Upon a quick read, it appears that while this particular case may be a loss for the plaintiffs, the Delaware Supreme Court has now explicitly recognized the duty of good faith as an independent and "non-exculpable, non-indemnifiable" duty. From p. 70 of the opinion:

"This third category is what the Chancellor’s definition of bad faith – intentional dereliction of duty, a conscious disregard of one’s responsibilities – is intended to capture. The question is whether such misconduct is properly treated as a non-exculpable, non-indemnifiable violation of the fiduciary duty to act in good faith. In our view it must be…”

Addendum to my first post on good faith as an independent duty: FN 112 states that "we do not reach or otherwise address the issue of whether the fiduciary duty to act in good faith is a duty that, like the duties of care and loyalty, can serve as an independent basis for imposing liability upon corporate officers and directors. That issue is not before us on this appeal."

So maybe this opinion just confirms that alleging bad faith can get you past the motion to dismiss? Looking forward to Gordon's thoughts on this and the other interesting aspects of this opinion.

I think that the Court's discussion of the plaintiffs' good faith arguments to ultimately be more confusing than illuminating! The three category discussion of good faith provides some direction, though without applicable facts one must wonder how this will really play out. And, as was noted, the Court clearly left the door open to good faith being an independent leg of fiduciary analysis.