The Delaware Court of Chancery has broad discretion to tailor a remedy to suit a particular situation. The recovery in a derivative action generally goes to the corporation, but that rule is not absolute. Treatises and commentators have recognized that courts will grant pro rata recoveries where the equities demand it. In Goldstein v. Denner, C.A. No. 2020-1061-JTL, 2022 WL 1797224 (Del. Ch. June 2, 2022), Vice Chancellor J. Travis Laster discussed the circumstances under which the court might allow a pro rata recovery in the context of a derivative action. Goldstein dealt with a motion to dismiss insider trading claims. The lawsuit alleged a breach of fiduciary duty against officers and directors of Bioverativ, Inc., and investment fund Sarissa Capital Management and its affiliates in connection with the sale of Bioverativ to Sanofi S.A. Alex Denner, one of the directors of Bioverativ and a person in control of Sarissa, was accused of seeking to delay public knowledge of Sanofi's interest in Bioverativ while Sarissa secretly purchased shares of Bioverativ in such a manner as to avoid triggering disclosure requirements. The purchases and subsequent sales resulted in almost $50 million in profits to Denner. Laster had previously denied motions to dismiss claims that the members of the Bioverativ board and three of the company's officers had breached their fiduciary duties during the sale process. See Goldstein v. Denner, 2022 WL 1671006 (Del. Ch. May 26, 2022). He had reserved decision on the insider trading and aiding and abetting allegations against Denner and Sarissa. They argued that the plaintiff had failed to state a reasonably conceivable claim that Denner had breached his duty of loyalty by causing Sarissa to purchase shares of Bioverativ after he learned material, nonpublic information about Sanofi's interest in acquiring the company. They also argued that the plaintiff lost standing to pursue the insider trading claims when the transaction closed. The plaintiff explained that he was not pursuing the insider trading claims as derivative claims, but rather as a means of challenging the sale transaction. The defendants said that if that were the case, then the insider trading claims duplicated the sales process claims and should be dismissed on that basis. It is the vice chancellor's treatment of that argument that is of special interest.

Laster concluded that it was highly unlikely that the insider trading claims would be duplicative of the sale process claims. The principal question raised by the sales process claims was whether the sale process was outside the range of reasonableness due to a nonexculpated breach of fiduciary duty by Denner. The likely remedy would be an award of classwide damages based on the value that the stockholders would have received if the defendants had followed a reasonable process and obtained the best price reasonably available, either by closing the sale at a higher price or by causing Bioverativ to remain a stand-alone entity and capitalize on the company's business plan.