April 18, 2025
Del. Chancery Dismisses Claim Citing Controller’s Greater Interest in Buyer than Target
This Sidley Enhanced Scrutiny blog discusses the Delaware Chancery’s recent “rare pre-discovery dismissal of an entire fairness claim” in In re Skillsoft Stockholders Litigation (Del. Ch.; 2.25). The claim involved the acquisition of Codecademy by Skillsoft in November 2021, shortly after Skillsoft went public via de-SPAC. In the de-SPAC, Prosus acquired a 38.4% stake in Skillsoft. It also held a 24% interest in Codecademy. Skillsoft’s stock price decreased after the Codecademy acquisition was announced, and stockholders brought derivative claims, saying Prosus was a conflicted controller.
Despite finding that plaintiffs were excused from making a demand on the board and applying entire fairness with controller Prosus standing on both sides of the transaction, VC Laster still granted the defendants’ motion to dismiss.
Although entire fairness review applied, the court held, the complaint should still be dismissed entirely. The dispositive fact was that Prosus owned a bigger interest on the buy side of the transaction—37.5%, as opposed to 24% on the sell side. Prosus’s interests were aligned not with Codecademy but with Skillsoft. That was enough to conclude that economic fairness, or fair price, was satisfied. “In that setting, overpaying is not a way to transfer value. It’s a way to deplete value,” the court said. That was “enough to negate the inference of pricing unfairness, at least absent some other explanation.”
That fact eclipsed the court’s concerns about procedural fairness, including the contrary fact that there was “relatively little board involvement.” Because Prosus’s interest was aligned with Skillsoft, and the directors’ interests were aligned with Prosus, entire fairness was satisfied.
The blog notes that this is an uncommon outcome but not unheard of:
This was the “rare case,” Vice Chancellor Laster concluded, when “at the pleading stage, in the face of the application of the entire fairness test, [one] cannot reasonably infer [un]fairness.” Rare, but not unprecedented: as this blog previously reported, the Delaware Court of Chancery recently dismissed an entire fairness claim in White v. Hennessy, where Sidley represented the defendants.
– Meredith Ervine