Global Capital Partners LLC v. Green Sapphire Holdings, Inc.

     IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

GLOBAL CAPITAL PARTNERS LLC and             )
ACCESS MANAGEMENT, S.A.S., INC.,            )
                                            )
              Plaintiffs,                   )
                                            )
       v.                                   )   C.A. No. 2024-0877-JTL
                                            )
GREEN SAPPHIRE HOLDINGS, INC.               )
                                            )
              Defendant.                    )
                                            )
                                            )
ALPHA CARTA, LTD.,                          )
                                            )
              Third-Party Plaintiff-        )
              Intervenor,                   )
                                            )
       v.                                   )
                                            )
GREEN SAPPHIRE HOLDINGS, INC.,              )
and GLOBAL CAPITAL PARTNERS,                )
LLC,                                        )
                                            )
              Defendants.                   )

                            POST-TRIAL OPINION

                        Date Submitted: December 12, 2025
                          Date Decided: March 13, 2026

Philip Trainer, Jr., Samuel M. Gross, ASHBY & GEDDES, P.A., Wilmington,
Delaware; Kenneth J. Pfaehler, Nicholas W. Petts, DENTONS US LLP, Washington,
District of Columbia; Attorneys for Global Capital Partners, LLC and Access
Management, S.A.S., Inc.

Sidney S. Liebesman, J. Peter Shindel, Jr., Seth A. Niederman, Joshua K. Tufts, FOX
ROTHSCHILD LLP, Wilmington, Delaware; Marc P. Trent, TRENT LAW FIRM,
P.C., Chicago, Illinois; Attorneys for Alpha Carta, Ltd.
Sean J. Bellew, BELLEW LLC, Wilmington, Delaware; Attorneys for Green Sapphire
Holdings, Inc.

LASTER, V.C.
      A lender loaned $10 million to a borrower, secured by the borrower’s equity

interest in a subsidiary that owned real estate. The borrower defaulted, and the

lender demanded repayment. To settle the dispute, the borrower agreed that the

lender owned the subsidiary’s equity. But the borrower never recognized that the

lender had gained control of the subsidiary and, through it, the real estate. After the

borrower interfered with the lender’s ability to access the real estate, the lender and

the subsidiary filed suit seeking equitable relief to secure their rights.

      The borrower and a third-party intervenor have done their best to turn that

simple story into a huge mess. Although nominally adverse parties, a single human

controls them both.

      A.R. Thane Ritchie is a former hedge fund manager turned secretive

international investor who set up a multi-entity structure to manage his wealth.

Through the Petro Carta Trust (the “Family Trust”), Ritchie controls and manages

assets for his family’s benefit. Through the Family Trust, Ritchie controls defendant

Green Sapphire Holdings, Inc. (the “Borrower”). Through a subsidiary, the Borrower

owns real estate on the Caribbean island of St. Barthélemy (the “Properties”).

      Through the Alpha Carta Trust (the “Personal Trust”), Ritchie controls and

manages assets for his own benefit. Through the Personal Trust, Ritchie controls

third-party intervenor Alpha Carta, Ltd. (“Alpha”). Ritchie caused Alpha to fund the

Borrower through a loan agreement containing facially non-market terms that

qualify the investment as equity rather than debt.
      Confronting a liquidity crisis that threatened his business empire, Ritchie

turned to Robert Brownell, his longtime confidant and dealmaker. Ritchie asked

Brownell to secure a bridge loan using the Properties as collateral.

      Brownell developed terms for a short-term loan that he could present to

accredited investors as part of a mini-syndication (the “Loan”). He created plaintiff

Global Capital Partners LLC (the “Lender”) as a special purpose vehicle to conduct

the syndication and make the loan. The plan was for the Lender to raise capital from

Brownell’s network of investors, then use the capital to make the Loan to the

Borrower. The principal security for the Loan would be the Properties. But the

Borrower owned the Properties through a wholly owned subsidiary (the

“Subsidiary”), and because enforcing mortgages on St. Barts is difficult, the Borrower

also granted the Lender a security interest in the shares of the Subsidiary that it

owned (the “Subsidiary Shares”). Having Brownell control the Lender benefited

Ritchie, because it meant Ritchie’s longtime confidant and trusted advisor would

stand between Ritchie and the real lenders when it came time to enforce the Loan

and potentially foreclose on the collateral.

      Brownell’s effort to raise money from his own network fizzled, so he turned to

Tailwind Ltd., a fledgling private credit firm. Tailwind successfully shopped the loan

to its stable of investors, but those investors did not want to fund an entity Brownell

controlled. Rather than restructure the transaction, Brownell transferred control

over the Lender to Tailwind. Its investors provided the funding, and the Lender made

the Loan. Ritchie used the proceeds to pay off his most pressing debts.



                                           2
      Ritchie’s team planned to repay the Loan using the proceeds from a separate

sale of real estate, but Ritchie repurposed the proceeds at the last minute. The

Borrower could not pay the Loan and defaulted.

      To settle the debt, the Borrower agreed that the Lender owned the Subsidiary

Shares and the Properties. The Lender also received a fee in the form of shares of

stock in a different company.

      Around the same time, Ritchie and Brownell had a falling out. Suspecting that

Brownell had been double-crossing him for years, Ritchie commissioned an internal

investigation into every deal Brownell touched, including the Loan. Ritchie’s

associates examined each transaction with jaundiced eyes. Working off a limited

documentary record, they developed a narrative in which Brownell used the Loan to

defraud Ritchie. They disputed the settlement and prevented the Lender from

accessing the Properties.

      The Lender filed this lawsuit to enforce the settlement. Believing it had

obtained the Subsidiary Shares, the Lender caused the Subsidiary to sue as well.

Ritchie caused Alpha to intervene and assert fraudulent transfer claims against the

Borrower, which Ritchie himself controlled, and the Lender.

      This post-trial opinion rules in favor of the Lender and the Subsidiary on their

core breach of contract claim. The Lender owns the Subsidiary Shares, and the

Subsidiary owns the Properties. The Borrower must stop interfering with the

Lender’s ownership and take all actions reasonably necessary to ensure that the

Lender can control the Subsidiary Shares and the Properties.



                                          3
      This post-trial opinion rules against Alpha on all of its fraudulent transfer

claims. Only a creditor can assert fraudulent transfer claims, and Alpha is not a bona

fide creditor of the Borrower. Alpha is an equity investor that has tried to dress up

its equity investments as loans. Alpha’s claims are collusive, because Ritchie controls

both Alpha and the Borrower. The claims would fail on the merits, but the court need

not reach them.

      The court awards the Lender damages of €3 million. The Lender is entitled to

recover its expenses (including attorneys’ fees) because of the Borrower’s and Alpha’s

bad-faith litigation conduct. Alpha’s loans to the Borrower are equitably subordinated

to the Lender’s recovery.

                        I.     FACTUAL BACKGROUND

      The facts are drawn from the post-trial record. Trial took place over three days.

The parties introduced 449 exhibits and lodged depositions from eleven witnesses.

Seven witnesses testified live. The parties agreed on just twenty-three stipulations of

fact.1 Having assessed the credibility of the witnesses and weighed the evidence as a

whole, the court makes the following factual findings. The facts supporting the decree

of specific performance rest on clear and convincing evidence. The facts as a whole

rest on a preponderance of the evidence.




      1 Citations in the form “[Name] Tr.” refer to witness testimony from the trial

transcript. Citations in the form “[Name] Dep.” refer to witness testimony from a
deposition transcript. Citations in the form “JX __ at __” refer to trial exhibits.
Citations in the form “PTO ¶ __” refer to the Pre-Trial Stipulation and Order.

                                           4
A.    A Preliminary Note On The Record And Credibility

      The parties presented wildly divergent versions of events. Several factors make

it difficult to discern what actually happened.

      First, Ritchie is a key player in the dispute, yet he communicated almost

exclusively through phone calls and ephemeral messages that left no discoverable

written record. He also took pains to avoid appearing on documents. His affiliates’

document preservation was at best inadequate and arguably sanctionable.2 Those

business practices reduced the quantum of contemporaneous records on which the

court could rely.

      Second, all parties are repeat players in international financial transactions

where tax avoidance and regulatory anonymity are highly prized. They prioritized

creating the appearances necessary to achieve those goals over accurately

documenting what occurred. Those efforts undermined the reliability of the written

records that do exist.

      Third, one of Ritchie’s entities refused to waive privilege over his former

counsel’s contemporaneous notes, even though two other Ritchie-controlled entities—

Alpha and the Borrower—waived privilege.3 Ritchie thus kept the notes out of the




      2 See Azzopardi Tr. 643 (Q: “[W]ere any steps taken by any of the entities for

which you were a director to preserve evidence in the days after February 10 . . . ?”
A: “We were meeting and trying to recall what happened, but, yeah, nothing
specific.”).

      3 See Cicoski Tr. 238–39. The court does not infer anything from the failure to

waive privilege. See D.R.E. 512.

                                          5
record with one hand, while creating the impression with the other that he wanted

them available. Ritchie also declined to appear at trial, despite causing Alpha to

intervene in his action. Those decisions left gaps in the factual record.

      The court has therefore been forced to rely heavily on trial testimony. The

witnesses who sought to support Ritchie’s litigation narrative either lacked

credibility or had limited personal knowledge. Garrett Vail’s testimony fell short on

both counts. He spun wide-ranging conspiracy theories, split hairs relentlessly, and

refused to give straight answers. He also lacked contemporaneous personal

knowledge and testified based on a suspicion-fueled, after-the-fact investigation he

conducted into Brownell’s dealings.

      Paul Wolfe and Mark Azzopardi’s testimony fell short for lack of personal

knowledge. Wolfe knew some things, but he lacked information on key points.

Azzopardi relied almost exclusively on a self-serving narrative that Ritchie gave him

after his falling out with Brownell.

      By contrast, two witnesses performed well. Dustin Springett, the founder of

Tailwind and the Lender’s representative, testified credibly and from personal

knowledge about the actions he took on behalf of his firm and the Lender. Ryan

Cicoski, a Delaware lawyer and the former general counsel of Ritchie’s organization,

testified credibly and from personal knowledge about the Loan, its origins, his

interactions with Ritchie, and the case as a whole.




                                           6
B.    The Family Office

      Ritchie is a wealthy former hedge fund principal turned private investor who

now largely operates overseas.4 Ritchie manages his personal investments through a

network of interconnected trusts, holding companies, and other entities that make up

his “Family Office.”5 Two of the top-tier entities in the Family Office are the Personal

Trust and the Family Trust.

      The trustee of the Personal Trust is Prairie Private Trust Company Ltd. (the

“Personal Trustee”).6 In addition to holding ownership in various other entities, the

Personal Trust is the sole owner of third-party intervenor Alpha.7 Alpha holds a

portfolio of primarily non-United States-based assets.8




      4 At one time, Ritchie’s former hedge fund, the Chicago-based Ritchie Capital

Management, had several billion dollars in assets under management. See Yuskus
Tr. 646. Despite the court’s urging, Ritchie refused to come to the United States for
deposition or trial. See Dkt. 217; Dkt. 254 at 7–11. During his remote deposition,
conducted via Zoom, Ritchie testified that he was a Cayman Islands resident and was
“overseas,” but his counsel instructed him not to provide any other information about
his whereabouts. Ritchie Dep. 31–32.

      5 Ritchie and his associates use this term. See JX 292 ¶ 340 (referring to the

entities owned or controlled by the Personal Trust, Alpha, the Family Trust, the
Family Trustee, and their affiliates collectively as the “Family Office Trust
Structure”); Azzopardi Tr. 572 (Alpha witness referring to the “Ritchie Family
Office”).

      6 Azzopardi Tr. 573; JX 196.


      7 PTO ¶ 44.


      8 See Cicoski Tr. 225.



                                           7
      The trustee of the Family Trust is NorthSea, LLC (the “Family Trustee”).9 The

Family Trust is the sole owner of the Borrower, which holds a portfolio of primarily

United States-based real estate investments.10 Through a wholly owned subsidiary,

Access Management, S.A.S. (the “Island Subsidiary”), the Borrower owned the

Properties, comprising a villa, associated land, and a separate undeveloped parcel.11

The Properties stand as an unexplained exception to the Family Trust’s policy of

holding United States-based properties.

      The Family Office has centralized its accounting, administrative, legal, and

other professional services functions within 60 Degrees Group SEZC, Ltd. (the “Back

Office”).12 As a result, many Family Office entities have no employees. 13 The Back

Office serves as the central nervous system for Ritchie’s sprawling empire.

      The following diagram depicts relevant aspects of the Family Office:




      9 PTO ¶ 49.


      10 See Cicoski Tr. 221. The Borrower was incorporated on December 13, 2006,

under the name Organic Fuels Holdings, Inc. See PTO ¶ 43; JX 4; JX 8.

      11 PTO ¶ 34; JX 248 at 10.


      12 Cicoski Tr. 220. A third top-tier entity—the Prairie II Trust—controls the

Back Office. That trust also controls another entity stack that is not relevant to this
dispute. JX 196.

      13 Cicoski Tr. 220.



                                          8
C.    Ritchie’s Control

      Ritchie exercises control over every entity in the Family Office.14 Alpha and

the Borrower dispute Ritchie’s control, but the record establishes convincingly that

the Family Office entities form a unified organization that Ritchie runs.15 Key

personnel at the Family Office, including Cicoski and then-CFO Stacey McHugh,




      14 Cicoski Tr. 295; see Huizenga Managers Fund, LLC v. Ritchie, Case No. 07-

CH-9626, at 37 (Ill. Cir. Ct. Cook Cty. Jan. 27, 2015).

      15 Cicoski Tr. 226–27, 294–95; see Azzopardi Tr. 584, 586, 608 (testifying to

uneasiness agreeing to anything as a director of Ritchie’s entities without confirming
Ritchie knew about it).

                                           9
reported directly to Ritchie. Both regularly secured his “big thumbs-up”— sometimes

just the literal emoji—before acting.16

      Despite exercising actual control, Ritchie goes to great lengths to conceal his

involvement. He operates “from the shadows” and maintains a tight grip on

information.17 Some trusted lieutenants work closely with him. Others remain at

arm’s length and depend on intermediaries for instructions.

      Rather than holding organizational roles himself, Ritchie relies on a handful

of longtime associates to serve in key positions. Wolfe, Vail, and Azzopardi are three

of those associates. For a time, so were Cicoski and Brownell.

      Wolfe is a trusted lieutenant who interacts directly with Ritchie. He has

worked for Ritchie since 2001, having previously worked for Ritchie’s father.18 From

January 2022 to November 2023, he served as a director of the Borrower.19 After a

brief absence, he rejoined the Borrower’s board in February 2024, when he also




      16  Cicoski Tr. 296; id. at 226–27 (Q: “Were there any significant business
decisions at Alpha Carta made without Thane Ritchie’s approval?” A: “I can’t think
of any.” Q: “How about for Green Sapphire?” A: “No. He would have been consulted,
informed, advised, and more often an integral part of the process.”). For example,
McHugh communicated regularly with Ritchie to obtain approvals for payments from
various entities in the Ritchie Family Office. See JX 59 (screenshot of messages
between McHugh and “A” (i.e., Ritchie) seeking approval for payments); Wolfe Tr. 705
(testifying that seeking payment approvals in this format was “not unique”); JX 199
(text between McHugh, Wolfe, and Ritchie regarding payment approvals).

      17 Cicoski Tr. 229.


      18 Wolfe Tr. 676–78.


      19 See JX 20; Wolfe Tr. 680.



                                          10
became a director of the Family Trustee.20 At the time of trial, he simultaneously

served as a director of the Borrower, a director of the Back Office, and a director of

the Personal Trustee, which controls the Personal Trust and Alpha.21 Wolfe thus

embodied and could act contemporaneously on behalf of the entities on both sides of

the purported dispute between the Borrower and Alpha.

      Vail is another trusted lieutenant who interacts directly with Ritchie. A former

lawyer, Vail has worked for Ritchie’s entities since 2009, having previously

represented Ritchie’s entities in recovering money allegedly lost in a Ponzi scheme.22

From around February 2024 through at least March 2025, Vail served as a director

of Alpha. He was an Alpha director when Alpha intervened in this litigation, and he

verified Alpha’s third-party complaint.23 Yet since February 2024, Vail has also been

a director of the Borrower,24 and at trial, he appeared as the Borrower’s client

representative.25 Like Wolfe, he embodied and could act contemporaneously on behalf




      20 Wolfe Tr. 680, 702; Azzopardi Tr. 576.


      21 See Wolfe Tr. 698; Cicoski Tr. 279; JX 196. Plus Wolfe was an authorized

signatory on Alpha’s bank account. Wolfe Tr. 703.

      22 See Vail Tr. 721–24, 755.


      23 Dkt. 67; Vail Tr. 749–50.


      24 Vail Tr. 724, 726; JX 130 at 7.


      25 See Vail Tr. 751. Yet despite Vail’s involvement with both the Borrower and

Alpha, those entities claim they are not under common control. Vail even claimed at
trial that the Borrower “has nothing to do with Mr. Ritchie.” Id. at 756.

                                           11
of the entities on both sides of the purported dispute between the Borrower and

Alpha.

      Azzopardi, by contrast, does not often interact directly with Ritchie and

historically received information on a need-to-know basis. He has served as a director

of various Family Office entities, including Alpha, for over ten years.26 He has also

periodically served as a consultant for the Family Office, receiving between €5,000

and €7,000 per month.27 From approximately 2021 until 2025, he served as a director

of the Family Trustee.28 He remains a director of Alpha and the Personal Trustee.29

A resident of Malta, he performs his duties at a distance, rarely travels across the

Atlantic, and knows little about what the Family Office entities were actually doing.30

      Cicoski interacted directly with Ritchie, but not to the same degree as Wolfe.

In 2019, Ritchie hired Cicoski, previously a senior associate at a prominent Delaware




      26 Azzopardi Tr. 572–74, 620–21.


      27 Id. at 572–78.


      28 Id. at 573–74.


      29Id. at 572–73; see JX 282 at 8 (“Thane [Ritchie] wants to use Mark
[Azzopardi] as his surrogate on all global projects.”).

      30 Azzopardi Tr. 582 (“I was frustrated at the time that I wasn’t having enough

contact,” “sitting in Malta and taking on these roles,” and “not having the ability to
be on the ground and understand what everyone is doing all the time.”); id. at 583–
84 (“Malta is far away. With the technology it’s easier today, obviously, but there’s a
time difference. I didn’t travel that often across the Atlantic to be here. . . . I didn’t
have much contact with [Ritchie] during 2023 . . . . Thane was difficult to contact.”).

                                           12
law firm, as his general counsel.31 Although the Back Office formally employed

Cicoski, he provided legal services to the Family Office generally, including the

Borrower, Alpha, and many other entities.32 In August 2021, Cicoski became a

director of the Borrower.33 He also became a director of the Family Trustee and the

Back Office.34 He held those positions until he resigned in February 2024.35

       Ritchie’s “closest confidant” was Brownell, a long-time consultant and

investment partner.36 As Ritchie well knew, Brownell had served ten years in prison

for conspiracy to commit mail and wire fraud.37 After his discharge, Brownell and

Ritchie worked closely together, with Brownell serving as Ritchie’s go-to real estate

advisor, dealmaker, and financial partner.38 The pair were “inseparable” and often

traveled and invested together.39 Brownell regularly acted as a front man for Ritchie




       31 See Cicoski Tr. 219–20. Cicoski relocated to the Cayman Islands to perform

his duties. Id. at 453.

       32 See id. at 221.


       33 JX 17.


       34 Cicoski Tr. 278–79.


       35 JX 101.


       36 Cicoski Tr. 243.


       37 See id. at 258, 389–92; Brownell Dep. 6. Brownell testified that his cellmate

introduced him to Ritchie. See id. at 23.

       38 See Cicoski Tr. 243–44.


       39 Id. at 243 (“Robert visited with Mr. Ritchie—three times a month would not

be unusual to have him flying out and them having hours of meetings. When they


                                            13
by putting down deposits or making purchases, then obtaining reimbursement from

the Family Office.40 During their collaboration, Ritchie insisted that Brownell use an

alias—Robert Bigelow—to invite fewer questions about his past.41 But Ritchie and

his associates all knew about Brownell’s history.42

      In addition to operating through surrogates, Ritchie strives to avoid creating

any persistent record of his interactions.43 He regularly communicated by phone or

through ephemeral messaging applications like Telegram, Confide, and Signal.44 He

also insisted that his associates not keep written records. As Cicoski testified, “[I]f




went to look at properties, they’d go together. They’d go to different countries to look
at properties, different states.”); Brownell Dep. 26 (“I . . . was on [Ritchie’s] private
jet constantly going back and forth to Cabo where I would rent villas for him . . . .”).

      40 Cicoski Tr. 324; Brownell Dep. 26.


      41 See Cicoski Tr. 391; Springett Tr. 22.


      42 See Cicoski Tr. 257, 391. The exception was Azzopardi, who discovered the

truth much later and felt that others had kept him in the dark. Azzopardi Tr. 595–
96.

      43 Cicoski Tr. 231 (testifying that Ritchie “did not like to put his name on legal

documents, emails, anything . . . that could possibly come up in litigation down the
road”); id. (explaining that Ritchie wanted “the ability to deny any action that his
directors took in the future”); Brownell Dep. 23 (testifying that Ritchie “was adamant
that he wanted his name on nothing, everything was to remain verbal”); id. at 18
(Ritchie “told me he wanted no record.”).

      44 See Cicoski Tr. 228–29, 360, 433; Azzopardi Tr. 620. On the Confide platform,

messages would self-destruct within thirty seconds. Cicoski Tr. 229. On other
platforms, Ritchie set messages to automatically delete in twenty-four hours or less.
Id. at 230. Ironically, the rapid auto-deletion forced Cicoski and other Ritchie
associates to carry notepads and pens to keep track of Ritchie’s multiple messages,
despite Ritchie’s instructions to the contrary. Id. at 229–30.

                                           14
Mr. Ritchie had known I was taking notes or documenting those conversations, it

would have been a bad afternoon for me.”45 Other employees and associates in the

Family Office used email to communicate, but with the applications set to delete

messages automatically after forty-five days.46 When Cicoski recommended more

practical document retention schedules, Ritchie refused.47

D.    The Liquidity Crisis

      During the years leading up to this dispute, Ritchie often acquired illiquid

assets that did not generate recurring revenue.48 Ritchie regularly used leverage in

his investment strategies, but without steady cash flow, Ritchie had to obtain loans

from private capital providers who demanded high interest rates and tight

covenants.49

      In late 2022, as a result of those practices, the Family Office faced a “significant

liquidity crunch.”50 Ritchie had failed to support a SPAC that he sponsored, fallen




      45 Cicoski Tr. 433.


      46 See JX 285; Azzopardi Tr. 643.


      47   Cicoski Tr. 393 (explaining that Ritchie “flat out refused” his records
retention proposals); Azzopardi Tr. 591–92 (testifying about his “concerns about the
corporate governance” in the Family Office because “there wasn’t enough
communication” and his attempts to “put in regular investment committees” were
rejected).

      48 See JX 250; JX 251; Springett Tr. 30; Cicoski Tr. 251–52.


      49 Cicoski Tr. 251–52, 283.


      50 Id. at 232.



                                           15
significantly behind in paying law firms handling key cases, missed payments for his

private jet, and failed to pay employees and contractors.51 As the Family Office’s

financial position deteriorated, its entities risked covenant defaults and other adverse

loan events.52

      The Borrower in particular faced the imminent maturity of millions of dollars

in debt, including (1) approximately $4 million owed to Dominion Bank and secured

by the receivables from a commercial real estate portfolio53 and (2) approximately $3



      51 Id. The law firm bills were a serious problem. Id. at 232, 235; see JX 199 at 1

(Wolfe on November 11, 2022: “I know there is pressure from law firms to pay before
year end.”); id. at 2 (McHugh: “There are +150 legal invoices with some dating back
to April 2021. I don’t think firms care which invoice is paid at this point.”). A seven-
figure obligation to Winston & Strawn loomed large, because Winston was
representing the Family Office in “incredibly contentious litigation” and had
threatened it would withdraw for non-payment, which would have jeopardized
Cicoski’s ability to negotiate a global settlement. Cicoski Tr. 236.

       The failure to pay employees was another major issue, and Brownell helped
out by advancing money to Cicoski and other Family Office employees. Id. at 317,
321–22, 374–75; Brownell Dep. 12. At one point, Brownell helped Cicoski scout out
residential properties in Pennsylvania. Cicoski Tr. 326–28. In this litigation, Alpha
portrays Brownell’s assistance as a successful effort to turn Cicoski against Ritchie,
but the record—including Cicoski’s credible testimony—proves otherwise. The
assistance was part of Brownell efforts to help Ritchie, not a plot against him. See id.
at 317, 321–22, 374–75.

      52 Id. at 232, 237–38.


      53 See id. at 232–33. At one point, Ritchie considered paying the Dominion loan

by tapping a $4 million reserve earmarked for the Internal Revenue Service. See JX
28; McHugh Dep. 39–40. Ultimately, Ritchie decided against using the tax reserve.
See JX 199. Alpha and the Borrower claim that the ability to use the tax reserve
undercuts the claimed liquidity crisis. To the contrary, it shows that the crisis was
sufficiently real that Ritchie was considering redeploying money earmarked for the
United States Treasury. In addition, the tax reserve would not have addressed
Ritchie’s other impending obligations.

                                          16
million owed to a hard money lender and secured by several different properties.54 If

the Borrower defaulted, it would lose the underlying collateral.55 And the Borrower

was not a cash-generating entity. Since 2017, it had operated at a loss,56 with Ritchie

funding its expenses through advances from Alpha.57

E.    The Effort To Secure Bridge Financing

      Cicoski and Wolfe, the Borrower’s two directors, both knew about the Family

Office’s liquidity crisis. So did Ritchie and Azzopardi.58 It was a daily topic of

conversation within Ritchie’s organization.59 Ritchie and Wolfe planned to address

the crisis by generating $11 million from selling Cayman Islands real estate known

as the Calma Property, but that sale kept getting delayed.60




      54 Cicoski Tr. 234.


      55 Id. at 233–35.


      56 See JX 275 at 3; Yuskus Tr. 654. The Borrower booked positive net income

in 2021, but that resulted from a write-up of investment value, not from cash income.
Johnston Tr. 480.

      57Yuskus Tr. 654–55; Johnston Tr. 478, 481. Sometimes Alpha paid the
Borrower’s creditors directly. See Yuskus Tr. 655; Johnston Tr. 481.

      58 See Cicoski Tr. 236–37; Azzopardi Tr. 621–22.


      59 Cicoski Tr. 238.


      60 See id. at 237; Wolfe Tr. 684, 699–700.



                                          17
      Ritchie therefore turned to Brownell, who had secured financing for Ritchie in

the past.61 Although Brownell ran point, Ritchie stayed heavily involved and spoke

with Brownell frequently, often multiple times per day.62

      With Ritchie’s approval, Brownell worked with the Ritchie’s longtime deal

counsel, Charles Mack.63 They envisioned using a special purpose vehicle to raise

capital from investors in Brownell’s network, then having the special purpose vehicle



      61 Sometimes, Brownell provided the loans himself. As late as summer 2022,

Brownell had loaned several million dollars to the Family Office without
documentation and with terms to be worked out in the future. See Cicoski Tr. 246;
McHugh Dep. 42. On other occasions, he arranged financing from third parties. One
loan—for approximately $1.5 million from Dallas Salazar—was coming due. See
Cicoski Tr. 281; Mack Dep. 76.

      62 See Cicoski Tr. 249 (“He and Mr. Brownell would have worked through the

economic terms on this particular loan, yes. And almost every other loan or
transaction that I can think of, in my experience, they would have worked on the
terms, the economic terms together.”); id. at 243 (“In my measure, they spoke eight
or nine times a day.”); id. at 244 (“It was very well known that they had this type of
relationship.”); Brownell Dep. 26–27 (“I would speak with Thane Ritchie 365 days a
year, Christmas, July 4th. It didn’t matter. 6:00 in the morning until 11:00 at night.
. . . So yeah, we spoke all the time, every day, seven days a week.”); Wolfe Tr. 711
(Q: “And during Mr. Brownell’s time with the Ritchie Family Office, he and Mr.
Ritchie communicated regularly, didn’t they? A: “I believe so.”).

      63 Mack had represented Ritchie’s entities on dozens of transactions, ranging

from real estate deals and joint ventures to personal matters for Ritchie and his
family. Mack Dep. 18. Mack had represented the Borrower on multiple occasions. See
Cicoski Tr. 242; Mack Dep. 12–13. Tasking Brownell to handle a deal with counsel
was not unusual. When raising capital secured by his overseas assets, Ritchie
typically would consult with Wolfe, then speak with Brownell, then have Brownell
and counsel carry out the plan. Cicoski Tr. 242 (“Thane [Ritchie] would speak to Paul
[Wolfe] and speak to Robert [Brownell]. Robert would go out and try to execute on
that plan, and he would be advised either by Mr. Mack or by one of our several other
outside law firms . . . .”); accord id. at 244 (“Typically the way that it would work is
that Thane would give the direction and Robert and Charlie would go out and try to
execute.”).

                                          18
make the loan to the Borrower.64 In September 2022, they formed the Lender for that

purpose.65

      Everyone understood that investors would only fund a loan to a distressed

entity like the Borrower on an expedited basis if they received sufficient security and

the loan carried an attractive interest rate.66 Ritchie, Wolfe, and Brownell decided to

use the Properties as collateral,67 but the Properties were located in St. Barts, a

jurisdiction governed by French law. Given the complexities of granting mortgages

on the Properties themselves, they also planned to include the Subsidiary Shares as

collateral. At the time, that meant the shares of the Island Subsidiary, which owned

the Properties.68




      64 Cicoski Tr. 241 (“It would have been common knowledge. . . . I know that I

had conversations at the time with all three of them [i.e., Ritchie, Wolfe, and
Brownell], and everybody knew that the BNW, which is Robert’s family office, the
family office was going to be providing some sort of capital for us.”).

      65 See PTO ¶ 41; JX 433. They originally formed the entity as a Delaware

limited liability company with Brownell as the sole member. JX 26.

      66 See McHugh Dep. 40–41.


      67 See Cicoski Tr. 241.


      68 See JX 211 at 96. Internally, Family Office personnel referred to the deal as

the “St. Barts loan.” McHugh Dep. 40.

                                          19
F.    Cicoski Gets Involved.

      In December 2022, Brownell retained a French lawyer to structure the loan in

compliance with French law.69 They sought to ensure that the Lender could foreclose

on the Properties in the event of default.70 The French lawyer advised that an

authorized representative—like Cicoski—would need to sign documents for the

Borrower.71




      69 Brownell used his alias when interacting with the lawyer and signed the

engagement letter on the Borrower’s behalf as “Robert Bigelow.” JX 31.

      70 JX 32 at 13–17; see JX 211 at 96 (discussing “Right to foreclose” with Salazar,

who was considering funding a portion of the loan at the time but later backed out);
Springett Tr. 31 (“To get investors to pull money from their other positions for a four-
month—for a 120-day loan, a good rate of return—risk-adjusted rate of return had to
be offered.”). In this litigation, Alpha and the Borrower claim that Brownell was
acting on his own to accomplish a “loan-to-own” scheme so he could get the Properties
for himself. They point out that Brownell controlled the Lender, was trying to ensure
that the Lender could secure the Properties in the event of default, and wanted an
attractive rate of return. Those facts are true, but not the spin. Brownell was trying
to structure a deal that investors would fund, and no one would fund the Loan unless
it provided an attractive rate of return and the Lender had the ability to obtain the
Properties in the event of default. Brownell controlled the Lender at that point
because he was acting as a loan syndicator and arranger to set up the transaction. If
he had remained in control of the Lender, that would have benefited Ritchie, because
it would mean that Ritchie’s longtime friend and confidant would be in a gatekeeping
position at the Lender for purposes of enforcement (somewhat analogous to a bond
trustee). As events transpired, Tailwind’s investors correctly perceived Brownell’s
involvement with the Lender as a risk for them—not Ritchie—and insisted on
Springett controlling the Lender. The idea that Brownell was double-crossing Ritchie
when setting up the Loan is a conspiracy theory that Ritchie and his team invented
after Ritchie and Brownell had their falling out.

      71 JX 32 at 1.



                                          20
      Cicoski knew that Brownell and Mack were working on a loan, but his main

job was managing litigation, so he had not been closely involved.72

      In early January 2023, Ritchie and Wolfe gave Cicoski clear instructions:

“Robert Brownell’s family office is going to loan the money or arrange a loan. We are

not concerned with the terms of the loan. Just get it done.”73 Cicoski complied.74

      Brownell pitched the loan to his investor network, but he could not assemble

the necessary financing.75 Several factors made the transaction tough to execute. One

was the short time frame. Another was Ritchie’s reputation for litigiousness, which




      72 Cicoski Tr. 219–20, 241, 251. Ritchie typically relied on outside legal counsel

for transactional matters. Id. at 241–42.

      73 Id. at 237; see JX 68 (Cicoski to McHugh on January 2, 2023: “In brief, the

situation is this. Thane understands the need for short-term funding, wants me to
put together whatever is necessary to accomplish that in the next 24-36 hours, and
will work on the details with Robert this weekend.”). Based on Cicoski’s testimony, it
appears the instructions came either through encrypted messages or “conversations”
or both. See Cicoski Tr. 237–38.

      74 Mack took contemporaneous handwritten notes of a meeting with Brownell

and others involved in the fundraising effort on January 3, 2023. JX 211 at 80. The
group discussed the loan structure, the plan that the Lender would get the Properties
in the event of default, and the fact that Cicoski was joining the team. Id. (“loan would
be paid by [the Brownell family office] and [it would] own the real estate”). Cicoski
was not personally present at the meeting, but someone reported that Cicoski was
“willing to cooperate.” Id. Alpha and the Borrower claim that means Cicoski would be
complicit in Brownell’s supposed “loan-to-own” scheme. The credible evidence shows
that Cicoski was willing to cooperate as general counsel to the Family Office by taking
on a lot of work to complete the Loan on a compressed timetable, even though it would
distract him from his principal duties. See Cicoski Tr. 247–48 (describing assistance
with negotiating non-economic deal terms).

      75 Some investors passed outright. Two investors, including Salazar, initially

expressed interest, but they backed out. See JX 458 at 2.

                                            21
made some investors nervous. A third was the location of the Properties in a foreign

jurisdiction, which raised questions about the security.76

G.    Tailwind Gets Involved.

      Brownell turned next to Nathan Smith, a former Family Office CFO with

connections in the Caribbean private loan industry.77 Smith contacted a friend at

Tailwind, then a fledgling private lender based in the Cayman Islands that

specializes in private credit. Smith’s contact put him in touch with Springett,

Tailwind’s founder. Other than knowing who Smith was, Springett had no prior

connections to Smith, Brownell, or Ritchie.78

      Smith asked Springett to fund the transaction that Brownell and Mack had

designed. Springett understood that the Borrower needed $10 million on short notice

to pay off near-term debts. The Borrower would repay the loan plus 10% interest in

a lump sum in 120 days. The security would be the Properties and the Subsidiary

Shares.79




      76 See Cicoski Tr. 245.


      77 See Smith Dep. 9; Springett Tr. 34–35.


      78 Springett Tr. 19, 23. Springett initially knew Brownell as Bigelow. Over the

course of the transaction, Springett learned Brownell’s real name. See Springett Tr.
23.

      79 Id. at 18–19, 24–25; JX 458.



                                          22
      Springett conducted some due diligence primarily focused on the security.80 As

part of that effort, the Borrower provided an appraisal that valued the Properties well

above the loan amount, and although Tailwind’s internal appraisal suggested a lower

value, Springett thought the purchase price for the Properties showed the security

would be sufficient.81 The Borrower also provided several years of financial

statements reflecting substantial assets, although most were illiquid.82 Tailwind also

reviewed financial statements from Brownell’s family office, which would guarantee

the loan, and confirmed that “they also had plenty of assets.”83

      Tailwind’s outside counsel assisted with due diligence and reviewed the Ritchie

entities’ corporate documents.84 Tailwind also conducted “Know Your Customer”

checks on the entity stack that owned the Properties—including the Island

Subsidiary, the Borrower, and the Family Trustee.85




      80 Springett Tr. 28.


      81 Id. at 25–26; see JX 459 at 6.


      82 Springett Tr. 29–30; JX 250; JX 251.


      83  Springett Tr. 28–29. Brownell’s family office also received an option to
purchase the Loan if the Borrower defaulted. Id. at 66, 123; JX 459 at 5. That was
not a big deal. It was the functional equivalent of the right to subrogation against a
borrower that arises whenever a guarantor repays a loan, but it would enable the
guarantor to enforce the Loan directly rather than indirectly.

      84 Springett Tr. 29.


      85 Id. Tailwind did not check the ultimate beneficiaries of the Family Trust

because it received “confirmation that no beneficiary had more than 20 percent
ownership in the trust.” Id. at 28; see JX 364. The Family Trust has only four
beneficiaries—Ritchie’s wife and three children—so that is mathematically


                                          23
       Springett viewed the terms as appropriate given the need to raise the money

on short notice and the risk associated with collateral in a foreign jurisdiction.86 He

testified credibly that stepping in to fund a pre-packaged loan was not uncommon in

his business, and that Tailwind often does deals on short notice if the terms are

satisfactory.87

       Tailwind does not have committed capital that it can deploy itself. Instead, like

Brownell, Tailwind has a pool of investors that it contacts on a deal-by-deal basis.88

Springett presented the opportunity to his network, and Smith looked for other

possible investors.89




impossible. Alpha and the Borrower argue that Cicoski made a false representation
to Tailwind to avoid having to inform Ritchie’s wife and children about the Loan, but
the record does not support that theory. Cicoski testified credibly that he made the
representation based on the advice of the Family Trust’s counsel and because Ritchie
“did not want to disclose who the ultimate beneficial owners were.” Cicoski Tr. 341–
50. If the blame falls anywhere, it lies with the Family Trust’s trust counsel and
Ritchie.

       86 See Springett Tr. 41–42 (“So this was a short-term deal with assets in a

foreign jurisdiction, in a different language, and the rate had already kind of been
established. . . . This rate is not that unusual.”).

       87 Springett Tr. 40–41. Alpha and the Borrower argue that Springett should

have done more due diligence and uncovered Brownell’s criminal conviction. They
suggest Springett went light on due diligence because the deal was too good to be
true. In reality, Springett was presented with a tight timeline and had to make a
business decision about how much due diligence to conduct. He made a reasonable
decision. But even if he did not, that failure might give rise to potential claims by
Tailwind’s investors. It would not give the Borrower grounds to escape the Loan.

       88 Id. at 15–17.


       89 See JX 456 at 6–7; Springett Tr. 143–44.



                                          24
H.    The Loan Authorization

      Meanwhile, the lawyers turned drafts of the loan documents and consulted

with experts on French law.90 As part of the loan documentation, Tailwind asked its

outside counsel to opine on the enforceability of the loan documents.91 To give the

opinion, outside counsel needed a resolution from the Borrower authorizing the

transaction.92 On January 29, 2023, Cicoski and Azzopardi executed a written

consent from the Family Trustee, which controlled the Family Trust, the Borrower’s

sole stockholder, acting in their capacity as the only directors of the Family Trustee

(the “Initial Consent”). They also authorized a guarantee from the Family Trust.93

Ritchie and Wolfe knew about the Loan and the consent.94

      After hearing from his investors, Springett told Brownell that they needed to

modify the loan documents. The original plan envisioned a two-step transaction in

which Tailwind’s special purpose vehicle would loan money to the Lender, which

would extend the Loan to the Borrower. Springett’s investors did not want a




      90 Id. at 34; Cicoski Tr. 248–49; JX 40.


      91 Springett Tr. 148–49; JX 248 at 8, 12.


      92 Springett Tr. 176.


      93 See JX 33; JX 34; Azzopardi Tr. 621–22; Cicoski Tr. 262.


      94 Cicoski Tr. 264–65. At trial, Wolfe disclaimed contemporaneous knowledge

of the Loan and claimed he would not have approved it. See Wolfe Tr. 681 (“Had it
been shared with anybody else other than Brownell, who had suckered [Cicoski] into
the situation, it would have been immediately called out that this is a horrendous
deal and improper.”); accord id. 682–86. Wolfe’s testimony on these points was not
credible; Cicoski’s was. See Cicoski Tr. 264–65.

                                          25
middleman; they wanted to loan directly to the Borrower.95 Brownell understood their

position, and the parties could have redrafted the loan documents to provide for a

loan from Tailwind’s entity to the Borrower. But time was short, and the lawyers had

documented the Loan from the Lender to the Borrower.96 As a timesaver, Brownell

assigned all member interests in the Lender to Tailwind’s vehicle, and Springett

became the Lender’s manager.97 After the assignment, Brownell had no ownership

interest in or control over the Lender.98

I.    The Loan Closes.

      On February 2, 2023, the Borrower and the Lender executed a Loan and

Security Agreement (the “Loan Agreement”).99 Cicoski signed the Loan Agreement

for the Borrower as its director.100 The Loan Agreement tracked the terms Brownell




      95 Springett Tr. 36.


      96 Id. at 32–33. Redoing the paperwork would have required several days,

including because some documents needed translating to or from French. Id.

      97 JX 35. Brownell received no consideration for the assignment. Alpha and the

Borrower see the lack of compensation as suspicious, but it reinforces the reality that
Brownell was acting on behalf of Ritchie to facilitate an expedited loan. He
transferred the entity freely because he was trying to help his friend get a deal done.

      98 Springett Tr. 38–39.


      99 JX 248. Even before signing, because of the Borrower’s urgent need for funds,

one of Smith’s investors transferred $900,000 to Mack’s IOLTA account on January
31, 2023. Springett Tr. 55, 173; JX 39; JX 164 at 33. On McHugh’s instructions, Mack
wired $225,555.56 to a hard money lender to pay a loan extension fee for the
Borrower, then wired the remaining $674,444.44 to Alpha. JX 38; see Cicoski Tr. 281–
82, 424.

      100 JX 248 at 39.



                                            26
and Mack had worked out in advance. The Loan consisted of a $10,000,000 advance

to the Borrower, with repayment in full plus ten percent interest due in 120 days (i.e.,

on June 2, 2023).101 The Loan was secured by “all of Borrower’s right, title and

interest in and to” the shares of stock of the Island Subsidiary,102 plus a commitment

by the Borrower to cause the Island Subsidiary to grant a mortgage or other security

interest in the Properties within thirty days.103

      The Borrower also committed to “cause [the Island Subsidiary] to change its

domicile to Florida, United States of America prior to granting the mortgages on the

Properties.”104 Springett viewed that commitment as a key business term.105 The

reason is obvious: it meant the situs of the shares would be in the United States and

readily subject to an enforcement action in a United States court.

      The Borrower executed a promissory note and pledge agreement in connection

with the Loan.106 Separately, the Borrower agreed to pay $700,000 of the proceeds to




      101 Id. §§ 2.1–2.3.


      102 Id. §§ 1.1, 3.1.


      103   Id. § 3.5 (“Within thirty (30) days of the date of this Agreement, the
Borrower shall have such first lien mortgage properly recorded or registered in the
records of St. Barthelemy and provide a copy of such recorded or mortgage and any
attestations or affirmations as may be reasonably required by Lender affirming the
first lien position of the mortgage on the [Properties] and due and proper execution
of all related documents.”).

      104 Id. § 5.3.


      105 Springett Tr. 51–52.


      106 JX 44; JX 45.



                                          27
Tailwind as an underwriting fee and another $100,000 as an “Agency” fee.107 In a side

letter, the Borrower agreed to pay Brownell $2.6 million in syndication and

underwriting fees.108 The Lender was not a party to the side deal with Brownell, and

Springett knew nothing about it until this litigation.109

J.    The Florida Subsidiary And The First Modification

      On February 3, 2023, Mack filed a certificate of domestication and articles of

incorporation, signed by Cicoski, to domesticate the Island Subsidiary in Florida

under the name Access Management S.A.S. Inc. (the “Florida Subsidiary”).110

Meanwhile, Tailwind reported a delay in securing the $10 million and asked to modify




      107 JX 397 at 2–3; JX 228; Springett Tr. 128.


      108 JX 397 at 2–3.


      109 Springett Tr. 137. Alpha and the Borrower point to the high fees as an

indication that Brownell was using the Loan to line his own pockets at Ritchie’s
expense. The fee to Brownell is high, but the record shows that Brownell was involved
in many transactions with Ritchie, and they moved money around through many
channels. They easily could have used those fees as one path to repay some amount
that Ritchie owed Brownell. In any case, the side payment to Brownell would not
affect the Loan, because Springett and Tailwind had no involvement with it. Plus,
the Borrower never paid any fees to Brownell. See JX 397 at 2–3.

      110 JX 47; JX 57. Because the parties dispute whether the Island Subsidiary

and the Florida Subsidiary are distinct, this decision strives to refer to the
appropriate version and to use the term “Subsidiary” where a distinction is not
warranted. The term “Subsidiary Shares” refers to the shares the Borrower posted as
collateral for the Loan, no matter where the Subsidiary is domiciled. This decision
ultimately finds that the Borrower committed to domesticate the Island Subsidiary
in Florida such that it is now the Florida Subsidiary.

                                          28
the documents to reflect that development.111 Tailwind also asked for confirmation

that Cicoski could sign the modification for the Borrower.112

      On February 15, 2023, Cicoski and Azzopardi executed a second written

consent as the sole directors of the Family Trustee that caused the Family Trust—in

its capacity as the Borrower’s sole stockholder—to ratify all of the actions the

Borrower had taken (the “Ratifying Consent”).113 There was arguably ambiguity in

the language of the Initial Consent as to whether both Cicoski and Azzopardi had to

sign the Loan or whether either of them could act alone, and the Ratifying Consent

sought to eliminate any concerns about the Borrower’s authority to enter into the

Loan and related documents.114 The Ratifying Consent expressly empowered Cicoski

to act alone and authorized the Florida domestication.115

      The next day, the Lender and Borrower entered into a First Amendment to the

Loan Agreement (the “First Modification”). It addressed the funding delay, extended

the maturity date by two weeks, and reflected the Island Subsidiary’s domestication

in Florida as the Florida Subsidiary.116 The Lender fully funded the second tranche




      111 Cicoski Tr. 280–81; see JX 458 at 1.


      112 See Cicoski Tr. 271–72.


      113 JX 49 at 1–2; Azzopardi Tr. 623–24.


      114 Cicoski Tr. 272, 383–84.


      115 JX 49.


      116 JX 50.



                                         29
promptly after the First Modification.117 On February 17, Tailwind’s outside counsel

wired the net proceeds of $8,849,910 on the Lender’s behalf to Mack’s IOLTA

account.118 Mack wired $7.1 million to Alpha and approximately $1.5 million to

Brownell’s family office to repay an earlier loan Brownell had secured for the

Borrower.119 The remaining $240,000 paid for legal fees and Tailwind’s transaction

fee.120




          117 Springett ended up sourcing the investors who provided $6.5 million of the

$10 million loan, with Smith sourcing the investors who provided the rest. Springett
Tr. 143–44, 181. They worked out a side deal that paid Springett a portion of
Tailwind’s underwriting fee. JX 228; JX 229; Springett Tr. 165 (testifying that a fee-
sharing arrangement like Tailwind and Smith negotiated was “pretty normal in the
business”).

          118 JX 54; JX 165; Springett Tr. 56–57. The transfer reflected the full $10

million loan, less the $900,000 pre-signing payment and approximately $250,000 in
transaction fees. Mack Dep. 45.

          119 JX 55; JX 56; Cicoski Tr. 281–82; Mack Dep. 76.


          120 JX 55. The following table breaks down the disbursements:


 Advance (January 31, 2023)                           $   900,000.00
       Loan Extension Payment                                             $ 225,555.56
       Alpha                                                              $ 674,444.44
 Withheld For Lender Transaction Fees                $ 250,090.00
 Remaining Proceeds (February 17, 2023)              $ 8,849,910.00
       Alpha                                                              $7,100,000.00
       Brownell Family Office / Salazar Loan                              $1,510,006.00
       Additional Tailwind Fees                                           $ 139,914.00
       Tailwind Counsel Legal Fees                                        $ 68,490.00
       Mack Legal Fees                                                    $ 31,500.00
 Total Loan Proceeds                                 $10,000,000.00


                                            30
       Alpha transferred at least $3.65 million of the loan proceeds to the Borrower’s

bank account.121 The Borrower used the funds to pay Dominion Bank.122 The

Borrower also benefited from the loan payoff that went through Brownell. The Back

Office used the rest of the funds to pay overdue bills from law firms, contractors, and

other vendors.123 The Borrower recorded a debt of $8 million on its books.124

       McHugh and Cicoski kept Ritchie and Wolfe updated on the flow of funds.125

“Everyone wanted to know when these funds came in. It was a signal day for us when

they did.”126




       121 See Johnston Tr. 512; JX 60. Vail testified at trial that “money was never

delivered to Green Sapphire” and that “Global Capital never actually delivered
money to anybody.” Vail Tr. 730–31. Those statements were false. Even Vail admitted
that Tailwind’s counsel delivered funds to Mack. See id. at 731–32. And neither Vail
nor Wolfe could deny that the Borrower received a benefit from the Loan. See Wolfe
Tr. 708–09; Vail Tr. 732–33. The Borrower’s general ledger and credible testimony
from plaintiffs’ forensic accounting expert confirm that the Borrower not only
benefited from the Loan but received a portion of the proceeds in its bank account.
JX 164 at 7; Johnston Tr. 512–17; see also Cicoski Tr. 281–82.

       122 JX 164 at 7; see Wolfe Tr. 708–09 (admitting that “ultimately, yes, Green

Sapphire enjoyed a benefit of 3.6 to 4 million in the retirement of the debt with
Dominion”).

       123 Cicoski Tr. 281–82.


       124 JX 164 at 33; Johnston Tr. 510.


       125 Cicoski Tr. 282.


       126 Id.



                                             31
K.    The Extension

      When the Loan came due on June 16, 2023, the Borrower failed to pay. Neither

the Borrower nor Ritchie had the money.127 The Calma Property sale remained in

limbo, and other funding sources had not panned out.128 When the Borrower asked

for an extension, Springett and his investors agreed.129 They were not happy, but they

preferred not to go through the expense and burden of a foreclosure proceeding.130

      On June 16, 2023, the Borrower, the Lender, and the guarantors into a Second

Loan Modification and Ratification Agreement (the “Second Modification”).131 It

extended the Loan maturity date to October 31, 2023, and deferred payment of $1

million in past due interest to September 1, 2023. In return, Lender advanced an

additional $1 million.132

      The modification came with significant fees. The Lender received a $500,000

“Modification Fee” due at maturity, a monthly $250,000 “Maintenance Fee” starting

in July 2023 and continuing until full repayment, and a $350,000 “Second




      127 Id. at 283.


      128 See id. at 283–85; JX 211 at 14–23.


      129 See JX 69 at 2.


      130 Springett Tr. 46–47, 59.


      131 JX 71. Alpha and the Borrower claim that Ritchie knew nothing about the

Second Modification. Cicoski testified credibly otherwise. Cicoski Tr. 294–97. Plus
Alpha produced an executed version of the Second Modification from its files, so Alpha
had it. See JX 71 (showing Alpha Bates number); Yuskus Tr. 663–64.

      132 JX 71 at 3.



                                         32
Underwriting Fee.”133 Brownell was to receive a $500,000 “Guaranty Fee” for

continuing to guarantee the Loan, but he never got it.134 The Borrower also paid the

Lender’s legal fees.135

       The additional $1 million advance went to pay past due fees from the original

Loan and a portion of the additional fees: $525,000 covered overdue Tailwind’s

underwriting and agency fees and a portion of the Second Underwriting Fee;

$250,000 covered the first Maintenance Fee; and $105,000 covered the Lender’s legal

fees.136 The remaining $120,000 went to Mack’s IOLTA account for the Borrower’s

benefit.137

       As Springett acknowledged, those fees were high. But Tailwind and its

investors had provided a distressed entity with funds on short notice that it otherwise

could not obtain, and the Borrower had now shown that it could not repay in

accordance with the original terms. The fees compensated the Lender for the

additional risk of the extension, and the Maintenance Fee was designed to incentivize



       133 Id. at 4.


       134 Id.


       135 Id.


       136 JX 79 at 3; Springett Tr. 63–65. The Borrower had only paid $350,000 of

Tailwind’s original underwriting fee. JX 397 at 2–3. It still owed Tailwind $450,000
to cover the remainder of its original underwriting and agency fees. Id.; Springett Tr.
65. Brownell had not been paid any fees he was supposed to receive, and he did not
receive any money from the Second Modification. See JX 397 at 2–3. Separately,
Tailwind and Brownell extended the option to acquire the loan. JX 474.

       137 JX 79 at 3; JX 80.



                                          33
prompt repayment.138 Cicoski did not like the deal but believed the alternatives were

worse. He thought that if the Lender foreclosed, it could create another liquidity

crisis.139

L.     Ritchie Creates Greater Dysfunction.

       During 2023, Ritchie grew increasingly difficult and unpredictable.140 Cicoski,

McHugh, and Azzopardi had tried to improve the Family Office’s internal processes

and governance, but they met with little success.141 Instead, Ritchie terminated

McHugh and replaced her with Tim Yuskus, a longtime employee who had worked

for Ritchie in support roles since 2003.142 Around the same time, Ritchie stopped

paying his team, including Cicoski and Azzopardi.143 Azzopardi was fed up and

decided to resign.144




       138 Springett Tr. 63–65, 122.


       139 See Cicoski Tr. 290–91.


       140 Id. at 253.


       141 See JX 78 at 3 (“If this organization is going to continue—we have to focus

and cut projects until 1 or more turns cash flowing . . . . We have 15+ projects over
the world. All great opportunities. But we don’t have the resources (people and cash)
to support[.]”); Azzopardi Tr. 624–26.

       142 Cicoski Tr. 254–55; Yuskus Tr. 645–50.


       143 Cicoski Tr. 355, 358; Azzopardi Tr. 599–601; JX 367; JX 348.


       144 Azzopardi Tr. 627–28; Cicoski Tr. 254–255 (Azzopardi was resigning in part

because “Thane had reneged on a contractual commitment [Cicoski] made to him.”);
JX 349.

                                         34
      The closing of the Calma Property sale created a moment of hope.145 Ritchie’s

team had earmarked those funds to repay the Loan, but Ritchie transferred them

elsewhere.146 The Family Office faced another liquidity crisis.147

M.    The Borrower Defaults.

      When the extended Loan matured again on October 31, 2023, the Borrower

could not repay it. Cicoski had to decide between taking a hard line and forcing the

Lender to sue or working out a compromise. As Cicoski explained at trial, he believed

the latter option was the better choice:

      I felt an obligation to honor a contract that I had signed, as bad as it
      was, and I didn’t believe that it was right to have the lender chase us all
      over the earth, spend years in litigation––I had already seen that too
      many times with this organization and the destruction that it
      caused. . . . We did not have the money. We could not repay it. We were
      in default. They had the right to foreclose. I wanted to prevent that. I
      thought the assets were worth much more than what we currently could
      do. I just did not think the nuclear option of litigation at that point was
      viable.148

He therefore tried to negotiate a settlement.149




      145 Cicoski Tr. 291.


      146 Id.; Wolfe Tr. 685.


      147 Cicoski Tr. 291–92.


      148 Id. at 293–94.


      149 Id. at 302–03.



                                           35
       Springett also preferred a settlement.150 But he was not sure Ritchie could be

trusted given his failure to pay a second time.151 Brownell’s family office likewise had

not come through on its guarantee, nor had it taken out Tailwind by purchasing the

Loan.152 The Tailwind investors wanted their money back.153

       After weeks of negotiation over a standstill agreement, the Lender sent the

Borrower a notice of default on December 12, 2023.154 The notice gave the Borrower

twenty-four hours to accept the Lender’s standstill agreement or the Lender would

foreclose.155

       When the Borrower failed to agree, the Lender seized the Subsidiary Shares

on December 15, 2023, then acted by written consent to remove Cicoski and make

Springett its sole director.156 Cicoski continued to negotiate. With the Borrower




       150 Springett Tr. 46, 68–69.


       151 Id. at 61.


       152 Id. at 66–67.


       153 See JX 486.


       154 JX 89. During this time, Tailwind explored what a foreclosure sale would

involve. Springett Tr. 27. As part of that process, Springett learned that the original
appraiser’s figures had been altered and that the value of the Properties was “way
lower” than the Borrower’s initial appraisal, though still adequate to cover the loan.
Id. at 27–28; see JX 243; JX 245.

       155 JX 89 at 2.


       156 JX 90; JX 91; JX 92. The Lender’s “biggest concern” was preserving its

collateral. Springett Tr. 75–76 (“[W]e had already seen that Thane Ritchie could go
in the bank account and take stuff, take money from it. So this put us in protect your
collateral.”).

                                          36
lacking any near-term ability to repay the Loan, Cicoski sought to stop interest and

fees from accruing and avoid costly litigation.157

      On February 7, 2024, the Borrower and Lender entered into a Loan Settlement

Agreement (the “Settlement Agreement”).158 Cicoski signed it for the Borrower, and

Brownell for the guarantor.159

      The Lender understood the Settlement Agreement to confirm that it had

acquired ownership of the Florida Subsidiary and the Properties.160 The Settlement

Agreement also provided for the Borrower to pay a $335,000 fee to Tailwind plus a

“Lender Settlement Fee” of $1,665,000 “to settle any and all claims Lender may have

under the Loan Documents.”161 The Borrower committed to pay these fees using

shares of stock in a company called Proton Green, rather than in cash.

      On February 9, 2024, the parties signed an amendment to the Settlement

Agreement. The amendment included a provision stating that, “Borrower

relinquishes any residual rights or claims it may have to the Subsidiary Shares to

Lender.”162




      157 Cicoski Tr. 440–41.


      158 JX 94.


      159 Id. at 7.


      160 Springett Tr. 76–77.


      161 JX 94 at 2–3.


      162 JX 95 at 2.



                                          37
N.    Things Fall Apart.

      To help Ritchie with his financial crisis, Brownell had not only structured the

Loan. He had also loaned Ritchie millions of dollars of his own money. Ritchie never

paid any of it back, and tensions grew between them.163

      On February 7, 2024, Brownell’s lawyers severed his ties with Ritchie, the

Family Trust, and its affiliates.164 He also informed Ritchie that he would not be

providing any additional financial support.165

      Brownell’s line in the sand put Ritchie in a bind. He had relied on Brownell for

years, not only for money but also as a dealmaker. Two days later, Ritchie fired back,

writing:

      60 Degrees [i.e., the Back Office] continues to weigh the damages caused
      by your clients’ behavior. However, we specifically point your attention
      to the fact that the Brownell Parties, as recently as four days ago,
      represented to 60 Degrees that they were continuing to lead a number



      163 Cicoski Tr. 254 (“[T]here was also the strain that the [Brownell] Family

Office had lent Mr. Ritchie millions and millions of dollars, and, in fact, in December
of ’23 would lend another million dollars to Mr. Ritchie to pay a significant IRS
portion of what was to be settled. So even in late ’23 he was dropping off checks for a
million dollars, but to the best of my understanding, those monies were not repaid.
. . . And Robert’s family I think had put a lot of pressure on him to recover some of
the sums that were due.”).

      164  JX 279. Brownell also may have become uncomfortable with some of
Ritchie’s new associates and recent behavior. See Cicoski Tr. 254 (“And, frankly,
[Ritchie] had started to surround himself with people who were not people that I was
comfortable with and I think that Robert, in particular, was uncomfortable with. . . .
And I suspect that Robert also had learned what I learned in the February, March
time frame about what happened at the house in Driftwood that Thane used to live
at, which is what precipitated my own resignation.”); see also id. at 260–61.

      165 JX 279.



                                          38
      of important transactions involving sales and monetization of certain 60
      Degrees’ assets (the “60 Degrees Transactions”).

      Your client’s abrupt and unilateral termination of its relationship with
      60 Degrees, without reasonable notice or any effort whatsoever to
      transition their roles leading the 60 Degrees Transactions, has
      jeopardized the viability of these transactions. In short, 60 Degrees has
      been left scrambling to understand the status of the 60 Degrees
      Transactions to ensure that they, despite your clients’ reckless and
      damaging behavior, close these transactions without incurring further
      damages.166

Those transactions included selling property in Texas. According to Wolfe, Brownell

told Ritchie that the property would sell for $96 million.167 After Brownell cut ties,

Ritchie learned the property had sold for around $40 million.168

      These events caused Ritchie to suspect that Brownell had defrauded him, and

he ordered Vail to dig into every transaction that Brownell had touched.169 Fueled (at

a minimum) by resentment born of circumstance, Ritchie, Vail, and Wolfe constructed

a narrative in which Brownell had been double-crossing Ritchie for years. They

decided that Brownell had paid off Cicoski to participate in the conspiracy and that

the Loan was another example of Brownell’s disloyalty.

      On February 10, 2024, Ritchie called Azzopardi and told him that Brownell

and Cicoski had been conspiring against him for over a year. Azzopardi had approved




      166 JX 280 (formatting modified).


      167 Wolfe Tr. 713.


      168 Id.; Vail Tr. 725.


      169 Vail Tr. 725–27.



                                          39
some of their actions as a director, including the Loan. Ritchie berated Azzopardi for

his involvement and blamed him for the results.

      Azzopardi was shocked.170 Ritchie always kept him at arms’ length, and

Azzopardi had relied on Cicoski for information about what Ritchie wanted.

Azzopardi had never doubted Cicoski.171 Now, Ritchie was telling him something very

different and accusing him of wrongdoing.

      But Azzopardi had his own beef with Ritchie over money, and Azzopardi had

resigned from his positions in Ritchie’s organization because Ritchie had not paid

him.172 Then, on February 14, a €15,000 payment from Ritchie appeared in

Azzopardi’s bank account.173 The bank halted the payment as suspicious and asked

for documentation. After checking with Ritchie’s team, Azzopardi sent the bank his

old consulting agreement, even though it was no longer operative, and the bank

released the payment.174

      With the money issue addressed, Wolfe stepped in to get Azzopardi back on

Ritchie’s side. Ritchie and Wolfe’s bad-cop/good-cop tactics worked. Azzopardi blamed



      170 Azzopardi Tr. 586.


      171  Id. at 582–83 (Q: “At the time that you’re describing that you’re in
communication with Mr. Cicoski, did you have any reason to distrust what he was
telling you?” A: “No, not at all. In fact, like I said, I considered him as a breath of
fresh air.”).

      172 Id. at 586–87, 614, 627.


      173 Id. at 634–35, 638; JX 282.


      174 Azzopardi Tr. 638; JX 282; JX 356.



                                          40
himself for facilitating Brownell and Cicoski’s supposedly insidious actions, writing

Wolfe: “I’m in a deep dark hole. I’m afraid I might do something to harm myself.”175

After telling him not to do anything harmful, Wolfe offered a way out, writing: “Thane

is remarkably forgiving where there is contrition . . . [a]nd willingness to help[.]”176

          Ritchie and Wolfe convinced Azzopardi to support their conspiracy theories.

Azzopardi agreed to do “everything [he] could to help establish a case” and handed

over all of his communications with Cicoski and Brownell.177 He never spoke with

Cicoski, despite Cicoski’s attempts to reach him. He simply “took Thane’s word for

it.”178

O.        Cicoski Resigns.

          As the Family Office became more dysfunctional, Cicoski was preparing to

resign.179 Shortly after executing the Settlement Agreement, he learned about of




          175 JX 357 at 3.


          176 Ritchie and Wolfe played two other cards to bring Azzopardi over to their

side. They stressed that Cicoski had received significantly more money than
Azzopardi, which Azzopardi resented (even though Cicoski was performing full-time
work, and Ritchie had not paid Cicoski in months). See Azzopardi Tr. 600–05; JX 36.
They also capitalized on Azzopardi’s faith by comparing Brownell to “Lucifer” and
telling Azzopardi, “This is not just a legal battle[.] . . . It is at its heart a spiritual
battle[.]” JX 357 at 4.

          177 Azzopardi Tr. 634.


          Id. at 619. At trial Azzopardi testified that “at the time [he] thought
          178

[Ritchie] was being told” about the Loan, but that he has now come to “understand”
otherwise. Id. at 615, 619. His “understanding” came from Ritchie.

          179 Cicoski Tr. 399; JX 101.



                                            41
events at a Texas property held through an entity where Cicoski served as the sole

manager:

      I got a note in February or March from the tenant there. I was the—like
      I had explained earlier, I’m the sole manager of this entity and it holds
      a house in Driftwood, Texas where Thane used to live. We were renting
      it out to a former NFL offensive lineman and his family. Apparently,
      they had not paid the rent. I think they missed maybe one rent payment.
      So someone sent four people to the house. They assaulted the tenant’s
      daughter, they trespassed on the property. The police were called.

      And I got a call from the tenant and he said, “Did you send these people?”
      And I said, “No, but I’m the sole director.” So this is a problem. And so
      he was pressing charges. I just had a feeling who it was who had done
      this.

      And then a few weeks later I got a notice that there was a raid by the
      ATF on the property and they pulled eight tons of ammo and 13 high-
      caliber weapons, something like that, and they were all seized from the
      property. And the search warrant was in Mr. Ritchie’s name. I was
      already resigning at that point, and when I got notified that that had
      happened, it sort of sped up my resignation, shall we say.180

On February 27, 2024, Cicoski formally resigned from all positions in the Family

Office.181 Wolfe and Vail became the Borrower’s directors.

P.    The Attempted Renovations

      Meanwhile, the Lender planned to sell the Properties to recoup its losses and

repay its investors. Springett decided to renovate the villa first and hired an

architect.182 Because the villa sits on environmentally sensitive land, securing a




      180 Cicoski. Tr. 255–56.


      181 JX 101.


      182 Springett Tr. 84–85.



                                         42
building permit is difficult, but the Borrower had an existing permit from July

2020.183

      In April 2024, Springett applied to transfer the building permit to the “Access

Management S.A.S. Ltd.”184 That name corresponds neither to the old Island

Subsidiary nor to its post-domestication incarnation as the Florida Subsidiary.

Springett intended to transfer the property to the Florida Subsidiary, but he made a

mistake.185 The local authority granted the application.

      But when the Lender and Florida Subsidiary tried to take possession of the

Properties and start renovations, the Borrower filed suit in Guadeloupe claiming that

the initial transfer of the Properties in 2022 was invalid (the “Guadeloupe Civil

Action”).186 Next, the Borrower filed a criminal complaint with the Guadeloupe public

prosecutor charging that the Loan resulted from fraud.187 Vail filed a supporting

affidavit in which he held himself out as a practicing lawyer (he had not practiced

since 2013) and averred that the complaint’s allegations resulted from a forensic




      183 JX 15; see Springett Tr. 101.


      184 JX 115.


      185 Springett Tr. 160–61; see Fornacciari Tr. 217 (Plaintiffs’ French law expert:

“For me, there was no doubt that the application was made by Mr. Springett for
Access Management S.A.S., Inc. [i.e., the Florida Subsidiary].”). Alpha claims that
the application transferred the permit to the Island Subsidiary, but the entity name
on the application did not match its name either. Plus that entity no longer existed.
It had domesticated in Florida as the Florida Subsidiary.

      186 JX 117; JX 116; Springett Tr. 92–93.


      187 JX 133; JX 132.



                                          43
examination (he has no forensic qualifications).188 Although the Guadeloupe

prosecutor did not pursue the claims, the Borrower sent the complaint to the St. Barts

local authorities and claimed to be “facing serious, malicious attempts by third parties

to illegally appropriate its immovable properties.”189

      The Lender tried to move forward with the renovations, and construction

began in July 2024. But in August 2024, the Borrower exercised self-help by changing

the locks on the property entrance and sending the architect cease-and-desist

letters.190 Construction came to a halt.191

Q.    This Litigation

      On August 22, 2024, the Lender and the Florida Subsidiary filed this lawsuit

against the Borrower. They asserted claims for breach of contract, defamation,

tortious interference with contract, and tortious interference with business

expectancy. The Borrower moved to dismiss the plaintiffs’ complaint in its entirety.

      On September 12, 2024, the Borrower purported to change the name of the

Island Subsidiary to Vue Mer Signature Holdings and to appoint Vail as its

chairman.192 The Borrower claimed that Island Subsidiary still existed as a distinct




      188 JX 130; see Vail Tr. 736–39.


      189 JX 136; see Springett Tr. 98–99.


      190 JX 157 at 3–5; Springett Tr. 90–91.


      191 Springett Tr. 90–91; JX 157; see also JX 148.


      192 JX 258.



                                              44
entity and that the domestication to Florida was ineffective.193 On December 11, the

Borrower dismissed the Guadeloupe Civil Action on the theory that it had regained

control of the Island Subsidiary, which supposedly owned the Properties.194

      The Lender responded by filing an application in a St. Barts court for the

equivalent of a lis pendens. The St. Barts court denied the application, citing a forum

selection clause in the Loan selecting the courts of Delaware. The Lender then moved

in this court for a status quo order and expedited proceedings.195 The Lender was

justifiably concerned that the Borrower was trying to deprive the Lender of its

collateral and wanted to move quickly before the existing building permit expired. On

February 6, 2025, the court granted the Borrower’s motion to dismiss the defamation

and tortious interference claims, denied the motion to dismiss the breach of contract

claim, granted expedition, and issued a status quo order.196 The court later entered a

scheduling order contemplating a two-day trial starting June 9, 2025.197

      On March 12, 2025, Alpha moved to intervene as a third-party plaintiff. The

Borrower supported Alpha’s intervention, claiming that “[t]here is no basis for

Plaintiffs’ assertion that Alpha Carta and Green Sapphire are affiliates with common




      193 See id.; Springett Tr. 99–100.


      194 JX 150 at 13.


      195 Dkt. 13; Dkt. 15.


      196 See Dkt. 27.


      197 Dkt. 32.



                                           45
owners” and representing that “Thane Ritchie does not control the Petro Carta Trust

(Green Sapphire’s sole stockholder).”198 Those statements were false. Not yet

understanding the true relationship between Alpha and the Borrower, the court

granted intervention.

       Alpha then filed a third-party complaint asserting eight counts, including

fraudulent transfer and breach of contract.199 Vail verified the complaint on behalf of

Alpha. Vail was simultaneously a director of the Borrower. One of the allegations in

Alpha’s verified complaint asserted that Alpha had demanded that the Borrower

repay a loan. In fact, Alpha had never demanded repayment, so that averment was

false.200

       The Borrower and Alpha obstructed discovery and failed to meet deadlines. In

response to a motion to compel, the court appointed a special discovery magistrate.201

She reported that the Borrower’s “conduct reflected an overall lack of transparency

and inability to follow through on its commitments to the other parties, let alone meet

discovery deadlines.”202




       198 Dkt. 65 at 4.


       199 Dkt. 67.


       200 See Yuskus Tr. 660; Azzopardi Tr. 610.


       201 Dkt. 88; Dkt. 112.


       202 Dkt. 288 at 3.



                                          46
      The Borrower also stopped paying its counsel. The court allowed counsel to

withdraw and required substitute counsel to appear by May 16, 2025, or the court

would find the Borrower in default.203 On May 14, rather than hire new Delaware

counsel, the Borrower filed for bankruptcy in the United States Bankruptcy Court for

the Northern District of Illinois, automatically staying this litigation. That was a

tactical choice, because despite suing the Borrower, Alpha continued to advance

hundreds of thousands of dollars of funds to the Borrower, and some of that money

could have been used to pay counsel.204

      Between May 23 and June 3, 2025, with Wolfe’s authorization, Yuskus

modified hundreds of entries in the Borrower’s general ledger.205 He changed entries

related to Alpha’s advances from “accounts payable” to “notes payable.”206 He also

added new entries for “accrued interest payable to Alpha Carta” for 2018 to 2025.207

Yuskus claimed to be unaware of any loan agreement with Alpha before early 2025

and asserted he was merely trying to document the loan relationship.208




      203 Dkt. 105.


      204 See JX 164 at 4; Yuskus Tr. 661, 663.


      205 See JX 169 at 24–25; Johnston Tr. 497–500; Wolfe Tr. 710–11.


      206 JX 169 at 24–25; Johnston Tr. 500; Yuskus Tr. 659.


      207 Yuskus Tr. 659; Johnston Tr. 500.


      208 Yuskus Tr. 658–59.



                                          47
       The Lender and the Florida Subsidiary sought relief from the automatic stay

to pursue this action. The bankruptcy court granted their request.209

       On July 1, 2025, the court entered a stipulated scheduling order providing for

trial at the end of August.210 The next day, the Borrower removed the case to the

United States District Court for the District of Delaware, claiming this action was

“related to” the bankruptcy proceeding.211 The district court remanded the case a day

later.212

       The Borrower continued to resist discovery, leading to a second motion to

compel.213 The court set a deadline for any opposition.214 Rather than responding, the

Borrower filed a second notice of removal based on the same grounds as the first.215

The district court promptly remanded the case again.216

       On August 5, 2025, the plaintiffs moved to compel Ritchie’s in-person

deposition. The court granted the plaintiffs’ motion and ordered Ritchie to appear




       209 Dkt. 118.


       210 Dkt. 134.


       211 Dkt. 139, Ex. at 5.


       212 Dkt. 154.


       213 See Dkt. 167; Dkt. 180.


       214 Dkt. 169.


       215 Dkt. 171.


       216 Dkt. 192.



                                         48
within 48 hours. Ritchie’s counsel represented that he was outside the United States

and would not come to the United States for deposition or trial.217 He gave his

deposition by Zoom.

      Trial took place on August 20–22, 2025. Ritchie did not attend.

      In an earlier lawsuit, a judge in the Circuit Court of Cook County, Illinois,

offered the following comment on Ritchie’s litigation conduct: “My not-so-brief time

overseeing this case tells me that Mr. Ritchie, through his various companies and

through his counsel . . . attempted to do nothing short of sowing anarchy in the civil

justice system.”218 The court’s experience has been much the same.

                      II.    THE NON-MERITS DEFENSES

      The Borrower seeks to achieve a non-merits victory by raising a series of pre-

emptive defenses: lack of subject matter jurisdiction, failure to name an indispensable

party, and lack of personal jurisdiction.

A.    The Lack Of Subject Matter Jurisdiction Defense

      The Borrower’s first non-merits defense contends that the court lacks subject

matter jurisdiction. The Lender asserted a claim for breach of contract, with equitable

jurisdiction grounded on its pleading-stage request for injunctive relief and current

request for specific performance. The Borrower says those requests “came far too late




      217 See Dkt. 254 at 4, 6.


      218 Ritchie Multi-Strategies Glob., LLC v. Huizenga Managers Fund, LLC,
Case. No. 18-CH-6001, at 57–58 (Ill. Cir. Ct. Cook Cty. Aug. 26, 2019) (TRANSCRIPT)
(JX 7).

                                            49
procedurally” and cannot support jurisdiction because a declaration of breach plus an

award of money damages would provide complete relief.219 Contrary to the Borrower’s

contention, the court can exercise subject matter jurisdiction over this dispute.

         The Court of Chancery possesses limited subject matter jurisdiction. The court

“can acquire subject matter jurisdiction in the first instance by three different means:

(1) the invocation of an equitable right; (2) a request for an equitable remedy when

there is no adequate remedy at law; or (3) a statutory delegation of subject matter

jurisdiction.”220 “The party seeking the Court’s intervention bears the burden of

establishing jurisdiction.”221

         A party can challenge the court’s subject matter jurisdiction at any point in the

proceeding.222 A court generally determines whether it has subject matter jurisdiction

by looking at the face of the complaint and accepting the allegations as true.223 But

when evaluating whether subject matter jurisdiction exists based on a request for




         219 Dkt. 277 at 9.


         220 Kraft v. WisdomTree Invs., Inc., 145 A.3d 969, 973 (Del. Ch. 2016) (internal

quotation marks omitted).

         221 Shore Invs., Inc. v. BHole, Inc., 2009 WL 2217744, at *2 (Del. Ch. July 14,

2009).

         222 See Imbragulio v. Unemployment Ins. Appeals Bd., 223 A.3d 875, 878 (Del.

2019) (“A litigant may raise a court’s lack of subject matter jurisdiction at any time
in the same civil litigation, even initially at the highest appellate instance.” (cleaned
up)).

         223 Diebold Comput. Leasing, Inc. v. Com. Credit Corp., 267 A.2d 586, 590 (Del.

1970).

                                            50
equitable remedies, the court “must look beyond the remedies nominally being

sought, and focus upon the allegations of the complaint in light of what the plaintiff

really seeks to gain by bringing his or her claim.”224 That means “a judge in equity

will take a practical view of the complaint, and will not permit a suit to be brought in

Chancery where a complete legal remedy otherwise exists but where the plaintiff has

prayed for some type of traditional equitable relief as a kind of formulaic ‘open

sesame’ to the Court of Chancery.”225 This court will not exercise subject matter

jurisdiction when a remedy at law “will afford the plaintiffs full, fair and complete

relief,”226 meaning it will be as “complete, practical and efficient” as equitable

relief.227

       Here, the Borrower maintains that the Lender only sought damages for its

breach of contract claim, asserts that “[s]pecific performance is mentioned nowhere

in the Complaint,” and argues that equitable relief is unnecessary.228 The Borrower

reads the complaint too narrowly. Among other relief, plaintiffs’ complaint sought a




       224 Candlewood Timber Gp., LLC v. Pan Am. Energy, LLC, 859 A.2d 989, 997

(Del. 2004).

       225 Int’l Bus. Machs. Corp. v. Comdisco, Inc., 602 A.2d 74, 78 (Del. Ch. 1991);

see 10 Del. C. § 342 (“The Court of Chancery shall not have jurisdiction to determine
any matter wherein sufficient remedy may be had by common law, or statute, before
any other court or jurisdiction of this State.”); El Paso Nat. Gas Co. v. TransAmerican
Nat. Gas Corp., 669 A.2d 36, 39 (Del. 1995) (same).

       226 Hughes Tool Co. v. Fawcett Publ’ns, Inc., 315 A.2d 577, 579 (Del. 1974).


       227 Int’l Bus. Machs., 602 A.2d at 85.


       228 Dkt. 277 at 4.



                                           51
judgment “[p]reliminarily and permanently enjoining [the Borrower] from taking any

action to interfere with [the Lender’s] ownership of [the Florida Subsidiary] and the

[Properties].”229

       “A request for injunctive relief clearly constitutes equitable relief over which

this Court has jurisdiction,”230 as long as the request is “bona fide.”231 Here, the

request was bona fide. The Borrower refused to recognize the Lender’s rights to either

the Properties or the Subsidiary Shares. The Borrower changed the locks on the

Properties, sent cease-and-desist letters to the architect, filed legal proceedings in

Guadeloupe, and created confusion over which manifestation of the Subsidiary—the

Island Subsidiary or the Florida Subsidiary—continued to exist or whether they were

distinct entities. The Lender legitimately requested equitable relief to stop the

Borrower from evading its obligations and complicating the factual landscape. The

Lender also legitimately sought equitable relief to force the Borrower to comply with

its obligations and undo the mess it had created.

       The Borrower objects to the Lender’s reliance on its request for injunctive relief

because the Borrower links that request to the Lender’s claim for tortious

interference, which the court dismissed. The Borrower seems to have fixated on the



       229 Dkt. 1 at 23.


       230 Alpha Builders, Inc. v. Sullivan, 2004 WL 2694917, at *2 (Del. Ch. Nov. 5,

2004); see Cont’l Auto. Sys., Inc. v. Nokia Corp., 2023 WL 1370523, at *21 (Del. Ch.
Jan. 31, 2023).

       231 DBMP LLC v. Del. Claims Processing Facility, LLC, 2025 WL 3013006, at

*8 (Del. Ch. Oct. 24, 2025).

                                           52
request for an injunction against “interference” and assumed that linguistically, that

word must relate to the claim for tortious interference. But the request for relief was

not limited to that count. The Lender sued for breach of the Settlement Agreement

and sought equitable relief to force the Borrower to comply with its terms. The

Borrower had interfered with the Lender’s rights in the colloquial sense, and the

Lender wanted injunctive relief that would stop the Borrower from interfering and

force the Borrower to comply.

      The Borrower’s fixation on the complaint’s failure to use the explicit words

“specific performance” is also misguided. Nothing in the Court of Chancery Rules

requires that a party plead specific performance as a remedy, and the court

determines the appropriate remedy after a party prevails, not at the pleading

stage.232 Just as pleading certain “magic words” like “injunction” or “specific

performance” does not automatically open the door to the Court of Chancery,233 the




      232 See, e.g., Delawareans for Educ. Opportunity v. Carney, 199 A.3d 109, 178

(Del. Ch. 2018) (declining to rule on remedies at the pleading stage, writing that
“[w]hether and what kind of remedy issues should be addressed at a future date”);
Bear Stearns Mortg. Funding Tr. 2006-SL1 v. EMC Mortg. LLC, 2015 WL 139731, at
*17 (Del. Ch. Jan. 12, 2015) (“At the pleadings stage, the court will not rule out the
possibility of other remedies, such as rescissory damages.”).

      233 McMahon v. New Castle Assocs., 532 A.2d 601, 603 (Del. Ch. 1987) (Allen,

C.) (“Chancery jurisdiction is not conferred by the incantation of magic words. . . . If
a realistic evaluation leads to the conclusion that an adequate remedy is available
this court . . . will not accept jurisdiction over the matter.”); accord Cochran v. F.H.
Smith Co., 174 A. 119, 121 (Del. Ch. 1934) (Wolcott, C.) (“It appears sometimes to be
thought that if fraud be present in any situation the open sesame has been found upon
the pronouncing of which the doors of equity are flung wide apart. That is a
misconception.”).

                                          53
failure to use talismanic remedial phrases does not prevent the court from exercising

jurisdiction when the complaint supports the potential need for an equitable

remedy.234 Here, in addition to specific items of relief, the complaint requests “such

other and further relief as the Court deems just and proper.”235 To the extent a

linguistic remedial hook is necessary (a dubious pleading proposition), that phrase

“could encompass, in an appropriate case, an award of specific performance.”236 The

complaint’s allegations provide ample basis to believe a decree of specific performance

could be warranted, making this “an appropriate case.”




      234 See Carpenter v. Liberty Mut. Ins. Co., 2023 WL 3454692, at *3 (Del. Ch.

May 15, 2023) (noting that the complaint did not contain a request for specific
performance, but dismissing complaint for lack of jurisdiction because the complaint
failed to support an inference that specific performance would be needed, not because
the complaint did not contain those words); Ravenswood Inv. Co., L.P. v. Est. of
Winmill, 2018 WL 1410860, at *2 (Del. Ch. Mar. 21, 2018) (declining to exercise
subject matter jurisdiction where the plaintiff both did not expressly seek specific
performance and had not otherwise “attempted to demonstrate that the remedy is
appropriate”), aff’d, 210 A.3d 705 (Del. 2019).

      235 Dkt. 1 at 23.


      236 Ravenswood, 2018 WL 1410860, at *24; see, e.g., Sheet Metal Workers’ Int’l

Ass’n Loc. 19 v. Herre Bros., Inc., 201 F.3d 231, 249 (3d Cir. 1999) (“In its amended
complaint, the Union requested money damages representing lost wages and fringe
benefits, a declaratory judgment, and such other relief as the Court deems just and
reasonable. . . . As a result, we believe that the request for relief in the amended
complaint is broad enough to encompass a request for specific performance, especially
in light of the actual request made in a post-trial brief.” (alteration and internal
quotation marks omitted)); Int’l Union of Elevator Constructors, AFL–CIO v. Reg’l
Elevator Co., 847 F. Supp. 2d 691, 701 (D. Del. 2012) (“Because Plaintiffs’ Complaint
did request that the Court grant other such relief deemed just and proper, Plaintiffs’
claim for specific performance is appropriately raised.” (alteration and internal
quotation marks omitted)).

                                          54
      If the Lender sprang the specific performance remedy on the Borrower at the

last minute, then concern for due process could counsel against recognizing it as a

basis for jurisdiction.237 But this case does not involve the type of extreme facts that

would warrant that outcome. Here, it has long been clear that specific performance

was on the table.

      Finally, this is not a case where a declaration of breach plus an award of money

damages could provide an adequate remedy. Telling the Lender that it could only

recover a money judgment would effectively deprive the Lender of the security it

obtained and turn the Lender into an unsecured creditor. The Lender bargained for




      237 See Ravenswood, 2018 WL 1410860, at *25 (refusing to consider awarding

specific performance in light of “[p]laintiff’s basic failure meaningfully to address the
remedy question at any stage of these proceedings,” which “created a vacuum that
the Court cannot fill, even in the spirit of equity, without offending fundamental
notions of due process”).

                                           55
the ability to foreclose on real estate,238 a unique asset,239 or on the shares of an entity

that owned unique real estate assets.240

B.        The Indispensable Party Argument

          The Borrower next argues that the court cannot grant relief involving the

Properties because the Island Subsidiary is an indispensable party under Rule 19. It

is not.

          Rule 19 treats a party as indispensable if

          (A) in that person’s absence, the Court cannot accord complete relief
          among existing parties; or

          (B) that person claims an interest relating to the subject of the action
          and is so situated that disposing of the action in the person’s absence
          may:




          238 The Borrower provided two forms of security for the Loan: (1) a security

interest in the shares of the Island Subsidiary (initially) and the Florida Subsidiary
(subsequently) and (2) a commitment to provide mortgages on the Properties
themselves. The Borrower provided the first type of security because of the difficulties
in perfecting mortgages under French law in time for the Loan to close. The real
security for the Loan is the Properties.

          239 See Osborn v. Kemp, 991 A.2d 1153, 1162 (Del. 2010) (“We recognize that

real property is unique and often the law cannot adequately remedy a party’s refusal
to honor a real property contract.”); Szambelak v. Tsipouras, 2007 WL 4179315, at *7
(Del. Ch. Nov. 19, 2007) (“Real property is unique; thus, specific performance of a real
estate sale contract is often the only adequate remedy for a breach by the seller,
except in rare circumstances.”).

          240 See True N. Commc’ns Inc. v. Publicis S.A., 711 A.2d 34, 45 (Del. Ch. 1997)

(explaining that opportunity to acquire entity was unique opportunity that rendered
money damages inadequate); accord ACE Ltd. v. Cap. Re Corp., 747 A.2d 95, 110 (Del.
Ch. 1999) (noting that “the loss of a unique acquisition opportunity may constitute
an irreparable injury” that renders monetary damage inadequate (internal quotation
marks omitted)).

                                             56
            (i) as a practical matter impair or impede the person’s ability to
      protect the interest; or

            (ii) leave an existing party subject to a substantial risk of
      incurring double, multiple, or otherwise inconsistent obligations
      because of the interest.241

If an indispensable party cannot be joined, then a court must determine how to

proceed. The court need not undertake that inquiry, because the Island Subsidiary is

not an indispensable party.

      For starters, the Island Subsidiary no longer exists. Under Florida law, a

domesticated foreign corporation is “[t]he same corporation, without interruption, as

the domesticating corporation.”242 In addition, “[a]ll real property and other property

owned by the domesticating corporation . . . are the property and contract rights of

the domesticated corporation without transfer, reversion, or impairment.”243 In this

case, the Borrower committed to “cause [the Island Subsidiary] to change its domicile

to Florida, United States of America” before granting the mortgages that secured the

Loan.244 In compliance with that obligation, the Borrower redomiciled the Island

Subsidiary in Florida, resulting in the Island Subsidiary becoming the Florida

Subsidiary. There is no longer an Island Subsidiary that could be a party to the case.

The only extant entity is the Florida Subsidiary, which is a plaintiff.




      241 Ct. Ch. R. 19(a).


      242 Fla. Stat. § 607.11924(1)(f)(1).


      243 Id. § 607.11924(1)(a).


      244 JX 248 § 5.3.



                                             57
       The Borrower contends that the Island Subsidiary continues to exist and that

it has changed its name to Vue Mer Signature Holdings. The fact that the Borrower

made a false filing on a foreign corporate registry that changed the name of an already

domesticated corporation does not change the fact that the domestication took place.

It reflects a clerical error.

       Assuming for purposes of analysis that the domestication was not effective,

then the present state of affairs results from the Borrower’s failure to comply with its

domestication obligation under the Loan and breach of the Settlement Agreement.

“Equity regards as done what ought to have been done.”245 That principle creates an

equity in favor of a party entitled to performance when the counterparty fails to

perform and then invokes its own failure as a defense to its obligations.246




       245 Stream TV Networks, Inc. v. SeeCubic, Inc., 250 A.3d 1016, 1030 (Del. Ch.

2020) (refusing to allow defendants to take advantage of their failure to take
contractually mandated action as a way to avoid the contractual obligation).

       246 See Freeman v. Fabiniak, 1985 WL 11583, at *8 (Del. Ch. Aug. 15, 1985)

(“Because equity regards as done that which ought to be done, a contract for sale of
land, chattels, or choses in action acts as an equitable conversion. . . . Therefore, once
Atlantic Financial exercised its option on March 8, 1985, the equitable ownership of
the shares passed to it. The shares could not thereafter be voted hostile to the
interests of Atlantic Financial.”); Eddington v. Turner, 26 A.2d 80, 82 (Del. Ch. 1942)
(explaining principle). The principle resembles the prevention doctrine, under which
a party cannot avoid performing by relying on the failure of a condition that the party
itself caused to fail. Compare Phillips Petroleum Co. v. Arco Alaska, Inc., 1986 WL
7612, at *14 (Del. Ch. July 9, 1986) (relying on equitable maxim and holding that “[t]o
permit SAE to circumvent a Data Cutoff Agreement that would otherwise be
applicable by allowing it to rely upon the non-occurrence of a procedural formality
that SAE itself deliberately chose to preclude, would be unconscionable”), with Mobile
Commc’ns Corp. of Am. v. MCI Commc’ns Corp, 1985 WL 11574, at *4 (Del. Ch. Aug.
27, 1985) (explaining that under the prevention doctrine, “a party may not escape


                                           58
      Matters do not get better for the Borrower without the equitable maxim. The

Island Subsidiary is not indispensable under Rule 19(a)(1)(A) because the court can

“accord complete relief among existing parties.”247 The court can order the Borrower

to transfer all of its shares in the Island Subsidiary to the Lender. If necessary, the

court can appoint a receiver to take control over the Borrower and effectuate the

transfer.

      The Island Subsidiary is also not indispensable under Rule 19(a)(1)(B), because

resolving this action without the Island Subsidiary as a party would neither “impair

or impede [its] ability to protect the interest” nor “leave an existing party subject to

a substantial risk of incurring double, multiple, or otherwise inconsistent obligations

because of [the Island Subsidiary’s] interest.”248 For purposes of the first issue, the

Borrower can and has adequately represented any interests the Island Subsidiary

might have. Both seek to escape from the Loan and the Settlement Agreement. The

Borrower claims to control the Island Subsidiary. The latter cannot do anything

without the former.

      For purposes of the second issue, the only parties with competing claims to the

Borrower’s Subsidiary Shares are the Lender, the Borrower, and Alpha. This decision




contractual liability by reliance upon the failure of a condition precedent where the
party wrongfully prevented performance of that condition precedent”).

      247 Ct. Ch. R. 19(a)(1)(A).


      248 Ct. Ch. R. 19(a)(1)(B).



                                          59
adjudicates those claims. The Borrower has not identified any risk of inconsistent

obligations that it or the Island Subsidiary might face.

      The indispensable party argument fails.

C.    The No-Jurisdiction-Over-The-Properties Defense

      In a variant of its indispensable-parties argument, the Borrower contends that

the court cannot grant relief because it lacks jurisdiction over the Properties. The

Borrower argues that a court applying French law with jurisdiction over the

Properties must determine the validity of any effort to transfer an interest in the

Properties and that this court must defer to the outcome of that as-yet-unfiled

proceeding. That mashup of concepts fuses together arguments typically framed

under the guise of choice of law, forum non conveniens, and general principles of

comity.

      Those preliminary issues do not limit a court’s ability to address the merits

once it has jurisdiction over the parties. A court can apply foreign law. A court can

order a party before it to take action, including in a foreign jurisdiction. While a court

can and should hesitate before awarding impractical or futile remedies, how to

proceed is a discretionary determination.249

      Here, the court has subject matter jurisdiction over the case and personal

jurisdiction over the Borrower, which is a Delaware corporation. The court can order

the Borrower to take action to remedy its breach, including actions relating to the



      249 See 26 Cap. Acq. Corp. v. Tiger Resort Asia Ltd., 309 A.3d 434, 465–74 (Del.

Ch. 2023).

                                           60
Properties. If those actions require that the Borrower act through a subsidiary, the

court can decree that as well. The court can also appoint a receiver to carry out its

orders. This is not the rare case like 26 Capital, where unique concerns about

illegality and influence led the court to decline to order specific performance

concerning an asset halfway around the world. Even then, the court did not throw up

its hands and dismiss the case, as the Borrower proposes. The court entertained

alternative relief.250

       The fact that the Properties are not within this court’s jurisdiction does not

defeat the Lender’s claims.

                                 III.   THE MERITS

       The Lender sought at trial to prove its claim for breach of the Settlement

Agreement. “The elements of a claim for breach of contract are (i) a contractual

obligation, (ii) a breach of that obligation by the defendant, and (iii) a causally related

injury that warrants a remedy, such as damages or in an appropriate case, specific

performance.”251 The Lender proved each element.




       250 Id. at 474 (“This ruling does not mean that 26 Capital will not be entitled

to any remedy. To the extent 26 Capital has proven a breach of contract and Universal
has not proven any of its affirmative defenses, then 26 Capital may be able to recover
damages.”).

       251 AB Stable VIII LLC v. MAPS Hotels & Resorts One LLC, 2020 WL 7024929,

at *47 (Del. Ch. Nov. 30, 2020), aff’d, 268 A.3d 198 (Del. 2021).

                                            61
A.    The Settlement Agreement Is A Valid And Enforceable Contract.

      The first issue is whether the Settlement Agreement constitutes a valid and

enforceable contract. A valid contract exists “when (1) the parties intended that the

contract would bind them, (2) the terms of the contract are sufficiently definite, and

(3) the parties exchange legal consideration.”252 Here, a threshold issue looms:

whether Cicoski had authority to bind the Borrower.

      1.     Authority

       The Borrower claims that Cicoski lacked authority to enter into the

Settlement Agreement. The Borrower also argues that Cicoski lacked authority to

enter into the Loan, which retroactively eliminates any basis for Cicoski to have

entered into the Settlement Agreement.253 Cicoski possessed actual authority to do

both as the Borrower’s duly empowered agent.254

       “An individual corporate director may negotiate a settlement on behalf of the

corporation—and bind the corporation to an agreed-upon settlement—provided the




      252 Osborn, 991 A.2d at 1158.


      253 This is a Terminator argument. Just as Skynet sought to negate John
Connor’s imminent victory by sending the Terminator back in time to assassinate his
mother and prevent John’s birth, so too the Borrower seeks to negate the Settlement
Agreement by reaching back in time to invalidate the Loan. See The Terminator
(Hemdale Film Corporation 1984).

      254 The plaintiffs rely in the alternative on the doctrine of apparent authority.

The court does not reach that issue.

                                         62
director has actual or apparent authority to do so.”255 “An agent possesses ‘actual

authority’ when it has been expressly or implicitly granted authority by a

principal.”256 “An agent acts with actual authority when, at the time of taking action

that has legal consequences for the principal, the agent reasonably believes, in

accordance with the principal’s manifestations to the agent, that the principal wishes

the agent so to act.”257 An agent’s actual authority goes beyond the principal’s words

to encompass the actions “designated or implied in the principal’s manifestations to

the agent and acts necessary or incidental to achieving the principal’s objectives, as

the agent reasonably understands the principal’s manifestations and objectives when

the agent determines how to act.”258 The principal’s manifestations “may be made

directly by the principal to the agent or may reach the agent through a more

circuitous route.”259




         255 Sarissa Cap. Domestic Fund LP v. Innoviva, Inc., 2017 WL 6209597, at *16

(Del. Ch. Dec. 8, 2017); see Parke Bancorp Inc. v. 659 Chestnut LLC, 217 A.3d 701,
712 (Del. 2019) (“Under the common law of agency, there are two main forms of
authority: actual authority and apparent authority.”).

         256 Caribbean Sun Airlines Inc. v. Halevi Enters. LLC, 339 A.3d 24, 35 (Del.

2025).

         257 Harmon v. Del. Harness Racing Comm’n, 62 A.3d 1198, 1201 (Del. 2013)

(quoting Restatement (Third) of Agency § 2.01 (2006)).

         258 Restatement (Third) of Agency § 2.02(1); accord Sarissa, 2017 WL 6209597,

at *17.

         259 Restatement (Third) of Agency § 3.01 cmt. b.



                                           63
      In Sarissa, the Court of Chancery held that a director had actual authority to

bind the corporation to a settlement agreement based on the board of directors’

manifestations of authority and the director’s reasonable understanding of those

manifestations.260 The board had appointed the director to act as the corporation’s

“lead negotiator” in settlement discussions with the counterparty, instructed the

director “to see if a settlement agreement . . . could be reached,” and told the director

to convey key terms for a settlement.261 Time was of the essence, because the other

side was likely to lose its incentive to settle if the corporation delayed. 262 Under the

circumstances, the director “reasonably understood the Board’s (and thus [the

corporation’s]) manifestations” as empowering him to enter into an oral settlement

agreement.263

                a.   The Manifestations

      The manifestations regarding Ritchie’s authority in this case gave him actual

authority to enter into the Settlement Agreement. When Cicoski approved the

Settlement Agreement, Cicoski was the general counsel of the Family Office. He was

also the Borrower’s sole director. In those capacities, he was an agent of the Family

Office, which operated as the central nervous system for Ritchie’s entities. He was




      260 Sarissa, 2017 WL 6209597, at *17.


      261 Id.


      262 Id. at *18.


      263 Id.



                                           64
also an agent of Ritchie, the ultimate principal for each entity in the Family Office.

Those roles gave Cicoski all the actual authority he needed.

      The circumstances surrounding both the Loan and the Settlement Agreement

further manifested Ritchie’s authority. Facing a liquidity crisis, Ritchie instructed

Cicoski to help Brownell secure the Loan. Ritchie and Wolfe, one of Ritchie’s close

associates, told Cicoski to get the Loan closed.264 Ritchie was personally involved,265

and the Loan was a regular topic of conversation as a short-term solution to the

Family Office’s cash flow problems.266 Cicoski reasonably believed that Ritchie had

empowered him to enter into the Loan.

      Cicoski also reasonably believed that he had actual authority to execute the

Loan because of the written consent that he and Azzopardi executed on January 29,

2023, as the only directors of the Family Trustee. The Family Trustee controlled the

Family Trust, which was the Borrower’s sole stockholder. The written consent

expressly authorized Cicoski to execute the Loan Agreement.267 A subsequent consent

ratified the Loan and authorized the First Modification, the Second Modification, and




      264 Cicoski Tr. 237.


      265 See id. at 249.


      266 See id. at 238; McHugh Dep. 40.


      267 JX 34 at 1–2. Although the resolution could be read either to require both

Cicoski and Azzopardi to sign the Loan or to authorize either Cicoski or Azzopardi to
act, the record establishes that the latter was the intent. Cicoski Tr. 383–84. To
clarify matters and confirm that interpretation, they executed a second written
consent on February 15, 2023. Cicoski Tr. 272; JX 49.

                                          65
the Settlement Agreement.268 Ritchie knew about the Settlement Agreement and was

happy with the result.269

      Cicoski had actual authority to enter into both the Loan and the Settlement

Agreement.

             b.    The Board Majority Requirement

      Alpha and the Borrower argue that the Loan lacked proper authorization

because under the Borrower’s bylaws, only a majority of the Borrower’s board of

directors could approve the Loan. When the Borrower entered into the Loan, its board

comprised both Wolfe and Cicoski. For several reasons, this argument does not

prevent the Lender from enforcing the Settlement Agreement.

      The Borrower relies on a provision in its bylaws which states that “without

prior approval of a majority of the Board of Directors of the [Borrower], . . . the

[Borrower] shall not . . . incur . . . any indebtedness, absolute or contingent of any

nature whatsoever, if the [Borrower]’s aggregate indebtedness would exceed the

indebtedness expressly provided for in the Approved Budget by $500,000” or “create

any mortgage, lien, security interest or encumbrance on any asset of the [Borrower]



      268 JX 49 at 1–2.


      269 See Cicoski Tr. 308 (“I remember that Mr. Ritchie was happy [about the

Settlement Agreement] because Mr. Brownell, to get this done, had to give up some
of the fees—actually all of the fees, I believe—that he would otherwise have earned
. . . .”). To the extent some of Ritchie’s manifestations regarding the Loan and the
Settlement Agreement came through Brownell, Cicoski still reasonably believed that
Ritchie provided them. Ritchie communicated with Brownell constantly—far more
frequently than with Cicoski—and commonly relied on Brownell to convey his wishes.
See id. at 243–44, 307–08.

                                         66
of any of its subsidiaries, other than in the ordinary course of business” (the “Board

Majority Requirement”).270 The record contains no evidence as to the Borrower’s

“Approved Budget” or what sort of “mortgage, lien, security interest or encumbrance”

would be outside the ordinary course of business. As the party invoking the bylaw as

a defense, Alpha and the Borrower bore the burden of proving that the Loan exceeded

the Approved Budget by $500,000 or was outside the ordinary course. They did not

carry that burden.

      Assuming without deciding that the Loan was outside the ordinary course of

business or exceeded the Approved Budget in an amount sufficient to trigger the

Board Majority Requirement, the record reflects that the Loan did not satisfy it.

Under Delaware law, the board needed to act formally by unanimous written

consent271 or through action at a duly called and convened meeting at which a quorum

was present.272 The record does not contain persuasive evidence of either.

      That failure, however, is not fatal. As Alpha and the Borrower correctly argue,

a failure to comply with the bylaw would constitute a failure of authorization, not of




      270 JX 2 at 7–8.


      271 8 Del. C. § 141(f).


      272 Id. § 141(b).



                                         67
corporate power.273 The Loan was therefore voidable, not void,274 and majority

stockholder ratification could validate it.275 The Ratifying Consent delivered

unanimous stockholder ratification, which could even validate waste.276 The

Ratifying Consent therefore authorized the Loan notwithstanding any failure to meet

the Board Majority Requirement.

      The authority defense based on the Board Majority Requirement also fails

because of the equitable maxim that “[e]quity regards as done what ought to have

been done.”277 When an act is voidable, rather than void, a court of equity can enforce

it where the equities require. Here, the equites favor the Lender because Wolfe in fact




      273 Moelis & Co. v. W. Palm Beach Firefighters’ Pension Fund, — A.3d —, —,

2026 WL 184868, at *6–7 (Del. Jan. 20, 2026) (holding that if corporation could
achieve transactional outcome under some path provided by the DGCL, then the
corporate power to act exists and the failure to follow that path renders the act
voidable rather than void).

      274  XRI Inv. Hldgs. LLC v. Holifield, 283 A.3d 581, 667 (Del. Ch. 2022)
(collecting authorities), aff’d in part, rev’d in part on other grounds and remanded,
304 A.3d 896 (Del. 2023).

      275 Michelson v. Duncan, 407 A.2d 211, 219 (Del. 1979) (“Generally, any act of

the board of directors or of any of the officers beyond the scope of their authority . . .
may be ratified by the stockholders . . . .”); Gerlach v. Gillam, 139 A.2d 591, 593 (Del.
Ch. 1958) (“It is contended and cannot be denied that where a majority of fully
informed stockholders ratify action of even interested directors, an attack on the
ratified transaction normally must fail.”).

      276 Schreiber v. Bryan, 396 A.2d 512, 518 (Del. Ch. 1978); Kaplan v. Goldsamt,

380 A.2d 556, 567–68 (Del. Ch. 1977).

      277 Stream TV Networks, 250 A.3d 1016, 1030 (Del. Ch. 2020) (refusing to allow

defendants to take advantage of their failure to take contractually mandated action
to avoid the contractual obligation).

                                           68
knew about and approved the Loan, and Ritchie was both fully aware of what was

going on and wanted the Loan closed. Any failure to comply with the Board Majority

Requirement resulted from Ritchie’s insistence on avoiding any semblance of

corporate governance and his refusal to let his team properly document his decisions.

Ritchie instructed his team not to keep written records, demanded that

documentation be kept to a minimum, and provided approvals through informal

means, such as a “thumbs-up” emoji in an ephemeral message.278

      Under the standards followed by the Family Office, Wolfe approved the Loan.

He told Cicoski to get the Loan done on any terms available.279 He received regular

reports on the Loan and never objected to it.280 Although Wolfe later denied knowing

about or authorizing the Loan, his testimony was not credible. He admitted knowing

that money moved from Tailwind’s counsel’s account to Mack’s IOLTA account.281 He

admitted knowing that Alpha received a portion of the proceeds.282 He admitted

knowing that the Borrower benefited by having its debt to Dominion Bank repaid.283




      278 See Cicoski Tr. 296.


      279 Id. at 236–37.


      280 See id. at 282.


      281 See Wolfe Tr. 697–98.


      282 See id. at 708–09.


      283 See id.



                                         69
He knew where the money came from and was fine with it. The same is true for

Ritchie.

      Finally, the Settlement Agreement separately ratified any defect in the Loan.

Under the common law of agency, a principal may ratify an earlier contract voidable

for lack of authority by entering into an agreement that affirms or promises to

perform the antecedent contract.284 A party may ratify a contract by any conduct

indicating assent to the contract.285 The principal himself may take the ratifying act

or may do so through an agent. “Although ratification is often done by a party or

parties distinct from the actor whose conduct is being ratified, that dichotomy is not




      284 See Restatement (Third) Of Agency § 4.01 (“Ratification is the affirmance of

a prior act done by another, whereby the act is given effect as if done by an agent
acting with actual authority.”); 12 Williston on Contracts § 35:22 (4th ed.)
(“Ratification may be defined generally as the adoption or confirmation of a prior act
purportedly performed on the principal’s behalf by an agent without the agent
obtaining prior authority. . . . The subsequent affirmance by a principal of a contract
made on its behalf by one who had at the time neither actual nor apparent authority
constitutes a ratification, which relates back and supplies original authority to
execute the contract.”); Lewis v. Vogelstein, 699 A.2d 327, 334 (Del. Ch. 1997)
(“Ratification is a concept deriving from the law of agency which contemplates the ex
post conferring upon or confirming of the legal authority of an agent in circumstances
in which the agent had no authority or arguably had no authority.” (citing
Restatement (Second) of Agency § 82 (1958)); see also Restatement (Second) of
Contracts §§ 85, 93 (1981) (“[A] promise to perform all or part of an antecedent
contract of the promisor, previously voidable by him, but not avoided prior to the
making of the promise, is binding,” as long as “the promisor knew or had reason to
know the essential facts of the previous transaction to which the promise relates.”).

      285 See 12 Williston on Contracts § 35:23 (“Ratification need not be express.

Any conduct that indicates assent by the purported principal to become a party to the
transaction, or by reason of which the principal is precluded from repudiating the
transaction of the purported agent, such as the principal’s receipt and acceptance of
benefits, is sufficient.” (footnotes omitted)).

                                          70
required.”286 An agent with proper authority may act on the principal’s behalf to ratify

an earlier act of the agent whose authority is in dispute.287

      The Settlement Agreement ratifies any defect in the Loan by recognizing and

reaffirming the validity of the earlier contract. It states:

      A.    Borrower and Lender are parties to a certain Loan and Security
      Agreement dated as of February 2, 2023 (the Original Loan & Security
      Agreement”), evidencing and governing a certain loan made by Lender
      to Borrower in the principal amount of $10,000,000 (the “Original
      Loan”), which is evidenced by that certain Promissory Note executed by
      Borrower to the order of Lender dated February 2, 2023 . . . .

      B.     On February 16, 2023, the Lender and the Borrower entered into
      that certain First Amendment to Loan & Security Agreement to make
      certain revisions to the terms of the Original Loan & Security
      Agreement . . . .

      C.    On June 16, 2023, Lender and the Borrower amended the
      Original Loan & Security Agreement by entering into that certain
      Second Loan Modification and Ratification Agreement by and among the
      Borrower, the Lender and the Principals . . . .288




      286 Glass v. Baker, 2024 WL 687755, at *16 (Del. Ch. Feb. 9, 2024) (footnote

omitted), adopted, (Del. Ch. 2024), aff’d, 339 A.3d 745 (Del. 2025).

      287  See, e.g., id. (“When an agent is validly appointed . . . , the principal
authorizes the agent to execute the agent’s certification and begin acting on the
principal’s behalf. If the agent fails to execute the certification, yet purports to act as
agent for the principal, those actions are voidable. But, if those actions are not first
voided by the principal, the agent is authorized (through the principal’s initial and
continued appointment) to ratify their post-appointment conduct after signing the
agent’s certification.” (footnotes omitted)).

      288 JX 94 at 1–2.



                                            71
Ordinarily, recitals are not binding and only provide context.289 But parties can make

them binding.290 In the Settlement Agreement, the parties “acknowledge the accuracy

of the recitals set forth above, which are incorporated herein as if set forth herein and

form a part of this Agreement.”291 In effect, the parties stipulated that the recitals

were true. The Settlement Agreement also contained an integration clause

establishing that its terms embodied “the entire agreement and understanding

between the Parties.”292

      Through the recitals, the parties to the Settlement Agreement ratified the

validity of the prior documents, including the Loan Agreement. To the extent there

were potential disputes over the prior documents, the integration clause resolved

those disputes and merged the rights that existed under the prior agreements,




      289 Llamas v. Titus, 2019 WL 2505374, at *16 (Del. Ch. June 18, 2019)
(“Generally, recitals are not a necessary part of a contract and can only be used to
explain some apparent doubt with respect to the intended meaning of the operative
or granting part of the instrument. If the recitals are inconsistent with the operative
or granting part, the latter controls.”).

      290 See 17A C.J.S. Contracts § 420 (“Recitals in a contract, such as ‘whereas’

clauses, are merely explanations of the circumstances surrounding the execution of
the contract, and are not binding obligations, unless the operative provisions of the
contract refer to them.” (emphasis added)); D. Hull Youngblood, Jr., 7 Deadly Sins of
Contract Drafting: Constructive Interpretation and Interpretative Construction, 34
Corp. Counsel Rev. 155, 162 (2015) (“[I]f there is language in the agreement that
leads the reader to believe the parties intended to be bound by the recitals, in essence
the statements are no longer recitals, but have become covenants of the agreement,
just as the other agreed-upon terms and covenants bind the parties.”).

      291 JX 94 § 1.


      292 Id. § 11.



                                           72
including any disputes about their existence and scope, into the single agreement

embodied in the Settlement Agreement.

      Thus, the Settlement Agreement cured any defect in the Loan Agreement.

When the Lender and the Borrower entered into that agreement, Wolfe was no longer

a member of the Borrower’s board. Cicoski was the Borrower’s sole director. His

approval of the Settlement Agreement as the sole director satisfied the Board

Majority Requirement.

             c.    The Wyoming Trust Law Issue

      Alpha and the Borrower further argue that the Loan and Settlement

Agreement were not validly approved under Wyoming law. That argument is

misguided.

      The Family Trust is organized under Wyoming law, which mandates that a

trustee “keep the qualified beneficiaries of the trust reasonably informed about the

administration of the trust and of the material facts necessary for them to protect

their interests.”293 Cicoski was a director of the Family Trustee, and Ritchie’s wife

and children were the beneficiaries of the Family Trust. Alpha and the Borrower

contend that Cicoski had to inform Ritchie’s wife and children about the Loan and

the Settlement Agreement. Because he did not, they say that his actions violated

Wyoming law, rendering the Loan and Settlement Agreement invalid.




      293 Wyo. Stat. § 4-10-813(a).



                                         73
       Assuming for purposes of analysis that Cicoski violated Wyoming trust law,

that failure does not prevent the Lender from enforcing the Loan or Settlement

Agreement against the Borrower, at least without some showing that the Lender

knew about the violation and aided and abetted it.294 Perhaps the Family Trust’s

beneficiaries might have a claim for damages against the Family Trust, but they

cannot impair the Lender’s contract rights.

       On the merits, however, the argument under Wyoming law falls short. The

limited case law interpreting or applying the Wyoming statute generally recognizes

that a trustee is “obligated to report on a regular basis to . . . [the] Trust beneficiaries,

concerning the status of the Trust, and to provide them all relevant information

concerning the Trust.”295 Yet Wyoming law also provides that “[n]otice to a person

who may represent and bind another person under this article has the same effect as

if notice were given directly to the other person.”296 The Family Trustee’s operating

agreement expressly identified Ritchie as the “designated relative” and “Family




       294 See C & J Energy Servs., Inc. v. City of Miami Gen. Emps.’, 107 A.3d 1049,

1071 (Del. 2014) (reversing issuance of injunction impairing counterparty’s contract
rights where “[t]he Court of Chancery made no finding, even on a preliminary basis,
that [the counterparty] aided and abetting the C & J board’s alleged breach of
fiduciary duties”).

       295 Redland v. Redland, 2013 WL 9678730, at *15 (Wyo. Dist. Dec. 24, 2013);

see In re Phyllis V. McDill Revocable Trust, 506 P.3d 753, 762 (Wyo. 2022) (describing
statute as “impos[ing] . . . a duty to inform and report upon the trustee”).

       296 Wyo. Stat. § 4-10-301(a).



                                             74
Member” under Wyoming law.297 Ritchie was the real party in interest who controlled

the Family Trust, and Cicoski reasonably believed that by keeping Ritchie informed,

he was keeping the ultimate beneficial owners of the trust informed.298

       2.      Intent To Be Bound

       For a valid contract to exist, the parties must intend to be bound. “Under

Delaware law, ‘overt manifestation of assent—not subjective intent—controls the

formation of a contract.’”299 “Whether both of the parties manifested an intent to be

bound ‘is to be determined objectively based upon their expressed words and deeds

as manifested at the time rather than by their after-the-fact professed subjective

intent.’”300

        “When presented with a facially valid contract, the court will defer to the

parties’ signed writing unless there is evidence to the contrary.”301 The Settlement

Agreement is a facially valid contract. Springett signed for the Lender, and Cicoski




       297 See JX 247 at 1–2; Wyo. Stat. § 13-5-301 (defining “Family Member” and

“Designated relative”).

       298 See Cicoski Tr. 458 (testifying about having “limited” contact with Family

Trust beneficiaries and that trust counsel named Ritchie the “designated relative” so
communication could run through Ritchie).

       299 Black Horse Cap., LP v. Xstelos Hldgs., Inc., 2014 WL 5025926, at *12 (Del.

Ch. Sept. 30, 2014) (quoting Indus. Am., Inc. v. Fulton Indus., Inc., 285 A.2d 412, 415
(Del. 1971)).

       300 Id. (quoting Debbs v. Berman, 1986 WL 1243, at *7 (Del. Ch. Jan. 29, 1986)).


       301 Restanca, LLC v. House of Lithium, Ltd., 2023 WL 4306074, at *18 (June

30, 2023) (citing Malkani v. Cunningham, 2023 WL 1383938, at *8 (Del. Ch. Jan. 31,
2023)).

                                          75
signed for the Borrower.302 That alone provides strong evidence of the parties’ intent

to agree.

      When evaluating whether parties intend to be bound, a court can consider “a

reneging party’s post-signing conduct if it reflects an objective manifestation of the

reneging party’s intent to be bound by the agreement.”303 Here, the Borrower is the

reneging party, so the court can consider its post-signing conduct to the extent it

reflects an intent to be bound. In this case, the Borrower partially performed through

its transfer of the Proton Green shares, providing an objective manifestation of its

intent to be bound.304 There is no credible evidence to the contrary.

      3.     Sufficiently Definite Terms

      A valid contract also requires sufficiently definite terms. To meet this element,

the terms must “provide a basis for determining the existence of a breach and for

giving an appropriate remedy.”305 In other words, “[a] contract is sufficiently definite

and certain to be enforceable if the court can—based upon the agreement’s terms and




      302JX 94 at 7; see Springett Tr. 76–77 (testifying about entering into
Settlement Agreement); Cicoski Tr. 305 (same).

      303 See Restanca, 2023 WL 4306074, at *21.


      304 See Springett Tr. 77–79.


      305 Eagle Force Hldgs., LLC v. Campbell, 187 A.3d 1209, 1232 (Del. 2018)
(quoting Restatement (Second) of Contracts § 33(2)).

                                          76
applying proper rules of construction and principles of equity—ascertain what the

parties have agreed to do.”306

        Whether terms are sufficiently definite is a question of contract formation, not

interpretation. The issue is not whether any terms are ambiguous.307 When parties

claim an agreement they signed was too indefinite, that argument “frequently is an

afterthought excuse.”308 “If the parties have concluded a transaction in which it

appears that they intend to make a contract, the court should not frustrate their

intention if it is possible to reach a fair and just result, even though this requires a

choice among conflicting meanings and the filling of some gaps that the parties have

left.”309

        Alpha claims that the Settlement Agreement lacks sufficiently definite terms

but does not explain why. Later, when arguing against specific performance, Alpha




        306 Id.


        307 See Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1233–

34 (Del. 1997) (“The reality is that the contractual language defining rights and
obligations of the parties is sometimes ambiguous. It is a court’s duty to preserve to
the extent feasible the expectations that form the basis of a contractual relationship.
When, as in the instant case, the meaning and application of contract terms are
uncertain, a court fulfills this duty by considering extrinsic evidence.”).

        308 1 Arthur L. Corbin et al., Corbin on Contracts § 4.1 (1993).


        309 Id.; see Eagle Force, 187 A.3d at 1232–38 (holding that contract terms were

sufficiently definite); cf. Black Horse, 2014 WL 5025926, at *18 (holding at the
pleadings stage that it was not reasonably conceivable that an agreement’s terms
were sufficiently definite where the complaint’s allegations did not “support a
reasonable inference that the parties reached an agreement as to the meaning of [the
asset to be transferred]”).

                                           77
contends that the Settlement Agreement lacks the essential terms of a real estate

sale contract.310 That is because it was not a real estate sale contract. It was a

settlement agreement that resolved a default under a loan. It did not need to have all

the terms that a real estate contract would have.

      The Settlement Agreement contains sufficient terms to determine breach and

award a remedy. The agreement defines the underlying obligations and the

collateral.311 It contains accurate recitals.312 It provides for a specific amount of

settlement fees to be paid using the Proton Green shares.313 It treats the Lender’s

ownership of the collateral as satisfying the Loan.314 And it includes detailed mutual

releases.315 The parties may disagree over the content of those obligations, but the

Settlement Agreement is sufficiently definite to constitute a valid contract.

      4.     Consideration

      The final element is consideration. “To constitute consideration, a performance

or a return promise must be bargained for.”316




      310 Dkt. 276 at 30–31.


      311 JX 94 at 1–2.


      312 Id. § 1.


      313 Id. § 3.


      314 Id. § 4.


      315 Id. § 5.


      316 Restatement (Second) of Contracts § 71(1).



                                          78
      An exchange of consideration supported the Settlement Agreement. The

Lender provided a release and accepted the collateral and the Proton Green shares

in satisfaction of its claims.317 The Borrower agreed that the Lender owned the

collateral and agreed to transfer title to the Proton Green shares. That is enough.318

      Alpha argues that the Settlement Agreement lacks consideration because the

Loan was invalid in the first place. That argument depends on Cicoski’s lack of

authority, a position this decision has rejected.

B.    The Borrower Breached The Settlement Agreement.

      Because the Settlement Agreement is a valid and enforceable contract, the

next question is whether the Borrower breached it. The Lender proved breach.

      1.     The Obligation

      Whether a breach occurred turns on the content of the contract. When

determining what a contract means, “the role of a court is to effectuate the parties’

intent.”319 Absent ambiguity, the court “will give priority to the parties’ intentions as

reflected in the four corners of the agreement, construing the agreement as a whole

and giving effect to all its provisions.”320 “When the contract is clear and




      317 See JX 94.


      318 See Seiden v. Kaneko, 2017 WL 1093937, at *5, 7 n.46 (Del. Ch. Mar. 22,

2017), aff’d, 177 A.3d 69 (Del. 2017) (noting that a “mutual release of all claims would
itself be sufficient to constitute adequate consideration”).

      319 Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 739 (Del. 2006).


      320 In re Viking Pump, Inc., 148 A.3d 633, 648 (Del. 2016).



                                           79
unambiguous,” the court “will give effect to the plain-meaning of the contract’s terms

and provisions.”321 Only when a court “may reasonably ascribe multiple and different

interpretations to a contract” will the contract be found ambiguous.322 If one of the

two proffered interpretations “produces an absurd result or one that no reasonable

person would have accepted when entering the contract,” then that interpretation is

unreasonable and does not create ambiguity.323

      As discussed previously, the parties agreed to the accuracy of the recitals in

the Settlement Agreement, thereby establishing a set of stipulated facts that served

as a background against which the Settlement Agreement operated.324 In the recitals,

the parties agreed that:

      D.     The indebtedness evidenced by the Note is secured by, inter alia,
      certain liens and security interests granted under (i) the [Loan
      Agreement] . . . , (ii) the Pledge and Security Agreement [covering the
      Subsidiary’s shares, and] (iii) the mortgages granted by [the Florida
      Subsidiary], a Florida corporation and wholly-owned subsidiary of the
      Borrower . . . encumbering [the Properties] . . . .

      F.     The [Loan Agreement], the Pledge, the Guaranties, and all other
      documents, instruments and agreements evidencing, securing or
      relating to the Original Loan, each as amended, restated and/or
      modified from time to time, are hereinafter collectively referred to as the
      “Loan Documents”. All property pledged to the Lender to secure the
      obligations evidenced or governed by the Loan Documents, including
      without limitation, the shares of [the Florida Subsidiary] and the


      321 Osborn, 991 A.2d at 1159–60.


      322 Id. at 1160.


      323 Id.


      324 JX 94 § 1 (agreeing to “the accuracy of the recitals set forth above, which

are incorporated herein as if set forth herein and form a part of this Agreement”).

                                          80
      Properties . . . will be referred to herein collectively as the “Collateral”.
      ...

      I.    As the [the Borrower] failed to agree to the terms proposed in the
      Notice of Event of Default and Conditions for Standstill, (i) the Borrower
      remains in breach of its obligations under the Loan Documents; (ii) the
      Lender exercised its right under Section 7.2 of the [Loan Agreement], as
      amended; and (iii) the Collateral, including the Subsidiary Shares, is
      now held in the name of Lender. . . .325

Through these stipulations, the parties agreed that (1) the Borrower owned all of the

Subsidiary Shares, (2) the Florida Subsidiary granted the mortgages on the

Properties to secure the Loans, (3) the collateral for the Loan included both the

Subsidiary Shares and the Properties, (4) the Borrower had breach the Loan and

related documents, and (5) the Collateral—meaning the Subsidiary Shares and the

Properties—was held in the name of the Lender.

      In the Settlement Agreement, the Borrower agreed to pay two fees, both in the

form of shares of Proton Green stock. One was a “Tailwind Fee” payable to Tailwind,

and the other was a “Lender Settlement Fee” payable to the Lender (jointly, the

“Settlement Fees”).326

      The Settlement Agreement further provided that once the Settlement

Agreement was executed, thereby memorializing the stipulations, and once the

Settlement Fees were paid, then “the Loan is satisfied in full.”327 Once that occurred,




      325 Id. at 1–2.


      326 Id. § 3.


      327 Id. § 4.



                                           81
the Borrower “shall have no further liability to the Lender with respect to the

Loan.”328

       Read as a whole, the Settlement Agreement contemplates a basic exchange:

the Lender received the collateral and the Settlement Fees in return for giving the

Borrower a release of all claims. The Borrower breached that agreement by insisting

that it still owned the collateral.

       To negate that breach, the Borrower and Alpha contend that the Settlement

Agreement did not transfer ownership of the Properties or the Subsidiary Shares to

the Lender. They say the Settlement Agreement merely required payment of the

Settlement Fees and left the Lender’s ownership of the collateral intact.

       The plain meaning of the Settlement Agreement refutes that interpretation.

The parties stipulated that the Lender already held the Properties and the Subsidiary

Shares in its own name. There was no need for a transfer in light of that agreement.

The Borrower gave up any rights to the Properties and the Subsidiary Shares by

granting the Lender a release.329

       The interpretation that the Borrower and Alpha advance, by contrast, “would

lead to absurd and unfounded results” that “no reasonable person would have

accepted when entering the contract.”330 The parties entered into the Settlement



       328 Id.


       329 See id. § 5.


       330 Miramar Police Officers’ Ret. Plan v. Murdoch, 2015 WL 1593745, at *9

(Del. Ch. Apr. 7, 2015); see Osborn, 991 A.2d at 1160–61.

                                         82
Agreement to “settle any and all claims under the Loan Documents.”331 Those claims

included the Lender’s right to recover $11 million in principal, plus interest. It would

have been irrational for the Lender to release its claims in return for only the Proton

Green shares, which were worth much less. That is not a reasonable reading of the

Settlement Agreement.

      To rescue its unreasonable interpretation, Alpha argues that the reference to

the Lender having an ongoing “security interest” in the collateral is inconsistent with

the Lender owning the collateral. As a matter of metaphysical curiosity, angels could

dance on the head of that pin. But the Lender understandably feared a situation like

it ultimately faced in which the Borrower reneged on its commitments. The Lender

did not want to give up enforceable security interests and be left with only an

executory contract. Alpha’s interpretation remains unreasonable.

      Assuming     counterfactually    that    Alpha   had   advanced    a   reasonable

interpretation, the extrinsic evidence defeats it. When interpreting an ambiguous

contract, a court considers

      all admissible evidence relating to the objective circumstances
      surrounding the creation of the contract. Such extrinsic evidence may
      include overt statements and acts of the parties, the business context,
      prior dealings between the parties, [and] business custom and usage in
      the industry.332




      331 JX 94 at 2.


      332 Salamone v. Gorman, 106 A.3d 354, 374–75 (Del. 2014).



                                          83
Here, the extrinsic evidence shows that the Borrower gave up the Properties, the

Subsidiary Shares, and the Proton Green shares in exchange for the Lender releasing

all of its claims. That is how Springett described the deal contemporaneously to his

investors.333 That is how Springett and Cicoski described the deal at trial.334

       Removing any doubt, that is what a subsequent amendment to the Settlement

Agreement confirmed the deal to be. The amendment added a provision stating, “On

the date of this Agreement, Borrower relinquishes any residual rights or claims it

may have to the Subsidiary Shares to Lender.”335 In the amendment, the parties also

agreed that the Lender was the sole owner of the Subsidiary Shares and that there

were no other liens or claims to the Properties.336 Alpha and the Borrower claim there

was no consideration for the amendment because the Settlement Agreement had

released all of the Lender’s claims. The court need not reach that issue, because even

if the amendment was not an enforceable contract, it provides persuasive extrinsic

evidence confirming the nature of the deal memorialized in the Settlement

Agreement.




       333 JX 486 at 7 (“We have received a signed settlement offer from the Borrower

in the deal . . . . In short, the offer is to hand over the St. Barths [sic] properties to the
Lender along with an allotment of shares in a private company they own.”).

       334 See Springett Tr. 76–77; Cicoski Tr. 306–07.


       335 JX 95 at 2.


       336 Id.



                                             84
      2.     Breach

      The Borrower breached the Settlement Agreement by continuing to claim that

it owned the Subsidiary Shares and the Properties when it gave up its rights to them

in the Settlement Agreement. The Borrower claimed that the Island Subsidiary had

not redomiciled to Florida as the Florida Subsidiary, that the Island Subsidiary still

owned the Properties, and that the Borrower still owned the Subsidiary Shares. The

Borrower also claimed that the mortgages encumbering the Properties were invalid.

By taking those positions, the Borrower breached the Settlement Agreement.

      The Borrower also breached the Settlement Agreement by filing the

Guadeloupe Civil Action, filing the Guadeloupe criminal complaint, sending the

Guadeloupe criminal complaint to civil authorities in St. Barts, changing the locks on

the Properties, and sending cease-and-desist letters to the Lender’s architect. The

Borrower further breached the Settlement Agreement by purporting to change the

name of the Island Subsidiary to Vue Mer and purporting to appoint Vail as its

chairman, then filing documents reflecting those purported actions with a local

commercial registry. Those actions interfered with the Lender’s possession and

ownership of the Properties and the Subsidiary Shares.

      Alpha and the Borrower contend that they could not have breached the

Settlement Agreement because the Borrower never had any obligation to transfer the

Properties or the Subsidiary Shares to the Lender.337 That position is absurd. The




      337 See Dkt. 276 at 27–28.



                                         85
Borrower agreed in the Settlement Agreement that the Lender already owned those

assets.

      Alpha separately argues that the Borrower could file legal actions in the

Caribbean courts to pursue its rights, and if the Borrower had a good-faith basis for

its position, then it could have. Here, the Borrower lacked any good-faith basis for

disputing the Settlement Agreement. Its bad-faith filings breached the Settlement

Agreement.

C.    The Release Defense

      Alternatively, Alpha and the Borrower argue that even if the Borrower did

breach the Settlement Agreement, the Lender released its claim for breach. That

argument is specious.

      The Settlement Agreement contains a release running from the Lender to the

Borrower and its affiliates. It states:

      Upon the execution of this Agreement and payment of the Loan
      Settlement Fee and Tailwind Fee (which, for the avoidance of doubt,
      shall include the actual transfer of the Proton Green Shares to Lender
      and Tailwind in the books of the transfer agent), Lender and Tailwind,
      on behalf of themselves, and on behalf of their predecessors, successors,
      direct and indirect parent companies, direct and indirect subsidiary
      companies, companies under common control with any of the foregoing,
      Affiliates and assigns, and its and their past, present and future officers,
      directors, shareholders, interest holders, members, partners, attorneys,
      agents, employees, managers, representatives, assigns and successors
      in interest, and all persons acting by, through, under or in concert with
      them (collectively and each of them, the “Affiliates”) hereby release and
      discharge the Obligors and their Affiliates from any and all known or
      unknown charges, complaints, claims, grievances, liabilities,
      obligations, promises, agreements, controversies, damages, actions,
      causes of action, suits, rights, demands, costs, losses, debts, penalties,
      fees and expenses (including offsets and attorneys’ fees and costs
      actually incurred), of any nature whatsoever, known or unknown, which
      either Lender and/or Tailwind has, or may have had, against the other
                                          86
      Party, whether or not apparent or yet to be discovered, or which may
      hereafter develop and for any acts or omissions related to or arising from
      the Loan (the “Claims”).338

Agreements containing broad releases like this one often include precautionary

language saying that the release does not extend to claims to enforce the agreement

in which it appears. Alpha argues that because the Settlement Agreement lacks that

precautionary language, the Lender released any claim to enforce the Settlement

Agreement, because that claim would constitute a claim for “acts or omissions related

to or arising from the Loan.”339

      That interpretation makes no sense. The Settlement Agreement, by its terms,

only released present or past claims—claims “which either Lender and/or Tailwind

has, or may have had.”340 At the time of the Settlement Agreement, the Borrower’s

actions that led to the Lender’s claim to enforce that agreement had not yet occurred.

If the Settlement Agreement released the Lender’s claims to enforce that very

agreement, then the agreement itself would be a nullity. That would mean the

Borrower could ignore its obligations under the Settlement Agreement, and the




      338 JX 94 § 5.


      339 The amendment to the Settlement Agreement may have inspired Alpha’s

argument. It added an express carveout for “any claims resulting from fraud or willful
misconduct or any rights under [the Settlement Agreement].” JX 95 at 3. That was
an obvious attempt at belt-and-suspenders drafting. At a minimum, it clarifies the
parties’ intent.

      340 JX 94 § 5 (emphasis added).



                                         87
Lender would have no recourse. No party would agree to that result.341 The court will

not adopt an absurd interpretation.

      Alpha’s argument also fails as a matter of law because it would involve the

release covering claims that had not yet arisen at the time of execution. A settlement

agreement cannot release “claims arising from an event that ha[d] not yet

happened.”342

      A settlement can release claims that were not specifically asserted in an
      action, but can only release claims that are based on the “same identical
      factual predicate” or the “same set of operative facts” as the underlying
      action. Thus, it follows that a release is overly broad if it releases claims
      based on a set of operative facts that will occur in the future. If the facts
      have not yet occurred, then they cannot possibly be the basis for the
      underlying action.343

The Delaware Supreme Court has followed this holding in several cases, confirming

that a settlement cannot release claims based on yet-to-occur operative facts.344 Even

if the parties had so intended, the Settlement Agreement could not release the




      341 See Osborn, 991 A.2d at 1159–61.


      342 UniSuper Ltd. v. News Corp., 898 A.2d 344, 348 (Del. Ch. 2006).


      343 Id. at 347 (quoting Nottingham P’rs v. Dana, 564 A.2d 1089, 1106–07 (Del.

1989) (footnotes omitted).

      344 See Griffith v. Stein, 283 A.3d 1124, 1134–35 (Del. 2022); In re Philadelphia

Stock Exchange, Inc., 945 A.2d 1123, 1146–47 (Del. 2008); see also In re AMC Entm’t
Hldgs., Inc. S’holder Litig., 299 A.3d 501, 526 (Del. Ch. 2023) (explaining that
Delaware follows the “identical factual predicate test”). A covenant not to sue, by
contrast, can address claims based on future acts. See New Enter. Assocs. 14, L.P. v.
Rich, 295 A.3d 520, 536 (Del. Ch. 2023) (“A covenant not to sue can apply to future as
well as to present claims. Unlike a release, where the cancellation of the claim and
the discharge of the released party are complete upon execution, the covenant not to
sue is an executory contract that contemplates ongoing performance.” (cleaned up)).

                                           88
Lender’s claims to enforce it based on the Borrower’s future acts reneging on the

agreement.

D.    The Fraud Defenses

      Alpha and the Borrower next raise a series of defenses based on the allegedly

fraudulent nature of the Loan. None of those defenses succeed. Each is a fabrication

resulting from Vail’s conspiracy-theory-driven investigation.

      First, Alpha and the Borrower argue that the Loan was a sham and that the

Borrower never received any benefit from it. To the contrary, the Loan was real, and

the Borrower benefited to the tune of $10 million. The Borrower’s outside counsel

received $9,749,910 (the remainder went to transaction fees). He transferred the

proceeds as the Family Office directed—either to Alpha, directly to the Borrower’s

creditors, or to pay other fees.345 The Borrower benefited from having its debts repaid,

received at least $3.65 million in its bank account, and used those funds to pay

Dominion Bank.346 Wolfe admitted at trial that the complaint’s allegation that the

Lender “never intended to loan any money to Green Sapphire and never actually

delivered any money to Green Sapphire” was not accurate.347 Vail, by contrast,




      345 See JX 39; JX 54; JX 55.


      346 JX 60; Johnston Tr. 512–17.


      347 Wolfe Tr. 707.



                                          89
persisted in insisting that the Lender “never actually delivered money to anybody.”348

That testimony was knowingly false.

      Second, and more expansively, Alpha and the Borrower argue that Brownell

orchestrated the Loan as part of his efforts to defraud Ritchie through a criminal

loan-to-own scheme. They argue that Brownell paid off Cicoski to participate in the

plot. But that is not what happened. As support, they point to Brownell’s earlier

criminal conviction and claim that Brownell sought to defraud Ritchie. But Ritchie

and his associates knew about Brownell’s criminal past; they never raised it as an

issue until after Brownell and Ritchie had a falling out over other transactions.349

      To bolster the fraud theory, Alpha and the Borrower argue that the Loan was

too expensive to be legitimate, but that is historical revisionism. The Buyer was in

the midst of a liquidity crisis and needed funds desperately and quickly. Its only

security was real property located in a foreign jurisdiction. The initial efforts to find

investors failed. If the Borrower had not received the funds, it would have defaulted

on a series of obligations, lost valuable collateral, and suffered negative consequences

in litigation.350 The terms of the Loan reflected those realities. The closing prompted

celebration in the Family Office.351




      348 Vail Tr. 731.


      349 See Cicoski Tr. 257, 259, 376, 391.


      350 Id. at 231–36, 282.


      351 Id. at 282.



                                           90
      Alpha and the Borrower similarly argue that the extension of the Loan was too

expensive to be legitimate, but that is more revisionist hindsight. When the Borrower

could not repay the Loan by the deadline, the Loan became riskier for the Lender.

The Lender agreed to extend the deadline in exchange for additional fees and interest,

but the Borrower had no money to pay those fees. So the Lender also loaned an

additional $1 million to the Borrower that largely covered the fees that the Borrower

could not afford to pay. The Borrower never repaid the Loan and defaulted, leading

to the Settlement Agreement.

      When Brownell arranged the Loan, he was acting as Ritchie’s agent and friend,

not as his enemy.352 Facing a liquidity crisis, Ritchie tasked Brownell with securing

a short-term bridge loan on whatever terms were necessary.353 Ritchie agreed to use

the Properties as collateral.354 Brownell set up the Loan so that investors would fund

it, and his control over the Lender benefited Ritchie by ensuring that his longtime

friend would have to sign off on any enforcement efforts. But after Brownell could not

fund the loan from his network and had to pass the deal on to Tailwind, the Tailwind

investors were not willing to fund a vehicle they did not control. Brownell transferred

the Lender to Tailwind and stepped into a guarantor role. The Loan called for




      352  See id. at 243–44 (testifying to Brownell’s status as Ritchie’s “closest
confidant” and longtime trusted advisor who would commonly set up transactions on
Ritchie’s behalf).

      353 See id. at 243, 249.


      354 See id. at 241; McHugh Dep. 40.



                                          91
Brownell to receive fees that would pay him for his services and potentially repay him

for other amounts due from the Family Office, but he never received any of those

amounts.355 A portion of the Loan proceeds went to repay one prior loan Brownell

secured for the Family Office.356 Otherwise, he did not receive any benefit from the

Loan or Settlement Agreement. Brownell was helping Ritchie, not plotting against

him.

       But even if Alpha and the Borrower had succeeding in proving Brownell was a

bad actor, that showing would not vitiate the Lender’s rights. Tailwind and Springett

had no involvement in any hypothetical loan-to-own scheme and no prior connection

to Brownell. Alpha and the Borrower now fault Springett for not uncovering

Brownell’s criminal history, but Tailwind was striving to meet the Borrower’s

exigencies and prioritized ensuring that it had adequate security for a high-risk loan.

Tailwind was making a hard money loan secured by collateral, not the

creditworthiness of the person who seemed to be arranging the terms as the

Borrower’s agent. Springett engaged in a reasonable level of know-your-customer due

diligence.

       Springett also was not hoping to acquire the Properties. He testified credibly

that he and his investors wanted their money, interest, and fees. They did not want

to foreclose on the Properties and become real estate flippers. Springett and his




       355 See JX 397 at 2–3; Cicoski Tr. 308.


       356 See JX 55; Cicoski Tr. 281–82.



                                            92
investors acted consistently. They extended the maturity date, attempted to negotiate

a forbearance agreement for weeks after the Borrower defaulted, and ultimately

negotiated and entered into the Settlement Agreement.357

      Finally, Alpha and the Borrower have leveled false and unjustified charges at

Cicoski. Ritchie and Wolfe told Cicoski to help with the Loan and made clear that

they had authorized the transaction.358 Cicoski did what they asked. But for Ritchie’s

decision to repurpose the funds earmarked to repay the Loan at the last minute, the

Borrower would not have defaulted. Ritchie’s decision created a renewed crisis, which

Cicoski resolved through the Settlement Agreement. Cicoski was looking out for

Ritchie’s interests as the Family Office’s general counsel.

      To undermine Cicoski’s integrity, Alpha and the Borrower have cited payments

Cicoski received through Brownell’s family office, claiming they were bribes. They

were not. They were part of Brownell’s ongoing financial help to his then-friend

Ritchie: Brownell paid a portion of Cicoski’s salary when Ritchie could not.359

      The Loan and the Settlement Agreement were not products of fraud.

E.    The Unclean Hands Defense

      In a last-ditch effort, the Borrower asserts an unclean hands defense, claiming

that “certain persons associated with Plaintiffs engaged in a deliberate and




      357 See Springett Tr. 68–71.


      358 Cicoski Tr. 237.


      359 See id. at 317, 321–22, 374–75.



                                            93
coordinated online defamation campaign through cyber smear website as part of their

broader scheme of fraudulent asset extractions and financial misconduct.”360 The

Borrower did not substantiate any connection between the alleged perpetrators of

this supposed cyber campaign and the Lender. The allegations are unrelated to this

case. They provide no basis for the Borrower to escape the Settlement Agreement.

             IV.    ALPHA’S FRAUDULENT TRANSFER CLAIMS

      After this case began moving forward, Alpha intervened, purportedly as a third

party adverse to the Borrower. Alpha asserted fraudulent transfer claims against

both the Lender and the Borrower: four for actual or intentional fraudulent transfer

and four for constructive fraudulent transfer. All of Alpha’s claims fail because Alpha

is not a bona fide creditor and its claims were collusive.

A.    Bona Fide Creditor Status

      All of the causes of action under the Delaware Uniform Fraudulent Transfer

Act (“DUFTA”) are available only to a bona fide creditor. 361 Alpha claims to be a

creditor of the Borrower under an agreement titled “Loan Agreement” and dated

February 14, 2019 (the “Alpha Agreement”).362 In substance, Alpha is an equity

investor, not a creditor.




      360 Dkt. 28 at 26.


      361 See Burkhart v. Genworth Fin., Inc., 275 A.3d 1259, 1269 (Del. Ch. 2022)

(“By its terms, DUFTA is inapplicable to non-creditors or non-debtors.”).

      362 JX 4.



                                          94
         When assessing a creditor’s claim, a court must “look past the form of the

instruments to the substance of the transactions to determine their economic

reality.”363 “The court looks to the economic reality of the surrounding circumstances,

considering the facts that confer context case-by-case, to arrive at whether

instruments functioned as debt or equity.”364 Factors like the corporation’s

capitalization, the presence or absence of fixed maturity dates, and the enforcement

of payment rights “may serve as indicia of that reality.”365 Here, those indicia show

that Alpha was not a bona fide creditor of the Borrower.

         First, Alpha’s advances to the Borrower more closely resemble equity

investments than loans. Under the Alpha Agreement, the Borrower has no obligation

to pay Alpha any principal or interest on a regular schedule and no repayment

obligation of any kind until a date twenty years after each advance.366 Although

Alpha could nominally demand repayment at any time, Alpha never did. Wolfe

testified that Ritchie advanced money under the Alpha Agreement to fund the

Borrower’s investments in illiquid real estate, intending that his family would profit




         363 Neem Int’l CV v. Shulman, 2025 WL 3778917, at *27 (Del. Ch. Dec. 31,

2025).

         364 Id. (cleaned up).


         365 Id.


         366 JX 4 at 2.



                                          95
“when gains were realized.”367 Amounts would be repaid with interest “upon the

successful realization of investments.”368

      In that structure, Alpha’s advances “functioned as risk capital.”369 Unlike a

creditor with a right to periodic repayments of principal and interest, Alpha would

only receive its money back if the Borrower’s investments were successful.370 That

structure is a “hallmark of equity” and “contrasts with debt instruments, which

typically feature fixed maturity dates and mandatory interest payments regardless

of corporate performance.”371 To be sure, Alpha had the right, in its “absolute

discretion,” to “require the Borrower to repay some or all of the Indebtedness at any

time and from time to time.”372 But Alpha never made any repayment demands.373

And recall that Alpha controlled the Borrower. Alpha would thus determine when

repayments happened whether Alpha demanded the repayment or not.




      367 Wolfe Tr. 712.


      368 Id. at 713.


      369 See Neem, 2025 WL 3778917, at *27.


      370 See Harbinger Cap. P’rs Master Fund I, Ltd. v. Granite Broad. Corp., 906

A.2d 218, 230 (Del. Ch. 2006) (holding that an instrument is equity where it provides
“no guaranteed right of payment” and the holder’s “fate . . . is tied directly to [the
corporation’s] business fortunes”).

      371 Neem, 2025 WL 3778917, at *27.


      372 JX 4 § 2.03.


      373 See Azzopardi Tr. 610.



                                             96
      Second, all of Alpha’s advances were unsecured. The Alpha Agreement

authorized the Borrower to draw up to $50 million without the Borrower pledging

any collateral to secure repayment.374

      Third, the Borrower was inadequately capitalized. “When a corporation is

undercapitalized, a court is more skeptical of purported loans made to it because they

may in reality be infusions of capital.”375 The Borrower also did not generate any

revenue, much less regular revenue, making the Borrower a poor credit risk for the

type of long-term loan embodied in the Alpha Agreement. And Ritchie and Alpha were

affiliates. Those facts all cut “against a finding of true debt” and suggest that the

advances “were capital contributions and not loans.”376

      Fourth, Alpha operated outside the Alpha Agreement, including by

transferring assets to the Borrower and loaning money in excess of the Alpha

Agreement’s nominal borrowing limit. The Borrower’s accounting for the advances

did not reflect bona fide loans either. The Borrower did not record Alpha’s advances

as debt or account for any interest until this litigation, when Ritchie’s team

retroactively altered the Borrower’s books.377 The lack of formalities operates in




      374 JX 8; JX 4; see JX 169 ¶ 35 (“Alpha Carta agreed to lend Green Sapphire

approximately 1.7 times the total book value of its assets, without obtaining a
security interest in those assets or a third-party guaranty.”).

      375 In re SubMicron Sys. Corp., 432 F.3d 448, 457 (3d Cir. 2006) (cleaned up).


      376 Neem, 2025 WL 3778917, at *27.


      377 See Johnston Tr. 497–504.



                                         97
conjunction with the other factors to further undermine the characterization of the

Alpha Agreement as a bona fide loan.

      Taken together, the evidence shows that the Alpha Agreement was not a bona

fide loan. It was a synthetic equity arrangement analogous to preferred stock.

Preferred stock is a form of equity that often carries a liquidation preference equal to

its initial purchase price, pays a cumulative dividend, and accrues unpaid dividends

that increase the liquidation preference. When a liquidity event takes place, the

issuer can redeem the preferred stock for its accumulated liquidation preference. The

preferred stock may also have a redemption date or other time frame for achieving

liquidity, often between five and ten years after the initial purchase.378 The Alpha

Agreement operates in the same way. The amounts of the advances equate to a

liquidation preference, the interest adds to it, and when the Borrower achieves a

liquidity event, it repays a portion of the loan with interest. The twenty-year term of

the Alpha Agreement is even longer and therefore more equity-like than a typical

preferred stock.




      378 See Shannon P. Pratt et al., Valuing a Business: The Analysis and Appraisal

of Closely Held Companies 619, 622–23 (6th ed. 2022) (discussing common features
of preferred stock, including redemption provisions); Frederick Hsu Living Tr. v. ODN
Hldg. Corp., 2017 WL 1437308, at *3 (Del. Ch. Apr. 14, 2017) (addressing mandatory
redemption right beginning five years after preferred stock investment); SV Inv. P’rs,
LLC v. ThoughtWorks, Inc., 7 A.3d 973, 976–78 (Del. Ch. 2010) (addressing five-year
preferred stock redemption right); Shiftan v. Morgan Joseph Hldgs., Inc., 57 A.3d
928, 931, 938–39 (Del. Ch. 2012) (discussing ten-year preferred stock redemption
provision); Harbinger Cap., 906 A.2d at 224–32 (treating mandatory redeemable
preferred stock as equity rather than debt).

                                          98
      Alpha argues that the facts do not matter because the Borrower admitted in

its pleadings and in its bankruptcy filing that Alpha is a bona fide creditor. As

discussed in the next section, that is simply additional evidence that Alpha’s claims

were collusive. A collusive admission does not bind the court.379

      In substance, Alpha is an equity investor in the Borrower, not a bona fide

creditor. As an equity investor, Alpha cannot assert fraudulent transfer claims.

B.    Collusive Litigation

      More broadly, Alpha’s claims against the Borrower fail because they are

collusive. “A fictitious or collusive action will not be entertained by the courts, since

no actual and justiciable controversy is presented.”380

      Common law courts “require actual adverse parties.”381 A person, including a

corporation, cannot sue itself.382 A sufficient adversity of interests can exist between




      379 In reaching this conclusion, the court does not attribute misconduct to
Alpha’s or the Borrower’s present or former Delaware counsel. The court suspects
that at the outset of the case, they were unaware of Ritchie’s control over both Alpha
and the Borrower. Like the court when ruling on the motion to intervene, they
credited the entities’ separate status. As discovery generated information that might
contradict that belief, the powerful effect of confirmation bias likely led them to
discount evidence unfavorable to their clients and credit confirmatory evidence. Most
notably, they may have evaluated witness credibility differently than the court. If one
believes the defense witnesses and discredits Springett and Cicoski, then the facts
look very different.

      380 1A C.J.S. Actions § 70.


        Michael Herz, United States v. United States: When Can the Federal
      381

Government Sue Itself?, 32 Wm. & Mary L. Rev. 893, 901 (1991).

      382 Id. at 905–06.



                                           99
entities in a corporate group,383 but when it is lacking, a justiciable controversy does

not exist.

       As a practical matter, Alpha’s claims against the Borrower involve Ritchie

suing himself.

•      Ritchie controls the Family Office, including the Personal Trust and the Family
       Trust. He also controls the Back Office.

•      Through the Back Office and the Family Trust, Ritchie controls Alpha.

•      Through the Back Office and the Personal Trust, Ritchie controls the
       Borrower.

•      When Alpha filed its claims, Wolfe served simultaneously as a director of the
       Borrower, a director of the Back Office, a director of the Family Trustee, and a
       director of the Personal Trustee that controls the Personal Trust and Alpha.

•      When Alpha filed its claims, Vail served as a director of the Borrower and as a
       director of Alpha. He verified Alpha’s third-party complaint and then appeared
       at trial as the Borrower’s client representative.

•      Because of the positions Wolfe and Vail held when Alpha filed its claims, they
       embodied and could act contemporaneously on behalf of the entities on both
       sides of the purported dispute between the Alpha and the Borrower.

•      The Borrower answered Alpha’s complaint by admitting all of its allegations.

•      Alpha and the Borrower collaborated throughout the action, coordinating on
       pre-trial briefing, witness presentations, post-trial briefing, and post-trial
       argument.

•      Alpha paid the Borrower’s litigation expenses.384




       383 See, e.g., Next Level Commc’ns, Inc. v. Motorola, Inc., 834 A.2d 828 (Del. Ch.

2003) (controlled subsidiary suing controlling-stockholder parent for breach of
fiduciary duty).

       384 See JX 164 at 4; Yuskus Tr. 661, 663.



                                          100
Alpha did not need to intervene for the Borrower to assert as a defense that Alpha’s

claims had priority over the Settlement Agreement. The Borrower could have made

that argument itself. Instead, Ritchie caused Alpha to pretend to be adverse to the

Borrower. Only the Lender’s persistent efforts during discovery and at trial revealed

the extent of Ritchie’s control and the collusive nature of Alpha’s positions.

      The court will not turn a blind eye to Ritchie’s effort to undo a transaction he

no longer likes by causing his right hand to sue his left for something the left hand

did with his knowledge and authorization. The collusive nature of Alpha’s claims

provides a separate and independent basis for dismissal.385

C.    Claim-Terminating Sanctions For Ritchie’s Refusal To Appear

      The plaintiffs also seek claim-terminating sanctions based on Ritchie’s refusal

to appear to testify at trial. If the plaintiff had subpoenaed Ritchie to appear at trial,

then that sanction would have been warranted. But they did not, so the sanction is

unavailable.

      Through its jurisdiction over an entity, the court “can compel the biological

persons who serve as its directors, officers, and managing agents to appear as



      385 Alpha’s breach of contract claim against the Borrower for nonpayment of

loans under the Alpha Agreement likewise fails. Ritchie controls both Alpha and the
Borrower. The same individuals served on the boards of Alpha and the Borrower or
the entities that control them. They could cause the Borrower to repay Alpha at any
time. But Alpha’s allegation that it demanded repayment was false. See Yuskus Tr.
660; Azzopardi Tr. 610. Alpha’s breach of contract claim was also collusive, just like
its fraudulent transfer claims. In fact, when wearing his Alpha hat, Ritchie did not
really want to recover money from the Borrower. He simply wanted to block the
Lender from recovering. Unsurprisingly, Alpha and the Borrower ignored Alpha’s
breach of contract claim against the Borrower in their post-trial briefing.

                                           101
witnesses at trial or for a deposition in a particular location.”386 Ritchie caused Alpha

to intervene in this action. By doing so, he subjected Alpha to this court’s jurisdiction.

As the individual who controls Alpha, Ritchie is Alpha’s managing agent. The court

could therefore compel Alpha to produce Ritchie to appear at trial, with the

consequences for Ritchie’s failure to appear falling on Alpha rather than on Ritchie

personally.387

      The plaintiffs had ample grounds to invoke this court’s jurisdiction to compel

Alpha to produce Ritchie at trial. Alpha’s fraudulent transfer claims and the

Borrower’s defenses rested on the assertion that Ritchie knew nothing about the

Loan. Rather than appearing himself to testify on those topics, Ritchie, Alpha, and

the Borrower relied on witnesses who lacked personal knowledge on key events and

parroted made-for-litigation conspiracy theories.388 The plaintiffs could have




      386 In re Dole Food Co., Inc. S’holder Litig., 110 A.3d 1257, 1262 (Del. Ch. 2015);

see Hamilton P’rs, L.P. v. Englard, 11 A.3d 1180, 1215 (Del. Ch. 2010) (“The power to
compel a corporate defendant to appear at trial would be a hollow one if it meant only
that the certificate of incorporation would be placed in the witness box.”).

      387 See Summit Healthcare Operating P’ship, L.P., v. Best Years, LLC, — A.3d

—, —, 2026 WL 616183, at *2–6 (Del. Ch. Mar. 4, 2026) (holding that witness was a
party’s managing agent and exercising discretion to order witness to testify at trial).

      388 That tactical choice is arguably sufficient to undermine Alpha’s claims. “It

is a well established principle that the production of weak evidence when strong is,
or should have been, available can lead only to the conclusion that the strong would
have been adverse.” Smith v. Van Gorkom, 488 A.2d 858, 878 (Del. 1985), overruled
on other grounds by Gantler v. Stephens, 965 A.2d 695 (Del. 2009); accord Kahn v.
Lynch Commc’n Sys., Inc., 638 A.2d 1110, 1118 n.7 (Del. 1994).

                                           102
subpoenaed Alpha to produce Ritchie as a managing agent with personal knowledge

of the facts.

       But the plaintiffs did not issue a trial subpoena to Alpha to compel Ritchie to

appear. The court therefore will not impose a claim-dispositive sanction as another

basis for entering judgment against Alpha.

D.     The Merits Of The Fraudulent Transfer Claims

       The fraudulent transfer claims also fail on their own merits. Most notably, the

Borrower did not engage in any transfers with actual intent to hinder, delay, or

defraud Alpha, and the Borrower received reasonably equivalent value for the

transfers. But because of the court’s rulings on Alpha’s creditor status and the

collusive nature of its claims, the court need not reach those issues.

                                 V.     REMEDIES

       Because the Lender proved breach, and because none of Alpha’s or the

Borrower’s defenses have merit, the Lender is entitled to a remedy. The resulting

remedy is multifaceted.

A.     Specific Performance

       The Lender is entitled to a decree of specific performance compelling the

Borrower to comply with the Settlement Agreement. To comply with the Settlement

Agreement, the Borrower must actually transfer control over the Subsidiary Shares

and the Properties to the Lender.




                                          103
       “Specific performance is a specialized form of mandatory injunction that

requires a party to fulfill its contractual obligations.”389 It is “an equitable remedy

designed to protect a party’s expectations under a contract.”390 Specific performance

requires a showing, by clear and convincing evidence, that “(1) a valid, enforceable

agreement exists between the parties; (2) the party seeking specific performance was

ready, willing, and able to perform under the terms of the agreement; and (3) a

balancing of the equities favors an order of specific performance.”391

       The Lender has proven each element. As discussed above, the Settlement

Agreement is a valid and enforceable agreement. The Lender is not only ready,

willing, and able to perform; it already has performed. That leaves only the balancing

of the equities.

       Balancing the equities requires considering whether “specific enforcement of a

validly formed contract would cause even greater harm than it would prevent.”392 The

equities generally weigh against the breaching party, which only need do what it

agreed to do in the first place.393 The equities fall particularly hard against a party



       389 26 Cap., 309 A.3d at 464.


       390 Sarissa, 2017 WL 6209597, at *26.


       391 BAE Sys. Info. & Elec. Sys. Integration, Inc. v. Lockheed Martin Corp., 2009

WL 264088, at *7 (Del. Ch. Feb. 3, 2009).

       392 Hastings Funeral Home, Inc. v. Hastings, 2022 WL 16921785, at *8 (Del.

Ch. Nov. 14, 2022).

       393 See Level 4 Yoga, LLC v. CorePower Yoga, LLC, 2022 WL 601862, at *30

(Del. Ch. Mar. 1, 2022) (“[A]s CorePower breached the APA . . . the balance of equities


                                         104
that has engaged in “opportunistic maneuvers to escape its contractual obligations”

that “offend basic notions of equity.”394

         Here, the Borrower could have complied with its obligations easily. Instead,

the Borrower contended that the Settlement Agreement was a fraud and claimed it

was unauthorized. The Borrower deliberately interfered with the Lender’s rights. The

equities therefore weigh against the Borrower.

         The equities also weigh in favor the Lender. “[I]n the absence of specific

performance, [the Lender] will lose the benefit of [its] bargain under the contract.”395

The Borrower agreed in the Settlement Agreement that the Lender held the

Properties and the Subsidiary Shares. To allow the Borrower to retain the Properties

and the Subsidiary Shares would deprive the Lender of its security and convert it

into an unsecured creditor, contrary to its agreement.

         Concerns about payment further justify specific performance. The Borrower

owed over $16 million in principal, interest, and fees.396 It agreed that the Lender

could take ownership of the Subsidiary Shares and the Properties in exchange for

forgiving that debt. Limiting the Lender to a monetary remedy would provide




decidedly favors Level 4.”); Hastings Funeral Home, 2022 WL 16921785, at *8 (“I find
that the equities tip in HFH’s favor since it has not breached the Agreement . . . .”).

         394 Sarissa, 2017 WL 6209597, at *27.


         395 Schell Bros., LLC v. Pickard, 2023 WL 7132358, at *3 (Del. Ch. Oct. 30,

2023).

         396 See Johnston Tr. 528.



                                            105
incomplete relief. As Cicoski testified, the Borrower has faced “constant liquidity

challenges,”397 and Ritchie has a history of repurposing funds to prioritize other

debts.398 An order confirming that the Lender owns the Properties and the Subsidiary

Shares is thus “more certain, prompt, complete, and efficient than a damages

award.”399

      To invert the balancing of the equities, Alpha suggests that specific

performance would harm the interests of “innocent third parties” (namely Ritchie’s

family members). That contention ignores the reality that Ritchie controls every

entity in the Family Office, including the Family Trust. Ritchie cannot hide behind

his wife and children to avoid a deal he authorized. Nor will holding the Borrower to

its bargain cause meaningful hardship to Ritchie or anyone else. Alpha contends that

Ritchie’s wife has a special place in her heart for the Properties, and that may be so,

but that merely reinforces the fact that the Properties are unique. The Lender is

entitled to them.

      The Borrower argues that specific performance is impracticable because the

Properties are in St. Barts, relying on 26 Capital. Unlike in that case, there is no risk

that a decree of specific performance “would cause a citizen of a foreign country to




      397 Cicoski Tr. 317.


      398 See id. at 291.


      399 United BioSource LLC v. Bracket Hldg. Corp., 2017 WL 2256618, at *4 (Del.

Ch. May 23, 2017) (discussing prospect of “uncertainty” over whether the defendant
could satisfy multi-million-dollar judgment and granting specific performance).

                                          106
risk violating an order issued by that country’s highest court” and “may cause a party

to take action that could subject it to criminal contempt.”400

        Alpha last argues that specific performance is inappropriate because there is

no performance left to compel. According to Alpha, because the Borrower agreed in

the Settlement Agreement that the Lender owns the Subsidiary Shares and the

Properties, everything that needed to be done has been done, so there is no need for

a decree of specific performance.

        Alpha confuses the legal effect of an agreement with the reality on the ground.

The Lender indeed owns the Subsidiary Shares and the Properties as a result of the

Settlement Agreement. But that does not mean the Borrower complied with its

commitment by giving up actual control over those assets. Envision a residential real

estate transaction in which the seller agreed that the buyer owned the house, but

then never vacated the property, changed the locks to keep the buyer out, and kept

living in the house. Nominal legal title would have passed, but a court still could issue

a decree of specific performance to eject the seller from the property. That is the case

here.

        The decree of specific performance will require the Borrower to take all actions

necessary to establish the Lender’s ownership and control over the Subsidiary Shares

and the Properties. The Borrower must take all actions necessary, in the reasonable

judgment of the Lender, to:




        400 26 Cap., 309 A.3d at 471.



                                          107
•      remove any uncertainty about the domestication of the Island Subsidiary as
       the Florida Subsidiary;

•      remove any uncertainty about the Lender’s title to the Subsidiary Shares;

•      ensure that the Florida Subsidiary is the sole owner of the Properties, free of
       any liens and encumbrances; and

•      ensure that the Lender can access the Properties.

B.     Injunctive Relief

       The Lender is also entitled to permanent injunctive relief. That relief involves

both negative and affirmative elements.

       A permanent injunction is a form of final relief that prohibits a party from

taking action or compels a party to take action. In its negative version, it is “a decree

of the court whereby defendant is perpetually inhibited from the assertion of an

assumed right, or perpetually restrained from the commission of an act which would

be contrary to equity and good conscience.”401 In its affirmative or mandatory version,

it is a decree that orders a party to take action on pain of contempt.402

       “Because a permanent injunction is final relief, it does not require a showing

of imminent irreparable harm.”403 A preliminary injunction requires that showing to

justify the issuance of interim relief before the case can be adjudicated on the merits.




       401 James L. High, A Treatise on the Law of Injunctions as Administered in the

Courts of the United States and England § 3, at 4 (1879), quoted in In re COVID-
Related Restrictions on Religious Servs., 285 A.3d 1205, 1228 (Del. Ch. 2022).

       402 See 2 Monica E. McFadden, Litigating Tort Cases § 13:4, at n.11 (2024)

(collecting authorities).

       403 COVID-Related Restrictions, 285 A.3d at 1228.



                                          108
Once the case has been adjudicated, the need for interim relief is no longer a

consideration, so that showing is no longer necessary. A permanent injunction

instead requires a showing that other remedies are inadequate.404 A showing of

irreparable harm can satisfy that requirement, but other ways exist, including:

•     Showing that the defendant acted “in such a way that the plaintiff may be
      required to bring more than one suit to effectuate his legal remedy . . . .”405

•     Showing that although money could be an adequate remedy, “the defendant is
      insolvent and [the judgment] is not collectible.”406 In this setting, a permanent
      injunction may issue if “the defendant is still capable of rendering the
      performance to which the plaintiff is entitled as an alternative to the money
      . . . .”407

•     Showing that the plaintiff is entitled to damages “if damages could be
      measured with any reasonable degree of accuracy, but under the facts damages
      are so speculative that any award is likely to be inadequate.”408

This decision has explained twice why a legal remedy is inadequate, first when

holding that this court can exercise subject matter jurisdiction and again when

holding that specific performance is an appropriate remedy.

      The final order will provide for a negative permanent injunction barring the

Borrower, Alpha, their associates and affiliates, and anyone acting in concert with




      404 Id.


      405 Dan B. Dobbs, Law of Remedies: Damages—Equity—Restitution, § 2.5, at

57 (2d ed. 1993).

      406 Id.


      407 Id. at 57–58.


      408 Id. at 58.



                                         109
them from (1) asserting any rights to ownership or control over the Subsidiary Shares

and the Properties and (2) interfering with the Lender’s ownership and control over

the Subsidiary Shares and the Properties.

      The final order will provide for a mandatory permanent injunction requiring

the Borrower to take the actions described in the section addressing the decree of

specific performance. If a reviewing court were to interpret the remedy of specific

performance strictly as available only to enforce a contractual provision requiring

action, then a mandatory injunction grounded in equity can provide equivalent relief.

The arguably duplicative relief of specific performance and a mandatory injunction

will hopefully avoid any remedial slipups that could leave the Lender without a

means of enforcing its rights.

      The final order also will provide for a mandatory injunction compelling Alpha

to transfer any Subsidiary Shares to the Lender. In the Loan Agreement and again

in the Settlement Agreement, the Borrower represented that it owned 100% of the

Subsidiary’s equity. During this case, the Borrower and Alpha claimed that a third

party owned 1% of the equity, rendering those representations false. Alpha has

subsequently acquired that share. Alpha must convey that share to the Lender so

that the Lender receives 100% of the equity in the Subsidiary.

C.    Damages For Loss Of The Building Permit

      The Lender is also entitled to an award of damages for harm the Borrower

caused by breaching the Settlement Agreement.

      When the Borrower breached the Settlement Agreement by preventing the

Lender from accessing the Properties, the Borrower harmed the Lender by delaying
                                        110
construction. During the delay, the Lender’s building permit expired. The Lender had

made enough progress on construction to secure an extension until July 28, 2025, but

the Lender need to continue construction to keep the permit in force. The Borrower

prevented that from happening by changing the locks, sending cease-and-desist

letters to the Lender’s architect, and sending its frivolous criminal complaint to the

local authority in St. Barts. The Lender promptly sought relief from this court, but

the Borrower managed to derail this litigation by obstructing discovery, filing for

bankruptcy, and removing the case to federal court twice. Those actions prevented

the Lender from obtaining interim relief before the building permit expired. The

environmental sensitivity of the Properties makes it unlikely that the Lender can

obtain a comparable permit.409

      Because the Borrower’s breach of the Settlement Agreement resulted in the

Lender’s loss of a unique and valuable building permit, restoring the Lender’s

ownership and possession of the Properties alone will not make the Lender whole.

The Lender is also entitled to damages.

      “Damages are not recoverable for loss beyond an amount that the evidence

permits to be established with reasonable certainty.”410 But “[w]here the injured

party has proven the fact of damages—meaning that there would have been some

profits from the contract—less certainty is required of the proof establishing the




      409 See Springett Tr. 101.


      410 Restatement (Second) of Contracts § 352.



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amount of damages.411 “Courts in Delaware and other jurisdictions have frequently

applied the ‘wrongdoer rule’ where the wrongdoer’s breach contributed to uncertainty

over the amount of damages.”412 When uncertainty as to damages results from a

defendant’s conduct, “fundamental justice requires that . . . the perils of such

uncertainty should be laid at defendant’s door.”413

      The Lender proved the fact of damages. Quantifying those damages requires

determining the difference between (1) the value of the Properties with the

improvements, less their cost of completion, and (2) the value of the Properties

without improvements. The Lender provided a real estate appraiser’s report valuing

the Properties at €12 million in December 2023 without improvements and in a range

of €15–€16 with improvements.414 The lower end of the latter range points to damages

of €3 million. The Borrower decries these figures as speculative, but the Lender

responds that more exacting figures are not available because the Borrower

interfered with the renovations early in the process.

      The Lender’s appraisal is sufficient to support a damages remedy. The

Borrower caused the uncertainty about damages by breaching the Settlement




      411 Siga Techs., Inc. v. PharmAthene, Inc., 132 A.3d 1108, 1131 (Del. 2015).


      412 Id. at 1131 n.132 (collecting cases).


      413 Am. Gen. Corp. v. Cont’l Airlines Corp., 622 A.2d 1, 10 (Del. Ch. 1992)

(internal quotation marks omitted).

      414 JX 242 at 8–9; see JX 243 at 8–9.



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Agreement, so the Borrower cannot be heard to complain about the absence of a more

specific estimate.

      The final order will award €3 million in damages. The plaintiffs are also

entitled to pre-judgment and post-judgment interest at the legal rate, compounded

quarterly, from July 29, 2025, through the date of payment. If the legal rate changes

during a compounding interval, then the new rate becomes effective at the beginning

of the next compounding interval.

D.    Fee Shifting For Bad Faith Litigation Conduct

      Another element of the remedy is an award of expenses, including attorneys’

fees. Delaware follows the American Rule, under which “litigants are normally

responsible for paying their own litigation costs.”415 But the Supreme Court “has

recognized limited equitable exceptions to that rule, including the exception for ‘bad

faith’ conduct during the litigation.”416 The court applies this exception both to

mitigate the harm the affected party has suffered and “to deter abusive litigation and

to protect the integrity of the judicial process.”417 An award is warranted here.

      Delaware courts have shifted fees under the bad faith exception where

defendants “forced the plaintiff to engage in litigation that would not have been



      415 Mahani v. Edix Media Gp., Inc., 935 A.2d 242, 245 (Del. 2007).


      416 Montgomery Cellular Hldg. Co. v. Dobler, 880 A.2d 206, 227 (Del. 2005).


      417 Id.; see Martin v. Harbor Diversified, Inc., 2020 WL 568971, at *1 (Del. Ch.

Feb. 5, 2020) (“[I]t is a method for reducing and appropriately allocating the costs of
vexatious behavior sufficiently serious that justice requires such mitigation.”), aff’d,
244 A.3d 682 (Del. 2020).

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necessary if the defendants had acted with even minimal responsibility.”418 Delaware

courts have also awarded expenses (including attorneys’ fees) where parties

“defended the action despite their knowledge that they had no valid defense,”

“delayed the litigation and asserted frivolous motions,” “falsified evidence,” or

“changed their testimony to suit their needs.”419

      Ritchie, his associates, and his affiliates—including both the Borrower and

Alpha—engaged in egregious litigation misconduct that warrants an award of

expenses.

      First, Ritchie caused Alpha to intervene in this litigation and assert collusive

claims. Through that effort, Ritchie sought again to sow anarchy in the civil justice

system.420

      Second, Alpha and the Borrower made allegations that were recklessly

misleading or knowingly false. They claimed falsely that the Loan was a sham. The

Borrower asserted in its affirmative defenses to the plaintiffs’ complaint that it “did

not receive any funds that were allegedly wired.”421 And Alpha alleged in its third-

party intervenor complaint that the Lender “never intended to loan any money to [the




      418 Montgomery Cellular, 880 A.2d at 228.


      419 Id; see Johnston v. Arbitrium (Cayman Is.) Handels AG, 720 A.2d 542, 546

(Del. 1998).

      420 See JX 7 at 57–58.


      421 Dkt. 28 at 26.



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Borrower] and never actually delivered any money to [the Borrower].”422 Alpha and

Vail doubled down on these assertions at trial.423 In fact, the Borrower both benefited

from the Loan and received a portion of the proceeds in its bank account.424

      Alpha and the Borrower also claimed that they were unaffiliated, independent

entities. When supporting Alpha’s motion to intervene, the Borrower claimed that

“[t]here is no basis for Plaintiffs’ assertion that Alpha Carta and Green Sapphire are

affiliates with common owners,” and represented that “Thane Ritchie does not control

the Petro Carta Trust (Green Sapphire’s sole stockholder).”425 In fact, Ritchie controls

both entities, which are part of his Family Office.426

      In addition to those big falsehoods, Alpha claimed it had demanded payment

from the Borrower of all amounts under the Alpha Agreement.427 In reality, Alpha

never made a demand before filing its third-party complaint.428

      Third, Alpha and the Borrower sought to delay and derail this litigation. When

the litigation began to move forward on an expedited basis, the Borrower tactically




      422 Dkt. 67 ¶ 48.


      423 See Vail Tr. 729–30; Dkt. 276 at 50.


      424 See JX 60; JX 164 at 7; Johnston Tr. 512–17; Cicoski Tr. 281–82; Wolfe Tr.

708–09.

      425 Dkt. 65 at 4.


      426 See Cicoski Tr. 226–27, 295; JX 169 ¶ 37.


      427 Dkt. 67 ¶ 169.


      428 See Yuskus Tr. 660; Azzopardi Tr. 610.



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filed for bankruptcy. Then, when it appeared the Lender would secure relief from the

stay, the Borrower modified hundreds of entries in its general ledger to support

Alpha’s claims.429 After the bankruptcy court lifted the stay, the Borrower removed

the lawsuit twice on the same grounds. Each time the district court promptly

remanded the case, noting on the second occasion that the Borrower had acted

improperly and was obstructing the bankruptcy court’s order.430 During discovery,

the Borrower repeatedly missed deadlines and exhibited “an overall lack of

transparency and inability to follow through on its commitments to the other

parties.”431 Ritchie sought to avoid giving a deposition, requiring the Lender to seek

relief from the court twice.432

      Shifting expenses (including attorneys’ fees) is warranted under the bad faith

exception to the American Rule. The plaintiffs are entitled to recover all of the

litigation-related expenses, including attorneys’ fees and costs. The Borrower and

Alpha are jointly and severally liable for the amount.




      429 See JX 169 at 24–25; Johnston Tr. 497–500; Wolfe Tr. 710–11; Yuskus Tr.

658–59.

      430 Dkt. 192. See 14C C. Wright & A. Miller, Federal Practice & Procedure §

3739 (Rev. 4th ed. 2025) (“After a case has been remanded to state court, a second
notice of removal on the very same ground that led to the initial removal is likely to
be rejected by the district court and may be considered to have been interposed in bad
faith.”). A party may have a legitimate, good-faith basis to file for bankruptcy or
remove a case to federal court. Here, the Borrower did not.

      431 Dkt. 288 at 3.


      432 See Dkt. 193; Dkt. 217; Dkt. 224; Dkt. 236.



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E.    Equitable Subordination

      The last issue is equitable subordination. This decision has awarded relief to

the Lender, including awards of damages. To ensure that Alpha cannot use the Alpha

Agreement to interfere with the Lender’s ability to pursue the Borrower for those

amounts, any claims Alpha has against the Borrower under the Alpha Agreement are

subordinated to the judgment.

      “Equitable subordination is a doctrine that, based on a creditor’s inequitable

conduct and its effect on other creditors, allows that creditor’s debt to be subordinated

to other claims in bankruptcy or allows the creditor’s liens to be transferred to the

bankruptcy estate.”433 The court has applied the doctrine to ensure that a wrongdoer

could not use the fruits of its wrongdoing to interfere with the collection of a

judgment.434

      As discussed previously, the Alpha Agreement is, in substance, an equity

investment. It therefore should be junior to the Lender’s recovery. In light of Alpha’s



      433 Nelson v. Emerson, 2008 WL 1961150, at *4 (Del. Ch. May 6, 2008).


      434 In re Dura Medic Hldgs., Inc. Consol. Litig., 331 A.3d 796, 830 (Del. Ch.

2025) (“The Comvest Parties engaged in the Challenged Financings at the Company
level. That gave those financings structural priority over the Seller Note, which
Holdings issued. As a remedy for the Comvest Parties’ legal and equitable violations,
the Challenged Financings are equitably subordinated to be junior to the Seller
Note.”); GB-SP Hldgs., LLC v. Walker, 2024 WL 4799490, at *1 (Del. Ch. Nov. 15,
2024) (“And, as a remedy for the creditor’s aiding and abetting that breach, its debt
is equitably subordinated as to any amounts collected or received by or on behalf of
the Company from the directors as a result of that disgorgement.”); Lake Treasure
Hldgs., Ltd. v. Foundry Hill GP LLC, 2014 WL 5192179, at *9 (Del. Ch. Oct. 10, 2014)
(“Klee’s loan to the Partnership in the amount of $136,200, together with any interest,
is equitably subordinated to the claims of all other creditors.”).

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bad-faith conduct, equitable subordination is warranted. The amounts due under the

judgment have priority over any amounts that Alpha has advanced to the Borrower.

                           VI.    POST-TRIAL MOTIONS

      On the eve of post-trial argument, Alpha and the Borrower filed two post-trial

motions. Both are denied.

A.    Alpha’s Motion To Reopen And Supplement The Record

      During this litigation, Cicoski testified about receiving multiple threats,

including that a “man with a gun arrived at my home after nightfall” to deliver a

“vitriolic” letter from out-of-state litigation counsel for the Family Office.435 Cicoski’s

counsel filed a letter informing the court of several additional threatening text

messages he received after trial.436 McHugh also testified that she received

threatening messages before her deposition.437 After trial, Alpha moved to reopen and

supplement the trial record to respond to those allegations and introduce evidence

about threats to Wolfe.438 Alpha seeks to introduce its own evidence to rebut the

inference that Ritchie, Alpha, or the Borrower were behind the threats to Cicoski and

McHugh.




      435 Cicoski Tr. 311–12.


      436 Dkt. 281.


      437 McHugh Dep. 10–16.


      438 Dkt. 287.



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      The court has not made any factual findings about the alleged threats, has not

drawn any inferences based on the threats, and has not taken the representations

about threats into account when evaluating credibility or weighing the evidence.

Reopening and supplementing the trial record is unwarranted. Alpha’s motion is

denied.

B.    The Borrower’s Motion To Dismiss The Florida Subsidiary For Lack
      Of Standing

      On the morning of post-trial argument, the Borrower moved to dismiss the

Florida Subsidiary on the theory that it is not a party to the Settlement Agreement.439

That argument comes too late. The Lender caused the Florida Subsidiary to sue

because the Lender believed it controlled the Florida Subsidiary and the Florida

Subsidiary should have held title to the Properties. The Borrower created uncertainty

by claiming that the Island Subsidiary was never properly redomiciled in Florida and

continues to exist as a separate entity under a different name. The Florida Subsidiary

is a proper party for purposes of that relief. The Borrower’s motion is denied.

                               VII.   CONCLUSION

      Judgment will be entered for the plaintiffs and against the Borrower. The

judgment will include a declaration that the Lender is the rightful owner of the

Subsidiary Shares and the Properties. The Borrower must take all actions necessary

to remove any doubt about the domestication of the Island Subsidiary in Florida as

the Florida Subsidiary, the transfer of the Subsidiary Shares to the Lender, and the



      439 Dkt. 289.



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transfer of title to the Properties to the Lender. The Lender is entitled to damages of

€3 million, plus pre-judgment and post-judgment interest through the date of

payment.

      The court will enter judgment against Alpha on all of its claims.

      The court awards the Lender its expenses, including attorneys’ fees. If the

parties cannot agree on an amount, then the Lender may move to quantify the award.

      Alpha’s loans to the Borrower are equitably subordinated to the Lender’s

recovery.

      Within thirty days, the parties must submit proposed final order that is agreed

as to form. If there are issues that need to be addressed before a final order can be

entered, then the parties must submit a joint letter identifying those issues and

proposing a path forward. Any remaining items must be existing issues that need to

be addressed to resolve this proceeding. This instruction is not an invitation to raise

new issues or seek a do-over.




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