Bandera Master Fund LP v. Boardwalk Pipeline Partners, LP

IN THE SUPREME COURT OF THE STATE OF DELAWARE

BANDERA MASTER FUND LP, §

BANDERA VALUE FUND LLC, §

BANDERA OFFSHORE VALUE § No. 439, 2024 FUND LTD., LEE-WAY §

FINANCIAL SERVICES, INC., § Court Below: Court of Chancery and JAMES R. MCBRIDE, on behalf § of the State of Delaware of themselves and similarly situated §

BOARDWALK PIPELINE § C.A. No. 2018-0372

PARTNERS, LP UNITHOLDERS, §

§

Plaintiffs Below, §

Appellants, §

§

v. § BOARDWALK PIPELINE § PARTNERS, LP, BOARDWALK § PIPELINES HOLDING CORP., § BOARDWALK GP, LP, § BOARDWALK GP, LLC, and § LOEWS CORPORATION, § §

Defendants Below, § Appellees. §

Submitted: June 25, 2025 Decided: December 10, 2025 Before SEITZ, Chief Justice; VALIHURA, TRAYNOR, LEGROW and

GRIFFITHS, Justices, constituting the Court en banc. Upon appeal from the Court of Chancery. AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

A. Thompson Bayliss, Esquire (argued), Daniel G. Paterno, Esquire, Eric A. Veres, Esquire, Samuel D. Cordle, Esquire, ABRAMS & BAYLISS, LLP, Wilmington, Delaware attorneys for Plaintiffs Below, Appellants Bandera Master Fund LP, Bandera Value Fund LLC, Bandera Offshore Value Fund Ltd., Lee-Way Financial

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Services, Inc., and James R. McBride, on behalf of themselves and similarly situated Boardwalk Pipeline Partners, LP Unitholders.

Daniel A. Mason, Esquire, PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP, Wilmington, Delaware; William Savitt, Esquire (argued), Sarah K. Eddy, Esquire, Adam M Gogolak, Esquire, Daniel B. Listwa, Esquire, WACHTELL, LIPTON, ROSEN & KATZ, New York, New York; Srinivas M. Raju, Esquire, Blake Rohrbacher, Esquire, Kyle H. Lachmund, Esquire, RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware; Rolin P. Bissell, Esquire, YOUNG, CONAWAY, STARGATT & TAYLOR, LLP, Wilmington, Delaware; Andrew G. Gordon, Esquire, Harris Fischman, Esquire, Robert N. Kravitz, Esquire, Carter E. Greenbaum, Esquire, PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP, New York, New York, attorneys for Defendants Below, Appellees Boardwalk Pipeline Partners, LP, Boardwalk Pipelines Holding Corp., Boardwalk GP, LP, Boardwalk GP, LLC, and Loews Corporation.

Christopher B. Chuff, Esquire, TROUTMAN PEPPER LOCKE LLP, Wilmington, Delaware, attorney for amicus curiae the Opinion Bar Group Leaders.

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TRAYNOR, Justice, for the Majority:

In 2005, Loews Corporation formed Boardwalk Pipeline Partners, LP ("Boardwalk") as a publicly traded master limited partnership ("MLP"). Boardwalk operates natural gas pipelines through three subsidiaries. Loews formed Boardwalk to take advantage of a new Federal Energy Regulatory Commission ("FERC") policy that made MLPs attractive investment vehicles for pipeline-company investors. But Loews wanted the option of taking Boardwalk private again if FERC policy changed in a way that would have a material adverse effect on Boardwalk's rates. So the Boardwalk limited partnership agreement included a call-right provision that gave Boardwalk's general partner the right to acquire the public limited partners' interests if certain conditions were met. In March 2018, FERC took a series of actions, including announcing a proposed regulatory policy, that could make MLPs less attractive for pipeline investors. The proposed policy was strenuously opposed by pipeline-industry participants. Boardwalk made a preliminary assessment that the policy, if adopted, would have a relatively neutral impact on the rates it charged its customers. Even so, Loews' general counsel engaged outside counsel to consider whether it could render an opinion—one of the conditions precedent to its general partner's exercise of the call right—that, by virtue of FERC's proposed policy change, it would be

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reasonably likely that Boardwalk would suffer a material adverse effect on the rates it could charge its customers.

According to the Court of Chancery, it was far from self-evident that FERC's new regime, if adopted, would have a material adverse effect on Boardwalk's rates. Among other things, a critical input—how FERC would treat accumulated deferred income taxes or "ADIT"—was missing. And other variables, most notably whether Boardwalk would be subject to a rate case—that is, the procedure by which a pipeline's maximum rates are set—seemed more likely to cut against a conclusion that Boardwalk's rates would suffer a material adverse effect. Altogether more uncertainty surrounded whether the proposed policy would in fact be adopted and what form it would take.

The court also found that outside counsel set these concerns aside and issued its opinion nonetheless. And another law firm was enlisted to opine on the opinion's acceptability, which it did subject to certain qualifications. These two opinions in hand, Boardwalk's general partner announced that it was exercising the call right. Ten days later, the transaction closed. The day after that, FERC issued an order on rehearing of the revised policy and a final rule. Consistent with Boardwalk's preliminary assessment but contrary to the opinion of counsel, FERC's March 2018 actions would have no effect on Boardwalk's recourse rates.

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Boardwalk unitholders sued the partnership and related entities, alleging that the general partner's exercise of the call right required the unitholders to sell their units to the general partner at what the unitholders claimed was a depressed price. A five-count amended complaint came later. The first two counts were for breach of contract against Boardwalk and its general partner, one for exercising the call right and the other for paying an artificially depressed price for the unitholders' units. The third count alleged a breach of the implied covenant of good faith and fair dealing by Boardwalk and its general partner. The remaining counts—tortious interference with contractual relations and unjust enrichment—named the general partner's sole member and the general partner's parent entities. In December 2021, the Court of Chancery issued a post-trial opinion and entered a partial final judgment—confined to the first breach of contract count—in favor of the unitholders and against Boardwalk and its general partner. Among other findings, the court found that the opinion of counsel, which was a condition precedent to the general partner's exercise of the call right, had not been rendered in good faith. This meant that the condition failed and that, consequently, the general partner breached the partnership agreement when it exercised the call right. The court severed and stayed the remaining counts.

On appeal, this Court reversed the Court of Chancery's partial final judgment after determining that, under the partnership's governing documents, the general

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partner was exculpated from monetary liability for breach of contract. We did not review the court's finding that the legal opinion had not been rendered in good faith. Nor did we address whether the general partner's exercise of the call right breached the partnership agreement. We remanded the case to the Court of Chancery for further proceedings and adjudication of the non-exculpated claims. On remand, the Court of Chancery struggled with the implications of our decision but ultimately concluded that the remaining counts should be dismissed. The unitholders appealed. Because we have concluded that the Court of Chancery misapprehended the scope of our previous decision in a way that affected its analysis of claims that were neither adjudicated in the trial court's post-trial decision nor decided by this Court on appeal, we reverse its judgment and remand for further proceedings.

I

The facts of this case have been recounted at length in the Court of Chancery's post-trial opinion, our 2022 opinion, and the Court of Chancery's remand opinion.¹ We will not repeat them in granular detail here. Instead, we summarize as much of the factual and procedural background as is necessary to understand the issues now

1 Bandera Master Fund LP v. Boardwalk Pipeline Partners, LP, 2021 WL 5267734 (Del. Ch. Nov.

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before us and our reason for resolving them as we do. We provide additional color later as we address the parties' respective arguments.

A

At the beginning of 2005, Loews owned three natural gas pipelines. These pipelines ship gas from the shale basins of the Southern United States to end users, mostly large cities and natural-gas-fired power plants in the South and Midwest. FERC closely regulates natural gas pipelines in ways that affect their profitability. In late 2005, FERC began allowing limited partnerships to include in their rate-making calculations a tax allowance for all their limited partners, regardless of whether each limited partner paid tax at the corporate level. This change made the limited partnership a fitting business structure for pipelines. Many restructured as limited partnerships. In 2005, Loews merged its pipeline assets into Boardwalk, which it took public. Boardwalk's corporate structure is as follows. Boardwalk is a Delaware limited partnership.²Boardwalk's general partner is Boardwalk GP, LP (the "General Partner")—also a Delaware limited partnership. The general partner of the General Partner is Boardwalk GP, LLC (the "GPGP"). Boardwalk Pipeline Holdings Corp. (the "Sole Member") is the sole member of GPGP and is owned by Loews.³GPGP has a board of directors, consisting of four

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independent directors and four Loews insiders. Through the Sole Member and its status as the sole member of the GPGP, Loews controls the General Partner, and thus Boardwalk. Boardwalk is governed by the Third Amended and Restated Agreement of Limited Partnership (the "Partnership Agreement"). Provisions of that agreement rest at the core of this dispute. Loews, when forming Boardwalk in 2005, was concerned that FERC might reverse course and undo the tax policy that made the partnership structure attractive to pipelines and their investors. So Loews included a call-right provision (the "Call Right") in Boardwalk's Partnership Agreement. Under the Call Right, the General Partner could purchase all the common units of Boardwalk that the General Partner or its affiliates did not already own. For the General Partner to exercise the Call Right, however, certain conditions had to be met. Two of those conditions are relevant here.

First, Section 15.1(b) of the Partnership Agreement required that the General Partner receive:

an Opinion of Counsel that the Partnership's status as an association not taxable as a corporation and not otherwise subject to an entity-level tax for federal, state, or local income tax purposes has or will reasonably likely in the future have a material adverse effect on the maximum applicable rate that can be charged to customers" ⁴ [respectively, the "Opinion" and "Opinion Condition"].

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Second, the Partnership Agreement defined an "Opinion of Counsel" as "a written opinion of counsel . . . acceptable to the general partner." (the "Acceptability Condition"). ⁵

It did not specify, however, which entity would act through the General Parter in making the acceptability determination.

B

FERC regulates the interstate transmission and wholesale sale of electricity, natural gas, and oil. Every price that a pipeline charges a customer for gas shipment, also known as a "rate," must be on file with FERC.⁶In markets where a pipeline holds a monopoly over shipment, FERC calculates and sets the maximum rate that pipelines can charge based on the cost of service that the pipeline incurs. Customers are free to negotiate a lower rate with a pipeline and often do, particularly in regions where pipelines compete with one another. Yet customers can always fall back to paying the FERC-calculated maximum rate.⁷This rate is known as a "recourse rate."

The Natural Gas Act requires FERC to set "just and reasonable rates."⁸"[J]ust and reasonable" is considered in the context of a pipeline's profitability.⁹That is, a just and reasonable rate is one that allows for a reasonable return on investment.¹⁰

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If rates are too high, the pipeline would receive an inappropriately high rate of return. If, on the other hand, rates are too low, the pipeline would not generate a fair return for investors. This rate analysis differs for each pipeline, as cost of operations vary. FERC is required to consider the entire picture, so to speak, when calculating rates. Determining or changing rates based on a single category of cost—known as "single- issue ratemaking"—is prohibited.

To change rates, someone, usually a shipper or FERC, must initiate a rate case alleging excessively high rates. FERC completes a cost-of-service calculation and then publishes new recourse rates. Pipelines with a lower return on investment are relatively unlikely to face a rate case as FERC pursues pipelines with higher returns. Taxes, too, play a role in FERC's determination of what constitutes a reasonable rate. An increase in taxes paid by a pipeline likely indicates a higher rate should be allowed so that the pipeline can maintain a reasonable return on investment, as taxes make up part of the cost of service determination. A change in FERC tax policy can significantly affect pipeline profitability.

C

Until 2018, FERC allowed MLP pipelines an income tax allowance for all limited partners. FERC used this tax allowance when calculating recourse rates. MLP like Boardwalk are subject to pass-through taxation and non-corporate partners do not pay corporate-level income tax. Yet the pipelines still received a tax

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allowance as if all partners did. This tax policy is what drove pipelines to restructure as limited partnerships in 2005. By receiving an allowance in the ratemaking process that calculated their taxes as higher than actual taxes paid, pipelines could increase their FERC-approved rates and deliver increased returns. Boardwalk went public as a limited partnership to take advantage of this policy.

The Call Right provision was included in Boardwalk's Partnership Agreement because FERC policy changes can have material effects on rates, and thus profitability. In 2016, in United Airlines v. Federal Energy Regulatory Commission, the United States Court of Appeals for the District of Columbia Circuit held that the corporate-income-tax allowance for limited partnership pipelines unfairly discriminated against unitholders of pipelines, as both individual limited partners and corporate limited partners received the same tax allowance yet were taxed at different rates.¹¹This decision prompted FERC to propose a policy change in 2018. On March 15, 2018, FERC issued the Revised Policy Statement (the "Policy Statement"). The Policy Statement announced that MLP pipelines would no longer be permitted to claim an income tax allowance when calculating their costs of service. FERC also issued a notice of inquiry ("Notice of Inquiry"), requesting

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comment on the agency's future treatment of "Accumulated Deferred Income Tax"

("ADIT") balances.¹²Next, we provide a brief description of ADIT balances. Federal tax law allows pipelines to benefit from accelerated depreciation. But FERC uses straight-line depreciation when calculating rates. Therefore, when pipelines employ accelerated depreciation, their taxes are lower than FERC predicts for ratemaking purposes, resulting in an increase in cash flow for the pipeline. This unexpected increase is accounted for as "ADIT." Then, at the end of the accelerated depreciation period, the pipeline's taxes exceed FERC's expectations, and those taxes reduce the pipeline's ADIT balance. ADIT becomes, essentially, cost-free capital.¹³At issue in the Notice of Inquiry was how to address these ADIT balances. Pipelines thought that the ADIT balance should be eliminated. If eliminated, pipeline assets would increase, and pipelines could then ask FERC to approve increased rates to match their enlarged asset bases. Shippers would argue the opposite. As of the issuance of the Notice of Inquiry, no one knew how FERC would treat ADIT. Accompanying the March 2018 Policy Statement was a Notice of Public Rulemaking ("NOPR"), which specified a method for pipelines to use when

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calculating the impact of these new rules on their margins and submitting that information to FERC.¹⁴

D

The 2018 FERC announcement sent shock waves through the oil and gas industry. Investors worried about pipeline profitability. Many companies, including Boardwalk, rushed to analyze the impact of the changes and reassure investors. To calculate the impact of the changes on Boardwalk, Boardwalk's Vice President of Rates and Tariffs Ben Johnson consulted a recently performed analysis of Boardwalk's revenues. He concluded that the rates of Gulf Crossing and Gulf South, two of Boardwalk's three pipelines, were "relatively protected" from the changes.¹⁵ The Gulf pipelines charged mostly negotiated rates, meaning that a change in the FERC-calculated recourse rates would have little impact on profitability. Johnson estimated that Texas Gas, Boardwalk's third pipeline, would be largely protected from challenges to its rates. It served a competitive market; most of its rates, too, were negotiated or discount rates, and FERC, due to resource constraints, was unlikely to file a rate case against Texas Gas in the next few years. Johnson also

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noted that FERC's treatment of ADIT was a key factor in determining the impact of the regulations, and neither he nor anyone else could say what FERC would do with ADIT balances.

Armed with this information, Boardwalk began drafting a press release to provide investors with Boardwalk's understanding of the impact of the regulatory developments. During drafting, Boardwalk executives believed that Boardwalk's pipelines would not suffer rate changes and that the elimination of the income tax allowance would not result in a material impact on Boardwalk's rates. Boardwalk executives simultaneously fielded inquiries from Loews leadership and a GPGP Board director on the impact of the regulations.

In response, Boardwalk's Chief Financial Officer Jamie Buskill emphasized

(1) the importance of negotiated and discount rates to Boardwalk's revenues, (2) the presence of a rate moratorium on Gulf South, and (3) that only 20% of Texas Gas revenues came from recourse rates. An internal Loews analysis on the impact of the regulations indicated that the uncertain ADIT treatment issue had the potential to be the "a-bomb outcome."¹⁶Even so, immediately following the FERC announcement, two Boardwalk executives, both of whom had an interest in succeeding Stan Horton as CEO of Boardwalk, separately emailed Loews and suggested exercising the Call Right.

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E

As noted earlier, exercising the Call Right was contingent upon receipt of an opinion of counsel, acceptable to the general partner, that the FERC actions were reasonably likely to have a material adverse effect on Boardwalk's maximum applicable rates. Marc Alpert, Loews' general counsel, contacted Mike Rosenwasser, then a partner at the law firm of Baker Botts, to see if Rosenwasser could give the necessary opinion. Rosenwasser was a leading MLP attorney, who, while practicing at Vinson & Elkins in 2005, had drafted the Call Right provision. Rosenwasser assembled an opinion committee from his Baker Botts partners and began the Call Right analysis.

At the end of March 2018, as Rosenwasser's analysis proceeded, Loews injected itself into Boardwalk's effort to draft the press release. Loews knew that its ability to exercise the Call Right depended on whether Boardwalk's tax status would have a "material adverse effect on the maximum applicable rate that can be charged to customers."¹⁷As initially drafted, the press release stated that the FERC actions were unlikely to have an adverse impact on Boardwalk's rates; Loews changed it to instead address the likely impact on Boardwalk's revenues. Loews also removed language indicating that the FERC decision would have minimal impact on Boardwalk's rates. At publication, the headline of the press release read:

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"Boardwalk Does Not Expect FERC's Proposed Policy Revisions To Have A Material Impact On Revenues."¹⁸

Alpert, still concerned that publication of the press release could affect the Call Right exercise, arranged a call with Rosenwasser and other Baker Botts attorneys. He asked about the press release and whether the FERC actions were, in the Court of Chancery's words, "sufficiently concrete to enable Baker Botts to issue the Opinion?"¹⁹The following day, Baker Botts advised Loews that, because the release focused on revenues and not rates, it did not present problems for the Call Right analysis. On the opinion question, though, Greg Wagner, a Baker Botts partner whose practice focused on FERC matters, explained that the FERC actions were not final and in any event likely would not affect Boardwalk's rates. When Alpert, concerned by Wagner's comments, called Rosenwasser moments later, Rosenwasser said, "we're already there[,]" indicating he believed that Baker Botts would still be able to deliver the opinion.²⁰

F

To conclude that the Call Right had been triggered, Rosenwasser developed an analytical framework that the Court of Chancery likened to a "syllogism."²¹The

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premises of the syllogism were that a pipeline's rates are based on cost of service and that the income tax allowance is part of the cost-of-service calculation. From these premises, Rosenwasser concluded that the elimination of the income tax allowance would result in a lower cost of service and thus have a material adverse effect on Boardwalk's maximum applicable rates.

Wagner recorded the following notes as Rosenwasser explained his syllogism:

1 - A pipeline charges COS [cost-of-service] rates

2 - Cos includes ITA [income tax allowance]

[No] ITA -> material effect

No examination of FERC actions/shipper actions

COS/over/under-recovery

Just saying [no] ITA = lower COS

= MAE on max applicable rates²²

As the Court of Chancery noted, embedded in the syllogism was "the view that the Call Right was not concerned with the economic impact [of the FERC actions] on Boardwalk; it was only concerned with the abstract concept of 'maximum applicable rates.'"²³And as will be discussed in more detail later, the syllogism elided various factors other than the elimination of the income tax

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allowance (for example, rate-case risk and ADIT) that would affect Boardwalk's rates. It embraced, moreover, the dubious notion that a change in the cost-of-service variable, without consideration of other variables, would necessarily result in a material adverse effect on rates.

In an effort ostensibly designed to predict the effect of the March 2018 FERC Actions on Boardwalk's rates, Johnson, who had provided the preliminary analysis indicating that Boardwalk's rates would be "relatively protected," provided financial data in support of the emerging Baker Botts opinion.²⁴Johnson performed both a

"Form 501-G Analysis"²⁵and a "Rate Model Analysis," two methods of providing concrete financial data analyzing the theoretical impact of the changes on Boardwalk's cost of service.²⁶In the Form 501-G analysis, Johnson addressed each pipeline's cost of service at each FERC-specified tax rate— 35%, 21%, or no tax allowance at all. Johnson addressed ADIT using the "Reverse South Georgia"

method, which assumed that the pipelines would be required to return the ADIT balance to ratepayers over a pipeline's lifetime. Although this was one plausible method that FERC could use to address ADIT, pipelines and shippers were lobbying

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FERC in opposing directions, and what FERC would do with ADIT was unknown. Johnson's 501-G analysis did not complete a revenue calculation, which would have shown that both Gulf pipelines were under-recovering cost of service and so were unlikely to see a rate case filed against them.

The Rate Model Analysis was like the 501-G analysis. For the 501-G calculations, Johnson used the FERC-provided return on equity ("ROE") of 10.55%. For the Rate Model, Johnson used an ROE of 12%, in the Vice Chancellor's words,

"not an unreasonable" selection that Johnson found in an industry-specific report.²⁷ The variation in ROEs suggests that Boardwalk "did not think that the March 15 FERC Actions necessarily would be implemented as proposed."²⁸ Baker Botts brought in their own FERC expert, Barry Sullivan, to analyze Johnson's work for Boardwalk. Sullivan first described the Rate Model Analysis as

"not a recourse rate calculation," because the Rate Model showed that removing the income tax allowance reduced cost of service and thus reduced rates.²⁹It was not, however, conducted in the holistic way that FERC conducts ratemaking.³⁰ The Rate Model Analysis also did not address the likelihood of a rate case. While Johnson's calculations were based on the Reverse South Georgia ADIT

27 Id.

28 Id.

29 Boardwalk Pipeline Partners, L.P. v. Bandera Master Fund LP, Del. 2022, No. 1, 2022, D.I. 11 at A5559 (JX 1735) (Sullivan Dep.).

30 Post-Trial Opinion, 2021 WL 5267734, at *24 (citations omitted).

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assumption, Baker Botts attorneys grew uncomfortable with the lingering uncertainty surrounding how ADIT would be treated. Wagner, Baker Botts' FERC- focused partner, "regularly wrestl[ed] with the uncertainty generated by how FERC would treat ADIT."³¹Wagner also noted the distinction between the cost-of-service calculations that Johnson had completed and an actual rate analysis—the same distinction noted by longtime FERC employee Sullivan.

Sullivan understood that Johnson's analysis calculated the change in cost of service if FERC eliminated the income tax allowance.³²Sullivan, when asked by Wagner, continued to specify the difference between the cost-of-service calculations completed by Boardwalk and the rate analysis that Baker Botts was conducting. Sullivan explained that the analysis Johnson conducted, calculating the "indicative rate," was "meaningless" for several reasons.³³

Sullivan explained that a rate calculation must include every variable, and that changing only the income tax allowance does not provide an accurate picture of future rates, as FERC would necessarily consider the entire picture when calculating rates. The Texas Gas and Gulf South pipelines had submitted to FERC several hundred pages of calculations supporting their latest recourse rate determinations. Johnson's Rate Model Analysis took just five pages per pipeline and did not consider

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several factors that Boardwalk's pipelines incorporated into their actual rate analyses. Johnson projected a cost-of-service reduction but could not necessarily predict a rate reduction. Lastly, for FERC-approved rates to change, a rate case would have to be initiated and won. Johnson's analysis did not address the likelihood of a rate case being brought, much less the likelihood of FERC or the shipper winning the case. On a call with Loews, Sullivan concluded that the likelihood of a rate case against Texas Crossing was low. The likelihood of a rate case being brought against the Gulf pipelines was so remote as not to bear mentioning.

G

In the second week of April 2018, Alpert, upon Rosenwasser's recommendation, hired Skadden, Arps, Slate, Meagher & Flom LLP ("Skadden"). Skadden was to both advise on whether the general partner should deem the Baker Botts opinion acceptable—the second condition necessary for exercise—and to

"shadow Baker Botts' work."³⁴Skadden corporate partner Richard Grossman led the effort, while litigator Jennifer Voss advised on matters of Delaware law. The firm's initial inquiry focused on identifying which entity at the General Partner level should make the acceptability determination. Baker Botts, meanwhile, struggled

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with the "material adverse effect" component of the opinion and sought Skadden's help.

Skadden, as a matter of firm policy, does not render opinions on whether an event constitutes a material adverse effect. In response to Baker Botts' inquiry regarding the material-adverse-effect issue, Skadden attorneys were unsure that a 10-15% change in maximum applicable rates would constitute a material adverse effect. Skadden thought that a more fact-intensive inquiry was needed, beyond Rosenwasser's abstract syllogism, to determine whether Delaware's material adverse effect standard had been met. When Grossman refused to support the desired material-adverse-effect conclusion, Alpert grew angry. Boardwalk executive Tom Watson emailed Alpert about Skadden's refusal to wade in to the fray, stating that, "If people think the language says that the relevant test is what is the real world effect, then we have an issue. I think it's crystal clear that we're talking hypothetical future max FERC rates[,]"³⁵meaning that the material adverse effect bar could only be met under the hypothetical rates of Rosenwasser's syllogism, not by the "real world effect" of FERC's actions.³⁶

Grossman asked Mike Naeve, a Skadden partner and former FERC commissioner, to speak with Baker Botts about the material-adverse-effect issue.

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When he did, Naeve immediately noted the importance of analyzing the likelihood of a rate case being brought. Without a rate case, recourse rates would not change, making the likelihood that such a case would materialize crucial in determining the effect any regulatory change would have on rates. Naeve also raised the importance of negotiated rates, discount rates, and rate moratoria in the material-adverse-effect analysis. All three affect the likelihood of a rate case being brought. Baker Botts, however, concluded that because pipelines are "long-lived assets" and the Call Right provision specified "material adverse rate effects in the future[,]" the firm need not consider discounted rates or rate moratoria expected to expire in the next few years.³⁷ Despite the issues identified by both Baker Botts and Skadden's resident FERC practitioners, Loews wanted a draft opinion by the end of April. Rosenwasser decided not to consider the real-world factors identified above, describing them as

"speculation" about rates.³⁸Of note is how draft versions of the opinion addressed the rate-case-likelihood issue in different ways.

The April 4 draft assumed that the pipelines would file rate cases, resulting in the pipelines charging the newly reduced recourse rates, thus generating a material adverse effect. The April 4 draft did not explain why pipelines would bring rate cases that would result in lower rates, an action opposed to their interests.

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Recognizing this inconsistency, in an April 17 draft, Baker Botts removed the April 4 provision and instead assumed the pipelines would charge recourse rates, effectively declining to address the likelihood of a rate case in the draft opinion. The Baker Botts partners further "questioned whether Baker Botts should be giving an opinion under Delaware law about the existence of a material adverse effect" ³⁹

and wanted to rely on Skadden's work on the issue. Frustrated by Skadden's refusal to provide work product that could be relied upon, Rosenwasser turned to Richards, Layton & Finger, PA ("Richards Layton"), an established Delaware law firm with extensive corporate-law experience. Rosenwasser appeared to be caught between his law partners, who were hesitant about various essential elements of the opinion, and his client Loews and its desire to exercise the Call Right. He contacted Richards Layton partner Srinivas Raju seeking assistance with the material-adverse-effect issue, and told Raju that a FERC expert predicted decreases of 12.19%, 11.70%, and 15.62% for the "top line revenue[s]" of Texas Gas, Gulf South, and Gulf Crossing respectively.⁴⁰In reality, those numbers reflected changes in cost of service as reflected in Johnson's Rate Model Analysis. Recall that FERC expert Barry Sullivan did not consider Johnson's calculations to be a rate analysis. Rosenwasser then asked Richards Layton whether

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an adverse effect exceeding 10% would constitute a material adverse effect under Delaware law. Raju found little caselaw in favor of or against the position Rosenwasser advocated and concluded he would have a "hard time saying [12% in perpetuity is] not material."⁴¹Richards Layton's support quelled some of the Baker Botts partners' concerns.

H

Loews wanted a commitment from Rosenwasser that Baker Botts would be able to deliver the opinion by April 20, and on that date, Rosenwasser sent a preliminary opinion to Alpert. This preliminary opinion was "substantially the same" as the final opinion delivered on June 29. ⁴²

Baker Botts' final opinion mirrored the language of the Call Right, advising that the firm believed the partnership's tax status was reasonably likely to have a material adverse effect on the maximum applicable rate that the pipelines could charge. As Baker Botts submitted its preliminary opinion to Loews, Boardwalk published its public comments on the NOPR, stating that:

Until the Commission provides a final decision on the treatment of ADIT, Boardwalk cannot correctly assess the impact of the Revised Policy Statement and ADIT on its pipelines' costs of service, and any response in the Form No. 501-G will be misleading and inaccurate.⁴³

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Thus, although Boardwalk disclosed publicly that it could not calculate the impact of the changes on cost of service without an answer to the outstanding ADIT question, Baker Botts' preliminary opinion rested on reasoning that assumed a calculable change in cost of service. In his notes, Rosenwasser double-starred and underlined this text from the public comment. Skadden Wilmington litigator Voss described the section as "relatively unhelpful"⁴⁴in an email. Boardwalk, in the same comment filing, objected to FERC's instruction that the pipelines in Form 501-G calculate changes to cost of service based solely on tax allowance changes, as this, in Boardwalk's view, was single-issue ratemaking. Rosenwasser's syllogism, however, relied upon changes to cost of service based solely on the loss of the income tax allowance. In the same comments, Boardwalk pointed out the preliminary nature of the March 2018 FERC Actions. Baker Botts' preliminary, and later final, opinions treated the changes as binding. Lastly, Boardwalk's comments noted that Gulf South's rate moratorium meant that the changes could have no impact on that pipeline until the end of the moratorium in 2023, a fact not addressed in the preliminary opinion. The trial court concluded that

"[t]hrough these comments, Boardwalk destroyed the basis for the Baker Opinion."⁴⁵

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On April 30, 2018, Boardwalk and Loews filed Form 10-Qs. Each form disclosed the potential that the general partner would exercise the Call Right.⁴⁶Over time, given the backward-looking pricing formula of the Call Right, Boardwalk's share price slowly dropped. With both a preliminary opinion and a commitment from Skadden on the acceptability conclusion in hand, Loews prepared to exercise the Call Right.

I

On May 24, 2018, the initial plaintiffs filed suit. The Call Right's pricing formula specified that the price paid by the general partner would reflect a historical average of the stock's trading price. Thus, because Loews' announcement regarding a potential Call Right exercise had over time driven the share price down, the initial plaintiffs sought to prevent inclusion of some of those lower prices within the 180- day price window included in the Call Right provision. At the same time, the general partner wanted a release from claims relating to call right exercise. Eighteen days after that lawsuit was filed, the parties agreed on a pricing formula Loews could use and, on June 22, 2018, the parties filed a stipulation of settlement. That is the same settlement later objected to by Bandera and rejected by the Court of Chancery. On June 29, 2018, Baker Botts delivered the final opinion to Loews, an opinion substantially the same as the preliminary opinion provided two months

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earlier. The opinion did not cite any cases or statutes. It began by identifying the materials Baker Botts had consulted. It then provided its conclusion:

On the basis of the foregoing, and subject to the assumptions, limitations, and qualifications set forth herein, we are of the opinion that the status of the Partnership as an association not taxable as a corporation and not otherwise subject to an entity-level tax for federal, state or local income tax purposes has or will reasonably likely in the future have a material adverse effect on the maximum applicable rate that can be charged to customers by subsidiaries of the Partnership that are regulated interstate natural gas pipelines [the "subsidiaries"]. . . .⁴⁷

After the conclusion, the opinion summarized Johnson's supporting financial data, stating that his financial data included calculation of "the estimated cost of service" of the subsidiaries.⁴⁸This section went on to assume that "each subsidiary would charge all its customers the maximum applicable rate." And it concluded that the data showed that removal of the income tax allowance would result in an over ten percent reduction in maximum applicable rates. The final opinion explicitly assumed as part of its reasoning that the Revised Policy would not later be amended by FERC.

Upon receiving the opinion from Baker Botts, the Loews board recommended that the Sole Member exercise the Call Right. The Sole Member board met and Skadden delivered the final version of its ongoing work, a recommendation to the Sole Member board stating that "it would be within the reasonable judgment of [the

29

Sole Member] to find" the opinion acceptable.⁴⁹The Sole Member board approved resolutions concluding that the opinion was acceptable and exercising the Call Right. Ten days later, on July 18, 2018, the transaction closed, with the General Partner purchasing all outstanding units at a price of $12.06 per unit, around $1.5 billion in total.

On July 18, mere hours after the transaction closed, FERC issued an order on rehearing of the revised policy and a final rule resulting from the agency's original notice on public rulemaking. The order on rehearing provided that, although MLPs would no longer automatically receive an income tax allowance when calculating costs of service, they would be allowed to argue in favor of a tax allowance when contesting a rate case. The agency further announced that pipelines could eliminate their ADIT balances and return none of the ADIT balance to ratepayers. The July 18 announcement saw FERC also modify Form 501-G, such that pass-through entities that did not receive an income tax allowance in cost-of-service calculations would be allowed to eliminate their ADIT balances.⁵⁰When considered together, these decisions meant that the FERC Actions would have no ascertainable effect on Boardwalk's recourse rates. In fact, when Wagner emailed a summary of the final

30

FERC determinations to Rosenwasser, Alpert, and Boardwalk executive McMahon, he concluded that the changes had the effect of "reducing the pipeline's exposure to rate reductions."⁵¹

J

The appellants, who we refer to as "Bandera" or "the plaintiffs," objected to the settlement reached between Loews and the initial plaintiffs. The Vice Chancellor rejected the proposed settlement and allowed Bandera to take over for the initial plaintiffs. Bandera then filed an amended complaint, alleging that Boardwalk and the General Partner breached the Partnership Agreement and violated the implied covenant of good faith and fair dealing when the General Partner exercised the Call Right. Bandera also alleged tortious interference and unjust enrichment against GPGP, the Sole Member, and Loews.⁵²

After a four-day trial, the Court of Chancery found that the Baker Botts opinion was rendered in bad faith and that the GPGP board, and not the Sole Member, was the appropriate entity to make the acceptability determination. Thus, according to the court, neither the Opinion Condition nor the Acceptability Condition had been met. The Vice Chancellor also found that the scienter of Baker Botts could be imputed to the General Partner, rendering the exculpatory provision

31

of the Partnership Agreement inapplicable. The Court of Chancery awarded $689,827,343.38 in damages, pre- and post-judgment interest on that amount, and fees.

K

To frame our discussion of the issues now on appeal, we review certain essential bases of the Court of Chancery's post-trial decision, its partial judgment consistent with that decision, our 2022 opinion resolving the appeal from that partial judgment, and how the Court of Chancery interpreted and applied our opinion on remand.

(i)

The Court of Chancery's post-trial decision "perceived that exercising the Call Right involved three steps." ⁵³

The first step was "satisfying the Opinion Condition," that is, securing "an Opinion of Counsel that the Partnership's status as an association not taxable as a corporation and not otherwise subject to an entity- level tax for federal, state, or local income tax purposes has or will reasonably likely in the future have a material adverse effect on the maximum applicable rate that can be charged to customers."⁵⁴Boardwalk purported to satisfy this condition through

32

the Baker Botts opinion. The second step was "satisfying the Acceptability Condition," which required the General Partner to determine that the Opinion of Counsel was acceptable.⁵⁵Boardwalk contended that the Sole Member's acceptance of the Baker Botts opinion based on Skadden's advice satisfied this condition. The third step was "making the decision to exercise."⁵⁶

The Court of Chancery concluded that the General Partner—Boardwalk GP, LP—breached the Partnership Agreement by exercising the Call Right without satisfying either the Opinion Condition or the Acceptability Condition. Its summary of these conclusions and their consequences suffice for present purposes:

. . . The Post-Trial Opinion found that the law firm had not rendered the opinion in subjective good faith but rather to reach the outcome Loews wanted. The Post-Trial Opinion therefore held that the General Partner breached the Partnership Agreement by exercising the Call Right without satisfying the Opinion Condition. The Post-Trial Opinion also held that the General Partner breached the Partnership Agreement by exercising the Call Right without satisfying the Acceptability Condition. The trial court held that the Partnership Agreement was ambiguous regarding which of the two internal decision-makers at the General Partner would make the acceptability determination. Applying the doctrine of contra proferentem, the Post-Trial Opinion resolved the ambiguity in favor of the limited partners. That meant the wrong General Partner decision- maker made the acceptability determination, resulting in a breach of the Partnership Agreement when the General Partner exercised the Call Right without satisfying the Acceptability Condition.

33

The plaintiffs had pursued alternative theories of recovery against the General Partner and other defendants. The adjudicated claim sufficed to support an award of damages, and the plaintiffs were only entitled to one recovery, so the Post-Trial Opinion did not reach the plaintiffs' other theories.⁵⁷

Consistent with this adjudication, the court entered a "partial Final Judgment Pursuant to [Court of Chancery] Rule 54(b),"⁵⁸entering judgment "in favor of the plaintiff class and against the General Partner in Count I of the amended complaint.

. . ."⁵⁹The order of partial final judgment recited that the court "ha[d] not resolved the plaintiffs' claims for breach of the Call Right exercise price formula (Count II), breach of the implied covenant of good faith and fair dealing (Count III), tortious interference with contractual relations (Count IV), or unjust enrichment (Count V)[.]"⁶⁰

(ii)

In their appeal of the Court of Chancery's post-trial opinion and resulting partial judgment, the Boardwalk defendants raised four arguments. First, they challenged the court's finding that Bakers Botts had not rendered its opinion in good

34

faith. Second, the defendants argued that the court had misinterpreted the Partnership Agreement when it determined that the Sole Member did not have the power to determine the acceptability of the Baker Botts opinion. Third, the defendants contended that the court erred in its construction and application of the Partnership Agreement's exculpation provisions. And finally, the defendants argued that the court erred in assessing damages.

(iii)

Just as the Court of Chancery confined its judgment to Count I of the operative complaint—one of two breach of contract claims against Boardwalk and the General Partner—on appeal, we trained our attention on that count. More particularly, we focused on whether the General Partner was exculpated from monetary liability under Section 7.8(a) of the Partnership Agreement. That provision provides that [n]otwithstanding anything to the contrary set forth in this Agreement, no Indemnitee shall be liable for monetary damages to the Partnership, the Limited Partners, the Assignees or any other Persons who have acquired interests in the Partnership Securities, for losses sustained or liabilities incurred as a result of any act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee's conduct was criminal.⁶¹

35

Also relevant to our consideration of this issue was Section 7.10(b) of the Partnership Agreement, which provides that

[t]he General Partner may consult with legal counsel, accountants, appraisers, management consultants, investment bankers and other consultants and advisers selected by it, and any act taken or omitted to be taken in reliance upon the advice or opinion (including an Opinion of Counsel) of such Persons as to matters that the General Partner reasonably believes to be within such Person's professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such advice or opinion.⁶² We disagreed with the Court of Chancery's application of these provisions as summarized above. We encapsulated our holding in the following statement:

[T]he sole member was the correct entity to determine the acceptability of the opinion of counsel . . . . [T]he sole member, as the ultimate decisionmaker who caused the general partner to exercise the call right, reasonably relied on Skadden's opinion, and . . . the sole member and the general partner are therefore conclusively presumed to have acted in good faith in exercising the call right. Thus, the general partner and others were exculpated from damages under the Partnership Agreement. We reverse the Court of Chancery's judgment and remand for further proceedings consistent with this opinion. We do not address any other arguments on appeal.⁶³

Thus, we did not decide whether the Opinion of Counsel Condition had been satisfied or, whether, had that condition failed, the General Partner's exercise of the Call Right breached the Partnership Agreement. Our exculpation holding as to the General Partner rendered consideration of these issues unnecessary. This left

36

standing Counts II through V of the complaint, which the trial court had severed and stayed. In consequence, we remanded the case to the Court of the Chancery for adjudication of the remaining counts.

(iv)

On remand, the Court of Chancery "struggle[d]" with the implications of our exculpation holding and, in particular, how it affected the court's post-trial finding that Baker Botts had not rendered its opinion in good faith.⁶⁴Recognizing that we had "plainly reversed the Post-Trial Opinion's finding of an Acceptability Breach . . . and the trial court's ruling on exculpation[],"⁶⁵the Court of Chancery opined that "[w]hat happened to the Opinion Breach presents legitimate grounds for debate."⁶⁶One view—the one favored by the plaintiffs—treats the Opinion Breach as a separate breach not covered by our ruling that the Sole Member's reasonable reliance on Skadden's acceptability opinion resulted in the exculpation of the General Partner. The court labeled this the "Separate Breach View." The Boardwalk defendants, on the other hand, urged the court to view our decision differently; it should be read, the Boardwalk defendants contended, as holding that the General

37

Partner's exercise of the Call Right was not a breach of the Partnership Agreement. This was so, according to the defendants, because our ruling that the General Partner acted in good faith in exercising the Call Right and was therefore exculpated from damages encompassed both the Opinion Breach and the Acceptability Breach. The court saw this argument as embracing two separate readings of our opinion—the

"Good Faith View" and the "No Breach View."

In its remand opinion, the Court of Chancery, though expressing uncertainty and allowing that "the justices have a clear sense of what the Supreme Court Opinion intended[],"⁶⁷adopted the "No Breach View" and dismissed the remaining counts.

L

In this appeal, Bandera argues that the Court of Chancery misunderstood our 2022 decision and, as a result, erroneously entered judgment in favor of Loews on their tortious-interference and unjust-enrichment claims. Bandera also maintains that the court erred in denying relief on their claim that Boardwalk and the General Partner breached the implied covenant of good faith and fair dealing. It argues, too, that while the General Partner may be exculpated from money damages, "equitable relief remains available" to them.⁶⁸And finally, Bandera challenges the court's

38

denial of their claim that the defendants' disclosures distorted the Call-Right exercise price.

II

The Court of Chancery's interpretation of our 2022 opinion and its effect on the plaintiffs' breach-of-contract claims presents a question of law; as such, we review it de novo.⁶⁹"This Court will uphold the trial court's factual findings unless they are clearly erroneous[.]"⁷⁰While a trial court's determination that a party acted in good faith is a legal issue subject to de novo review, "the factual findings that provide the basis for that determination will not be overturned unless they are clearly erroneous."⁷¹

III

A

As mentioned above, the Court of Chancery's post-trial opinion rested on the premise that the General Partner's exercise of the Call Right was subject to two separate conditions: the Opinion Condition and the Acceptability Condition. The court concluded that neither of those conditions was satisfied and that the failure of each of these conditions meant that the General Partner breached the Partnership

39

Agreement by exercising the Call Right. But as explained above, our review of the court's post-trial decision was not co-extensive with these findings. Instead, in our 2022 decision, we concluded that "the Sole Member . . . reasonably relied on the Skadden Opinion to cause the call right exercise. Thus, the General Partner is presumed to have acted in good faith and is immune from damages."⁷²We did not address what the Court of Chancery called the Opinion Condition. The Court of Chancery read our 2022 opinion differently, concluding that it "resolved all aspects of the breach of contract claim."⁷³As we have noted, the court labeled this the "No Breach View." And in the absence of a breach, the court was, it thought, constrained to dismiss the plaintiffs' tortious interference claim against Loews. It is true, as the Court of Chancery observed, that we intended our exculpation ruling to "put the breach of contract claim [i.e., Count I] to rest,"⁷⁴at least with respect to a damages award against the General Partner and Boardwalk. True, also, that we "believed the breach of contract claim was over,"⁷⁵again, at least as to damages. But the breach of contract claim was "put to rest" and "over" because we determined that the only party who, under the Court of Chancery's partial judgment, was found liable in damages was exculpated. Simply put, we did not—because it

40

was unnecessary to our determination of the exculpation issue—rule on whether the Opinion Condition had failed and whether that failure caused the General Partner to breach the Partnership Agreement.⁷⁶

A review of our opinion bears this out. In the opinion's introduction, we expressly noted that, beyond the exculpation issue, "[w]e do not address any other arguments on appeal."⁷⁷In a similar way, we noted that the proper focus for General Partner liability "was on the Sole Member and the opinion it received from Skadden."⁷⁸We concluded that "[h]aving reasonably relied on Skadden's advice, the General Partner, through its Sole Member, is conclusively presumed to have acted in good faith and is exculpated from damages."⁷⁹The Court of Chancery's conclusion was erroneous that, by so holding, we had—albeit implicitly—"resolved all aspects of the breach of contract claim," including whether the alleged failure of the Opinion Condition resulted in a breach of the Partnership Agreement. The law of the case doctrine "prohibits courts from revisiting issues previously decided, with the intent to promote 'efficiency, finality, stability and respect for the judicial system.'" It operates "when a specific legal principle is applied to an issue presented by facts which remain constant throughout the

76 See PDK Lab'ys v. United States Drug Enf. Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring) (citing "the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more. . . . ").

77 Boardwalk 2022, 288 A.3d at 1088.

78 Id. at *1123.

79 Id.

41

subsequent course of the same litigation." But the law of the case doctrine "only applies to issues the court actually decided."⁸⁰Among the issues we declined to address was whether the Court of Chancery "erred as a matter of law and fact when it found the Baker Botts Opinion was not issued in good faith[.]"⁸¹Limiting our decision to whether the General Partner was liable for damages for breaching the Call Right provisions—an issue sufficient to reverse the Court of Chancery's partial judgment—left several questions in the first appeal unanswered. They include:

(1) Did the Court of Chancery apply the wrong standard of review to the Baker Botts opinion when it determined that counsel did not render the opinion in good faith?

(2) Did the Court of Chancery correctly interpret the Partnership Agreement when it concluded that "exercising the Call Right involved three steps: (1) satisfying the Opinion Condition, (2) satisfying the Acceptability Condition, and (3) making the decision to exercise[]"?

(3) Were the factual findings underpinning the Court of Chancery's determination that the Baker Botts opinion was not rendered in good faith clearly erroneous?

The answers to these questions, which we take up next, support our ultimate conclusion in this appeal that the General Partner failed to satisfy the Opinion Condition, which meant that the General Partner breached the Partnership Agreement when it redeemed the units.

80 State v. Wright, 131 A.3d 310, 321 (Del. 2016) (quoting John B. v. Emkes, 710 F.3d 394, 403 (6th Cir. 2013)).

81 Boardwalk 2022, 288 A.3d at 1088.

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B

In this appellate round, the plaintiffs argue that the Court of Chancery's "No Breach View" misapplied our 2022 opinion, which in turn caused the court to err further by dismissing their tortious-interference claim. The Boardwalk defendants counter that there was only one precondition to the exercise of the Call Right—that the General Partner secure "a written opinion of counsel . . . acceptable to the General Partner" that Boardwalk's partnership tax status "has or will reasonably likely in the future have a material adverse effect on the maximum applicable rate that can be charged to customers."⁸²Put another way, the Boardwalk defendants reject "the trial court's original tripartite conception of Section 15.1(b)"⁸³with its three steps: satisfaction of the Opinion Condition; satisfaction of the Acceptability Condition; and the decision to exercise. On this point, we agree with the plaintiffs and conclude that the Court of Chancery's conception of Section 15.1(b) as reflected in its post-trial decision was correct. Our reasons follow.

(i)

We begin our discussion by noting that the Boardwalk defendants' position on this issue has evolved during litigation. To be sure, they have not previously— at least not in this Court—explicitly endorsed the Court of Chancery's initial three-

43

step analysis of the Call Right exercise. Yet their challenge to the court's post-trial treatment of the Baker Botts opinion expressly acknowledged that "[t]he opinion had

. . . to be rendered in counsel's subjective good faith, 'based on [its] expertise as applied to the facts of the transaction.'"⁸⁴In support, they cited Williams Cos., Inc.

v. Energy Transfer Equity, L.P., a 2016 Court of Chancery decision we later affirmed. They now take a contrary view—that the opinion need not be rendered in good faith. ⁸⁵

As explained below, their change of position exposes the unreasonableness of their unitary reading of Section 15.1(b). (ii)

Bandera argues—and we agree—that the Boardwalk defendants' current reading of Section 15.1(b) and the corresponding "No Breach View" adopted by the Court of Chancery are inconsistent with Williams. ⁸⁶

In Williams, the issue of

"primary importance"⁸⁷was a condition precedent to the consummation of a merger:

an opinion by the acquiror's counsel that a specific transaction encompassed in the merger should be treated by the tax authorities as a tax-free exchange. As things happened, the acquiror's counsel concluded that it could not issue the opinion, which

44

would allow the acquiror, who had soured on the merger, to terminate the merger agreement. The target, however, contended that the acquiror's counsel's conclusion that it could not issue the opinion was "for reasons other than its best legal judgment—that is, that [counsel] acted in bad faith."⁸⁸To address this contention the Court of Chancery observed that it was counsel's "subjective good-faith determination that is the condition precedent[]."⁸⁹And to meet this good-faith standard, counsel must, according to the court apply its "independent expertise . . . to the facts of the transaction."⁹⁰

In its post-trial opinion here, the court repeated the Williams standard but also relied on this Court's holding in Gerber v. Enterprise Products Holdings,., LLC that a general partner violated the implied covenant of good faith and fair dealing by relying on an opinion "that did not fulfill its basic function."⁹¹The court then bolstered the Williams and Gerber principles by citing various secondary authorities for what it viewed as "self-evident manifestations of what it means for an opinion giver to act in subjective good faith."⁹²

We agree with the Court of Chancery's statement of the standard for assessing whether an opinion of counsel that serves as a condition precedent to a contractual

45

right or obligation is given in good faith. It is consistent, in our view, with customary opinion practice, in which "the lawyer's duty is to provide a fair and objective opinion."⁹³Nor did the Boardwalk defendants argue for a different standard when they appealed the Court of Chancery's 2021 partial final judgment. Indeed, as mentioned above, Boardwalk contended that the court did not faithfully apply Williams in its post-trial decision. But it did not contest—indeed, it explicitly acknowledged—that Williams applied and that the Baker Botts Opinion "had . . . to be rendered in counsel's subjective good-faith, 'based on [its] independent expertise as applied to the facts of the transaction.'"⁹⁴The Boardwalk defendants' current position—that so long as a critical opinion of counsel is followed by a second opinion deeming the first one to be "acceptable," the first opinion need not have been issued in good faith—is, as we see it, an unacceptable end run around Williams. (iii)

In our 2022 opinion, we described the Opinion Condition as a "meaningful limitation" on the General Partner's exercise of the Call Right, separate and apart from the Acceptability Condition.⁹⁵

We stand by that statement. And for the

46

Opinion Condition to operate as a "meaningful limitation" affording a measure of protection for Boardwalk's limited partners, the Opinion of Counsel must pass muster standing on its own two feet. That protection would be toothless if an opinion of counsel delivered in bad faith could trigger the Call Right so long as a second opinion, like Skadden's here, opines not on the merits of counsel's opinion but only on its acceptability.

Here, the Court of Chancery determined that the Baker Botts opinion could not stand on its own and that, in consequence, the General Partner's exercise of the Call Right breached the Partnership Agreement. This determination is based, in our view, on a sound interpretation of Section 15.1(b) of the Partnership Agreement.⁹⁶ (iv)

In the 2022 appeal, the Boardwalk defendants' challenge to the Court of Chancery's post-trial determination that the Baker Botts opinion was not rendered in good faith was three-fold. First, they argued that, by accusing Baker Botts of

"relying on a contrived 'syllogism' and 'counterfactual assumptions,' and then 'stretching' to an MAE," the court deviated from the plain language of the

47

Partnership Agreement, reviewed the record unfairly, and drew insupportable inferences in the plaintiffs' favor.

As to the first of these critiques, as we have said earlier, we are satisfied that the Court of Chancery identified the correct standard—the Williams standard—by which to assess the Baker Botts opinion. As to the court's interpretation of the record, the inferences it drew from the evidence, and its credibility determinations, we view the Boardwalk directors' complaints as questioning the trial court's factual findings. We in the majority are not persuaded that its factual findings are clearly erroneous.

As an initial matter, it bears emphasis that the Court of Chancery's factual findings rested, in significant part, on a "key credibility determination"⁹⁷—whether Rosenwasser testified credibly. In its Remand Opinion, the court catalogued the topics on which Rosenwasser failed to testify credibly on both "little things" and

"big things."⁹⁸It serves no purpose here to recite each instance in which the trial court questioned Rosenwasser's veracity. It is enough to say that the instances were numerous, and that the court's assessment of Rosenwasser's credibility was unmistakably negative. On appeal, this Court does not question such credibility findings.

48

With that in mind, we conclude that the following factual findings are supported by competent evidence in the trial record.

1. Baker Botts knew that Boardwalk's executives did not believe that the March 15 FERC actions were final.

The trial court observed that, "[w]hile Baker Botts was working on a legal opinion that treated the NOPR and other March 15 FERC Actions as final, Boardwalk's management team filed public comments on the NOPR, consistent with the fact that it was not final."⁹⁹Among those comments, of which Rosenwasser was clearly aware, was the statement that "[u]ntil the Commission provides a final decision on the treatment of ADIT, Boardwalk cannot correctly assess the impact of the Revised Policy Statement and ADIT on its pipelines' costs of service, and any response in the Form No. 501-G will be misleading and inaccurate." ¹⁰⁰ Additionally, Rosenwasser was keenly aware of other comments by Boardwalk that either clashed with or were ignored by the Baker Botts opinion. They included that:

the Policy Statement was "not a binding rule;" FERC instructions for the completing the Form 501-G were improper single-issue ratemaking; and Boardwalk's "fixed negotiated rate agreements" would apply without regard to the pipelines' maximum applicable rates.¹⁰¹

49

2. Boardwalk knew that "it was 'misleading' to equate a change in the cost of service stemming from the removal of the income tax allowance with a 'rate reduction,' because a cost-of-service change has 'little bearing' on whether a rate reduction will occur."¹⁰²

This is supported by Boardwalk's public comments on FERC's NOPR, which stated:

Line 33 of Page 1 of the proposed Form No. 501-G is labeled the

"Indicated Rate Reduction," and provides the results from completing the Form's first page. This label is misleading and, if not modified, would have the potential to adversely affect Boardwalk. Within 48 hours of the issuance of the NOPR, Boardwalk began receiving calls inquiring about the impact of "Indicated Rate Reduction" set forth on the Form No. 501-G. Yet, Line 33 does not actually represent a promised or indicative rate reduction. It shows only the potential modifications to a pipeline's cost of service due to tax policy changes, and without regard for changes that may occur to a pipeline's billing determinants, discount adjustments, and other issues impacting recourse rates. In essence, Line 33 provides a cost-of-service number in a vacuum that has little bearing on what the ultimate recourse rate reduction, if any, would occur on the subject pipeline. As the Commission recognizes in the NOPR, pipelines are not required to reduce rates based only on a single rate component, such as taxes. The Line 33 label appears to provide for impermissible piecemeal ratemaking.¹⁰³

Rosenwasser made handwritten notes on a paper copy of these comments, underlining the statement that "Boardwalk cannot correctly assess the impact of the

50

Revised Policy Statement and ADIT on its pipelines' cost of service, and any response in the Form No. 501-G will be misleading and accurate."¹⁰⁴

3. "Baker Botts . . . considered real world effects [of the proposed policy change] when doing so helped reach the result that its client wanted, but not when doing so might cut in the opposite direction."¹⁰⁵

This is broadly supported by Rosenwasser's statement that, "This is a legal opinion independent of what's happening in mkt. Not a primarily factual analysis."¹⁰⁶More specific instances abound; the final opinion explicitly assumed that Boardwalk's subsidiaries would be able to charge recourse rates, when Baker Botts knew that most Boardwalk's rates consisted of either discounted or negotiated rates. At various points in the drafting process, Baker Botts attorneys, including FERC expect Wagner, struggled with the uncertainty and importance of ADIT, while Boardwalk and Loews internally acknowledged its significance. Yet no mention was made of ADIT in the final opinion.

4. "Baker Botts had Boardwalk prepare the Rate Model Analysis[,] . . . [which] was designed to 'get us where we need to go.'"¹⁰⁷

This finding—that the Rate Model Analysis was result-oriented—is supported by:

51

(1) Johnson's email submitting his Rate Model Analysis, which advised that the analysis would "get us where we need to go,"¹⁰⁸and

(2) The inconsistency between assumptions made in Johnson's analysis and Boardwalk's simultaneous lobbying. The analysis assumed under the Reverse South Georgia method that FERC would amortize ADIT, while Boardwalk knew that the treatment of ADIT was an unsettled issue and lobbied through the Interstate Natural Gas Association of America for the elimination of ADIT balances.¹⁰⁹

5. "The Rate Model Analysis departed from ratemaking principles."¹¹⁰

This finding is supported by FERC expert Barry Sullivan's deposition testimony pointing to the flaws in Johnson's Rate Model Analysis.¹¹¹According to Sullivan, the Rate Model was "not a recourse rate calculation" as it subtracted the income tax allowance from a cost-of-service calculation to arrive at, in Johnson's words, an "indicative rate."¹¹²This theory, that a decrease in tax expenses indicates a decrease in cost of service, was described by Boardwalk executives in a different setting as a "train wreck"¹¹³As to Johnson's overall description of his own work,

52

i.e., that he had calculated "indicative rates," Sullivan testified that "an indicative rate doesn't mean anything" and that FERC's ratemaking process considers a number of important factors beyond solely a change in income tax allowance.¹¹⁴

6. "Baker Botts had to stretch to render the Opinion[] . . . .[reaching] strained conclusions [that were] signs of motivated reasoning."¹¹⁵

This finding is supported by, among other things, Baker Botts' struggles with and manipulation of the material-adverse-effect standard. Richards Layton believed that a 12-13% declines in rates would likely constitute a material adverse effect. Skadden attorneys believed that 11% was "likely insufficient." Yet the final opinion saw Baker Botts claim that "an estimated reduction in excess of ten percent" would generate a material adverse effect.¹¹⁶The Rate Model Analysis predicted an 11.68% decline in indicative rates for Texas Gas, forcing the Baker Botts opinion to fall below the numbers provided by Richards Layton.¹¹⁷Baker Botts was also unsure of the meaning of the phrase "reasonably likely to have a material adverse effect."¹¹⁸ Rosenwasser "decided to 'call it more likely than not.'"¹¹⁹

7. "Baker Botts rendered a non-explained opinion on a complex issue of Delaware law [i.e., the material adverse effect" issue] that the two Delaware law firms who were consulted would not formally address.

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And Baker Botts did so in the face of fatal uncertainty that could have been mitigated simply by waiting."¹²⁰

The opinion took the form of a routine opinion and did not cite cases or legal authorities to support the various positions it took. Throughout the drafting process, Baker Botts pushed past the hesitancy expressed by lawyers from both Richards Layton and Skadden. On July 18, 2018, hours after the transaction closed, FERC provided final rulings on the income tax allowance and ADIT issues. Limited partnerships would be allowed to argue in rate case proceedings for an income tax allowance, and those that did not recover an income tax allowance would be able to eliminate their ADIT balances entirely. ¹²¹

The July 18, 2018 announcements resolved the outstanding questions, the uncertainty of which undermined the logic of the Baker Botts opinion. Had Baker Botts waited, as of July 18, 2018, the impact of the income tax allowance and ADIT policies on Boardwalk could have been accurately assessed.

8. Baker Botts knew that the March 15 FERC Actions were not reasonably likely to have a material adverse effect on Boardwalk's recourse rates.¹²²

54

A Baker Botts partner's notes taken during the opinion-writing process support this finding. The notes, which read "no effect-screw min," could reasonably be read to mean "no effect-screw minority[,]" likely reflecting the partner's understanding that the March 2018 Actions would have little effect on Boardwalk's rates, but that the Baker Botts opinion would still allow for Call Right exercise. Loews executives came to a similar conclusion during the drafting process, stating,

"If people think the language says that the relevant test is what is the real-world effect, then we have an issue. I think it's crystal clear that we're talking hypothetical future max FERC rates."¹²³

9. "The timing of the Opinion points in the same direction. Given the non-final nature of the Revised Policy, the avalanche of comments that FERC received, the direct linkage between the Revised Policy and the ADIT NOI that Boardwalk itself identified, and the uncertainty regarding the treatment of ADIT, Baker Botts could not have believed in good faith that it could render the Opinion before FERC provided further guidance. There were too many known unknowns. And an opportunity for clarity of these unknowns was on the horizon: FERC was likely to provide more guidance at its meeting on July 19, 2018. Baker Botts needed to wait."¹²⁴

The Notice on Proposed Rulemaking was a proposed rule. The NOPR requested comments from industry participants, in anticipation of further changes that FERC might make to the proposed rule.¹²⁵The importance of the ADIT issue

123 Boardwalk Pipeline Partners, L.P. v. Bandera Master Fund LP, Del. 2022, No. 1, 2022, D.I. 19 at B1035 (JX 798).

124 Post-Trial Opinion, 2021 WL 5267734, at *69.

125 Id. at *13; Boardwalk Pipeline Partners, L.P. v. Bandera Master Fund LP, Del. 2022, No. 1, 2022, D.I. 19 at B347 (JX 580).

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as the "a-bomb outcome" for Boardwalk, and the high level of uncertainty regarding the ultimate disposition of that issue ("[T]he effect on ADIT is unknown & unknowable"), ¹²⁶

support a finding that Baker Botts knew ADIT was a crucial unknown throughout the drafting process. The court's finding that Baker Botts should have waited is supported further by an e-mail Naeve, the Skadden partner and former FERC Commissioner, sent to a colleague on the day Baker Botts delivered its preliminary opinion. In that e-mail, Naeve discussed the uncertainty surrounding how FERC would respond to industry comments and observed that "[i]f I were Baker Botts I would prefer to wait until FERC acts on the comments."¹²⁷

10. "Rosenwasser had an additional, personal incentive to push the limits. He drafted the Call Right, and he understandably wanted that provision to accomplish what his client thought it should do. And Loews was a forceful client."¹²⁸

Baker Botts' engagement letter noted that Rosenwasser had drafted the Call Right provision in 2005, but Baker Botts concluded that his 2005 work was not

"substantially related" to the exercise of the Call Right, at least from a conflicts-of- interest perspective.¹²⁹Delaware precedent and applicable treatises hold that legal matters arising from a document are substantially related to that document.¹³⁰

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This is not an exhaustive treatment of the factual findings the trial court relied upon in reaching its conclusion that the Baker Botts opinion was a product of "a contrived effort to generate the client's desired result"¹³¹and not a subjective good- faith determination of the issue at hand. Nor do we think that each factual finding the trial court made was dictated by the evidence. Often, there can be two permissible views of evidence. But when that is the case, "the factfinder's choice between them cannot be clearly erroneous."¹³²It suffices here that these findings, none of which we see as clearly erroneous, are sufficient to support the Court of Chancery's factual determinations and therefore its legal conclusion.

C

We turn next to the Court of Chancery's dismissal of Bandera's tortious- interference-with-contractual-relations claim against Loews. Because the court adopted the "No Breach View" of our 2022 opinion and, under that view, exercising the Call Right did not breach the Partnership Agreement, the court entered judgment for Loews on the tortious-interference claim. As explained earlier, we disagree with the Court of Chancery's "No Breach View" of our 2022 opinion. We also concluded that the court applied the correct legal standard in its post-trial determination that, because the Opinion Condition was not satisfied, the General Partner's exercise of

131 Id. at *71.

132 Bank of N.Y. Mellon v. Liberty Media Corp., 29 A.3d 225, 236 (Del. 2011).

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the Call Right breached the Partnership Agreement and that the factual findings underpinning that determination were not clearly erroneous. Because these holdings undermine the reasoning upon which the Court of Chancery entered judgment for Loews on Bandera's tortious-interference claim, we reverse that judgment. Recognizing, however, that its reading of our 2022 opinion may have

"misse[d] the mark (and in hopes of avoiding another remand),"¹³³the Court of Chancery analyzed the claim under the two alternative views—the "Good Faith View" and the "Separate Breach View." The court concluded that "[u]nder the No Breach View, Loews prevails. Under the Good Faith View, the question is closer, but Loews again prevails. Under the Separate Breach View, the plaintiffs prevail."¹³⁴

We appreciate the Court of Chancery's analysis of the tortious-interference claim under the two alternative views of our 2022 opinion. Likewise, we appreciate the court's desire to avoid another remand. But our remit in this appeal is to review the judgment on appeal and not the judgment the trial court might have entered under alternative analyses—a hypothetical judgment that has not been appealed. We believe that to pass upon those portions of the trial court's analysis that explicitly did not form the basis for the judgment it entered is unwise and unfair to the parties,

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whose focus in briefing and at oral argument in this Court has been on the judgment as entered. A remand, however unwelcome the trial court might find it, is thus required for the court to consider anew Bandera's tortious-interference count and defenses to recovery under that theory.

D

The plaintiffs argue next that, despite our decision in 2022 that the General Partner is exculpated from damages under Count I of the complaint, all equitable remedies against the General Partner remain available, including rescission, imposition of a constructive trust, and disgorgement. They also press the claim that, although the Partnership Agreement's exculpatory provisions might protect the General Partner, the other defendants have not shown that they qualify for exculpation.

We are unpersuaded by the plaintiffs' argument that the court can yet assess rescissory damages or other monetary payments against the General Partner under equitable theories. We reiterate that Section 7.8(a) of the Partnership Agreement exculpates the General Partner "for monetary damages." The exculpatory provision does not limit its reach to damages as a legal remedy. Nor did the plaintiffs draw a distinction between legal and equitable remedies in the operative complaint. Instead, they sought "all available damages, including rescissory damages, unjust

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enrichment, and disgorgement, for Defendants' breaches of contract[.]"¹³⁵Their effort now to impose financial liability on the General Partner, unsupported by any precedent, runs contrary to our 2022 decision that the General Partner was exculpated from monetary damages for breach of contract.¹³⁶ We agree with the plaintiffs, however, that our 2022 decision did not address whether defendants other than the General Partner were exculpated. And because of its adoption of the No Breach View of our decision and its consequent dismissal of the remaining counts, neither did the Court of Chancery on remand. It may, to the extent necessary, do so now.

E

Finally, Bandera contends, separate from their claims arising from the Defendants' exercise of the Call Right, that the Defendants distorted the Call Right exercise price by using the Potential Exercise Disclosures to game the Call Right's pricing mechanism in the Partnership Agreement. This claim, which appears under Counts II and V of the operative complaint, alleges that the Boardwalk defendants were unjustly enriched when they purchased the limited partners' common units at an artificially depressed price.

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The Partnership Agreement provided that the Call Right's exercise price would be determined using a 180-day look-back formula. Specifically, the Call Right exercise price was to be calculated as "the average of the daily Closing Prices per Limited Partner Interest of such class for the 180 consecutive Trading Days immediately prior to [three days before notice is mailed that GP or one of GP's affiliates elects to exercise the Call Right]."¹³⁷On April 30, 2018, Loews issued an SEC form 10-Q disclosing that it was "analyzing the FERC's recent actions and seriously considering the purchase right under the partnership agreement in connection therewith."¹³⁸Similarly, Boardwalk's 10-Q, issued in tandem with the Loews filing, informed holders of limited partnership interests that "our general partner has a call right that may become exercisable because of recent FERC action"¹³⁹and that Loews, through the Sole Member, had informed Boardwalk that it was "seriously considering its purchase right."¹⁴⁰

Although Boardwalk's trading price initially jumped on the news of a possible take-private transaction, as the consequences of the 180-day look-back formula for calculating the Call Right exercise price became apparent to public investors, Boardwalk's unit price declined steadily. As Boardwalk's unit price fell, so too did

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the exercise price as calculated under the Partnership Agreement's backward- looking formula. Loews knew that this would be the case and that the longer it waited to exercise the Call Right after disclosing it was considering doing so, the lower the exercise price would be.

Making the Potential Exercise Disclosures in this manner, according to Bandera, violated the Partnership Agreement in two ways. First, plaintiffs allege that the Potential Exercise disclosures violated Section 7.9(a) of the Partnership Agreement which concerns the resolution of conflicts of interest between the General Partner and its affiliates, and the Partnership. To be permissible and avoid breach of the Partnership Agreement, the resolution of a conflict must be "fair and reasonable to the Partnership, taking into account the totality of the relationships between the parties involved."¹⁴¹The outcome here was not "fair and reasonable[,]"

Bandera argues, because the Potential Exercise disclosures were "misleading and impacted the exercise price in Defendants' favor at the limited partners' expense."¹⁴² In Bandera's view, although they concede that some form of disclosure was required under federal securities law, the disclosures as drafted omitted material information such as

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- language indicating that FERC's cost-of-service ratemaking principles might result in a net increase in Boardwalk's rates, depending on how the March 15 FERC Actions were ultimately resolved;

- information confirming that Loews had retained counsel to examine these issues and had obtained commitments regarding the issuance and acceptability of the opinion;

- key details concerning the favorable implications of the NOPR, as well as the importance of rate case risk in assessing the likelihood of any adverse rate impact; and

- the fact that requests for rehearing raised substantial uncertainty regarding whether and how FERC might apply the Revised Policy to Boardwalk's subsidiaries in the future.¹⁴³

These omissions from each entity's 10-Q filings and contemporaneous earnings calls, according to Bandera, "left investors in the dark on Loews' intentions" and set in motion a "fear feedback loop" that depressed the price of Boardwalk's limited partner interests.¹⁴⁴

The Court of Chancery summarily rejected this argument. It first concluded that the additional information that the plaintiffs cite was not material. And taking for granted the fact that the Potential Exercise Disclosures presented a conflict of interest, the court concluded that the General Partner's resolution of the conflict— issuing the disclosures—was fair and reasonable to the partnership because the disclosures were required under federal securities law. In the court's words, "[b]y

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providing the disclosures required by law, the General Partner fulfilled that obligation."¹⁴⁵

We agree with the Court of Chancery's conclusion. Assuming that the decision to issue the Potential Exercise Disclosures presented a conflict of interest for the General Partner, our only task is to determine whether the General Partner's resolution of the conflict was fair and reasonable to the partnership. Because the plaintiffs concede that some form of Potential Exercise Disclosure was required by federal securities law, their claim rests solely on the content of those disclosures. We cannot see how any of the omissions that the plaintiffs cite were material such that the exercise price would have meaningfully changed had they been disclosed in Loews' and Boardwalk's 10-Q filings.

For one, much of the information that Bandera claims should have been disclosed was disclosed or was otherwise already public, including that (i) Boardwalk did "not expect [FERC's Revised Policy Statement, NOI and NOPR] to have a material impact on our revenues in the near term";¹⁴⁶(ii) that the prevalence of "negotiated or discounted rate agreements" for two of Boardwalk's three subsidiaries and a rate "moratorium" for the third mitigated any near-term adverse

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impact;¹⁴⁷and (iii) that "[r]equests for rehearing and clarification" had been filed with FERC.¹⁴⁸

The plaintiffs also contend that the Potential Exercise Disclosures violated the Partnership Agreement because the formula for calculating the Call Right exercise price in Section 15.1(b) contemplated ensuring that the price was not skewed by notice of the Call Right exercise itself. The three-day window that the agreement establishes between the beginning of the look-back period and notice of the Call Right exercise was intended to insulate the Call Right exercise price from any market response to notice of the General Partner's intent to trigger the Call Right. The Potential Exercise Disclosures, Bandera alleges, upended this contractual design by prompting a negative market response to the disclosure that the General Partner was

"strongly considering" exercising its Call Right. Bandera contends that under Section 16.2 of the Partnership Agreement, which prevents the General Partner and its affiliates from "tak[ing] or refrain[ing] from taking action as may be necessary or appropriate to achieve the purposes of"¹⁴⁹the Partnership Agreement, the Potential Exercise Disclosures should be viewed as an attempt to subvert the calculation contemplated by Section 15.1(b) by depressing Boardwalk's unit price, and,

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accordingly, their publication should be considered a breach of the Partnership Agreement.

This theory of breach, too, fails. As we have discussed, none of the omissions that the plaintiffs urge us to consider were material. And Section 15.1(b) does not contemplate disclosure requirements. The calculation methodology mandated by that provision is intended to insulate the exercise price from the decision to exercise the Call Right itself. The fact that this contractual scheme exists does not prohibit Loews or the General Partner from making public disclosures that the Call Right might be exercised at some point in the future. Lastly, under these facts, there is no contractual gap in which the implied covenant of good faith and fair dealing can operate. The provision at issue makes no mention of disclosures, and to read Sections 15.1(b) and 16.2 as creating a contractual scheme that would prohibit Boardwalk from making disclosures required by federal law cannot be the meaning that the parties intended. Because we determine that the Potential Exercise Disclosures did not breach the Partnership Agreement, the plaintiffs' claims that the Potential Exercise Disclosures constituted tortious interference by Loews, the GPGP, and the Sole Member, must fail.

IV

For the reasons set forth above, we affirm the judgment of the Court of Chancery in the defendants' favor on Count II (breach of contract arising from the

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Potential Exercise Disclosures), Count III (breach of the implied covenant of good faith and fair dealing), and Count V (unjust enrichment). We reverse the judgment of the Court of Chancery in the defendants' favor on Count IV (tortious interference with contractual relations) and remand for further proceedings consistent with this opinion. Jurisdiction is not retained.

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LEGROW, J. dissenting, joined by VALIHURA, J.:

In its 2021 post-trial opinion, the Court of Chancery held that Boardwalk's General Partner breached the Partnership Agreement by exercising the Call Right without satisfying two of the contractual conditions to that right: the Opinion Condition and the Acceptability Condition.¹⁵⁰On appeal, the defendants challenged both holdings. In 2022, a majority of this Court held that the General Partner did not breach the Acceptability Condition and that, having reasonably relied on Skadden's advice, the General Partner, through the Sole Member, was exculpated from damages under the Partnership Agreement (the "2022 Opinion"). ¹⁵¹

In a concurring opinion authored by Justice Valihura (the "Concurring Opinion"), we agreed with the majority that the General Partner, acting through the Sole Member, was the proper decision maker for purposes of the Acceptability Condition, but we wrote separately to explain our view that the trial court erred in holding that the Opinion Condition was not met.

As we stated at the time, we viewed the trial court's holdings on the Opinion Condition as the "focal point" of the case. Although the majority chose to resolve the appeal without addressing the Opinion Condition, it was unclear to us how the

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Call Right could be deemed to have been triggered unless the Opinion Condition was satisfied.¹⁵²Justice Valihura explained the analytical challenge created by not addressing the trial court's holdings regarding the Opinion Condition:

As Skadden, Arps, Slate, Meagher & Flom LLP ("Skadden") observed in its opinion, "[a]s a pre-condition to exercising the Call Right, Section 15.1(b)(ii) requires that the General Partner receive an 'Opinion of Counsel,' to the effect that the Partnership's status as a pass-through entity for tax purposes has or will reasonably likely in the future have a material adverse effect on the maximum applicable rate that can be charged to customers by the Partnership's subsidiaries[.]" A5102. Skadden opined that Baker's Opinion conforms to the requisite language in Section 15.1(b). See A5110. However, Skadden did not opine on whether there was an MAE. In fact, Skadden stated expressly that "we have not been asked to undertake, and have not undertaken, any analyses for purposes of rendering the Opinion of Counsel contemplated in Section 15.1(b)(ii) of the LPA (and are not rendering such an opinion)[.]" A5121 (emphasis added). And because the Majority leaves the findings regarding Baker's Opinion in place, according to my reading of the Majority's opinion, Baker's Opinion did not satisfy Section 15.1(b)(ii), and, thus, a necessary precondition to the exercise of the Call Right was not satisfied.¹⁵³

Now, on appeal from the Court of Chancery's Remand Opinion resolving the remaining counts in the plaintiffs' complaint, our colleagues in the Majority hold that the trial court correctly concluded in 2021 that the General Partner failed to satisfy the Opinion Condition and thereby breached the Partnership Agreement by

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exercising the Call Right.¹⁵⁴Having so concluded, the Majority again remands this case so that the Court of Chancery may address the plaintiffs' tortious interference claim against Loews.

We disagree with our colleagues in the Majority and would affirm the Court of Chancery's Remand Opinion because, in our view, the Baker Botts opinion satisfied the Opinion Condition and the General Partner therefore did not breach the Partnership Agreement by exercising the Call Right once the Acceptability Condition was met.¹⁵⁵Justice Valihura explained our position at length in the Concurring Opinion and we will not repeat that analysis in detail here. Briefly

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summarized, we concluded in the Concurring Opinion that the trial court misapplied Delaware law by reviewing the Baker Botts opinion de novo rather than considering whether counsel issued the opinion in subjective good faith. Although we acknowledged that the factual record was "far from perfect" for the defendants, we held that the trial court improperly substituted its own legal interpretation of the Call Right for opinion counsel's interpretation, and that many of the court's bad-faith findings derived from its imposition of its construction of Section 15.1(b). Reviewing those findings with the appropriate deference to Baker Botts' interpretation of the Partnership Agreement led us to conclude that Baker Botts' conduct did not rise to the level of bad faith. Accordingly, we took the position that the Opinion Condition was satisfied.

That conclusion, coupled with the holding in the 2022 Opinion that the General Partner did not breach the Acceptability Condition, would directly resolve Count I in the defendants' favor. Count IV—the tortious interference claim that the Majority remands to the Court of Chancery—necessarily fails because there is no underlying breach of contract, an essential element of a tortious interference claim.¹⁵⁶And we agree with our colleagues in the Majority that the record does not

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support the plaintiffs' breach of contract and unjust enrichment claims relating to the Potential Exercise Disclosures.¹⁵⁷

That leaves only Count III, which alleges that Boardwalk and the General Partner breached the implied covenant of good faith and fair dealing by exercising the Call Right.¹⁵⁸The plaintiffs' implied covenant claim rests on their contention that the Partnership Agreement "implicitly prevented [the defendants] from intentionally procuring an illegitimate opinion" of counsel to satisfy the Opinion Condition.¹⁵⁹We disagree and would enter judgment in favor of the defendants for two reasons. First, the implied covenant is a limited, gap-filling remedy that only operates where a contract is silent; it does not apply when a contract "addresses the conduct at issue."¹⁶⁰Section 15.1(b) expressly identifies the conditions under which the General Partner may exercise the Call Right, leaving no gap for the implied covenant to fill. Second, as set forth above and in the Concurring Opinion, the Baker ("To state a tortious interference claim, a plaintiff must properly allege an underlying breach of contract.").

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Botts opinion was not "illegitimate." For both of those reasons, the plaintiffs' implied covenant claim fails.

In sum, and for the reasons explained in the Concurring Opinion, we would have reversed the post-trial opinion because the General Partner validly exercised the Call Right after both the Opinion Condition and the Acceptability Condition were satisfied. That conclusion effectively resolves the plaintiffs' remaining claims. We therefore would affirm the Court of Chancery's post-remand order entering judgment in favor of the defendants on all the plaintiffs' claims.