Altigen Communications, Inc. v. Day

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE ALTIGEN COMMUNICATIONS, INC., Plaintiff, v. C.A. No. 2025-1298-JTL RYAN DAY, Defendant. OPINION GRANTING MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Date Submitted: August 5, 2026 Date Decided: August 21, 2026 Aaron R. Sims, Samuel G. Gustafson, POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; Hal Michael Clyde, Eric B. Evans, PERKINS COIE LLP, Palo Alto, California; Attorneys for Plaintiff. James S. Green, Jr., Nathaniel J. Klepser, COLE SCHOTZ P.C., Wilmington, Delaware; Jacob Stone, PIA HOTY, Salt Lake City, Utah; Attorneys for Defendant. LASTER, V.C.  A Delaware corporation hired a Chief Strategy Officer. The corporation has sued him, claiming he breached his fiduciary duties as an officer by failing to report that key customers were planning to reduce or terminate their business relationships with the corporation. The Chief Strategy Officer moved to dismiss the complaint for lack of personal jurisdiction. This decision grants the motion. I. FACTUAL BACKGROUND The facts are drawn from the complaint and documents it incorporates by reference.1 At this procedural stage, the court must credit the complaint’s well-pled allegations and draw all reasonable inferences in the plaintiff’s favor. A. The Asset Purchase Agreement Intermountain Technology Group, LLC conducted business under the trade name ZAACT. Ryan Day founded ZAACT and served as its Chief Executive Officer. Day resides in Utah. Altigen Communications, Inc. (the “Company”) agreed to acquire ZAACT by purchasing its assets. The Company is a publicly listed Delaware corporation. The parties documented the transaction in an asset purchase agreement dated March 4, 2022 (the “Asset Purchase Agreement”). The transaction closed on May 6, 1 Citations in the form “Compl. ¶ ___” refer to paragraphs of the verified complaint, which is the operative pleading. Dkt. 1. Citations in the form “Ex. ___ at ___” refer to exhibits defendant filed in support of its motion. Dkt. 7. Citations in the form “OB ___ at ___” and “AB ___ at ___” refer to defendant’s opening brief and plaintiff’s answering brief, respectively. Dkts. 7, 12. 2022. Day received approximately $2,000,000 at closing. He also stood to receive (i) $225,000 in cash and $300,000 in Company stock one year after closing, (ii) the same consideration two years after closing, and (iii) $225,000 in cash three years after closing. The Asset Purchase Agreement contained representations about ZAACT’s customers. Day represented that he was not aware of any circumstances that “would reasonably be expected to cause any Material Customer . . . to terminate or materially change its business relationship with [ZAACT].” 2 Under the Asset Purchase Agreement, the Company could seek indemnification from Day for breaches of representations. The Company could also offset losses for those breaches against the consideration Day would otherwise receive. B. Day Becomes Chief Strategy Officer. When entering into the Asset Purchase Agreement, the parties anticipated that Day would become the Company’s Chief Strategy Officer after closing. By email dated March 10, 2022, the Company’s Chief Executive Officer informed Day that his duties as Chief Strategy Officer would include responsibility for “Strategic Customers.”3 The CEO also envisioned Day meeting with him three times per week for regular updates. 2 Compl. ¶ 20. That is how the complaint describes the Asset Purchase Agreement. The parties did not submit a copy. 3 Id. ¶ 29. 2  Shortly before closing, Day executed an employment agreement effective as of May 4, 2022 (the “Employment Agreement”). It described Day’s duties and responsibilities as follows: During the Employment Period, Employee will serve as the Chief Strategy Officer of the Company, reporting to the President of the Company (the “Supervisor”) as of the date hereof. Such Supervisor may be changed at any time by the Company, and the Company shall provide notice of such change to Employee as soon as practicable. As the Chief Strategy Officer of the Company, Employee will perform all duties and accept all responsibilities incident to such position or as may be reasonably assigned to Employee by the Supervisor.4 The Employment Agreement also contained a section titled “Extent of Service.” It stated that “[d]uring the Employment Period, Employee will use Employee’s full and best efforts to carry out Employee’s duties and responsibilities . . . with the highest degree of loyalty and the highest standards of care, in compliance with applicable laws and written policies of the Company Group . . . .”5 The Employment Agreement permitted the Company to terminate Day with or without cause.6 The Employment Agreement defined cause to include six categories of misconduct. One was “material non-performance of Employee’s duties (including any material breach of fiduciary duty) or gross misconduct or gross negligence in the performance of Employee’s duties.” 7 Another was “commission of any other act or 4 Ex. A (cited as “EA”) § 1.4. 5 Id. § 1.5. 6 Id. § 2.1. 7 Id. art. III, “Cause.” 3 omission involving theft, misappropriation, embezzlement, fraud, self-dealing, conflict of interest, or dishonesty, in each case, relating the performance of Employee’s duties to any member of the Company Group.” 8 Still another encompassed “any material willful or grossly negligent breach or nonperformance of any of Employee’s . . . obligations under this Agreement (including any of Employee’s duties hereunder, including Employee’s fiduciary duties to any member of the Company Group).”9 C. Issues With Material Customers Between the signing of the Asset Purchase Agreement and closing, Day learned that three material customers intended to reduce and eventually terminate their business relationships with ZAACT. He did not disclose what he learned to the Company. After becoming Chief Strategy Officer, Day continued not to disclose what he knew about the three customers reducing and eventually terminating their business relationships with ZAACT. Day also did not participate in the anticipated thrice- weekly update sessions with the Company’s CEO. Day skipped the Company board meetings held in May and August 2022. 8 Id. 9 Id. 4  During the year after closing, the three customers reduced their business relationships with ZAACT. ZAACT’s revenue for that year fell by $1,400,000. Operating profit fell from $850,000 to a loss of $340,000. During the second year after closing, ZAACT’s performance fell even further. The declines tracked the loss of business from the three material customers. D. The Utah Action In June 2024, Day and ZAACT sued the Company in state court in Salt Lake County, Utah for breach of the Asset Purchase Agreement. The Company removed the case to federal court in Utah and filed counterclaims.10 In November 2024, the Company discovered evidence relating to the three customers’ plans to reduce and eventually terminate their business relationships with ZAACT. The Company did not amend its counterclaims in the Utah action to assert a claim against Day for breach of fiduciary duty. The deadline to move to amend the Utah pleadings passed on April 30, 2025. E. This Litigation On November 10, 2025, the Company filed this lawsuit. The complaint’s sole count asserts that Day breached his fiduciary duties in his capacity as an officer. The complaint alleges that Day breached his duties of loyalty and care by failing to disclose that the three customers planned to reduce and eventually terminate their relationships with the Company. The complaint asserts that Day had 10 See Intermountain Tech. Gp., LLC and Ryan Day v. Altigen Commc’ns, Inc., 2:24-cv-0538-DAK-CMR (D. Utah). 5 a self-interested motive to conceal his knowledge because the Company could have used the information to assert a claim for breach of the Asset Purchase Agreement and seek indemnification from Day. The Company contends that if Day had disclosed what he knew, then the Company could have repaired the relationships, reallocated resources to other customers, or taken steps to reduce costs to offset the lost revenue. Day moved to dismiss the complaint on multiple grounds. He moved for dismissal under Rule 12(b)(2) for lack of personal jurisdiction over him. He moved for dismissal under Rule 12(b)(3) on the theory that a forum-selection clause in the Employment Agreement makes courts in Utah the exclusive forum for disputes. He moved for dismissal under Rule 12(b)(6), arguing that the Company has not stated a claim independent of the Employment Agreement and, in any event, the Employment Agreement’s contractual language preempts fiduciary duty claims. And he moved for dismissal under Rule 13, arguing the Company had to assert its claim for breach of fiduciary duty as a compulsory counterclaim in the Utah action. After reviewing the papers, the court entered a minute order sua sponte: When briefing Day’s status as an officer under Section 3114(b), the parties have relied on In re P3 Health Group Holdings, LLC, 282 A.3d 1054 (Del. Ch. 20[2]2). The P3 case involved an LLC, and the material participation standard derives from 6 Del. C. [§] 18-109. The court addressed de facto officer status under Section 3114(b) in Harris v. Harris, 289 A.3d 310 (Del. Ch. 2023). Acting sua sponte, the court directs the parties to be prepared to address the Harris precedent.11 11 Dkt. 30. 6 Raising additional authority comports with the principle that “[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” 12 Foreclosing a court from considering authorities the parties did not raise would function as a binding stipulation regarding governing law, which cannot bind a court. 13 When in practice, I found requests for supplemental briefing helpful because it suggested what issues were on the judge’s mind. As a trial judge, I have found counsel’s answers helpful for reciprocal reasons. 12 Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); see U.S. Nat. Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993) (holding that the court of appeals properly ordered supplemental briefing on a legal issue that no party raised or took a position on; explaining that a “court may consider an issue ‘antecedent to . . . and ultimately dispositive of’ the dispute before it,’ even an issue the parties fail to identify and brief” (quoting Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990)); see Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 88 n.9 (1993) (addressing a legal question even where parties agreed on the answer)). 13 Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289–90 (1917) (“If the stipulation is to be treated as an agreement concerning the legal effect of admitted facts, it is obviously inoperative; since the court cannot be controlled by agreement of counsel on a subsidiary question of law.”); accord Bank of Or., 508 U.S. at 448 (“After giving the parties ample opportunity to address the issue, the Court of Appeals acted without any impropriety in refusing to accept what in effect was a stipulation on a question of law.”); Fisher v. First Stamford Bank & Tr. Co., 751 F.2d 519, 523 (2d Cir. 1984) (“Generally, a stipulation of fact that is fairly entered into is controlling on the parties and the court is bound to enforce it. But a court is not governed by a stipulation on a question of law.” (citations omitted)). 7  II. LEGAL ANALYSIS Day has moved for dismissal on four grounds. The first is lack of personal jurisdiction. That issue generally presents a threshold question that a court should address before reaching the merits.14 Sometimes, issues of personal jurisdiction are so intertwined with the merits that an upfront determination is not possible.15 Here, however, the court can address that threshold issue. The court lacks personal jurisdiction over Day. This decision need not reach his other arguments. When a defendant moves for dismissal under Rule 12(b)(2), “the plaintiff bears the burden of showing a basis for the court’s exercise of jurisdiction over the defendant.”16 That burden is an evidentiary one.17 A verified complaint is the legal 14 See Branson v. Exide Elecs. Corp., 625 A.2d 267, 268–69 (Del. 1993) (“This Court has concluded that the Court of Chancery should have decided the personal jurisdictional challenge regarding the individual defendants, raised by Exide’s motion to dismiss, prior to addressing the substantive aspect of that motion with respect to all defendants. Accordingly, this matter will be remanded to the Court of Chancery for that purpose.”). 15 See Arxada Hldgs. NA Inc. v. Harvey, 351 A.3d 519, 543–45 (Del. Ch. 2026) (deferring ruling on personal jurisdiction until trial because of extensive overlap between jurisdictional analysis and the merits; describing a cautionary tale in which an early evidentiary hearing on personal jurisdiction only served to complicate the litigation where the court’s ability to exercise personal jurisdiction was intertwined with the merits); Ch. Ct. R. 12(i) (“The Court may defer until trial ruling on any defense listed in Rule 12(b)—whether made in a pleading or by motion—or any motion under Rule 12(c).”). 16 Ryan v. Gifford, 935 A.2d 258, 265 (Del. Ch. 2007). 17 Hart Hldg. Co. Inc. v. Drexel Burnham Lambert Inc., 593 A.2d 535, 538 (Del. Ch. 1991) (Allen, C.). 8 equivalent of an affidavit and can provide the necessary evidentiary support. 18 A court can also consider evidentiary submissions.19 If the court has not conducted an evidentiary hearing, then a plaintiff “need only make a prima facie showing” sufficient to support jurisdiction, with the record construed “in the light most favorable to the plaintiff.” 20 If the court takes that approach, then the jurisdictional question technically remains open until trial, when the plaintiff must prove the jurisdictional facts by a preponderance of the evidence.21 Often, the jurisdictional challenge falls by the wayside, but not always. 18 See Bruce E. M. v. Dorothea A. M., 455 A.2d 866, 869 (Del. 1983) (“A verified pleading may also be used as an affidavit if the facts stated therein are true to the party’s own knowledge.”); accord Weber v. Kirchner, 2003 WL 23190392, at *3 (Del. Ch. Dec. 31, 2003); Taylor v. Jones, 2002 WL 31926612, at *2 & n.6 (Del. Ch. Dec. 17, 2002). 19 Sample v. Morgan (Sample II), 935 A.2d 1046, 1055–56 (Del. Ch. 2007) (“In considering a motion to dismiss for lack of personal jurisdiction under Court of Chancery Rule 12(b)(2), I am not limited to the pleadings. Rather, I am ‘permitted to rely upon the pleadings, proxy statement, affidavits, and briefs of the parties in order to determine whether the defendants are subject to personal jurisdiction.’” (quoting Crescent/Mach I P’rs, L.P. v. Turner, 846 A.2d 963, 974 (Del. Ch. 2000)); Ryan, 935 A.2d at 265 (“In ruling on a Rule 12(b)(2) motion, the court may consider the pleadings, affidavits, and any discovery of record.”). 20 Sprint Nextel Corp. v. iPCS, Inc., 2008 WL 2737409, at *5 (Del. Ch. July 14, 2008); see Sample II, 935 A.2d at 1056 (“In evaluating the record [on a Rule 12(b)(2) motion], I must draw reasonable inferences in favor of the plaintiff.”); Ryan, 935 A.2d at 265 (“If, as here, no evidentiary hearing has been held, plaintiffs need only make a prima facie showing of personal jurisdiction and the record is construed in the light most favorable to the plaintiff.” (footnotes and internal quotation marks omitted)). 21 Travelers Indem. Co. v. Calvert Fire Ins. Co., 798 F.2d 826, 831 (5th Cir. 1986) (“However, ‘at any time when the plaintiff avoids a preliminary motion to dismiss by making a prima facie showing of jurisdictional facts, he must still prove the jurisdictional facts at trial by a preponderance of the evidence,’ or, as otherwise 9  Under Delaware law, analyzing whether personal jurisdiction exists involves two steps.22 First, the plaintiff must identify a valid method of serving process on the defendant. Second, the plaintiff must show sufficient minimum contacts between the defendant and Delaware such that the exercise of personal jurisdiction by a Delaware court “does not offend traditional notions of fair play and substantial justice.”23 In this case, the analysis falls short on the first step, so the court need not reach the second. The Company relies on two statutes as its bases for valid service of process on Day. One is Section 3114(b) (the “Officer-Consent Statute”).24 The other is Section 3104 (the “Long-Arm Statute”).25 Neither authorizes service of process in this case. A. The Officer-Consent Statute Under the Officer-Consent Statute, a person who serves a Delaware corporation in specified roles consents to service of process through the corporation’s registered agent or, if none, the Delaware Secretary of State. The Officer-Consent stated, ‘[e]ventually, of course, the plaintiff must establish jurisdiction by a preponderance of the evidence, either at a pretrial evidentiary hearing or at a trial.’” (first quoting Data Disc., Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 n.2 (9th Cir. 1977); then quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981))). 22 Matthew v. Fläkt Woods Gp. SA, 56 A.3d 1023, 1027 (Del. 2012). 23 Id. (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). 24 10 Del. C. § 3114(b). 25 Id. § 3104. 10 Statute only applies to the identified roles. The statute does not extend to Day because he did not occupy an identified role or its functional equivalent. 1. A Three-Part Statute The Officer-Consent Statute has three parts. It starts by deeming service as an officer to be consent to jurisdiction (the “Deemed-Consent Clause”). Next, it identifies the types of cases to which the Deemed-Consent Clause applies (the “Covered-Cases Clause”). Last, it defines who qualifies as an officer for purposes of the Deemed-Consent Clause (the “Officer Definition”). The Deemed-Consent Clause provides as follows: Every nonresident of this State who after January 1, 2004, accepts election or appointment as an officer of a corporation organized under the laws of this State, or who after such date serves in such capacity, . . . shall, by such acceptance or by such service, be deemed thereby to have consented to the appointment of the registered agent of such corporation (or, if there is none, the Secretary of State) as an agent upon whom service of process may be made in all civil actions or proceedings brought in this State [that satisfy the Covered-Cases Clause] . . . .26 Day does not challenges the effectiveness of the Deemed-Consent Clause. The Covered-Cases Clause identifies two categories of cases to which the Deemed-Consent Clause applies. One encompasses cases brought “by or on behalf of, or against such corporation, in which such officer is a necessary or proper party.” 27 26 Id. § 3114(b). 27 Id. 11 The other encompasses “any action or proceeding against such officer for violation of a duty in such capacity.” 28 This case falls within both categories. Most importantly for this case, the Officer Definition identifies the officer roles to which the Deemed-Consent Clause applies. For purposes of the statute, an officer is someone who (1) Is or was the president, chief executive officer, chief operating officer, chief financial officer, chief legal officer, controller, treasurer or chief accounting officer of the corporation at any time during the course of conduct alleged in the action or proceeding to be wrongful; (2) Is or was identified in the corporation’s public filings with the United States Securities and Exchange Commission because such person is or was 1 of the most highly compensated executive officers of the corporation at any time during the course of conduct alleged in the action or proceeding to be wrongful; or (3) Has, by written agreement with the corporation, consented to be identified as an officer for purposes of this section.29 The Company only invokes the first definitional bucket (the “Roles Clause”). Despite being a publicly listed entity, the Company does not argue that it identified Day in its filings as one of its most highly compensated executive officers during the course of conduct. The Company also has not pointed to any agreement in which Day consented to treatment as an officer for purposes of the Officer-Consent Statute. 28 Id. 29 Id. 12  2. Applying The Roles Clause To A Non-Identified Role The Company contends that Day’s role as Chief Strategy Officer falls within the Roles Clause. As a technical matter, that is incorrect. The Roles Clause only identifies “the president, chief executive officer, chief operating officer, chief financial officer, chief legal officer, controller, treasurer or chief accounting officer of the corporation.” But for reasons addressed at length in a prior decision, the Roles Clause does not stop at individuals who hold the identified titles.30 It extends to “a person who discharges the duty or function” contemplated by the identified titles.31 “The top executive at a company who uses the title ‘Grand Poobah’ still is subject to service of process under Section 3114(b)(1) as the president or chief executive officer.”32 30 Harris, 289 A.3d at 327–37. 31 Id. at 327. 32 Id. at 329. The Officer-Consent Statute therefore differs from a provision in the Delaware Limited Liability Company Act (the “LLC Act”) under which a Delaware court can exercise jurisdiction over a person who “participates materially in the management of the limited liability company.” 6 Del. C. § 18-109(a). Day originally suggested that the LLC Act standard applied here, relying on language in a decision that ruled on whether the court could exercise personal jurisdiction over an acting manager of an LLC. See In re P3 Health Gp. Hldgs., LLC, 282 A.3d 1054, 1069 (Del. Ch. 2022). That was the wrong standard. See Harris, 289 A.3d at 333 (comparing and contrasting the Officer-Consent Statute with Section 18-109(b) and noting that “the material participation standard in Section 18-109(b) sweeps more broadly than any language in Section 3114(b)”). The Company tried to claim that “Day admit[ted]” that was the operative standard. AB at 8 (citing OB at 7). As discussed previously parties cannot bind the court regarding the governing law, either formally or informally. See Part I.E., supra. A court can choose to treat an argument as waived, but need not do so. Waiver makes the most sense for case- specific or party-specific issues. Here, using the right standard for the Officer- 13  The Roles Clause is also flexible enough to account for some variation in roles. By its terms, the Roles Clause extends expressly to the chief legal officer, but a company might conceivably divide that role in two, perhaps with one person addressing traditional transactional and litigation matters and another addressing compliance. In that case, the Roles Clause would reach both co-equal senior legal officers; they could not evade the statute by acting as duumviri. That example generalizes. A company might have a president, CEO, and three executive vice presidents who collectively fill the role of chief operating officer. If a plaintiff could make the necessary evidentiary showing, then the Officer-Consent Statute would extend to the EVP triumvirate. What the Officer-Consent Statute cannot do is encompass the entire c-suite or extend more deeply into the organization. After scandals at Enron, Worldcom, Tyco, Global Crossing, and Adelphia, Chancellor Chandler and then-Vice Chancellor Strine spearheaded a legislative initiative to expand Section 3114 to include officers.33 The Consent Statute matters. Otherwise, a decision using the errant standard might reinforce the mistake, leading others to err and creating uncertainty. 33 See William B. Chandler III & Leo E. Strine, Jr., The New Federalism of the American Corporate Governance System: Preliminary Reflections of Two Residents of One Small State, 152 U. Pa. L. Rev. 953, 953 (2003). By advancing their initiative, the two judges ran with an idea that two academics had published earlier that year. Robert B. Thompson & Hillary A. Sale, Securities Fraud as Corporate Governance: Reflections Upon Federalism, 56 Vand. L. Rev. 859, 906 (2003) (“For Delaware to expand its focus on officer conduct it would have to amend its jurisdictional statute to include officers rather than just directors.”). See Chandler & Strine, supra, at 1004 n.125 (citing Thompson & Sale, supra, at 868–72). 14 General Assembly took up their initiative and enacted the Officer-Consent Statute in its current form.34 In an article formally published after the General Assembly had amended the Officer-Consent Statute, Chancellor Chandler and then-Vice Chancellor Strine explained their rationale: In the past year, several of the most prominent of the corporate scandals have involved (apparently) serious breaches of fiduciary duty by corporate officers and executives who were not directors. . . . [I]t would make sense for Delaware to adopt a new subsection of Section 3114 designed to cover top executives. This provision could be modeled on Section 3114 and simply state that top executives of Delaware companies consent to service of process in Delaware for claims brought against them in their official capacities as an officer or employee.35 In a footnote, they argued for “conservatism in the first instance” by tailoring the statute to “chief executive officers, presidents, chief operating officers, chief financial officers, chief technology officers, treasurers, general counsel, controllers, secretaries, and executive vice presidents.”36 The forward-looking language is confusing because by that time, the General Assembly had acted. Notably, however, the General Assembly had not adopted the Chandler-Strine initiative’s proposal on scope. The General Assembly instead chose 34 See Del. S.B. 126, 142d Gen. Assem. (2003) [hereinafter S.B. 126]. 35 Chandler & Strine, supra, at 1003. 36 Id. at 1004 n.126. 15 the more limited Roles Clause, supplemented by the other portions of the Officer Definition.37 The Roles Clause identifies three roles with a whole-company remit (president, chief executive officer, and chief operating officer), four roles in the finance function (chief financial officer, controller, treasurer, and chief accounting officer), and the chief legal officer.38 But those are not the only senior corporate roles. A bevy of c-suite titles now dot the landscape, including Chief Business Development Officer, Chief Compliance Officer, Chief Human Resources Officer, Chief Information Officer, Chief Information Security Officer, Chief Investment Officer, Chief Marketing Officer, Chief People Officer, Chief Product Officer, Chief Revenue Officer, Chief Risk Officer, Chief Science Officer, Chief Sustainability Officer, and Chief Technology Officer. There are also Executive Vice President and Senior Vice President roles with substantial portfolios that occupy rungs on organizational charts comparable to where a corporate controller or treasurer sits relative to a CFO. The Roles Clause does not automatically sweep in those other positions. Instead, the Roles Clause identifies a set of titles for corporate roles where a relatively 37 See S.B. 126; see also 10 Del. C. § 3114(b). 38 See 10 Del. C. § 3114(b)(1). Unfortunately, the legislative synopsis does not provide any insight into those choices. It states only that “[t]his amendment enables Delaware courts to exercise personal jurisdiction over persons who accept election or appointment as officers of a Delaware corporation, or who serve in such capacity, for claims brought against them in their official capacity.” See S.B. 126 syn. That is an exaggeration. If the Officer-Consent Statute had granted jurisdiction over all officers, then the description would be apt. The Officer Definition does not go that far. 16 stable consensus exists regarding their responsibilities. To bring a position with a different title within the Roles Clause, a plaintiff must demonstrate that the position’s responsibilities functionally equate to or significantly overlap with the responsibilities of an identified role. If not, then jurisdiction over the position under the Roles Clause does not exist. Likewise, if one or more individuals already hold the identified role or its functional equivalent, then jurisdiction over the additional position under the Roles Clause does not exist. The Company implicitly argues for a different, multi-factor test. First, the Company emphasizes that “Chief Strategy Officer” includes the word “officer.” True, but that only begins the inquiry. At one end of the officer spectrum, the Delaware General Corporation Law (the “DGCL”) establishes who qualifies as an officer in the formal sense: “Every corporation . . . shall have such officers with such titles and duties as shall be stated in the bylaws or in a resolution of the board of directors which is not inconsistent with the bylaws.” 39 The DGCL further provides that “[o]fficers shall be chosen in such manner and shall hold their offices for such terms as are prescribed by the bylaws or determined by the board of directors or other governing body.” 40 The DGCL thus contemplates that formal officers will receive some form of official empowerment by a duly authorized corporate organ. “Generally, the empowering authority will be the board or other governing body of the entity, but 39 8 Del. C. § 142(a). 40 Id. § 142(b). 17 it could be another duly empowered individual or group, such as a more senior officer for a more junior position.”41 At the other end of the officer spectrum, some large organizations have handed out inflated titles to the point where armies of employees can say they are vice presidents.42 Officer status matters for a variety of legal purposes, not just service of process under the Officer-Consent Statute. For some purposes, a junior vice president might be an officer; for others, perhaps not. The Officer Definition is plainly narrower than whoever has an officer title. When drafting the Roles Clause, the General Assembly selected three whole-company or operational roles, four finance roles, and one legal role. The General Assembly could have tracked the Chandler-Strine proposal. The General Assembly could have extended the Officer-Consent Statute to all formal DGCL officers. We have the statute we have. Next, the Company stresses that Day owed fiduciary duties to the Company. True again, and an example of the fallacy of consistent evidence. All officers are fiduciaries, but not all fiduciaries are officers.43 Agents also owe fiduciary duties,44 41 Harris, 289 A.3d at 330. 42 See Gilbert v. Unisys Corp., 2024 WL 3789952, at *11–13 (Del. Ch. Aug. 13, 2024); Aleynikov v. Goldman Sachs Gp., Inc., 2016 WL 3763246, *4–8 (Del. Ch. July 13, 2016), aff’d, 155 A.3d 370 (Del. 2017). 43 McRitchie v. Zuckerberg, 315 A.3d 518,534 n.12 (Del. Ch. Apr. 30, 2024). 44 All agents are fiduciaries. Restatement (Third) of Agency § 1.01 (A.L.I. 2006), Westlaw, (database updated Oct. 2024) [hereinafter Restatement of Agency] (defining 18 agency as “the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act”); see Sci. Accessories Corp. v. Summagraphics Corp., 425 A.2d 957, 962 (Del. 1980) (“It is true, of course, that under elemental principles of agency law, an agent owes his principal a duty of good faith, loyalty and fair dealing.”); Ramon Casadesus-Masanell & Daniel F. Spulber, Trust and Incentives in Agency, 15 S. Cal. Interdisc. L.J. 45, 68 (2005) (“While all agents are fiduciaries, not all fiduciaries are agents.”); Thomas Earl Geu, A Selective Overview of Agency, Good Faith and Delaware Entity Law, 10 Del. L. Rev. 17, 20 (2008) (explaining that fiduciary status is “a result of agency” and collecting authorities establishing the point); Barak Orbach, D&O Liability for Antitrust Violations, 59 Santa Clara L. Rev. 527, 560 n.2 (2020) (“All agents are fiduciaries but not all fiduciaries are agents”). There are Delaware cases which assert errantly that an agency relationship, standing alone, does not give rise to fiduciary duties on the part of the agent. See Wayman Fire Prot., Inc. v. Premium Fire & Sec., LLC, 2014 WL 897223, at *20 (Del. Ch. Mar. 5, 2014) (“Under Delaware law, the relationship of agent to principal does not itself give rise to fiduciary duties.” (citing Prestancia Mgmt. Gp., Inc. v. Va. Heritage Found., II LLC, 2005 WL 1364616, at *6 (Del. Ch. May 27, 2005)). That assertion can be traced to Metro Ambulance, Inc. v. Eastern Med. Billing, Inc., 1995 WL 409015, at *3 (Del. Ch. July 5, 1995) (“The existence of a principal/agent relationship does not, in and of itself, give rise to a fiduciary relationship.”). As the sole support for that assertion, Metro Ambulance cited Maull v. Stokes, 68 A.2d 200 (Del. Ch. 1949), but Maull did not say that not all agents are fiduciaries. The case involved a contractor who was hired to build a house and a garage. The contractor performed additional work not covered by the contract, and when he was not paid, he filed a mechanic’s lien. The homeowner sued in the Court of Chancery for an accounting, and the question was whether equitable jurisdiction existed. The court held that there is “an implied relation of principal and agent between the owner of property and a general contractor for the construction of a building thereon.” Id. at 202. In the sentence that Metro Ambulance seems to have relied on, Maull stated that “[e]quity will not compel an agent to account to his principal merely because of the existence of that relation.” Id. That sentence addresses the availability of an accounting. It does not suggest that some agents are not fiduciaries to their principals. To the contrary, the court exercised jurisdiction over the suit because (1) there was a fiduciary relationship and (2) the numerous details of the transaction meant that the matter could not be determined accurately or fairly by a jury in a court of law. Id. at 202–03. The assertion that some agents are not fiduciaries is not accurate and would cause Delaware law to conflict with settled doctrine. 19 and employees are agents.45 If Day did not owe fiduciary duties, that would negate his ability to qualify as an officer, which in turn would exclude him from the Officer- Consent Statute. Showing that Day owes fiduciary duties does not mean that he is an officer, nor that he comes within the Officer-Consent Statute. It means that he might be an officer and, if so, could come within the Officer-Consent Statute. Third, during oral argument, the Company suggested a pleading-stage presumption that anyone with “Chief” and “Officer” in their title would fall within the Roles Clause. But again, that is not what the Roles Clause says. 45 See Restatement of Agency § 7.07(3)(a) (“[A]n employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work . . . .”); accord Restatement (Second) of Agency § 429 (A.L.I. 1958), Westlaw (database updated Oct. 2024) (“The rules as to the duties and liabilities to the principal of agents who are not servants apply to servants.”); Restatement (First) of Agency § 2 (A.L.I. 1933), Westlaw (database updated Oct. 2024) (“A master is a species of principal, and a servant is a species of agent. The words ‘master’ and ‘servant’ are herein used to indicate the relationship from which arises the tort liability of an employer to third persons for the tort of an employee.”). See Restatement (Second) of Agency, supra, Index M100 (“A master is a principal; a servant is an agent with special powers and rights additional to those of agents not servants. Hence all the rules applicable to principal and agent apply to master and servant . . . .”). The Restatement of Employment Law takes the position that not all employees are agents, stating: “Employees in a position of trust and confidence with their employer owe a fiduciary duty of loyalty to the employer in matters related to their employment. Other employees who come into possession of the employer's trade secrets owe a limited fiduciary duty of loyalty with regard to those trade secrets.” Restatement of Employment Law § 8.01(a) (A.L.I. 2015), Westlaw (database updated Oct. 2024). For present purposes of negating the Company’s position that owing fiduciary duties leads to officer status, it matters only that some non-officer employees are agents and therefore fiduciaries. 20  The complaint does not allege facts supporting a reasonable inference that Day’s position as Chief Strategy Officer encompassed or substantially overlapped with an identified role. The complaint alleges that Day was responsible for managing relationships with significant customers and meeting thrice weekly with the CEO. The Employment Agreement states that Day “will perform all duties and accept all responsibilities incident to such position” or as assigned by his supervisor (the President) but does not spell out what those might be. The complaint also attaches an email from the post-signing, pre-closing phase in which the CEO told Day he would be responsible for cultivating strategic custome