Uber Alles?


Today’s news brings word of the filing yesterday of a Delaware class action brought by Uber shareholders against directors for approving the acquisition of a company formed by a defecting Google employee who is accused of downloading trade secrets of Waymo, the self-driving car company which is owned by Google.

Waymo sued Uber earlier this year, claiming the trade secret theft, which resulted in a criminal investigation and the allegation by Waymo that its damages were estimated at $2.6B.

The suit against the Uber directors claims lack of care and good faith, based on allegations that Uber knew that stolen intellectual property was involved. The speed with which the company (bought by Uber) was able to ramp up and hire former Google employees and then immediately sign a term sheet to sell to Uber was cited as a smoking gun.

While facially the complaint makes a coherent argument, which argument would be bolstered if the allegation of board knowledge is true, plaintiff Uber shareholders are going to have to overcome the business judgment rule to affix liability on Uber directors. That rule generally protects directors if they make business decisions, however badly they turn out, in instances where such directors do not have personal self-interest.

Unless the level of prior board knowledge made it clear that IP had in fact been wrongfully obtained, Uber directors may be found to be wrong in their judgment but not in violation of their fiduciary duties. Courts, particularly in Delaware, are uncomfortable in second-guessing business decisions of boards even if those decisions result in failure; the metric of risk and reward is the bailiwick of business people and not courts. Unless the board decision was so off-base that reasonable business people who were paying attention would never take the identified risk inherent in that decision, courts are likely to default in favor of giving the board the right to take its chances, even if the result is a disaster.

Plaintiffs also will mount claims based on the separate basis of director lack of care  (not paying attention and doing normal diligence).  Claims under this theory are difficult to establish, generally requiring a demonstrated laxity in practice that presents a high evidentiary bar.

This case is not likely the kind to make new law. The facts will drive the result based on established principles of liability and defense. But the case will be fascinating to watch; the Uber deal was high profile and raised eyebrows at the time it was announced; and, it involved lots of money in a hot business space. There is going to be a raft of expensive lawyering going on here; stay tuned.

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