BLANCHARD, P.J.
¶ 1 Data Key Partners, a former minority shareholder in Renaissance Learning, Inc., appeals a circuit court judgment that dismissed Data Key's claims arising out of the sale of Renaissance to Permira Advisors, LLC. Data Key alleged that Renaissance's directors and its majority shareholders (who are also directors) breached
¶ 2 We conclude that the circuit court should not have applied the business judgment rule to Data Key's claims at the motion to dismiss stage. Based in part on that conclusion, we further conclude that the court erred in dismissing Data Key's claim against the directors for breach of fiduciary duty. We also conclude that the court erred in dismissing Data Key's claim against the Pauls for breach of fiduciary duty in their capacity as majority shareholders. However, Data Key fails to persuade us that the court erred in dismissing the claim against the directors for failure to disclose information and the claim against Permira for aiding and abetting breaches of fiduciary duty. We reverse and remand for further proceedings on Data Key's surviving claims.
¶ 3 Unless otherwise indicated, the facts below are drawn from the allegations in Data Key's complaint. We take the allegations as true for purposes of Data Key's appeal from the circuit court's decision on a motion to dismiss for failure to state a claim. See Northridge Co. v. W.R. Grace & Co., 162 Wis.2d 918, 923, 471 N.W.2d 179 (1991). We summarize some of the most pertinent allegations here, referencing additional allegations as needed in discussion below.
¶ 4 Renaissance was a publically traded Wisconsin corporation before being sold to Permira and affiliated entities. The board of directors of Renaissance included Terrance and Judith Paul. The Pauls co-founded Renaissance and owned or controlled a majority of its shares.
¶ 5 As indicated above, Data Key was a minority shareholder in Renaissance. Renaissance had approximately 29 million shares of common stock outstanding, held by approximately 269 stockholders and by more than 2,000 beneficial owners.
¶ 6 It is undisputed for purposes here that the sale of Renaissance required the approval of a majority of its board and a majority of its shareholders.
¶ 7 The events leading to the sale of Renaissance to Permira began with the Pauls' decision to "cash out" their ownership in Renaissance as part of their retirement plans. Given the large number of shares that the Pauls held, they were unable to sell their shares on the open market. Also, the Pauls believed they could maximize the share price by selling the entire company. The Pauls' personal banker, Goldman Sachs, was selected to act as financial advisor for the sale of Renaissance.
¶ 8 Renaissance and Permira entered into an "Agreement and Plan of Merger" under which Permira would merge with or purchase Renaissance for $14.85 per share.
¶ 9 The Renaissance board of directors rejected the Plato offer and instead entered into an amended agreement with Permira under which Permira would pay
¶ 10 Plato made a revised offer consisting of $15.10 per share for the Pauls and $18 per share for minority shareholders, equaling an aggregate purchase price of approximately $471 million. The Pauls informed the other board members that they would not support acceptance of this revised Plato offer.
¶ 11 Plato made a third offer for a total of approximately $496 million. This offer was also rejected by Renaissance leadership, and Renaissance was sold to Permira. From what we can discern from the parties' arguments and the record, the sale resulted in a price of $15 per share for the Pauls and $16.60 per share for minority shareholders, consistent with the amended agreement between Renaissance and Permira.
¶ 12 Alleging that it represented the minority shareholders as a class, Data Key sued the Pauls, the other Renaissance directors, and Permira.
(1) A claim against the Renaissance directors, including the Pauls, for breach of fiduciary duty. Data Key alleged breach of those duties based on a variety of conduct, including that the non-Paul directors abdicated their responsibilities as directors and submitted to the will of the Pauls, and that the directors had personal interests in the sale.
(2) A claim against the Pauls for breach of fiduciary duty in their capacity as majority shareholders, namely, placing their own interests over those of the minority shareholders.
(3) A claim against the directors for failure to disclose information.
(4) A claim against Permira for allegedly aiding and abetting breaches of fiduciary duty by the other defendants.
¶ 13 The circuit court dismissed Data Key's complaint, concluding that Data Key failed to state a claim upon which relief may be granted. We address the circuit court's reasoning as needed in the discussion below.
¶ 14 As indicated above, Data Key appeals. The defendants — the Pauls, the other directors, and Permira — have submitted a joint response brief.
¶ 15 We review a circuit court's decision on a motion to dismiss for failure to state a claim de novo. H.A. Friend & Co. v. Professional Stationery, Inc., 2006 WI App 141, ¶ 8, 294 Wis.2d 754, 720 N.W.2d 96. "The facts set forth in the complaint must be taken as true and the complaint dismissed only if it appears certain that no relief can be granted under any set of facts that the plaintiffs might prove in support of their allegations." Northridge Co., 162 Wis.2d at 923, 471 N.W.2d 179. "The reviewing court must construe the facts set forth in the complaint and all reasonable inferences that may be drawn from those facts in favor of stating a claim." Id. at 923-24, 471 N.W.2d 179.
¶ 16 As to Data Key's first claim, for breach of fiduciary duty by the directors, the court appeared to conclude that the only reasonable inference from the complaint allegations was that the directors reasonably exercised their business judgment. The court similarly appeared to conclude that the complaint supported a reasonable inference that there were "issues" or "questions" as to the likelihood of a Plato deal closing, and that the directors thus reasonably declined to pursue such a deal. In addition, the court relied on a Delaware case, Mendel v. Carroll, 651 A.2d 297 (Del.Ch.1994), as standing for the proposition that a board's fiduciary duties do not authorize the board "to deploy corporate power against the majority stockholders."
¶ 17 Data Key argues that the circuit court erred in failing to adhere to the pleading standards applicable to a motion to dismiss. As primary support for this argument, Data Key argues that the court erred in applying the business judgment rule at the motion to dismiss stage of proceedings. Data Key also argues that the court's reliance on Mendel was misplaced. We agree with Data Key's arguments, each of which we discuss in more detail below.
¶ 18 We begin with Data Key's argument regarding the business judgment rule. The circuit court dismissed Data Key's claim against the directors for breach of fiduciary duty based in significant part on the court's application of that rule. Similarly, many of the defendants' arguments depend on the application of that rule.
¶ 19 "The business judgment rule... contributes to judicial economy by limiting court involvement in business decisions where courts have no expertise and contributes to encouraging qualified people to serve as directors by ensuring that honest errors of judgment will not subject them to personal liability." Reget v. Paige, 2001 WI App 73, ¶ 17, 242 Wis.2d 278, 626 N.W.2d 302. The rule "generally works to immunize individual directors from liability and protects the board's actions from undue scrutiny by the courts." Id.
Id. (quoted source omitted).
¶ 20 The business judgment rule is codified in Wisconsin in WIS. STAT. § 180.0828 (2011-12)
¶ 21 Data Key argues that the business judgment rule is an "evidentiary" presumption that may be applied on a motion for summary judgment but not on a motion to dismiss. It relies on Wisconsin's liberal notice pleading standards, summarized above, and on Wisconsin case law, such as Reget, addressing the business judgment rule. See Reget, 242 Wis.2d 278, ¶¶ 18-22, 626 N.W.2d 302 (applying the business judgment rule at the summary judgment stage and stating that, "[p]rocedurally, the business judgment rule creates an evidentiary presumption...." (emphasis added)). Data Key asserts, and our research appears to confirm, that there is no Wisconsin case law in which the rule was applied on a motion to dismiss for failure to state a claim. See id.; see also Koenings v. Joseph Schlitz Brewing Co., 126 Wis.2d 349, 355-56, 359-60, 377 N.W.2d 593 (1985) (addressing the rule at trial stage); Yates v. Holt-Smith, 2009 WI App 79, ¶¶ 12, 22-26, 319 Wis.2d 756, 768 N.W.2d 213 (same); Noonan v. Northwestern Mut. Life Ins. Co., 2004 WI App 154, ¶¶ 15-16, 276 Wis.2d 33, 687 N.W.2d 254 (concluding it was unnecessary to address argument that business judgment rule does not apply at motion to dismiss stage); Gebhardt v. Bosben, unpublished slip op., No. 2009AP1359, ¶¶ 55-58, 2010 WL 2519572 (WI App June 24, 2010) (applying the rule at summary judgment stage).
¶ 22 The defendants argue, in contrast, that the rule is one of "immunity" and is a "legal" presumption. They argue that a complaint should therefore be dismissed for failure to include allegations that would overcome the rule's protections. See Heinritz v. Lawrence Univ., 194 Wis.2d 606, 612, 535 N.W.2d 81 (Ct.App.1995) (suggesting that a claim could be dismissed for failing to allege facts to overcome an applicable legal presumption in the context of a contract terminable at will). The defendants assert that the business judgment rule was applied on a motion to dismiss in at least one recent Seventh Circuit Court of Appeals case, Dixon v. ATI Ladish LLC, 667 F.3d 891 (7th Cir.2012), and in at least one Wisconsin circuit court decision. The defendants argue that, if a plaintiff fails to allege facts that, if proven, would plainly overcome the business judgment rule, there is no reason to continue litigation.
¶ 23 We conclude that Data Key's arguments are more persuasive. The authorities
Zachary H. Starnes, The Business Judgment Rule After Twombly and Iqbal: Must Plaintiffs Now Plead Around the Rule to Survive a 12(b)(6) Motion to Dismiss?, 35 AM. J. TRIAL ADVOC. 639, 655 (Spring 2012) (footnotes omitted); see also Ad Hoc Cmte. of Equity Holders of Tectonic Network, Inc. v. Wolford, 554 F.Supp.2d 538, 557 (D.Del.2008) (concluding that claimant need not plead facts sufficient to overcome a business judgment rule defense in order to survive a motion to dismiss).
¶ 24 This view of the business judgment rule, as generally inapplicable at the motion to dismiss stage in a notice pleading jurisdiction such as Wisconsin, is supported by what occurred in Reget. There, corporate directors first raised the rule as an affirmative defense, and then, at the summary judgment stage of proceedings, they submitted evidence supporting a reasonable inference that they acted in good faith. See Reget, 242 Wis.2d 278, ¶¶ 9, 20, 626 N.W.2d 302. The court concluded that, in order to survive summary judgment, the plaintiffs needed to produce evidence to support a reasonable inference to the contrary. See id., ¶ 20.
¶ 25 In this case, the defendants' arguments underscore part of the problem with
¶ 26 For all of these reasons, we conclude that the circuit court erred in applying the business judgment rule in deciding whether Data Key's complaint states a claim against the directors for breach of fiduciary duty. Data Key did not need to allege willful misconduct or other non-compliance with the rule in order to survive a motion to dismiss for failure to state a claim for breach of fiduciary duty against the directors.
¶ 27 We further agree with Data Key that the circuit court's decision on Data Key's claim against the directors for breach of fiduciary duty fails to adhere to the pleading standards that apply on a motion to dismiss, primarily because the circuit court applied the business judgment rule. The court's decision contains numerous instances in which the court applied the business judgment rule and drew reasonable inferences against Data Key instead of in Data Key's favor. Those instances include: the court's conclusion that the directors reasonably declined to pursue a deal with Plato because it was not necessarily a "better" deal overall and because "there were considerable questions/issues that existed with regard to the second (Plato) offer"; that the non-Paul directors
¶ 28 The court appeared to conclude, in part, that the non-Paul directors were disinterested, in the sense of being impartial, because the primary benefit they were alleged to have received — the vesting of restricted stock resulting in a payout to each non-Paul director ranging from $292,874 to $747,681 — was a benefit they would receive from the sale of Renaissance to any company, not just to Permira. However, Data Key's complaint contains an allegation, at paragraph 62, that supports a reasonable inference that the directors would have received this benefit only from a sale to Permira.
¶ 29 It is unclear whether Data Key now concedes, contrary to that reasonable inference,
¶ 30 We turn to the circuit court's reliance on Mendel. As indicated above, the court concluded that Data Key failed to state a claim against the directors for breach of fiduciary duty, relying in part on Mendel for the proposition that a corporate board is not authorized "to deploy corporate power against the majority shareholders." See Mendel, 651 A.2d at 306. For two reasons, we agree with Data Key that the court's reliance on Mendel was misplaced.
¶ 31 First, although some of the facts in Mendel are similar to some of the facts here, Mendel did not involve a motion to dismiss for failure to state a claim and did not involve the same issue. Rather, as Data Key points out, Mendel involved a request for a preliminary injunction imposing what the court characterized as the "unprecedented" and "radical" remedy of requiring a board to grant to a third party the option to buy stock in order to dilute the voting power of a majority shareholder. See id. at 298-99, 304. The central issue in Mendel was whether the directors were obligated to issue such a "dilutive option" in order to fulfill their fiduciary duties, or whether issuing the option might instead violate the directors' duties, including their duties to the corporation and the majority shareholder. See id. at 304, 306-07. We see nothing in Mendel suggesting that the court's reference to a board's lack of authority to "deploy corporate power against the majority stockholders" refers to something other than the dilutive option.
¶ 32 Second, the proposition from Mendel on which the circuit court relied is an incomplete statement. The full statement is as follows:
Id. at 306 (emphasis added; emphasis on "against" in original). As we read this statement, it supports Data Key more than
¶ 33 To sum up so far, we agree with Data Key's arguments that the circuit court erred in applying the business judgment rule at the motion to dismiss stage of proceedings, in failing to adhere to motion to dismiss standards primarily by applying that rule, and in its reliance on Mendel. Our analysis of these Data Key arguments disposes of many of the defendants' arguments because those arguments expressly rely on the business judgment rule. However, the defendants make several other arguments in support of the circuit court's decision.
¶ 34 The defendants argue that the Delaware Chancery Court in In re Synthes, Inc. Shareholder Litigation, 50 A.3d 1022 (Del.Ch.2012), "rejected a virtually identical challenge to a merger at the pleadings stage." However, a close read of Synthes reveals that the court did so in reliance on the business judgment rule, an approach we have rejected. See id. at 1032-33. In addition, the court's decision in Synthes was at least partially based on the fact that the plaintiffs in that case had "been afforded some written discovery," and had apparently used that discovery to supplement their allegations in a second amended complaint. See id. at 1024-25 & n. 3. The court concluded that "[i]n these circumstances, allowing the plaintiffs a fourth swing of the bat would not serve the interests of justice." Id. at 1024.
¶ 35 The defendants assert, as the circuit court observed, that the Pauls as majority shareholders could have blocked a deal other than one with Renaissance, regardless of any board action. Therefore, the defendants appear to argue, the directors had no duty to consider a deal with Plato. Even if that is true, a question we need not decide, it can reasonably be inferred from the allegations made in the complaint that, assuming that the Pauls were acting contrary to their fiduciary duties as alleged, the non-Paul directors could and should have done more to influence the terms or process of the sale to Permira, or perhaps even to block a sale to Permira.
¶ 36 The defendants argue that Data Key fails to allege any facts showing that the directors' conduct caused Data Key harm. The defendants argue that Data Key's claim against the directors "should be dismissed on this basis alone." See Berner Cheese Corp. v. Krug, 2008 WI 95, ¶ 40, 312 Wis.2d 251, 752 N.W.2d 800 ("The elements of a claim for breach of fiduciary duty are: (1) the defendant owed the plaintiff a fiduciary duty; (2) the defendant breached that duty; and (3) the breach of duty caused the plaintiff's damage." (emphasis added)).
¶ 37 We are not persuaded by this no-harm argument. Data Key's complaint can reasonably be read as alleging two types of harm caused, at least in part, by the directors' alleged breach of fiduciary duty: (1) the sale of Renaissance resulted in Data Key being "forced to sell" or "losing control" of its Renaissance shares, an alleged harm regardless of the price received for the shares, or (2) the sale of Renaissance resulted in Data Key receiving a price for its shares that was less than the value of its shares, as evidenced by Plato's offers.
¶ 39 The circuit court dismissed Data Key's claim for breach of fiduciary duty against the Pauls as majority shareholders for several interrelated reasons, but as we understand it, the crux of the court's reasoning was that the Pauls had the right to sell their shares and to vote their shares in their own interests. The defendants echo this reasoning in their primary arguments in support of the court's dismissal of this claim.
¶ 40 Data Key argues that the allegations in its complaint support an inference that the Pauls did much more than merely sell their shares and vote their shares in their own interests. We agree. Construed liberally, the complaint allegations support a reasonable inference that the Pauls used their majority control, including their ability in that capacity to elect directors, to exert undue influence over the board to cause a sale of the entire company under terms that provided special personal benefits to the Pauls and harmed the minority shareholders. Among the most pertinent supporting allegations are the following:
In addition, the complaint contains allegations that, if again construed liberally, support a reasonable inference that the Pauls used their personal banking relationship with Goldman Sachs to influence or control the financial advice that Goldman Sachs provided regarding the sale of Renaissance.
¶ 41 In arguing to the contrary, the defendants rely, in part, on the undisputed fact that the Pauls received less for their shares than did the minority shareholders
¶ 42 Although the circuit court seemed to acknowledge that Data Key made allegations regarding undue influence by the Pauls, the court determined that those allegations were conclusory and therefore insufficient. Specifically, the court stated that, "[w]hile there are some conclusory allegations to this effect, there are insufficient facts alleged to show that the directors were improperly influenced, coerced, or otherwise unlawfully directed to pursue a particular course." The defendants make arguments along these same lines. We disagree and conclude that, when we liberally construe Data Key's complaint, drawing all reasonable inferences in Data Key's favor, Data Key sufficiently alleged undue influence on the directors by the Pauls.
¶ 43 The defendants make other, minimally developed arguments in support of the circuit court's decision to dismiss Data Key's claim against the Pauls in their capacity as majority shareholders. We consider each but find none persuasive.
¶ 44 The defendants appear to argue that, because Data Key made an allegation that the non-Paul directors supported the sale of Renaissance to Permira because of their own personal interests, Data Key could not also allege that the non-Paul directors supported the sale because of undue influence by the Pauls. We reject this argument at this stage of the proceedings because, even assuming without deciding that these would be inconsistent alternative theories of liability, we see no reason why Data Key could not plead alternative theories based on breach of fiduciary duty. See WIS. STAT. § 802.02(5)(b) (permitting pleading in the alternative).
¶ 45 The defendants also argue that Data Key failed to allege any harm caused by the Pauls' actions because Data Key failed to allege that its shares in Renaissance would have been worth more than $16.60 per share if Data Key remained a minority shareholder in "a company owned principally ... by some unknown buyer." The defendants similarly appear to argue that the "40% premium" that Data Key and other minority shareholders received for their shares forecloses any allegation of harm caused by the Pauls as majority shareholders. This "premium" appears to be calculated by comparing the $16.60 per share Data Key received to the $11.83-per-share price at which Renaissance stock closed on the public market the day before Renaissance and Permira publicly announced plans to merge. Data Key, in contrast, makes clear that its theory of harm, at least as to its claim against the Pauls as shareholders, is that Data Key would have received more for its shares, or at least would have still owned shares of a higher value, had the Pauls acted properly. Under Data Key's theory, the Plato offers illustrate that the price that Data Key actually received from Permira was less than the shares' value.
¶ 46 At this early stage of proceedings, we see no reason why Data Key's theory is necessarily insufficient. The defendants present no authority supporting their narrow view of harm in this context, namely, the view limited to whether Data Key's shares would have been worth more than the price it received if there had been some other sale, or more than the share index price on the date specified. To the extent that there are legal standards that would limit the methods by which Data Key may prove the value of its shares, the defendants will be free to argue those
¶ 47 Data Key argues that the circuit court erred in concluding that Data Key failed to state a claim against the directors for breach of their duty to disclose material information in the proxy statement. The alleged nondisclosures include items such as updates to Renaissance's projected earnings, details regarding the relationship between Goldman Sachs and the Pauls or Permira, details regarding the relationship between the Pauls and Permira, and the amount of compensation Goldman Sachs stood to receive from a sale. As indicated above, Data Key alleged that the omission of this information prevented the shareholders from making informed decisions on whether to vote in favor of the sale to Permira.
¶ 48 The circuit court appeared to conclude that the only reasonable inference from Data Key's complaint was that the undisclosed information could not have changed the shareholder vote, given the allegation that the Pauls were determined to sell Renaissance to Permira and the undisputed fact that the Pauls could block a sale to any company other than Permira. Therefore, the circuit court reasoned, the undisclosed information could not have been causal in any alleged harm. As an alternative basis for dismissing the claim, the court concluded that Data Key's allegations were insufficient to support a reasonable inference that any of the undisclosed information was material.
¶ 49 As indicated above, it is undisputed that the failure to disclose claim is a breach of fiduciary claim. And as also indicated above, one of the elements in such a claim is that "the breach of duty caused the plaintiff's damage." See Berner Cheese, 312 Wis.2d 251, ¶ 40, 752 N.W.2d 800; see also Groshek v. Trewin, 2010 WI 51, ¶ 12, 325 Wis.2d 250, 784 N.W.2d 163 (following Berner Cheese on this point); Yates, 319 Wis.2d 756, ¶ 20, 768 N.W.2d 213 (same).
¶ 50 Data Key fails to develop a persuasive argument that the circuit court was wrong to conclude based on this authority that Data Key's claim for failure to disclose should be dismissed because Data Key's allegations fail to support a theory of causal harm. We now explain why none of Data Key's specific arguments is convincing.
¶ 51 Data Key argues that, while causal harm is required in analogous federal claims, "historically" this has not been true for state law claims. However, Data Key's only authority for this argument is an unpublished Delaware case, see Wiegand v. Berry Petroleum Co., 1991 WL 45361 (Del. Ch.1991), and we see nothing in Wiegand clearly stating or addressing a rule that causal harm is not required, see id. at *9-11. Regardless, Data Key fails to address how its reliance on Wiegand can be reconciled with the more recent, and binding, Wisconsin case law stating that the breach
¶ 52 If there is some reason why this case law might not be controlling on the question here, Data Key fails to identify it. Data Key cites Cuene v. Hilliard, 2008 WI App 85, ¶ 20, 312 Wis.2d 506, 754 N.W.2d 509, for the proposition that "the obligation to disclose and the withholding of a material fact establish the requisite element of causation in fact," but Cuene is not a breach of fiduciary duty case. It involved a statutory claim for securities fraud. See id., ¶¶ 13-21.
¶ 53 Data Key also argues that, if damages caused by a failure to disclose are difficult or impossible to prove, a plaintiff may recover "nominal" or "per se" damages without any allegation of a causal connection. Data Key relies for this argument on the Delaware case of In re Tri-Star Pictures, Inc., Litigation, 634 A.2d 319, 326 (Del.1993). As the defendants argue, however, Tri-Star has been overruled in pertinent respects. See In re J.P. Morgan Chase & Co. Shareholder Litigation, 906 A.2d 766, 774 (Del.2006) (limiting Tri-Star and holding that "`a per se rule of damages for breach of the fiduciary duty of disclosure' ... is `no longer an accurate statement of Delaware law.'"). Data Key fails to reply on this point, and we take it as conceded. See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶ 39, 304 Wis.2d 750, 738 N.W.2d 578 (appellant's failure to respond in reply brief to an argument made in response brief may be taken as a concession).
¶ 54 Separately, Data Key makes a one-sentence argument that, "if money damages were for some reason not available[,]... the Circuit Court would be required to construct another remedy ..., perhaps unwinding the sale of Renaissance or requiring that full information be provided to Renaissance shareholders and another vote be held." In support, Data Key cites Estate of Makos v. Wisconsin Masons Health Care Fund, 211 Wis.2d 41, 52, 564 N.W.2d 662 (1997), overruled by Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, ¶ 6, 237 Wis.2d 99, 613 N.W.2d 849, for the proposition that the state constitution guarantees that "every person shall be afforded a remedy for wrongs committed." We conclude that this one-sentence argument, seeking an extraordinary remedy based on a general proposition, is insufficiently developed and therefore address it no further. See State v. Pettit, 171 Wis.2d 627, 646-47, 492 N.W.2d 633 (Ct.App.1992) (court of appeals need not consider inadequately developed arguments).
¶ 55 Accordingly, we uphold the circuit court's dismissal of Data Key's failure to disclose claim based on that court's conclusion that Data Key's allegations fail to support a theory of causal harm. We need not and do not address the circuit court's conclusion in the alternative that Data Key's allegations were insufficient to support a reasonable inference that any of the undisclosed information is material.
¶ 56 Finally, we turn to Data Key's claim that Permira aided and abetted the other defendants' alleged breach of fiduciary duty. For the following reasons, we consider this argument undeveloped and therefore uphold the circuit court's dismissal of this claim.
¶ 57 "In Wisconsin, a person may be held civilly liable for aiding and abetting if he or she: (1) undertakes conduct that as a matter of objective fact aids another in the commission of an unlawful act; and (2) consciously desires or intends that his or her conduct will yield such
¶ 58 In its briefing, Data Key points to allegations in its complaint stating or reasonably implying that: Permira negotiated with the Pauls for the sale of Renaissance having "knowledge" of the Pauls' "conflicts of interest"; Permira "incentiviz[ed]" the Pauls to breach their duties because Permira entered into agreements with the Pauls obligating them to vote their shares in favor of a sale to Permira, agreed to the licensing agreement that benefitted the Pauls, and agreed to indemnify the Pauls; and Permira worked with Goldman Sachs at the same time that Goldman Sachs was working with Renaissance.
¶ 59 However, Data Key cites no authority addressing the claim of aiding and abetting in the corporate context or suggesting that allegations like these could be sufficient to meet the "consciously desiring or intending" standard. Nor does Data Key provide any explanation, by analogy to any legal authority, as to why such allegations would be sufficient. It is far from self-evident. See Winslow v. Brown, 125 Wis.2d 327, 336-37, 371 N.W.2d 417 (Ct.App.1985) (presence and failure to prevent unlawful conduct not aiding and abetting). In the absence of such authority or explanation, we consider Data Key's argument on this topic undeveloped and decline to address it further. "We cannot serve as both advocate and judge." Pettit, 171 Wis.2d at 647, 492 N.W.2d 633.
¶ 60 For all of the reasons stated above, we reverse the circuit court's judgment dismissing Data Key's complaint for failure to state a claim and remand for further proceedings on Data Key's surviving claims.
Judgment reversed and cause remanded.