Davis Family Capital Partners v. Comte CA4/3

FACTS

In December 2010, DFCP and other plaintiffs filed a complaint “individually and derivatively on behalf of Accentcare, Inc., a Delaware Corporation,” for breach of a fiduciary duty, naming Accentcare, Inc. (Accentcare), William Comte, and 11 other named individuals as defendants. The complaint alleged the named individuals were directors and/or managers of Accentcare. According to the complaint, DFCP owned common shares of Accentcare. The purported breach of a fiduciary duty revolved around a 2007 Management Incentive Plan (MIP, or the plan) to provide an incentive for Accentcare’s directors and managers to stay with Accentcare. The plan provided that in the event of a merger or sale, 10 percent of the purchase price would be paid into the plan and distributed to the officers and directors of Accentcare. All but one of the named defendants, including Accentcare, filed a demurrer to the complaint. DFCP did not respond to the demurrer and instead, filed a

2 first amended complaint. Another demurrer followed. The court struck that portion of the first amended complaint naming Accentcare as a defendant, finding DFCP’s cause of action was derivative and for the benefit of…