Dear Counsel:

I have read and considered the motion for clarification and reargument filed by the individual defendants and the plaintiff's response. That motion concerns the portion of the March 23, 2009 Memorandum Opinion in this case that, among other things, denied a motion to dismiss on the statute of limitations grounds for claims arising on or after August 31, 2001. The question presented is whether the Memorandum Opinion determined the statute of limitations issue on the merits or, instead, limited its holding to the analysis of the well pleaded allegations of the complaint, applying the familiar standard of analysis pursuant to Court of Chancery Rule 12(b)(6).

While the Memorandum Opinion could have been more clear in this regard, it is intended only to resolve the motion to dismiss and should not be construed as deciding the ultimate question of whether the defense of laches or statute of limitations will prevail as to claims arising more than three years before the institution of this action. As noted at oral argument, there is no hard and fast rule tolling the running of the statute of limitations during the pendency of books and records litigation. The pendency of such an action, and the relationship between it and the claims eventually filed, may in some circumstances operate to toll the limitations period, as in Technicorp Int'l II, Inc. v. Johnson, 2000 WL 713750, at *9 (Del.Ch. May 31, 2000), or Orloff v. Shulman, 2005 WL 3272355 at *10 (Del.Ch. Nov. 23, 2005). However, in this case there are material issues of fact regarding the state of the plaintiff's knowledge before the books and records litigation began, rendering the question unsuitable for disposition on the face of the complaint. Instead, the individual defendants will have the opportunity to prove, if they can, on a full record that the facts do not justify the same treatment here. Thus, and to that extent, the motion is GRANTED. IT IS SO ORDERED.