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.
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
, 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)).