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fiduciary duties to the firm by selecting and pursuing with fidelity and prudence a plausible strategy to maximize the firm’s value. 85

If the common law is to evolve in a direction where judges invent quasi-fraudulent

conveyance actions to be brought by subsidiaries against the independent directors of

public companies, it should do so in more compelling circumstances than these. The

Litigation Trust’s complaint pleads no rational reason why the independent board

majority stood to benefit personally from undertaking a foolish business strategy.

Nothing in the reorganization helped them enrich themselves. Even assuming the odd

notion that the Trenwick board sought to benefit Trenwick by sacrificing its entire U.S.

operations to bankruptcy, the beneficiary of that strategy would have been Trenwick

itself and the law of fraudulent conveyance permitted creditors to seek relief against


For all these reasons, I conclude, among other things, that: (1) the Litigation Trust

has no standing to sue the directors of Trenwick; (2) even assuming the Litigation Trust

could sue the directors of its parent, rather than the parent itself, the Litigation Trust has

not stated a claim that the Trenwick directors breached any fiduciary duty owed to

Trenwick; and (3) the Litigation Trust has failed to plead facts supporting an inference

that Trenwick or Trenwick America were insolvent at any of the relevant times, and

therefore has not pled fact supporting an inference that Trenwick owed any fiduciary

duties to Trenwick America at the time of the challenged transactions.

85 86

As to this, see

note 97.

, 863 A.2d 772, 790 (Del. Ch. 2004).


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