IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
`
`SARAH KENVILLE, DYLAN
`NEWMAN, and MICHAEL FARZAD,
`
`Plaintiffs,
`
`v.
`
`C.A. No. 2024-0276-PAF
`
`NORTHERN STAR SPONSOR LLC,
`JOANNA COLES, JONATHAN J.
`LEDECKY, JAMES H.R. BRADY,
`JONATHAN MILDENHALL,
`DEBORA SPAR, JUSTINE CHENG,
`BARKBOX, INC., BARK, INC.,
`MATTHEW MEEKER, and HENRIK
`WERDELIN,
`
`Defendants.
`
`PLAINTIFFS’ MOTION FOR LEAVE TO FILE A
`VERIFIED SECOND AMENDED CLASS ACTION COMPLAINT
`
`Plaintiffs Sarah Kenville, Dylan Newman, and Michael Farzad, (together,
`
`“Plaintiffs”), by and through Plaintiffs’ undersigned counsel, hereby move this
`
`Court, pursuant to Chancery Court Rule 15(a), for an order granting Plaintiffs leave
`
`to file a Verified Second Amended Class Action Complaint in the form attached
`
`hereto as Exhibit A (the “Second Amended Complaint”).1 Attached hereto as
`
`1 Unless otherwise noted, capitalized terms have the same meaning as set forth in the
`Verified Amended Class Action Complaint (Trans. ID 74631606) (the “Amended
`Complaint”).
`
`
`
`EFiled: Feb 12 2025 09:17PM EST
`Transaction ID 75628564
`Case No. 2024-0276-PAF
`
`
`
`SARAH KENVILLE, DYLAN
`NEWMAN, and MICHAEL FARZAD,
`
`Plaintiffs,
`
`v.
`
`C.A. No. 2024-0276-PAF
`
`NORTHERN STAR SPONSOR LLC,
`JOANNA COLES, JONATHAN J.
`LEDECKY, JAMES H.R. BRADY,
`JONATHAN MILDENHALL,
`DEBORA SPAR, JUSTINE CHENG,
`BARKBOX, INC., BARK, INC.,
`MATTHEW MEEKER, and HENRIK
`WERDELIN,
`
`Defendants.
`
`PLAINTIFFS’ MOTION FOR LEAVE TO FILE A
`VERIFIED SECOND AMENDED CLASS ACTION COMPLAINT
`
`Plaintiffs Sarah Kenville, Dylan Newman, and Michael Farzad, (together,
`
`“Plaintiffs”), by and through Plaintiffs’ undersigned counsel, hereby move this
`
`Court, pursuant to Chancery Court Rule 15(a), for an order granting Plaintiffs leave
`
`to file a Verified Second Amended Class Action Complaint in the form attached
`
`hereto as Exhibit A (the “Second Amended Complaint”).1 Attached hereto as
`
`1 Unless otherwise noted, capitalized terms have the same meaning as set forth in the
`Verified Amended Class Action Complaint (Trans. ID 74631606) (the “Amended
`Complaint”).
`
`
`
`EFiled: Feb 12 2025 09:17PM EST
`Transaction ID 75628564
`Case No. 2024-0276-PAF
`
`
`
`Exhibit B is a blackline reflecting the changes against Plaintiffs’ Amended
`
`Complaint. In support of their motion, Plaintiffs state as follows:
`
`1.
`
`On March 20, 2024, Plaintiffs filed the Verified Class Action
`
`Complaint (Dkt. 1) (the “Complaint”) for breach of fiduciary duty against
`
`Defendants Northern Star Sponsor LLC, Joanna Coles, Jonathan J. Ledecky, James
`
`H.R. Brady, Jonathan Mildenhall, Debora Spar, Justine Cheng, Matthew Meeker,
`
`and Henrik Werdelin (“Defendants”).
`
`2.
`
` On June 7, 2024, Defendants Northern Star Sponsor LLC, Coles,
`
`Ledecky, Brady, Mildenhall, Spar, and Cheng (collectively the “Northern Star
`
`Defendants”) filed an Answer to the Complaint under seal (Trans. ID 73336950).
`
`That same day, Meeker and Werdelin filed a Motion to Dismiss the Complaint and
`
`Opening Brief in Support of Their Motion to Dismiss under seal (Dkt. 38).
`
`3.
`
`On September 30, 2024, Plaintiffs filed the Amended Complaint under
`
`seal (Dkt. 49) against defendants Northern Star Sponsor LLC, Coles, Ledecky,
`
`Brady, Mildenhall, Spar, Cheng, Barkbox, Inc., BARK, Inc., Matthew Meeker, and
`
`Henrik Werdelin. The Amended Complaint added BARK, INC., and Barkbox, Inc.
`
`as defendants (together with Meeker and Werdelin (the “BARK Defendants”)). The
`
`Amended Complaint expanded Plaintiffs’ allegations that the BARK Defendants’
`
`contractual obligations under the Merger Agreement between Northern Star and
`
`Legacy BARK created a reasonable inference that the BARK Defendants aided and
`
`
`
`
`
`abetted the Northern Star Defendants’ breaches of fiduciary duty to Northern Star’s
`
`stockholders.
`
`4.
`
` On December 3, 2024, the Northern Star Defendants filed an Answer
`
`to the Amended Complaint under seal (Dkt. 63). That same day, the BARK
`
`Defendants filed a Motion to Dismiss the Amended Complaint (the “Motion To
`
`Dismiss”) and Opening Brief in Support of Their Amended Motion to Dismiss under
`
`seal (Dkt. 64-65)
`
`5.
`
`After Plaintiffs filed the Amended Complaint, but prior to the filing of
`
`the Motion to Dismiss, on December 2, 2024, the Delaware Supreme Court issued a
`
`decision in Mindbody.2 The Mindbody decision clarified the requirements for
`
`establishing liability for aiding and abetting an underlying breach of fiduciary duty
`
`arising from the duty of disclosure.3 In Mindbody, an appeal from a post-trial
`
`decision, the Delaware Supreme Court ruled that aiding and abetting liability cannot
`
`be premised solely on a contractual obligation to review disclosures.4
`
`6.
`
`The Mindbody decision altered the landscape regarding the factual
`
`predicate required to support a claim that a defendant alleged to have aided and
`
`abetted an underlying breach of fiduciary duty knowingly participated in the
`
`underlying breach. Though Plaintiffs believe the Amended Complaint is sufficient
`
`2 In re Mindbody, Inc., S’holder Ltig., 2024 WL 4926910 (Del. Dec. 2, 2024).
`3Id. at *31-*44.
`4Id. at *41.
`
`
`
`
`
`to state a claim for aiding and abetting even after Mindbody, because Court of
`
`Chancery Rule 15(a)(5) requires dismissal with prejudice (except for good cause
`
`shown) if a plaintiff fails to amend or seek leave to amend before a response to a
`
`motion to dismiss is due, Plaintiffs request permission to file a Second Amended
`
`Complaint to address their aiding and abetting allegations to conform to the
`
`Mindbody decision.
`
`7.
`
`Chancery Court Rule 15(a) provides that leave to amend shall “be freely
`
`given when justice so requires.”5 Further, Rule 15(aaa) specifically contemplates
`
`allowing a party to amend its complaint in response to a motion to dismiss.
`
`8.
`
`Court of Chancery Rule 15(d) provides that “[u]pon motion of a party
`
`a Court may, upon reasonable notice and upon such terms as are just, permit [a
`
`plaintiff] to serve a supplemental pleading setting forth transactions or occurrences
`
`or events which have happened since the date of the pleading sought to be
`
`supplemented.”
`
`9.
`
`“This Court generally grants leave to amend ‘unless there is evidence
`
`of bad faith, undue delay, dilatory motive, undue prejudice or futility of
`
`5 Fitzgerald v. Cantor, 1999 WL 66529, at *1 (Del. Ch. Jan. 27, 1999); see also Millen v.
`Alarmguard of Delmarva, Inc., 625 A.2d 258, 263 (Del. 1993) (“In the absence of prejudice
`to another party, the trial court is required to exercise its discretion in favor of granting
`leave to amend.”); Kiddie Indus., Inc. v. Weaver Corp., 1994 WL 89013, at *4 (Del. Ch.
`Feb. 15, 1994) (granting leave to amend where plaintiff timely moved to amend and
`amendment did not otherwise prejudice defendant).
`
`
`
`
`
`amendment.’”6 Similarly, “Rule 15(d) is a highly permissive standard,” and
`
`“[m]otions to supplement should be treated with the same ‘liberality’ as pre-trial
`
`motions to amend, and should be ‘freely given.’”7
`
`10.
`
`The liberal approach under Rules 15(a) and 15(d) reflects the public
`
`policy in favor of deciding cases on the merits rather than on procedural grounds.8
`
`11.
`
`“In the absence of prejudice to another party, the trial court is required
`
`to exercise its discretion in favor of granting leave to amend.”9 A motion for leave
`
`to amend shall be denied only if the moving party “inexcusably delayed in making
`
`its request and [the opposing party] is prejudiced as a result.”10
`
`12. Where new allegations in an amended complaint are based on facts
`
`already known to the defendant, this Court has held that there is no prejudice to the
`
`6 In re Sauer-Danfoss Inc. S’holders Litig., 65 A.3d 1116, 1125 (Del. Ch. 2011) (citation
`and alteration omitted).
`7 Vichi v. Koninklijke Philips Elecs., N.V., 85 A.3d 725, 757 (Del. Ch. 2014).
`8 See New Castle Shopping, LLC v. Penn Mart Disc. Liquors, Ltd., 2009 WL 5197189, at
`*1 (Del. Ch. Oct. 27, 2009) (preferring “that parties stipulate to amendments to pleadings
`while reserving the right to challenge the sufficiency of the amended pleading at the time
`a response is due or through an appropriate motion”); Parnes v. Bally Ent. Corp., 2000 WL
`193112, at *2 (Del. Ch. Feb. 8, 2000) (stating purpose of Rule 15(d) is “to promote
`as complete an adjudication of the dispute between the parties by allowing the addition of
`claims which arise after the initial pleadings are filed”).
`9 Mullen v. Alarmguard of Delmarva, Inc., 625 A.2d 258, 263 (Del. 1993).
`10 Parnes, 2000 WL 193112, at *2.
`
`
`
`
`
`defendant.11 That is the case here. The facts themselves have not changed, only the
`
`manner in which the facts have been pleaded. Defendants will still be required to
`
`respond only to allegations stemming from publicly available information and from
`
`documents produced in response to Plaintiffs 220 Demands.
`
`13. Granting leave to amend is appropriate here. The proposed Second
`
`Amended Complaint bolsters the allegations of knowledge and participation of the
`
`Bark Defendants to support Plaintiffs’ aiding and abetting claims against the BARK
`
`Defendants to account for a clarification of law that was not available at the time of
`
`Plaintiffs’ Amended Complaint. While Plaintiffs believe the BARK Defendants’
`
`knowledge and participation can be reasonably inferred from the allegations as
`
`pleaded in the Amended Complaint, in light of Mindbody, Plaintiffs believe the
`
`appropriate course is amendment to add specificity to Plaintiffs’ knowing
`
`participation allegations against the BARK Defendants.
`
`14. Because this request for leave to amend is not unduly delayed or for
`
`any dilatory motive, and the amendments will not cause undue prejudice to
`
`11 See, e.g., Cantor Fitzgerald, L.P. v. Cantor, 1999 WL 413394, at *6 (Del. Ch. June 15,
`1999) (granting leave to amend even after the close of discovery because the defendant
`was already aware of facts underlying the amendment and therefore was not prejudiced).
`
`
`
`
`
`Defendants as the underlying claims and bases of liability have not changed,
`
`Plaintiffs should be permitted leave to file their Second Amended Complaint.12
`
`For the foregoing reasons, Plaintiffs respectfully request that this Court enter
`
`the proposed order filed herewith, granting leave to file their Second Amended
`
`Complaint.
`
`Dated: February 12, 2025
`OF COUNSEL:
`Michael Klausner
`559 Nathon Abbott Way
`Stanford, CA 94305
`(650) 740-1194
`
`ROBBINS GELLER RUDMAN
` & DOWD LLP
`
`Randall J. Baron
`Benny C. Goodman III
`Erik W. Luedeke
`655 W. Broadway. Suite 1900
`San Diego, CA 92101
`Tel: (619) 231-1058
`Brian J. Robbins
`Gregory E. Del Gaizo
`Mario D. Valdovinos
`ROBBINS LLP
`5060 Shoreham Place, Suite 300
`San Diego, CA 92122
`
`GRANT & EISENHOFER, P.A.
`/s/ Michael J. Barry
`Michael J. Barry (#4368)
`Kelly L. Tucker (#6382)
`Jonathan C. Millis (#7239)
`123 S. Justison Street, 7th Floor
`Wilmington, DE 19801
`Tel: (302) 622-7000
`
`Counsel for Plaintiffs
`ROBBINS GELLER RUDMAN
` & DOWD LLP
`/s/ Jason M. Avellino
`Christopher H. Lyons (#5493)
`Jason M. Avellino (#5821)
`Tayler D. Bolton (#6640)
`1521 Concord Pike, Suite 301
`Wilmington, DE 19803
`Tel: (302) 467-2660
`
`Counsel for Plaintiffs
`
`12 See In re Transamerica Airlines, Inc., 2006 WL 587846, at *3 (Del. Ch. Feb. 28, 2006)
`(rejecting defendants’ argument that the plaintiff’s failure to request leave of the court to
`file his second amended complaint bars him from amending his complaint for a third time).
`
`
`
`
`
`Tel: (619) 525-3990
`Tel: (619) 525-3990
`
`Words: 1,369/3,000
`Words: 1,369/3,000
`
`
`
`
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