8908 Kanis RemainCo LLC v. Gastroenterology and Surgery Center of Arkansas - LLC Membership Eligibility Dispute

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

POST-TRIAL MEMORANDUM OPINION

Date Submitted: February 25, 2026 Date Decided: April 15, 2026 Stephen C. Norman, Samuel G. Gustafson, POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; Counsel for Plaintiff 8908 Kanis RemainCo LLC. 8908 KANIS REMAINCO LLC ) David G. Holmes, CROSS & SIMON, LLC, Wilmington, Delaware; Jess Askew III, ) KUTAK ROCK LLP, Little Rock, Arkansas; Counsel for Defendants Gastroenterology ) Plaintiff,

and Surgery Center of Arkansas, P.A. and Alonzo Williams. ) ) C.A. No. 2025-0901-KSJM v.

McCORMICK, C. ) GASTROENTEROLOGY AND ) SURGERY CENTER OF ARKANSAS, ) P.A. and ALONZO WILLIAMS, ) ) ) Defendants, ) ) and ) GASTROENTEROLOGY AND ) SURGERY CENTER OF ARKANSAS ) II, LLC, ) ) ) Nominal Defendant.

The nominal defendant's LLC agreement establishes eligibility criteria for

membership and management. The plaintiff filed suit seeking declaratory judgments that the entity defendant does not meet the criteria to be a member and the individual defendant does not meet the criteria to be a manager. The defendants concede that they do not meet the eligibility criteria. But they interpret the LLC agreement to provide a single mechanism for divesting a member of its interests--an option to buy out the entity defendant upon its loss of eligibility. They argue that the option is waivable. They say that the plaintiff waived it here. And as a result, both defendants are able to maintain their posts. The defendants also raise a host of affirmative defenses, arguing that the plaintiff's own actions in managing the nominal defendant bar its claims for relief. This post-trial decision finds that the defendants' failure to meet eligibility requirements means that defendants lost their member status and managerial rights. The entity defendant, however, maintains its economic interests in the nominal defendant. Judgment is entered for the plaintiff.

1. FACTUAL BACKGROUND The court held trial on a paper record on February 11, 2026. The record comprises 65 trial exhibits. These are the facts as the court finds them after trial. 1

This decision cites to: C.A. No. 2025-0901-KSJM docket entries (by docket "Dkt." 1

number); trial exhibits (by "JX-" number); the trial transcript, Dkt. 45 ("Trial Tr.");

and stipulated facts set forth in the Joint Pre-Trial Stipulation and Order, Dkt. 40

("PTO"). The parties called the following witnesses by deposition: Mark Roberts

(8908 Kanis RemainCo Chief Restructuring Officer) and Alonzo Williams (GSC Owner and Former Surgery Center Medical Director). The transcripts of the

witnesses' respective depositions are cited using the witnesses' last names and "Dep. Tr."

1. Williams Forms The Surgery Center. Defendant Alonzo Williams is a gastroenterologist based in Arkansas. On 2 March 1, 2009, Williams formed Gastroenterology and Surgery Center of Arkansas II, LLC (the "Surgery Center" or the "Company") for the purpose of "own[ing] and operat[ing] an ambulatory surgery center in the Little Rock, Arkansas area, providing gastrointestinal procedures and other related medical services to outpatients[.]" Williams contributed "substantially all of the assets" of his pre- 3 existing surgical center to the Company at the time of formation. 4 The Company is governed by a Limited Liability Company Agreement (the

"LLC Agreement") also dated March 1, 2009. 5 The LLC Agreement creates two classes of membership interests--"Class A

Units," making up 49% of the Company's membership interests, and "Class B Units,"

making up 51%. Class B is intended for an investor-operator to run the Company's 6 non-medical operations. Class B Units may be freely transferred to any affiliate of 7 an existing Class B Member. 8

PTO ¶ 5. 2 PTO ¶ 8; JX-1 (LLC Agreement) at 1. 3 LLC Agreement at 1. 4 Id. 5 PTO ¶ 9; LLC Agreement § 1.1 (defining "Unit"); id., Schedule A. 6 Williams Dep. Tr. at 170:21-171:6. 7 LLC Agreement § 1.1 (defining "Permitted Transfer"). 8 2

Class A is intended for doctors who provide medical services at the Company's

facility in Little Rock. To that end, Class A unitholders, or "Class A Members," 9 10

must meet the "Class A Eligibility Criteria." The Class A Eligibility Criteria include 11

the "Physician Eligibility Criteria," and the two provisions together require that each

Class A Member is (or is wholly owned by) a physician that is licensed in Arkansas and is engaged full-time at the Surgery Center. Section 7.16 of the LLC Agreement 12

(the "Annual-Certification Requirement") requires that Class A Members certify in

writing each year that they satisfy the Physician Eligibility Criteria. 13

Gastroenterology and Surgery Center of Arkansas, P.A. ("GSC"), an Arkansas

professional association owned and controlled by Williams, was initially the sole member of the Company and held all of the member interests in the Surgery Center. 14 Concurrent with the formation of the Company, GSC transferred Class A Units to three other physicians. GSC retained a majority of the Class A Units. GSC 15 16

Williams Dep. Tr. at 170:9-15. 9 LLC Agreement § 1.1 (defining "Class A Manager," "Class A Member," and 10

"Member").

PTO ¶ 10; LLC Agreement § 1.1 (defining "Class A Eligibility Criteria"). 11 PTO ¶ 11; LLC Agreement § 1.1 (defining "Physician Eligibility Criteria"). This 12 decision quotes the definitions in full in the Legal Analysis. LLC Agreement § 7.16. 13 PTO ¶ 6; LLC Agreement at 1. 14 LLC Agreement, Schedule A at A-1; JX-2 at 1. 15 LLC Agreement, Schedule A at A-1. 16 3

transferred all of the Class B Units to Covenant Surgical Partners, Inc. ("Covenant"),

which was admitted as the sole Class B Member. 17 Section 8.2 of the LLC Agreement provides that Class A Members shall appoint

two "Class A Managers" to a four-person "Board." "Class B Members" shall appoint 18

two "Class B Managers." Managers hold office until a subsequent annual meeting, 19

or until a Manager's successor "is elected and qualified or until his earlier death,

resignation or removal." 20 Williams has served as a Class A Manager of the Surgery Center since 2009. 21 He also served as Medical Director of the Company pursuant to a Medical Director Services Agreement. Covenant managed the Company pursuant to a Management 22 Agreement. The LLC Agreement permits the Board to delegate authority under a 23 management agreement. The Board did so under the Management Agreement, which gave Covenant authority over the day-to-day operations of the Company. 24

Id. 17 LLC Agreement § 1.1 (defining "Class A Manager," "Class A Member," and 18

"Member"); id. § 8.2; PTO ¶ 12.

LLC Agreement § 8.2; PTO ¶ 12. 19 LLC Agreement § 8.2. 20 PTO ¶ 5. 21 Id. ¶ 15. 22 JX-4 (Mgmt. Agreement). 23 Id.; LLC Agreement § 8.1. 24 4

Section 12.3.1 of the LLC Agreement (the "Option Provision") provides Class A

Members with a call option for the Class A Units of other Class A Members. If a 25 Class A Member goes bankrupt, makes an assignment for the benefit of creditors, is subject to a receivership or trust, violates noncompetition provisions, fails to satisfy the Annual-Certification Requirement or otherwise fails to satisfy the Class A

Eligibility Criteria, the other Class A Members have the "right, but not the obligation"

to purchase the Class A units owned by that Member. If the other Class A Members 26 do not exercise the option, the option passes to the Company. The Class A Members' 27 option expires 30 days after the Company gives them notice. The Company's option 28

expires 30 days after the Class A Members' option expires. The Option Provision 29 also lays out a formula to calculate the option's exercise price. 30

1. Williams Buys McGee Out Of The Surgery Center. Over time, Class A Members left the Surgery Center. And according to Williams, physicians that left the Surgery Center still retained an equity position in the Company until they were bought out or transferred their interests to another physician. By 2023, GSC and an entity owned by Dr. Brian McGee were the only 31

PTO ¶ 14. 25 LLC Agreement § 12.3.1. 26 Id. 27 Id. 28 Id. 29 Id. 30 Williams Dep. Tr. at 185:24-186:15. 31 5

two remaining Class A Members. McGee relinquished his privileges on August 25, 32

2023 following Williams's decision not to renew McGee's employment contract. 33 As McGee was no longer employed at the Surgery Center, he failed to satisfy the Physician Eligibility Criteria. Williams, as the only other Class A Member, 34 sought to exercise his option to buy McGee's Class A Units. McGee initially objected,

stating through counsel that there was no "meeting of the minds" as to the exercise

price. Williams, through counsel, responded that McGee's "failure to satisfy the 35

Physician Eligibility Criteria" triggered Williams's option subject to the exercise- price formula in the Option Provision, and that no additional "meeting of the minds"

on price was necessary. The parties ultimately agreed that Williams, through GSC, 36

would purchase McGee's Class A Units using the exercise-price formula in the Option

Provision. Covenant assisted in calculating the exercise price. 37 38

1. Williams's Misconduct Comes To Light. From August 2023 through March 2024, the Arkansas State Medical Board

(the "Medical Board") received numerous complaints about Williams. The 39 complaints, including one filed by a former Surgery Center employee (the "Former PTO ¶ 16. 32 Id. ¶ 18; JX-6; JX-7. 33 JX-8 at 2. 34 JX-8 at 4. 35 Id. at 2. 36 PTO ¶ 19; JX-47. 37 JX-8 at 2. 38 JX-20 at 4. 39 6

Employee"), alleged that "Williams engaged in inappropriate sexual conduct with an

employee, engaged in inappropriate prescribing, and performed numerous inappropriate medical procedures." On October 5, 2023, the Arkansas State 40 Medical Board initiated its investigation into Williams. On March 5, 2024, counsel 41 for the Former Employee contacted a regulatory manager for the Medical Board, 42 submitting a declaration from the Former Employee recounting appalling allegations

of Williams's sexual misconduct and inappropriate medical practices. 43 Six days later, the Arkansas Office of Medicaid Inspector General issued a letter to Williams and the Company stating that "there is a credible allegation of fraud, including but not limited to allegations that [Williams] performed certain procedures that were not medically necessary, failed to adequately assess certain beneficiaries before invasive procedures, and billed for services not rendered." As a 44 result, the Inspector General suspended all Medicaid payments to the Company for services performed by Williams. To date, the Inspector General has not lifted its 45 suspension of Medicaid payments pending the results of a full investigation. 46

Id.; JX-9 at 1. 40 JX-20 at 4; JX-34 at 3. 41 See JX-20 at 1. 42 JX-9 at 2-12. 43 JX-10 at 1. 44 Id.; Williams Dep. Tr. at 133:9-11 (agreeing that the provider referenced in the 45

Inspector General's letter was Williams).

Williams Dep. Tr. at 135:4-9. 46 7

On March 22, 2024, Covenant learned of the Former Employee's allegations

against Williams. The Former Employee's counsel contacted Covenant's counsel and described the Medical Board's investigation and the Former Employee's

declaration. At his deposition, Williams admitted to certain allegations leveled by 47 the Former Employee, including having a sexual relationship with the Former Employee while he was serving as the Surgery Center's medical director. Williams 48

also confirmed that he paid employees "cash bonuses" if they could schedule "at least

90 procedures in three days." 49

1. Covenant Transfers Its Class B Units To Plaintiff And

Scrambles To Wind Down The Surgery Center. Around the time it learned of Williams's alleged misconduct and related

investigations, Covenant had been negotiating a deal whereby United Surgical Partners International would acquire a controlling stake in Covenant. On March 50 23, the day after Covenant learned of the Former Employee's declaration, Covenant and United Surgical Partners agreed to a closing condition requiring Covenant to divest its membership interests in the Surgery Center before United Surgical

Partners' acquisition. 51

JX-55. 47 Williams Dep. Tr. at 141:8-11, 65:15-17. 48 Id. at 142:20-143:2. 49 JX-62 ¶¶ 3-5. 50 Id. ¶¶ 5-6. 51 8

Covenant worked quickly to distance itself from the Surgery Center. On March 28, Covenant shut down the Surgery Center's operations and terminated its Management Agreement with the Surgery Center. The next day, Covenant 52 transferred its 51% interest in the Company to 8908 Kanis RemainCo LLC

("Plaintiff") under an Interest Purchase Agreement, and the United Surgical

Partners acquisition closed. But in its haste, Covenant never sought to amend the 53 LLC Agreement to reflect Plaintiff's admission as a Member. Nor did Plaintiff 54 appoint any Class B Managers. 55 In May 2024, Plaintiff engaged consulting firm Alvarez & Marsal and appointed Alvarez & Marsal partner Mark Roberts to serve as Plaintiff's Chief Restructuring Officer. Roberts began negotiating and executing severance 56 agreements with Surgery Center employees. 57 In late July and early August 2024, counsel for Covenant and Plaintiff contacted counsel for Williams requesting that Williams authorize Alvarez & Marsal to act on behalf of the Surgery Center. Williams then learned about Plaintiff's 58 ownership of Class B Units for the first time. 59 JX-11; PTO ¶ 26. 52 JX-12; JX-62 ¶ 3; JX-59 at 2. 53 PTO ¶ 28. 54 Id. ¶ 27. 55 JX-43 at 4-5; Roberts Dep. Tr. at 22:8-23:24. 56 Roberts Dep. Tr. at 20:19-21:8; see, e.g., JX-57. 57 JX-59 at 1-2. 58 Id. 59 9

1. Williams's Medical License Is Revoked. Also in August 2024, the Medical Board held a two-day disciplinary hearing on Williams's alleged misconduct. On August 13, 2024, the Medical Board issued its 60

"Findings of Fact, Conclusions of Law, and Order." The Medical Board found that 61

Williams was running a "pill mill" for opioids and endangered patients with

unnecessary medical procedures. For example, the Medical Board found:

• "Patient records of [Williams] show repeated [colonoscopies, negative biopsies, and esophagogastroduodenoscopies ("EDG")] . . . . The pattern of practice . . . displays gross overutilization with unnecessary risk of

harm." 62

• "Patient K.T.'s medical records also show troublesome prescribing by Dr. Williams. K.T. was fired from Williams's clinic in March 2022 after a confrontation about diversion with pharmacies. By early 2023, K.T. had been tapered down to [a prescription of 15 lorazepam pills, each at 0.5 milligrams] by pain doctors. When K.T. returned to Dr. Williams in

March 2023, K.T. immediately received two [] separate prescriptions [of 60 and 30 lorazepam pills, each at 2 milligrams] written one [] day apart.

This pattern of prescribing two [] controlled prescriptions a few days apart was repeated in July 2023 . . . . In March 2023 and in July 2023, one [] prescription was filed on insurance and one [] was purchased with

another source of payment." 63

• "Dr. Williams performed approximately 97 EGD procedures on patient L.B. during a ten [] year period. All the 97 EGD procedures were performed with a corresponding esophageal dilation procedure." 64

JX-20 at 4. 60 Id. at 15. 61 JX-20 at 6 (emphasis added). 62 Id. (emphasis added). 63 Id. at 8 (emphasis added). 64 10

• "Dr. Williams performed in excess of 120 biopsies of A.L. over a ten [] year period." 65

On August 13, the Medical Board revoked Williams's medical license, among

other sanctions. Williams filed an appeal in September 2024, and a trial was held 66 on April 15, 2026. 67

1. Plaintiff Continues To Wind Down The Surgery Center. In October 2024, as part of efforts to wind down the Company, Plaintiff requested that Williams sign a written consent granting Roberts limited power of attorney to act on the Surgery Center's behalf to pay vendor invoices, terminate

vendor contracts, and file the Surgery Center's tax returns (the "October 2024 Written Consent"). The October 2024 Written Consent also sought to appoint 68 Roberts as Class B Manager and ratify any actions Roberts took on the Surgery

Center's behalf prior to his appointment. The October 2024 Written Consent 69 described Williams as a Class A Manager and as acting on behalf of GSC, the sole Class A Member. But Williams never signed the agreement. 70 71

Id. (emphasis added). 65 Id. at 14-15. 66 JX-21 at 1; JX-45 at 1. 67 JX-24 at 1-2. 68 Id. at 2. 69 Id. 70 See JX-25 at 1. 71 11

1. Williams Fails To Re-Certify And Plaintiff Files This Litigation. Having had his medical license revoked, Williams failed to certify that he met the LLC Agreement's Physician Eligibility Criteria on April 1, 2025. That same 72 month, the City of Little Rock served a notice of business license delinquency on the Surgery Center. But Plaintiff had still not received Williams's consent to complete 73 the Surgery Center's wind-down. On June 5, 2025, Plaintiff sent a letter to Williams expressing frustration that

"[Plaintiff] has sought [Williams's] cooperation to address operational requirements and corporate wind down of" the Surgery Center, but Williams "has refused to appoint

an officer of [the Surgery Center] or even grant someone limited power of attorney to facilitate the payment of outstanding [Company] invoices . . . and relinquish

applicable licenses and permits." The letter attached a written consent (the "June 74

5 Written Consent") for Williams's signature. And the letter warned that if 75 Williams did not sign the written consent in four days, Plaintiff would begin to take action on behalf of the Surgery Center to wind down operations, including relinquishing permits, settling invoices, terminating contracts, liquidating equipment, engaging a patient-record custodian, and filing for dissolution. 76

PTO ¶ 32. 72 JX-27 at 2. 73 JX-31 at 1. 74 JX-32. 75 JX-31 at 1-2. 76 12

Williams again did not sign the Written Consent. One month later, Plaintiff filed this action against Williams and GSC ("Defendants"). In its complaint, Plaintiff alleges deadlock and seeks expedited declaratory relief under 6 Del. C. §§ 18-110-11 determining that GSC is not a Class A Member of the Surgery Center and that Williams is not a Class A Manager of the Surgery Center. Defendants answered 77 the complaint in September 2025 and the parties agreed to an expedited schedule in October 2025. The court held a one-day trial on the papers on February 11, 2026. 78 79

1. LEGAL ANALYSIS Plaintiff seeks a declaratory judgment that because GSC cannot satisfy the Class A Eligibility Criteria, GSC is no longer a Class A Member and Williams is no longer a Class A Manager. Defendants dispute Plaintiff's contractual interpretation 80 and raise affirmative defenses. Plaintiff bears the burden of proving its claim, and Defendants bear the burden of proving the affirmative defenses, by a preponderance of the evidence. 81

Dkt. 1 at 13, 15-17. 77 Dkts. 9, 16. 78 Dkt. 43. 79 Dkt. 29 ("Pl.'s Pre-Trial Opening Br.") at 17-20. 80 Lillis v. AT & T Corp., 2008 WL 2811153, at *4 (Del. Ch. July 21, 2008), aff'd sub 81

nom. AT&T Corp. v. Lillis, 970 A.2d 166 (Del. 2009); Lighthouse Behav. Health Sols., LLC v. Milestone Addiction Counseling, LLC, 2023 WL 3486671, at *9 (Del. Ch. May

17, 2023). 13

1. Contract Dispute

The court's task is to interpret the LLC Agreement in a way that carries out

the parties' intent. Absent ambiguity, the court "will give priority to the parties' 82 intentions as reflected in the four corners of the agreement, construing the agreement

as a whole and giving effect to all its provisions." The contract terms will be given 83

"plain, ordinary meaning." "[T]he meaning which arises from a particular portion 84 of an agreement cannot control the meaning of the entire agreement where such

inference runs counter to the agreement's overall scheme or plan." The court must 85

"reconcile all the provisions of the instrument" if possible. 86

Where language is unambiguous, courts "will give effect to the plain meaning of the contract's terms and provisions." "Language is ambiguous if it is susceptible 87

to more than one reasonable interpretation." "An interpretation is unreasonable if 88

it 'produces an absurd result' or a result 'that no reasonable person would have

Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 739 (Del. 2006). 82 In re Viking Pump, Inc., 148 A.3d 633, 648 (Del. 2016) (quoting Salamone v. 83

Gorman, 106 A.3d 354, 368 (Del. 2014)).

Alta Berkeley VI C.V. v. Omneon, Inc., 41 A.3d 381, 385 (Del. 2012) (citing City 84

Investing Co. Liquidating Tr. v. Cont'l Cas. Co., 624 A.2d 1191, 1198 (Del. 1993)).

E.I. du Pont de Nemours & Co. v. Shell Oil Co., 498 A.2d 1108, 1113 (Del. 1985); 85

accord HUMC Holdco, LLC v. MPT of Hoboken TRS, LLC, 2020 WL 3620220, at *6

& n.40 (Del. Ch. July 2, 2020); Great Hill Equity P'rs IV, LP v. SIG Growth Equity

Fund I, LLLP, 2018 WL 6311829, at *50 & n.648 (Del. Ch. Dec. 3, 2018).

Elliott Assocs., L.P. v. Avatex Corp., 715 A.2d 843, 854 (Del. 1998). 86 Manti Hldgs., LLC v. Authentix Acq. Co., Inc., 261 A.3d 1199, 1208 (Del. 2021) 87 (quoting Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159-60 (Del. 2010)). Id. (citing Osborn, 991 A.2d at 1160). 88 14

accepted when entering the contract.'" "The parties' steadfast disagreement over 89

interpretation will not, alone, render the contract ambiguous." "Ambiguity does not 90

exist where the court can determine the meaning of a contract 'without any other

guide than a knowledge of the simple facts on which, from the nature of language in

general, its meaning depends.'" If ambiguity exists, then the court "may consider 91

extrinsic evidence to resolve the ambiguity." 92

1. Plaintiff's Position

Plaintiff's contract claim relies on the Class A Eligibility Criteria, the

Physician Eligibility Criteria, and the Annual-Certification Requirement (the "Class

A Eligibility Provisions").

The Class A Eligibility Criteria requires that Class A Members: be either (i) a Physician that meets the Physician Eligibility Criteria; (ii) an entity all the Equity Interests in which are owned by Physicians who meet the Physician Eligibility Criteria; or (iii) an entity that satisfies the definition of group practice set forth in 42 CFR, Section 1001.952(p) and is not a Sanctioned Entity. 93 In essence, the Class A Members must be physicians, or must be wholly owned by physicians, that meet the Physician Eligibility Criteria. The Physician Eligibility Criteria requires that physicians: Id. (quoting Osborn, 991 A.2d at 1160). 89 Id. 90 Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196 91 (Del. 1992) (quoting Holland v. Hannan, 456 A.2d 807, 815 (D.C. App. 1983)). Salamone, 106 A.3d at 374 (citation omitted). 92 LLC Agreement § 1.1. 93 15

(i) . . . are licensed to practice medicine in the State of Arkansas; (ii) be on the active staff of the Surgery Center and continuously meet the credentialing requirements established by the medical staff at the Surgery Center[.]" 94 The above requirements are conjunctive. Physicians must be licensed, on the active staff of the Surgery Center, and continuously credentialed. The Annual-Certification Requirement requires that Class A Members: [o]n or before April 1st of each year, . . . certify annually to the Company in writing, with respect to the prior Fiscal Year as applicable: (i) that each Class A Member that is a Physician satisfies the Physician Eligibility Criteria, or (ii) (a) that each Class A Member that is not a Physician satisfies the Class A Member Eligibility Criteria, and that the organizational or applicable governing documents of such Class A Member contain provisions obligating the Class A Member to redeem all of the Equity Interests owned by any of its equity owners that fail to satisfy the Physician Eligibility Criteria[.] 95 Taken together, the Class A Eligibility Provisions require that Class A Members be physicians, or entities wholly owned by physicians, licensed to practice medicine in Arkansas, on the active staff at the Surgery Center, and current in their credentials. And if the Class A Member is an entity, then it must be able to remove equity owners that are not appropriately credentialed physicians. Class A Managers are Class A Members or owners of Class A Members, which can only be physicians. 96

Plaintiff's argument is straightforward: Williams is no longer licensed to

practice medicine in Arkansas, and he therefore does not satisfy the Physician Id. 94 LLC Agreement § 7.16. 95 Id. § 8.2. 96 16

Eligibility Criteria. Thus, GSC, who was previously a Class A Member, is no longer wholly owned by a physician meeting the Physician Eligibility Criteria, which is a requirement under the Class A Eligibility Criteria. So, GSC is no longer a Class A Member. And because GSC is no longer a Class A Member, Williams is no longer a 97 Class A Manager.

1. Defendants' Position Defendants do not dispute that they no longer satisfy the Class A Eligibility Provisions. But they argue that Williams's failure to satisfy the Physician Eligibility

Criteria does not automatically result in GSC's removal as a Class A Member nor

Williams's removal as a Class A Manager. According to Defendants, the LLC 98 Agreement sets forth a single and discretionary process for removing a noncompliant Class A Member: the Option Provision. 99 The Option Provision states: Upon the occurrence of any of the following events with

respect to a Class A Member (the "Call Option Member"),

the Class A Members other than the Call Option Member

(the "Member Option Holders") and then the Company

shall have the right (as set forth in this Section 12.3.1), but not the obligation, subject to Section 12.12 hereof, to purchase the Class A Units owned by the Call Option Member: . . . 100

Pl.'s Pre-Trial Opening Br. at 17-20. 97 Dkt. 32 ("Defs.' Pre-Trial Answering Br.") at 15. 98 Id. at 16-19. 99 LLC Agreement § 12.3.1. 100 17

One of the "occurrences" of non-compliance triggering the option relates the

Class A Eligibility Provisions: if the Call Option Member or any Person owning an Equity Interest cannot satisfy the certification requirements in Section 7.16 or otherwise fails to satisfy the Class A Member Eligibility Criteria. 101 The Option Provision states that once the Company learns of a Class A

Member's noncompliance, it must: "notify the Member Option Holders in writing of

the occurrence of the event and the Member Option Holders' right . . . (the 'Section

12.3.1 Notice')." The Member Option Holders have 30 days from the Section 12.3.1 102

Notice to "give written notice" to the noncompliant Class A Member of their exercise

of the option. If the Member Option Holders do not give notice within 30 days, "the 103 right of the Member Option Holders under this Section 12.3.1 shall expire as to the particular event that gave rise to such right, and the Company shall have the right, but not the obligation, to purchase the Class A Units[.]" 104 Putting it together, if a Class A Member fails to satisfy the Class A Member Eligibility Provisions, the other Class A Members and then the Company have the option to purchase the Class A Units owned by the noncompliant Member. To exercise the option, the Company must first notify the option holders of the event of noncompliance. The option holders must then send a notice of their intention to

Id. 101 Id. 102 Id. 103 Id. 104 18

exercise the option within thirty days of being notified of the event of noncompliance. If the option holders do not provide timely notice or do not exercise the option, the option holders may not exercise the option based on that event of noncompliance. Defendants argue that the Option Provision is the exclusive mechanism for removing a noncompliant Class A Member. The LLC Agreement does not state this expressly. But according to Defendants, if a Class A Member could be removed automatically by failing to satisfy the Class A Eligibility Criteria, then the Option Provision would be meaningless and there would be no reason to create an option to purchase the Class A Units of a noncompliant Member. 105 Further, because the Option Provision creates an option that can expire, Defendants argue the LLC Agreement contemplates a scenario where a noncompliant Class A Member can remain a Class A Member if neither the Member Option Holders nor the Company exercises the option. Here, there are no Class A Members other 106 than GSC, and Plaintiff declined to exercise the option on behalf of the Company despite knowing GSC failed to satisfy the Physician Eligibility Criteria on April 1,

1. Thus, Defendants say, the option expired with respect to GSC's failure to satisfy the Physician Eligibility Criteria in 2025. 107

Defs.' Pre-Trial Answering Br. at 19 (citing, inter alia, Osborn ex rel. Osborn v. 105

Kemp, 991 A.2d 1153, 1159 (Del. 2010) (stating that the court must "read a contract

as a whole and . . . give each provision and term effect, so as not to render any part of

the contract mere surplusage.")).

Defs.' Pre-Trial Answering Br. at 20. 106 Id. at 18-19. 107 19

Plaintiff does not dispute that the Option Provision is the only mechanism by which it may buy out GSC's economic interests in the Company. But Delaware law recognizes a distinction in the LLC context between management and economic rights. "Economic interests in limited liability companies may be owned by persons who are not members." For example, 6 Del. C. 18-702(b) provides that being 108 assigned economic units in an LLC affords the unitholder economic rights only; the unitholder is not entitled to exercise the rights or powers of a member unless otherwise provided in the operating agreement. The inverse can also be true: in 109 the case of the bankruptcy of a unitholder, 6 Del. C. 18-304 revokes that unitholder's right to participate in management, but the unitholder retains her economic interest in the LLC. An operating agreement, like the LLC Act, may thus revoke 110 membership status while permitting the unitholder to retain economic interests. Plaintiff argues that Defendants' interpretation conflates managerial and economic rights. According to Plaintiff, no one intended and the LLC Agreement does not require that a noncompliant member have managerial rights. And if a 111 EBG Hldgs. LLC v. Vredezicht's Gravenhage 109 B.V., 2008 WL 4057745, at *2 108 n.27 (Del. Ch. Sept. 2, 2008) (citing Robert K. Symonds, Jr. & Matthew J. O'Toole,

Symonds & O'Toole on Delaware Limited Liability Companies § 1.04[C][2], at 1-20

(2007 ed.)). See Riverside Risk Advisors LLC v. Chao, 2022 WL 14672745, at *21 (Del. Ch. Oct. 109 28, 2022), judgment entered sub nom. Riverside Risk Advisors LLC v. Ching Chao (Del. Ch. 2023), and aff'd, 303 A.3d 51 (Del. 2023); Mack Bros. v. Keypoint Intel., LLC, 2025 WL 3041804, at *12-14 (Del. Ch. Oct. 29, 2025). 6 Del. C. 18-304; Zachman v. Real Time Cloud Servs. LLC, 251 A.3d 115, 2021 WL 110 1561430, at *3 (Del. 2021) (TABLE). Dkt. 35 ("Pl.'s Pre-Trial Reply Br.") at 5-7. 111 20

noncompliant Class A Member could retain membership rights after the option right

expires, the LLC Agreement's requirement that Class A Members must be "active"

on the Surgery Center's staff and must "continuously" meet the Class A Eligibility Criteria would have little meaning.

1. Resolving Contractual Ambiguity

Each side's interpretation of the parties' contractual scheme governing

noncompliant members is reasonable. The LLC Agreement is thus ambiguous as to

the parties' contract dispute. The court may therefore consider extrinsic evidence to discern the parties' intent, including "the history of negotiations, earlier drafts of the

contract, trade custom, or course of performance." 112 Plaintiff relies on Williams's deposition testimony that Class A was intended

for "physicians that were going to provide the medical services at the Surgery

Center." Plaintiff argues that his testimony serves as evidence of the parties' 113 intent to limit Class A membership and managerial rights to those satisfying the Physician Eligibility Criteria. 114

Defendants point to the parties' course of performance. GSC purchased McGee's Class A Units after McGee became noncompliant when he relinquished his

privileges at the Surgery Center. They say Plaintiff's predecessor Covenant 115 In re Westech Cap. Corp., 2014 WL 2211612, at *9 (Del. Ch. May 29, 2014), rev'd 112

in part on other grounds, Salamone v. Gorman, 106 A.3d 354 (Del. 2014).

Williams Dep. Tr. at 170:9-15. 113 Pl.'s Pre-Trial Opening Br. at 5. 114 JX-8 at 2; PTO ¶ 19; JX-47. 115 21

assisted GSC in calculating the exercise price under the Option Provision, suggesting Plaintiff recognizes the Option Provision's valid application to noncompliant Class A unitholders. 116 Neither party made a robust showing of extrinsic evidence. But Plaintiff has at least demonstrated by a preponderance of the evidence that the contracting parties intended to ensure that only licensed physicians active at the Surgery Center be involved in the management of the Company.

The parties' course of performance does not contradict this conclusion. Rather, Plaintiff's and GSC's involvement in buying out McGee's Class A Units demonstrates

only that Class A unitholders' equity positions remain intact when they become noncompliant. Williams described this practice at his deposition, and Plaintiff does not dispute it. 117 Nor does the parties' course of performance suggest that the Option Provision is the only way to extinguish a Class A unitholder's status and managerial rights. The fact that Williams exercised an option against McGee does not address what would have happened if McGee continued to assert managerial rights at the Company. Williams's buyout of McGee under the Option Provision suggests only that

JX-8 at 2. Defendants also argue that Plaintiff acknowledged GSC's Class A 116

Membership and Williams's status as Class A Manager when it sent Williams the

June 5 Written Consent, and thus waived any argument to the contrary. Defs.' Pre- Trial Answering Br. at 20-22, 27. But the June 5 Written Consent states only that

GSC "holds all of the Class A Units of the Company" and does not address whether

GSC is a Class A Member or whether Williams is a Class A Manager. JX-32 at 1. Williams Dep. Tr. at 185:24-191:10. 117 22

McGee, though failing to meet the Class A Eligibility Criteria, retained economic rights in the Surgery Center. Because Plaintiff has proven by a preponderance of the evidence that the LLC Agreement intended to limit managerial rights to Class A unitholders who are licensed physicians and providing medical services at the Company, the Class A Eligibility Provisions are a basis to revoke the status and managerial rights previously afforded to GSC and Williams.

1. Affirmative Defenses Based on a smattering of factual assertions, Defendants raise a series of affirmative defenses to Plaintiff's claims: prior breach, unclean hands, acquiescence, waiver, ratification, and estoppel. But none of Defendants' arguments work. 118 Defendants point out that Plaintiff, as a Class B Member, never appointed a Class B Manager or appointed a secretary. But even if Plaintiff had a duty to do 119 so, Defendants do not demonstrate or even argue that Plaintiff's failure to do so was material and justifies barring Plaintiff's relief. Defendants claim that Plaintiff failed to notify the Company when it became a Member, but Defendants do not demonstrate or argue that Plaintiff was required to do so under the LLC Agreement. 120

Defs.' Pre-Trial Answering Br. at 24-28. 118 Id. at 22-24. 119 Id. at 23. 120 23

Defendants claim that Plaintiff, by not causing the Company to exercise an option against GSC previously, waived any arguments regarding the Class A Eligibility Provisions. But even if Plaintiff or the Company waived the right to 121 exercise an option when GSC failed to meet the Class A Eligibility Criteria--and Defendants did not prove that they did--it does not follow that Plaintiff waived its litigation position or acquiesced to GSC's attempts to remain a Class A Member. Defendants claim that Plaintiff violated Section 13.1 of the LLC Agreement,

which governs the dissolution of the Company. Section 13.1 states: "The Company shall be dissolved upon the occurrence of any of the following events ("Dissolution Events"): (a) the Members' voting to dissolve the Company; (b) the expiration of the Initial Term; or (c) as may be otherwise required by the Act." Defendants claim 122 that since the Members did not vote on dissolution, Plaintiff breached this provision when it wound down operations. But Plaintiff did not file for dissolution of the 123 Company. Covenant shut down the Surgery Center's operations and terminated its Management Agreement with the Surgery Center. This defense also fails. 124

Defendants' affirmative defenses do not bar Plaintiff's claims for relief.

Id. at 26-28. 121 LLC Agreement § 13.1. 122 Defs.' Pre-Trial Answering Br. at 28-30. 123 JX-11; PTO ¶ 26. 124 24

1. CONCLUSION GSC is no longer a Class A Member and Williams is no longer a Class A Manager under the LLC Agreement. But GSC retains the equity position associated with its ownership of Class A Units. Judgment on Count I is entered in favor of Plaintiff. The LLC Agreement contains a fee-shifting provision, and Defendants do 125 not dispute its application. Plaintiff is entitled to fees and costs, including 126

reasonable attorneys' fees and costs, incurred in connection with this action. 127 Plaintiff must prepare a form of Final Order and Judgment reflecting this decision, including the amount of fees and expenses it has incurred. Plaintiff must send that form of order to Defendants, along with an affidavit supporting its fee and expense figure. The parties must meet and confer over any disputes concerning the form of order. If the parties cannot resolve their disputes, they may submit competing proposed forms of order. Otherwise, the parties must submit a stipulated form of

order for the court's review.

LLC Agreement § 15.12. 125 Defs.' Pre-Trial Answering Br. at 30-31. 126 LLC Agreement § 15.12. 127 25