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a contract signed by Trenwick and then refuse to press its claim in the forum clearly

agreed upon in that contract.155

For all these reasons, the counts against the professional advisors are all dismissed.

III. Conclusion

It is no doubt regrettable that Trenwick and Trenwick America became insolvent.

That insolvency no doubt injured their stockholders, creditors, customers, and employees.

But the mere fact of a business failure does not mean that a plaintiff can state claims

against the directors, officers, and advisors on the scene just by pointing out that their

business strategy did not pan out. If simple failure gave rise to claims, the deterrent to

healthy risk taking by businesses would undermine the wealth-creating potential of

capitalist endeavors. For that reason, our law defines causes of action that may be pled

against business fiduciaries and advisors with care, in order to balance society’s interest

in promoting good-faith risk-taking and in preventing fiduciary misconduct. The

155

,

, 2005 WL 2899680, at *18 (Del. Ch. Oct. 26, 2005) (“One of the

primary justifications for estopping a signatory from denying a non-signatory a right to arbitrate is that it is unfair for the signatory to have it both ways by attributing to a non-signatory the duties of a contract signatory for purposes of pressing claims but denying the non-signatory the

right to invoke the arbitration clause.”);

, 307 B.R. 449, 457 (Bankr.

D. Del. 2004 (“courts have held non-signatories to an arbitration clause when the non-signatory knowingly exploits the agreement containing the arbitration clause despite having never signed the agreement . . . The policy driving this theory is that a non-signatory should be prevented from embracing a contract and then turning its back on those portions of the contract which it finds distasteful.”) (quoting

, 269 F.3d 187, 200 (3d Cir. 2001); , 2004 WL 2671745, at *4 (Del. Ch. Nov. 9, 2004) (“equity will not allow a party to sue to enforce the provisions of a contract that it likes, while simultaneously disclaiming provisions that it does not”) (citing approvingly

, 206 F.3d 411, 418 (4th Cir. 2000)).

87

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