can Be Granted
Defendants assert that plaintiff fails to state a claim for breach of fiduciary duty. This defense, stripped to its essence, states that in order to survive a motion to dismiss on a fiduciary duty claim, the complaint must rebut the business judgment rule. That is, plaintiff must raise a reason to doubt that the directors were disinterested or independent. Where the complaint does not rebut the business judgment rule, plaintiff must allege waste. Plaintiff here, argue the defendants, fails to do either. Further, there is no evidence that the defendants acted intentionally, in bad faith, or for personal gain. Therefore, so the argument goes, plaintiff fails to plead facts sufficient to rebut the business judgment rule and cannot maintain an action for breach of fiduciary duties.

Plaintiff responds that the same facts that establish demand futility under the second prong of Aronson v. Lewis--that is, the directors' purposeful failure to honor an unambiguous provision of a shareholder approved stock option plan--also rebuts the business judgment rule for the purpose of a motion to dismiss for failure to state a claim upon which relief can be granted.

1. Rule 12(b)(6)v. Rule 23.1
This Court follows well-settled standards governing motions to dismiss for [p357]  failure to state a claim. At the motion to dismiss stage, all well-pleaded factual allegations made in the complaint are to be accepted as true. Moreover, this Court must draw all reasonable inferences in favor of the non-moving party, and dismissal is inappropriate unless the "plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof." Conclusory allegations are not considered as expressly pleaded facts or factual inferences. Such facts must be put forth in the complaint and not merely in subsequent briefs. In the context of a motion to dismiss for failure to state a claim, however, the pleading standard does not reach so high a bar as Rule 23.1. Thus, where plaintiff alleges particularized facts sufficient to prove demand futility under the second prong of Aronson, that plaintiff a fortiori rebuts the business judgment rule for the purpose of surviving a motion to dismiss pursuant to Rule 12(b)(6).

2. The Business Judgment Rule and Bad Faith
Even if this were not the case, the complaint here alleges bad faith and, therefore, a breach of the duty of loyalty sufficient to rebut the business judgment rule and survive a motion to dismiss. The business affairs of a corporation are to be managed by or under the direction of its board of directors. In an effort to encourage the full exercise of managerial powers, Delaware law protects the managers of a corporation through the business judgment rule. This rule "is a presumption that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interest of the company." Nevertheless, a showing that the board breached either its fiduciary duty of due care or its fiduciary duty of loyalty in connection with a challenged transaction may rebut this presumption. Such a breach may be shown where the board acts intentionally, in bad faith, or for personal gain.

In Stone v. Ritter, the Supreme Court of Delaware held that acts taken in bad faith breach the duty of loyalty. Bad faith, the Court stated, may be shown where "the fiduciary intentionally acts with a purpose other than that of advancing the best interests of the corporation, where the fiduciary acts with the intent to violate applicable positive law, or where the fiduciary intentionally fails to act in the face of known duty to act, demonstrating a conscious disregard for his duties." Additionally, other examples of bad faith might exist. These examples include any action that demonstrates a faithlessness or lack of true devotion to the interests of the corporation and its shareholders.

Based on the allegations of the complaint, and all reasonable inferences drawn [p358]  therefrom, I am convinced that the intentional violation of a shareholder approved stock option plan, coupled with fraudulent disclosures regarding the directors' purported compliance with that plan, constitute conduct that is disloyal to the corporation and is therefore an act in bad faith. Plaintiffs allege the following conduct: Maxim's directors affirmatively represented to Maxim's shareholders that the exercise price of any option grant would be no less than 100% of the fair value of the shares, measured by the market price of the shares on the date the option is granted. Maxim shareholders, possessing an absolute right to rely on those assurances when determining whether to approve the plans, in fact relied upon those representations and approved the plans. Thereafter, Maxim's directors are alleged to have deliberately attempted to circumvent their duty to price the shares at no less than market value on the option grant dates by surreptitiously changing the dates on which the options were granted. To make matters worse, the directors allegedly failed to disclose this conduct to their shareholders, instead making false representations regarding the option dates in many of their public disclosures.

I am unable to fathom a situation where the deliberate violation of a shareholder approved stock option plan and false disclosures, obviously intended to mislead shareholders into thinking that the directors complied honestly with the shareholder-approved option plan, is anything but an act of bad faith. It certainly cannot be said to amount to faithful and devoted conduct of a loyal fiduciary. Well-pleaded allegations of such conduct are sufficient, in my opinion, to rebut the business judgment rule and to survive a motion to dismiss.

C. Standing
Defendants move to dismiss seven of the nine claims asserted in plaintiff's complaint on the grounds that plaintiff lacks standing to assert these claims. According to defendants, plaintiff must have continuous ownership from the time of the transaction in question through the completion of the lawsuit in order to sustain a derivative action. It is unchallenged that plaintiff never owned stock in Maxim before 2001, and plaintiff acquired his stock through a merger, not by operation of law. Only two of the nine challenged transactions occurred while plaintiff held shares. Accordingly, defendant argues that dismissal of all claims arising before April 11, 2001, is proper pursuant to 8 Del. C. § 327.

Section 327 of the DGCL exists to prevent the purchasing of shares in order to maintain a derivative action attacking transactions that occurred before the purchase. [p359] It provides that a stockholder seeking to assert a derivative action on behalf of a corporation must have been a stockholder at the time of the transaction complained of, or his shares must have devolved upon him by operation of law. Additionally, he must continuously hold stock through completion of the litigation.

In most instances, Delaware courts have strictly construed this statute. Dispositive in this case is this Court's holding in Saito v. McCall. There, two stockholders filed a derivative action, but their first claim alleged pre-merger breaches of fiduciary duties. The Court held that stockholders who obtained their stock pursuant to a stock-for-stock merger lacked standing to sue derivatively for transactions occurring before the merger.

Plaintiff here faces the same problem. He became a shareholder on April 11, 2001, by way of a merger, not by operation of law. Therefore, he lacks standing to assert claims arising before April 11, 2001. The cases where this Court has applied section 327 with some leniency are not applicable here. For example, in the case of Helfand v. Gambee, plaintiff lost standing by virtue of reorganization. To the contrary, plaintiff here argues that he gained standing by virtue of a merger. The law here is settled. Plaintiff may not assert claims arising before his ownership interest materialized on April 11, 2001.

D. Statute Of Limitations
Defendants contend that the statute of limitations of 10 Del. C. § 8106 bars plaintiff's claims because none of the challenged transactions occurred within the past three years. Further, defendants assert that plaintiff cannot save his claims by relying on any tolling doctrines since the information was publicly available. Plaintiff concedes as much by relying on the Merrill Lynch report as the basis of his claims, which was prepared using publicly disclosed information and historical stock prices. Thus, defendants argue, the statute of limitations bars all claims asserted in this complaint.

This Court applies a three-year statute of limitations to equitable claims only by analogy. The statute of limitations begins to run at the time the alleged harmful act is committed, regardless of plaintiff's knowledge of the act. Plaintiff, however, may toll the limitations period by specifically alleging that the facts were "so hidden that a reasonable plaintiff could not have made timely discovery of an injury necessary to file a complaint." If plaintiff sufficiently meets his burden of showing that the statute was tolled, relief extends only until plaintiff is on inquiry notice. That is to say, tolling ends where plaintiff discovers, or in the exercise of reasonable diligence should have discovered, his injury.

Plaintiff asserts that the doctrine of fraudulent concealment tolls the statute [p360]  of limitations in this case. Fraudulent concealment "requires an affirmative act of concealment by a defendant--an 'actual artifice' that prevents a plaintiff from gaining knowledge of the facts or some misrepresentation that is intended to put a plaintiff off the trail of inquiry."

The allegations in the complaint satisfy the requirements of the doctrine of fraudulent concealment. Defendants allegedly caused Maxim to falsely represent that the exercise price of all the stock options it granted pursuant to its stock option plans was no less than the fair market value of Maxim's common stock, measured by the publicly traded closing price for Maxim stock on the date of the grant. To the extent that the date on which the grant was issued is not the same as the date that the defendants, in public filings, represented that the grant was issued, defendants affirmatively acted to conceal a fact that prevented plaintiff from gaining material relevant knowledge in an attempt to put plaintiff off the trail of inquiry. Plaintiff may rely on public filings and accept them as true, and need not assume that directors and officers will falsify such filings. Accordingly, where plaintiff alleges that defendants intentionally falsified public disclosures, defendants may not rely on the statute of limitations as a defense until plaintiff is placed on inquiry notice that such filings were fraudulent.

Defendants argue that there is no fraudulent concealment since Merrill Lynch based its report on public disclosures and plaintiff bases his complaint on the Merrill Lynch report. That is, defendants insist that Ryan, through investigation, could have discovered the same information that Merrill Lynch discovered. This defense is unconvincing. Shareholders may be expected to exercise reasonable diligence with respect to their shares, but this diligence does not require a shareholder to conduct complicated statistical analysis in order to uncover alleged malfeasance. The above-mentioned facts, in conjunction with an alleged affirmative cover up, convince me that the actions were fraudulently concealed and, thus, defendants may not rely on the statute of limitations as a defense. Inaccurate public representations as to whether directors are in compliance with shareholder-approved stock option plans constitute fraudulent concealment of wrongdoing sufficient to toll the statute of limitations.

[p361]

E. Unjust Enrichment
Finally, defendants contend that plaintiff's claim for unjust enrichment fails because there is no allegation that Gifford exercised any of the alleged backdated options and, therefore, Gifford did not obtain any benefit to which he was not entitled to the detriment of another. This defense is contrary both to the normal concept of remuneration and to common sense.

Unjust enrichment is "the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer" and "even though he may have received [it] honestly in the first instance."

At this stage, I cannot conclude that there is no reasonably conceivable set of circumstances under which Gifford might be unjustly enriched. Gifford does retain something of value, the alleged backdated options, at the expense of the corporation and shareholders. Further, defendants make no allegations that Gifford is precluded from exercising these options or that the options have expired. Thus, one can imagine a situation where Gifford exercises the options and benefits from the low exercise price. Even if Gifford fails to exercise a single option during the course of this litigation, that fact would not justify dismissal of the unjust enrichment claim. Whether or not the options are exercised, the Court will be able to fashion a remedy. For example, this Court might rely on expert testimony to determine the true value of the option grants or simply rescind them. Either way, Gifford's alleged failure to exercise the options up to this point does not undermine a claim for unjust enrichment Thus, I deny the motion to dismiss the unjust enrichment claim.

V. CONCLUSION
For the foregoing reasons, I grant defendants' motion to dismiss all claims arising before April 11, 2001. I deny defendants' motion to stay or dismiss with respect to all other claims.

IT IS SO ORDERED.

title: Ryan v. Gifford/Opinion of the Court


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134 boat chased him for two hours till dusk, but then bore away. The car sank inch by inch, and Money, resigned to the fate of Pilate de Rozier, was up to his breast in the water, when, shortly before midnight, a revenue cutter rescued him, so weak that he had to be lifted on board. "Any man with less strength than myself," says Money, "must have perished." Richard Twiss, who had visited Voltaire at Ferney, and had employed Rousseau in copying music, had also repaired to Paris in July 1792. He was a clever violinist and chess-player, and had lost much money in a scheme of making paper from straw. So little did he foresee the impending horrors that he intended spending several years in France. He expected indeed a counter-revolution. On the capture of the Tuileries he went out at three in the afternoon and found all quiet, but the gardens were strewn with corpses of Swiss, which were being stripped and mutilated by ruffians of both sexes.

I have left to the last the Abbe Edgeworth, and this for two reasons. His flight was latest in date, and he had virtually become a Frenchman, yet he cannot be omitted from a book on Englishmen in the French Revolution. It is, moreover, well to clear up misconceptions as to his relations with the

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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Rh boy, "Margaret Ogilvy, are you there?" I would call up the stair.

She was always delicate from that hour, and for many months she was very ill. I have heard that the first thing she expressed a wish to see was the christening robe, and she looked long at it and then turned her face to the wall. That was what made me as a boy think of it always as the robe in which he was christened, but I knew later that we had all been christened in it, from the oldest of the family to the youngest, between whom stood twenty years. Hundreds of other children were christened in it also, such robes being then a rare possession, and the lending of ours among my mother's glories. It was carried carefully from house to house, as if it were itself a child; my mother made much of it, smoothed it out, petted it, smiled to it before putting it into the arms of those to whom it was being lent; she was in our pew to see it borne magnificently (something inside it now) down the aisle to the pulpit side, when a stir of expectancy went through the church and we kicked each other's feet beneath the book-board but were reverent in the face; and however the child might behave, laughing brazenly or skirling to its mother's shame, and whatever the father as he held it up might do, look doited probably and bow at the wrong time, the christening robe of long experience helped them through. And Rh

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Rh in various parts of Western Australia, and it appears that the advice which the Wesleyan Member of Council delivered at the Barladong "tea-meeting" to look out for "an oil-mine" has been wasted neither upon his fellow-colonists nor upon the aborigines. At this propitious moment, when the colonial Government is said to have been in communication with capitalists in neighbouring colonies who are desirous of establishing kerosene works, one Tommy Winditch, a native of Barladong, has come forward to report the existence of a substance "resembling water," at a spot about fifty miles eastward of Mount Stirling, where it is held in great dread by the natives on account of its explosive properties when brought in contact with fire. On being shown some kerosene Tommy Winditch pronounced it to be precisely similar to the "white stuff" so much dreaded by his friends, and, should he prove to have spoken correctly, and the fluid be found in any great abundance, we may surely expect to hear of his appointment as Commodore of those who, in accordance with the recommendation given to them, will henceforth "paddle their own canoe " in streams of petroleum.

The pearl fisheries of Roebourne were beginning to assume importance before we quitted Western Australia, and recent investigations have proved that the oyster beds, first noticed by the French, are almost unlimited in extent and yield. Mother-of-pearl is therefore likely to become one of the principal exports, more especially as the shells are of the finest description, and obtain in consequence the highest price in the English market. The Registrar-General states that some of the last shipments realized ten guineas a hundredweight. The shells were

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Rh French court. His father, Robert Edgeworth, great-grandson of Francis, who went over from England about 1582, and gave his name to Edgeworthstown, county Longford, resigned the rectory of that parish in 1749, on his conversion to Catholicism. The son, Henry Essex Edgeworth—Edgeworth de Firmont, as the family now styled itself, from an estate called Firmount, near Edgeworthstown—never saw Ireland again after thus leaving it at four years of age. Educated at Toulouse and Paris for the priesthood, he joined the seminary of foreign missions, but was dissuaded from his plan of becoming a missionary, and devoted himself to the poor, especially the poor Irish in Paris. He declined, when the Revolution assumed a threatening air, a pressing invitation to return to Ireland, his reasons being the long cessation of correspondence with his family (his elder brother Ussher had gone back to Ireland), his imperfect knowledge of English, and the spiritual needs of his flock. Princess Elizabeth, on her confessor accompanying the King's aunts to Italy in February 1791, appointed Edgeworth as his successor, and he frequently visited her at the Tuileries till August 1792, but was not introduced to the rest of the royal family.

When the King's trial was impending, Elizabeth recommended Edgeworth to her brother for the last spiritual ministrations, in the hope that his obscurity would save such a confessor from


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390 formerly collected only at low tide and in shallow water, but the fishermen now employ natives and Malays as divers, who bring up the mother-of-pearl from depths which have been hitherto considered inaccessible.

It has been said that the natives thus engaged are much to be pitied for the treatment which they receive from the pearl fishers, and common sense would show that, amongst the rough class of men of whom many of the boats' crews are composed, the dark-skinned races are certain to be at great disadvantage, especially in a spot so far to the north, and consequently so remote from head-quarters. The season of pearl fishing begins in November and continues until April.

Tortoiseshell may also be procured in large quantities upon the north-west coast, as the hawk's-bill turtle abounds both there and upon the shores of the adjacent islands, but until lately it seems that people have not taken much trouble to collect it, owing to their ignorance of the value of such tortoiseshell in England. Since the announcement, however, issued by the Government that the best shells are worth from sixteen to eighteen shillings a pound, the poor turtles will have had no lack of enemies. To these now well-known "treasures of the deep" I suspect that sponges might be added, for every heavy storm covers the Fremantle shore with so many different species of these zoophytes that it might reasonably be supposed that the sponges of commerce could also be obtained if search was made for them by dredging in a proper manner.

Having now sketched some few and imperfect scenes of West Australian life, and given some outline of the

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136. Edgeworth accepted the mission, and in a letter to a friend in England, dated 21st December 1792, explained that this was his reason for remaining in France. "I prepare myself," he added, "for death, for I am convinced that popular rage will not allow me to survive one hour after that tragic end." He fully expected, indeed, to be torn to pieces by the mob, and he made his will before leaving his mother and sister (the former ignorant of his danger) for the Temple. Rigidly searched at the gate, lest he should carry poison for the King, Edgeworth, bursting into tears, fell at Louis's feet. Louis read him his will, and Edgeworth, through a glass door, heard the piercing sobs at the King's parting with his family. He remained with the royal prisoner till ten at night, took some hours' rest in an ante-room, administered the sacrament at five next morning, dissuaded the King from another interview with his family, and rode with him to the scaffold. As two gendarmes seated opposite in the hackney coach made private conversation impossible, Edgeworth offered his breviary to the King, and recited with him alternate verses of suitable psalms. He had no recollection of exclaiming, as the axe fell, "Fils de St. Louis, montez au ciel," and Lacretelle half confesses to having invented this for a report in a Paris newspaper. Edgeworth did, however, say, when the King, averse to being


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Rh when it was brought back to her she took it in her arms as softly as if it might be asleep, and unconsciously pressed it to her breast: there was never anything in the house that spoke to her quite so eloquently as that little white robe; it was the one of her children that always remained a baby. And she had not made it herself, which was the most wonderful thing about it to me, for she seemed to have made all other things. All the clothes in the house were of her making, and you don't know her in the least if you think they were out of the fashion; she turned them and made them new again, she beat them and made them new again, and then she coaxed them into being new again just for the last time, she let them out and took them in and put on new braid, and added a piece up the back, and thus they passed from one member of the family to another until they reached the youngest, and even when we were done with them they reappeared as something else. In the fashion! I must come back to this. Never was a woman with such an eye for it. She had no fashion-plates; she did not need them. The minister's wife (a cloak), the banker's daughters (the new sleeve)—they had but to pass our window once, and the scalp, so to speak, was in my mother's hands. Observe her rushing, scissors in hand, thread in mouth, to the drawers where her daughters' Sabbath clothes were kept. Or go to church next Sunday, and Rh

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Rh resources which are offered by the colony, the question naturally arises as to what judgment I have formed of the country as a field for emigration. It is a difficult question to answer, since the prospects of the new-comer must depend so completely upon his own character and his own position in life.

The man of capital and of enterprise will find but little scope for his energies at present, unless he be contented to work almost single-handed. The struggle merely to live has been so hard and so continuous, that but few amongst the settlers have acquired a sufficient amount of realized and superfluous capital to induce them to enter upon speculative pursuits, however promising they may appear. The timber trade, the whale fisheries, even the pearl fisheries if upon any but the most moderate scale, have hitherto been compelled to look to the other colonies or to England for the capital needed for their development.

The only joint-stock company formed for carrying out any public work of which I have heard since we left the colony, is one for the establishment of a telegraphic communication between Perth and Fremantle, a distance of fifteen miles. I believe that this company has succeeded in obtaining the small amount of capital which it required, and that it hopes to extend its wires into the Eastern districts before the end of the present year; but this instance of the Perth and Fremantle merchants having banded together to carry out a common object is almost a solitary one.

With the exception of the West Australian Bank, which was formed on joint-stock principles many years ago and which has always paid excellent dividends, I do

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text: Lectures on the Philosophy of Religion/Index


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Rh pinioned, looked appealingly to him, "Sire, in this last insult I see only a last resemblance between your Majesty and the God who is about to be your recompense." When all was over, Edgeworth, rising from his knees, and bespattered by the King's blood as the executioner held up the head to the mob, looked to see where the crowd was least dense, and being in the lay dress then obligatory on the clergy, walked away unmolested. He had promised Princess Elizabeth not to leave France till her death, and letters concealed in balls of silk occasionally passed between them. He had various disguises and several narrow escapes, his mother and sister being meanwhile prisoners, and the former dying in captivity. In 1796 he effected his escape to England, and conveyed to the Comte d'Artois (afterwards Charles X.) his sister's farewell message, the tenor of which is unknown. He was about to repair to Ireland when a mission to Louis XVIII. in Brunswick led to his becoming that prince's chaplain, and he died in that post at Mittau in 1807. On the loss, through the dishonesty of the borrower, of the £4000 produced by the sale of Firmount, he accepted in 1806 the


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Rh Negro Superstition.—"When anything about a plantation is missing they [the negro slaves] have a solemn kind of oath, which the eldest negro always administers, and which by them is accounted so sacred that, except they have the express command of their master or overseer, they never set about it, and then they go very solemnly to work. They range themselves in that spot of ground which is appropriated for the negroes' burying-place, and one of them opens a grave. He who acts as priest takes a little of the earth and puts it into every one of their mouths; they say that if anyone has been guilty, their belly swells and occasions their death. I never saw any instance of this but one; and it was certainly a fact that a boy did swell, and acknowledged the theft when he was dying." (A New History of Jamaica, 1740, let. 11, p. 306.)


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138 pension from the English Government which he had previously declined. By a singular coincidence, while Edgeworth attended Louis XVI. to the scaffold, his kinsman, Admiral Sir Thomas Ussher—both were descendants of Archbishop Ussher—escorted Napoleon to exile. Napoleon at Elba, in December 1814, inquired of Lord Ebrington for "my good friend Ussher."


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392 not remember another instance of association of individuals for a public object. Harbours, breakwaters, piers, railroads, tramways, steamboats, and diving apparatus and bells for the pearl fisheries, have all been advocated in turn by the Perth and Fremantle newspapers; but however much the colonists may desire to witness the introduction of any or all of these improvements, they seem to look to Government action alone to carry them out.

To raise a Government loan, of a hundred or a hundred and fifty thousand pounds, to be expended upon public works, seems of late to be considered necessary, or at all events most desirable, by all parties in the colony. There can be no doubt that some measure of this nature must be adopted before long if any progress or improvement is desired or expected, and it would be but fair for the mother-country to aid her poor and struggling daughter in this matter by means of a guarantee, now that the Home Government has commenced to diminish her expenditure upon the convicts so rapidly.

It should be remembered that transportation to this colony was continued quite long enough to give the place a bad name with the rest of Australia, and to deter free emigrants of the better class from landing upon her shores. Now therefore, when by the fiat of the Home Government, influenced by the outcry made by the Eastern and Southern settlements, the system has been finally abolished. Swan River, which was willing to carry out her engagement, has been placed at a considerable disadvantage; left to struggle by herself against many obstacles, while she has been prevented from attracting a population of substantial settlers who might have had

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EIGHTEENTH SITUATION 61 truth, sees the character walk unconsciously toward the crime, as though in a sinister sort of blindman's-buff, as in Classes B, C and D.

A (1) — Discovery That One Has Married Ones Mother: — The "Œdipus" of Aeschylus, of Sophocles, of Seneca, of Anguillara, of Corneille, of Voltaire, not to speak of those of Achaeus, Philocles, Melitus, Xenocles, Nicomachus, Carcinus, Diogenes, Theodecte, Julius Caesar; nor of those of Jean Provost, Nicolas de Sainte-Marthe, Lamothe, Ducis, J. Chenier, etc. The greatest praise of Sophocles consists in the astonishment we feel that neither the many imitations, nor the too well-known legend of the abandonment on Cithaeron, nor the old familiar myth of the Sphinx, nor the difference in the ages of the wedded pair, that none of these things has made his work appear unnatural or unconvincing.

(2) — Discovery That One Has Had a Sister as Mistress: — Tasso's "Torrismond; "The Bride of Messina" by Schiller. This case, obviously a more frequent one, becomes unconvincing in the latter drama, when combined with the Nineteenth Situation. Example from fiction: "L'Enfant Naturel," by Sue.

B (1) — Discovery That One Has Married Ones Sister: — "Le Mariage d' Andre" (Lemaire and de Rouvre, 1882). This being a comedy, the error is discovered in time to be remedied, and the play "ends happily." "Abufar" by Ducis, which also falls under a preceding classification.

(2) — The Same Case, in Which the Crime Has Been Villainously Planned by a Third Person: — "Heraclius" (this gives, despite its genius, rather the feeling of a nightmare than of a terrible reality).

(3) — Being Upon the Point of Taking a Sister, Unknowingly, as Mistress: — Ibsen's "Ghosts." The mother, a knowing witness, hesitates to reveal the danger, for fear of subjecting the son to a fatal shock.

C — Being Upon the Point of Violating, Unknowingly, a Daughter: — Partial example: "La Dame aux Domino Rose" (Bouvier, 1882).


text: Englishmen in the French Revolution/Chapter VII


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Rh both wealth enough and energy enough to develop her resources without asking for assistance from abroad. I do not mean to say that transportation alone has turned the stream of free emigration away from Western Australia, but only to assert that it has so far assisted to do so as to give the colony a claim to the sympathy and kind feeling of the English Government now that she is left to fight her battle alone.

The wealthy man or the capitalist, therefore, will not find much to attract him, nor many companions of his own class, should he visit Swan River. Perhaps the merchant or storekeeper with a small amount only of capital might do well, but this would depend entirely upon his character and his habits. Most of the successful storekeepers have been men who were brought up in the colony, and who know the position and prospects of almost everyone in it. So very large a portion of the business carried on is done upon credit that it is necessary to leave a large margin for bad debts, and to be careful as to the customers on the books. All this takes time and observation to learn, and renders it requisite for a new-comer to be cautious and distrustful of his own judgement at first starting. Then, again, many of the settlers have so long been accustomed to look upon some one or other of the store-keepers as their factor and banker combined, sending him all their wool and produce of every description and drawing money from him when they require any advances, that they are completely in his power, and dare not go to any newly-established store for fear of his anger; thus much of the trade would be out of the new-comer's reach, however low might be his prices for stores supplied, however high

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62   THIRTY-SIX DRAMATIC SITUATIONS D (1) — Being Upon the Point of Committing an Adultery Unknowingly (the only cases I have found in all drama): — "Le Roi Cerf" and "L'Amour des Trois Oranges," both by Gozzi. (2) — Adultery Committed Unknowingly: — Probably the "Alcmene" of Aeschylus; "Le Bon Roi Dagobert" (Rivoire, 1908). From fiction: the end of "The Titan," by Jean-Paul Richter.

The various modifications of incest and other forbidden loves, which will be found in Situation XXVI, may be adapted in the same manner as those here classified.

We have seen above instances of adultery committed through a mistake on the part of the wife; it might also be through a mistake by the husband. This error is especially likely to be made by that one of the two adulterers who is unmarried; what is more common, for example, in the life of "pleasure," than to discover — a little tardily — that ones mistress is a married woman?

Ignorance of the sex of the beloved is the point upon which "Mademoiselle de Maupin" turns; there is in the first place a mistake (comedy), upon which are built the obsidional struggles of a soul (tragi-comedy), from which there finally results, when the truth is disclosed, a brief tragic dénouement.


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 WEATHER FOLK-LORE OF THE SEA.

HE following folk-lore on the weather has been collected for the most part from the fisher-folks along the north-east of Scotland, The village or villages in which the observation has been met with are recorded. Reference has been made to two works on folk weatherlore—viz., Signal Service Notes, No. ix; Weather Proverbs—prepared under the direction of Brigadier and Brevet Major-General W. B. Hazen, Chief Signal Officer of the Army, by H. H. C. Dunwoody, First Lieutenant, 4th Artillery, A. S. O. and Asst., quoted as D., and On the Popular Weather Prognostics of Scotland, by Arthur Mitchell, A.M., M.D., member of Council of the Meteorological Society, etc., quoted as M.

I.—

A "low dawn"—i.e., when the rays of the sun, before the sun comes above the horizon, illuminate the clouds only a little above the horizon—indicates foul weather (Pittulie). On the other hand, "a high dawn" indicates a fair day.

Daybreak is called "sky-casting" or "sky-making". If the "sky cast" pretty far towards the south, the day is not to be depended on (Pittulie); if well to the east, it is to be depended on.

When the sun rises "fiery" it is a sign of drought, when "white", "sick", or "sickly", of rain (Pittulie, Macduff, Rose-hearty).

When it rises "white and sick", both wind and wet


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 attention to the law, and passed with great success the examinations of the Incorporated Law Society. But, like Dickens and Disraeli, the natural bent of his genius impelled him towards the culture of the Muses, and he forsook law for literature.

He was for some years associated with the 'Morning Chronicle;' and, as the representative of that paper, travelled over Russia, Syria, and Egypt, being charged with an inquiry into the state of the labouring classes in those countries.

As a dramatist, the editor of 'Punch' has produced works of sterling merit. 'The Creole, or Love's Fetter,' was first produced at the Lyceum in April 1847, in which Mr. and Mrs. Keeley, Frank Matthews, and Leigh Murray sustained the principal characters. The next year saw, at the same theatre, a capital one-act comedy, 'Anything for a Change,' in which Harley and Charles Mathews appeared. Among his other dramatic works, we may mention 'The Daughter of the Stars,' brought out at the Strand. In 'Timour the Tartar' he had John Oxenford as joint author. 'The Guardian Angel,' at the Haymarket, Mr. and Mrs. Keeley appeared in; and 'The Lowther Arcade,' a very sprightly farce, with two pieces of greater labour, 'Honours and Tricks,' and 'Our New Governess,' must not be omitted from this list. Mr. Brooks was in his earlier days a contributor to many of the best periodicals; was a leader writer on the 'Illustrated London News,' and for some time editor of the 'Literary Gazette;' but it is as a novelist that his talents are best known and appreciated by the readers of 'Once a Week,' in which his best stories have appeared; and were it not that we propose to let him tell us the history of that famous satirical journal he now so worthily conducts, we should dwell at length on his novels. 'The Silver Cord,' which appeared in 'Once a Week,' 'Sooner or Later,' 'The Gordian Knot,' and his first story, 'Aspen Court,' complete the list of his longer works of fiction. Nothing would be more to our mind than to offer some criticism here upon the skill in the construction of plots, the sustained interest, the sparkling dialogue, and the touches of genius in exhibiting the inner working of the human heart, that his novels show; but instead we will give, in Mr. Shirley Brook's


text: Talk:Ryan v. Gifford

title: Talk:Ryan v. Gifford


text:
User:Phy1729/Horace

Horace's Odes

 * Ode 1.1
 * Ode 1.5
 * Ode 3.1
 * Ode 3.9
 * Ode 3.13
 * Ode 3.30

title: User:Phy1729/Horace


text: Talk:In re Tyson Foods, Inc. Consolidated Shareholder Litigation


text:
Author:Charles William Shirley Brooks

Fiction

 * Aspen Court: A Story of Our Own Time (1855)
 * The Gordian Knot: A Story of Good and of Evil (1860)
 * "The Latest from Spirit Land" in Once a Week, Series 1, 6 (1862)
 * The Silver Cord, serialized 1860-1861; 3 vols. 1861
 * Sooner or Later (1868) {{ext scan link|1=https://books.google.com/books?id=HlRAAAAAYAAJ|2=https://books.google.com/books/content?id=sFNAAAAAYAAJ}|3=https://books.google.com/books?id=fUlMAAAAcAAJ}}
 * "The Latest from Spirit Land" in Once a Week, Series 1, 6 (1862)
 * The Silver Cord, serialized 1860-1861; 3 vols. 1861
 * Sooner or Later (1868) {{ext scan link|1=https://books.google.com/books?id=HlRAAAAAYAAJ|2=https://books.google.com/books/content?id=sFNAAAAAYAAJ}|3=https://books.google.com/books?id=fUlMAAAAcAAJ}}
 * Sooner or Later (1868) {{ext scan link|1=https://books.google.com/books?id=HlRAAAAAYAAJ|2=https://books.google.com/books/content?id=sFNAAAAAYAAJ}|3=https://books.google.com/books?id=fUlMAAAAcAAJ}}

Poetry

 * Wit and Humour (Poems from "Punch") (1875)
 * Wit and Humour (Poems from "Punch") (1875)
 * Wit and Humour (Poems from "Punch") (1875)
 * Wit and Humour (Poems from "Punch") (1875)
 * Wit and Humour (Poems from "Punch") (1875)
 * Wit and Humour (Poems from "Punch") (1875)

Theater

 * The Creole; or, Love's Fetters: An Original Drama in Three Acts (1847)
 * Anything for a Change: A Petite Comedy in One Act (1848)
 * The Daughter of the Stars: A Drama in Two Acts (1850)

Journalism and essays

 * The Russians of the South (1854)

title: Author:Charles William Shirley Brooks


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 SLAYING OF A KINSMAN UNRECOGNIZED

(The Slayer; the Unrecognized Victim)

Whereas the Eighteenth Situation attains its highest degree of emotion after the accomplishment of the act, (doubtless because all the persons concerned in it survive, and the horror of it lies chiefly in the consequences), the Nineteenth, on the contrary, in which a victim is to perish and in which the interest increases by reason of the blind premeditation, becomes more pathetic in the preparations for the crime than in the results. This permits a happy ending, without the necessity of recourse, as in the Eighteenth, to a comedy-process of error. A simple recognition of one character by another will suffice, — of which our Situation XIX is, in effect, but a development.

A (1) — Being Upon the Point of Slaying a Daughter Unknowingly, by Command of a Divinity or an Oracle: — Metastasio's "Demophon." The ignorance of the kinship springs from a substitution of infants; the interpretation of the oracle's words is erroneous; the "jeune premiere," at one point in the action, believes herself the sister of her fiance. This linking of three or four mistakes (unknown kinship, in the special light of the situation we are now studying, a supposed danger of incest, as in B 2 of the preceding, and finally a misleading ambiguity of words, as in the majority of comedies) suffices to constitute what is called "stirring" action, characteristic of the intrigues brought back into vogue by the Second Empire, and over whose intricate entanglements our chroniclers waxed so naively enthusiastic.


text: User:Phy1729/Horace/Ode 1.1

title: User:Phy1729/Horace/Ode 1.1


text: Appletons' Cyclopædia of American Biography/Davidson, Lucretia Maria


text:
Page:Folk-lore - A Quarterly Review. Volume 2, 1891.djvu/525

 Rh follow, with the wind from the south or south-west (Rosehearty).

If the sun rises with a glaring, glassy sort of light accompanied with small glittering clouds, stormy weather is looked for that day.

If after the sun has risen for an hour and a half or two hours his rays appear to shoot down to the horizon, the wind in a short time blows from east by south or south-south-east Such rays go by the name of " back-stays" (Findochty). In Macduff they are called "staanarts".

When the sun rises "red as blood" a gale is at hand, mostly from the south (Rosehearty). When it appears red, but not very red, about "man-heicht" above the horizon, a fine day follows, with the wind from the south or south-west (Rosehearty).

If the sun comes up unclouded, shines brightly for a time, and then becomes hid by clouds, a common remark is, " He's p——, an gane t' bed". Such a thing is an indication of dull cloudy weather (Pennan).

When the sun appears "sick and foul", that is, when the sun is covered with a grey or "aisy" (ashy) haze, rain follows in summer, and snow in winter (Rosehearty).

In rainy weather, if the sun sets behind heavy black clouds with "clear holes" in them, "roving", i.e., unsettled, weather follows with the wind westerly.

A black cloud rising in the west towards sunset is called "a growan-up", and is a precursor of a near burst of stormy weather (Pittulie).

A large black heavy cloud in the west when the sun is not far from the horizon is called "a bank", and is the forerunner of a strong breeze from the west. The following are the formulæ:—

"When the sin sets in a clear,

Wasterly win' ye needna fear;


text:
Zoonomia/II.III

The Orders and Genera of the Third Class of Diseases.

CLASS III.

DISEASES OF VOLITION.

ORDO I.

Increased Volition.

GENERA.

 * 1. With increased actions of the muscles.
 * 2. With increased actions of the organs of sense.

ORDO II.

Decreased Volition.

GENERA.

 * 1. With decreased actions of the muscles.
 * 2. With decreased actions of the organs of sense.

The Orders, Genera, and Species, of the Third Class of Diseases.

CLASS III.

DISEASES OF VOLITION.

ORDO I.

Increased Volition.

GENUS I.

With Increased Actions of the Muscles.

SPECIES.

GENUS II.

With increased Actions of the Organs of Sense.

SPECIES.

ORDO II.

Decreased Volition.

GENUS I.

With decreased Actions of the Muscles.

SPECIES.

GENUS II.

With decreased Actions of the Organs of Sense.

SPECIES.

title: Zoonomia/II.III


text:
Page:The thirty-six dramatic situations (1921).djvu/66

64 (2) — Through Political Necessity: — "Les Guebres and "Les Lois de Minos" by Voltaire.

(3) — Through a Rivalry in Love: — "La Petite Mionne" (Richebourg, 1890).

(4) — Through Hatred of the Lover of the Unrecognized Daughter: — "LeRoi s'amuse" (in which the discovery takes place after the slaying).

B (1) — Being Upon the Point of Killing a Son Unknowingly: — The "Telephus" of Aeschylus and of Sophocles (with incest as the alternative of this crime); Euripides' "Cresphontes;" the "Meropes" of Maffei, of Voltaire and of Alfleri; Sophocles' "Creusa;" Euripides' "Ion." In Metastasio's "Olympiad" this subject is complicated by a "Rivalry of Friends." A Son Slain Without Being Recognized: — Partial example: the third act of "Lucrece Borgia;" "The 24th of February," by Werner.

(2) — The Same Case as B (1), Strengthened by Machiavellian Instigations: — Sophocles' "Euryale;" Euripides' "Ægeus."

(3) — The Same Case as B (2), Intermixed With Hatred of Kinsmen (that of grandfather for grandson): —Metastasio's "Cyrus."

C — Being Upon the Point of Slaying a Brother Unknowingly: (1) — Brothers Slaying in Anger: — The "Alexanders" of Sophocles and of Euripides. (2) — A Sister Slaying Through Professional Duty: — "The Priestesses" of Aeschylus; "Iphigenia in Tauris," by Euripides and by Goethe, and that projected by Racine.

D — Slaying of a Mother Unrecognized: — Voltaire's "Semiramis;" a partial example: the denouement of "Lucrece Borgia."

E — A Father Slain Unknowingly, Through Machiavellian Advice: (see XVII): — Sophocles' "Pelias" and Euripides' "Peliades;" Voltaire's "Mahomet" (in which the hero is also upon the point of marrying his sister unknowingly). The Simple Slaying of a Father Unrecognized: — Legendary example: Laius. From romance: "The Legend of Saint Julian the Hospitaller."


text:
Author:Janet Millett

Works

 * An Australian Parsonage (1872)

title: Author:Janet Millett


text:
Page:Folk-lore - A Quarterly Review. Volume 2, 1891.djvu/526

 470 When the sin sets in a bank

Wasterly win' ye winna want." (Buckie.)

"If the sin set in a bank,

A westerly ween ye winna want;

If she set clear

An easterly ween is near." (Macduff.)

A variant of the last line is: —

"A clear in the nor' never hairm nae man," said a Portessie man. It is a common opinion that all the bad weather " makes up" in the south-west (Portessie).

"When it thickens in the wast," said a man of Portessie, "it will be southerly winds in the firth."

Of a summer afternoon the rays of the sun stretch at times down to the horizon. The sun is then said to be "shaftit", and there is a formula:—

Of a summer afternoon, when the sun is westering, there is at times a peculiar glassy-like glitter on the sea. Some fishermen say that it is an indication of coming stormy weather or of rain (Pittulie).

A halo round the sun is called "a sin-bow", and is regarded as the forerunner of rain. The opening in the halo indicates the point from which the wind is to blow (Pittulie). It indicates foul weather (Rosehearty).

A mock-sun goes by the names of:—Dog (general), falcon (Buckie, Portessie), ferrick (general), sin-ferrick, sin-dog (general). The fishermen of Buckie speak of a


text:
Page:An Australian Parsonage.djvu/423

394 the offers he might make for the purchase of colonial produce.

In a remarkably well-written account of the colony which appeared in the 'Melbourne Argus' a few years ago this point was entered into in some detail; and it was there said that, as a general statement, the country settlers were so much under the rule and influence of the chief storekeepers as to be scarcely free agents. No doubt this has been the case to a very large extent, but it is a species of misfortune which has affected other Australian colonies as well Queensland, especially, has suffered from similar trials. And yet there is much to be said on behalf of the merchant class in this matter. It cannot be denied that it is injurious to a colony to fall into a condition in which all the working capital of the country has been accumulated in the hands of the trading men only. Competition is checked, energy is stifled, and expansion is hindered by the aggregation of the whole buying power of a district in one or two hands.

When the corn-grower, or the flock-owner, or the gum-collector is compelled by his own circumstances to dispose of his produce to one individual only, and to accept whatever that person may choose to give as the price of his merchandise, he loses his independence and ceases to feel himself a free man. By degrees he gives up the hope of improving his position and contents himself with living on from day to day, sending to the store with which he is connected for as large an amount of supplies as the merchant is willing to furnish, and only too glad if, at the year's end, the balance against himself has not been increased. This is the position in which a very large number of the

title: Page:An Australian Parsonage.djvu/423


text:
Page:The thirty-six dramatic situations (1921).djvu/67

NINETEENTH SITUATION 65 The Same Case Reduced From Murder to Simple Insult: — "Le Pain d'Autrui" (after Turgenieff, by Ephraim and Schutz, 1890). Being Upon the Point of Slaying a Father Unknowingly: — "Israel" (Bernstein, 1908).

F (1) — A Grandfather Slain Unknowingly, in Vengeance and Through Instigation:- "Les Burgraves" (Hugo).

(2) — Slain Involuntarily: — Aeschylus' "Polydectes."

(3) — A Father-in-Law Killed Involuntarily: — Sophocles' "Amphitryon."

G (1) — Involuntary Killing of a Loved Woman: — Sophocles' "Procris." Epic example: Tancred and Clorinda, in "Jerusalem Delivered." legendary example (with change of the sex of the person loved): Hyacinthus.

(2) — Being Upon the Point of Killing a Lover Unrecognized: — "The Blue Monster" by Gozzi.

(3) — Failure to Rescue an Unrecognized Son: — "Saint Alexis" (a XIV Century Miracle of Notre-Dame;) "La Voix du Sang" (Rachilde).

Remarkable is the liking of Hugo (and consequently of his imitators) for this somewhat rare situation. Each of the ten dramas of the old Romanticist contains it; in two of them, "Hernani" and "Torquemada," it is in a manner accessory to the Seventeenth (Imprudence) fatal to the hero also: in four ("Marion Delorme," "Angelo." "La Esmeralda," "Ruy Blas") this case of involuntary injury to a loved one supplies all the action and furnishes the best episodes; in four others ("Le Roi s'amuse," "Marie Tudor," "Lucrece Borgia," "Les Burgraves") it serves furthermore as denouement. It would seem, indeed, that indirectly, of the death of a loved one; and, in the work wherein he has accumulated the greatest number of theatrical effects — in "Lucrece Borgia" — we see the same situation returning no less than five times. Near the first part of Act I, Gennaro permits his unrecognized mother to be insulted; in the second part, he himself insults her,


text: Author talk:Janet Millett

title: Author talk:Janet Millett


text:
Translation:Act Establishing Southern Bangkok Civil Court and Southern Bangkok Criminal Court, BE 2532 (1989)

His Majesty King Bhumibol Adulyadej is graciously pleased to proclaim that:

Whereas it is desirable to establish a Southern Bangkok Civil Court and a Southern Bangkok Criminal Court;

Be it enacted by the King’s most Excellent Majesty, by and with the advice and consent of the National Assembly, as follows:

This Act shall be cited as the “Act Establishing Southern Bangkok Civil Court and Southern Bangkok Criminal Court, BE 2532 (1989).”

This Act shall come into force as from the day following the date of its publication in the Government Gazette.

There shall be established:

(1)	 In Bangkok, a civil court called “Southern Bangkok Civil Court”;

(2)	 In Bangkok, a criminal court called “Southern Bangkok Criminal Court”.

The seats and the commencement of operation of the Southern Bangkok Civil Court and the Southern Bangkok Criminal Court shall be determined by the royal decrees.

Khet Bang Kho Laem, Khet Bang Rak, Khet Yannawa and Khet Sathon of Bangkok shall become the districts of the Southern Bangkok Civil Court and the Southern Bangkok Criminal Court.

Pending the royal decrees determining the commencement of operation of the Southern Bangkok Civil Court and the Southern Bangkok Criminal Court pursuant to section 3, the Civil Court and the Criminal Court shall be competent to exercise their jurisdiction over the districts of both court, as the case may be.

All cases coming to pass in Khet Bang Rak, Khet Pathum Wan, Khet Pom Prap Sattru Phai, Khet Phra Khanong, Khet Yannawa and Khet Samphanthawong of Bangkok which are pending before the Civil Court or Criminal Court on the date of the commencement of operation of the Southern Bangkok Civil Court and the Southern Bangkok Criminal Court shall continue to be settled by the Civil Court or Criminal Court, whichever applies.

The Minister of Justice shall be in charge of this Act.

 * Prime Minister.

The grounds for promulgation of this Act are as follows: The number of the Bangkok inhabitants increases time by time, so does the number of the cases brought before the Civil Court and the Criminal Court. Although the Thon Buri Civil Court and the Thon Buri Criminal Court have been established to relieve the missions of the the Civil Court and the Criminal Court, the number of the courts does not match that of the cases. Furthermore, as the communications in Bangkok are inconvenient, the citizens involving in the legal disputes and the persons concerned have been forced to face with certain difficult and dilatory contact with the courts. It is expedient to establish a Southern Bangkok Civil Court and a Southern Bangkok Criminal Court to deal with the cases occurring in Khet Bang Rak, Khet Pathum Wan, Khet Pom Prap Sattru Phai, Khet Phra Khanong, Khet Yannawa and Khet Samphanthawong of Bangkok. Also, section 170 of the Constitution of the Kingdom of Thailand prescribes that all courts may only be established by the Acts. It is therefore necessary to enact this Act.

Note on Amendments
All cases coming to pass in Khet Khlong Toei, Khet Bang Na, Khet Pathum Wan, Khet Prawet, Khet Pom Prap Sattru Phai, Khet Watthana, Khet Phra Khanong, Khet Samphanthawong and Khet Suan Luang which are pending before the Southern Bangkok Civil Court and the Southern Bangkok Criminal Court on the date of coming into force of this Act shall continue to be settled by the Southern Bangkok Civil Court or Southern Bangkok Criminal Court, as the case may be.

All cases coming to pass in the districts set forth in paragraph 1, in respect of which the accused are being detained by the Southern Bangkok Criminal Court pending inquiries on the date of coming into force of this Act, shall continue to be settled by the Southern Bangkok Criminal Court.

The grounds for promulgation of this Act are as follows: Since the Dusit Municipal Court, the Taling Chan Municipal Court, the Pathum Wan Municipal Court and the Phra Khanong Municipal Court have been elevated to the Provincial Courts, the districts of the Southern Bangkok Civil Court and the Southern Bangkok Criminal Court have also been modified to be subject to the territorial jurisdiction of the Dusit Provincial Court, the Pathum Wan Provincial Court and the Phra Khanong Provincial Court, whilst those of the Thon Buri Civil Court and the Thon Buri Criminal Court are to be subject to the Taling Chan Provincial Court. It is expedient to modify the districts of the Southern Bangkok Civil Court, the Southern Bangkok Criminal Court, the Thon Buri Civil Court and the Thon Buri Criminal Court in accordance with the said change. It is therefore necessary to enact this Act.


text: Category:Acts of Thai legislature

title: Category:Acts of Thai legislature


text:
Page:Folk-lore - A Quarterly Review. Volume 2, 1891.djvu/527

 Rh "falcon" hunting the sun, and say that it indicates stormy weather. The following rhymes give the folk-notion of its appearance and position with regard to the weather : —

At times the order is reversed:—


text:
Page:Folk-lore - A Quarterly Review. Volume 2, 1891.djvu/528

 472

Inland, about Ordiquhill, among old folks the rhyme was:—

II.— The Moon.

If the new moon is seen shortly after her incoming, unsettled weather is looked for (general).

The new moon lying on her back, and having the points small, is looked upon as a bad moon (St. Comb's).

The new moon lying on her back, is likened to a cup to hold water, which is emptied during her course. On the other hand, if the new moon stands well up, it is regarded as a sign of good weather (general).

When the new moon is "sharp i' the corners", the saying is: "She's nae a good moon." When she is blunt and round she is a good moon. There is another saying: "She's ower like a coo's horn to be good" (Rosehearty).

When she appears "stracht (straight) and fair-set" she is looked upon as a good moon (Rosehearty).

If there are heavy clouds about the time of moon-rise the fishermen watch what will follow. If the clouds disperse the weather remains good, but if the clouds remain there is foul weather at hand (Rosehearty).


text: Translation talk:Act Establishing Southern Bangkok Civil Court and Southern Bangkok Criminal Court, BE 2532 (1989)