Diem-II, LLC, Diem-III, LLC, and Diem-VIII, LLC v. Maisonette Inc.

• Court: Court of Chancery of Delaware
• Decided: April 6, 2026
• Docket: C.A. No. 2025-0338-BWD
• Status: Published

Opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

DIEM-II, LLC, DIEM-III, LLC, and ) DIEM-VIII, LLC, ) ) Plaintiffs, ) ) v. ) C.A. No. 2025-0338-BWD ) MAISONETTE INC., NEW ) ENTERPRISE ASSOCIATES 15, L.P., ) SYLVANA DURRETT, LUISA ) MENDOZA, ANTHONY FLORENCE, ) MARISSA MAYER, PIERRE ) POIGNANT, and MYRA CORTADO, ) ) Defendants. )

MEMORANDUM OPINION RESOLVING MOTIONS TO DISMISS

Date Submitted: March 4, 2026 Date Decided: April 6, 2026

John M. Seaman, E. Wade Houston, Ben Lucy, ABRAMS & BAYLISS LLP, Wilmington, DE; OF COUNSEL: David Elsberg, Silpa Maruri, Jared Ruocco, Brian Campbell, Silas La Borde, ELSBERG BAKER & MARURI PLLC, New York, NY; Attorneys for Plaintiffs Diem-II, LLC, Diem-III, LLC, and Diem-VIII, LLC.

Daniel B. Rath, Rebecca L. Butcher, Jennifer L. Cree, Howard W. Robertson IV, LANDIS RATH & COBB LLP, Wilmington, DE; OF COUNSEL: Darrell Cafasso, Alexander K. Talarides, Harry F. Murphy, ORRICK, HERRINGTON & SUTCLIFFE LLP, New York, NY; Attorneys for Defendants Maisonette Inc., Sylvana Durrett, Anthony Florence, Marissa Mayer, and Pierre Poignant.

C. Barr Flinn, Paul Loughman, Zeliang Liu, YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, DE; OF COUNSEL: Eric Leon, Nathan Taylor, Connor Clerkin, LATHAM & WATKINS LLP, New York, NY; Attorneys for Defendant New Enterprise Associates 15, L.P. Bruce E. Jameson and John G. Day, PRICKETT, JONES & ELLIOTT, P.A., Wilmington, DE; Attorneys for Defendant Luisa Mendoza.

Jaclyn C. Levy and Samuel G. Gustafson, POTTER ANDERSON & CORROON LLP, Wilmington, DE; Attorneys for Defendant Myra Cortado.

DAVID, V.C. The length of this memorandum opinion is more reflective of the myriad

claims and arguments the parties have devised than the complexity of the factual

allegations at issue. Between 2021 and 2024, the plaintiffs invested in Maisonette

Inc. (“Maisonette” or the “Company”) through a convertible note and two series of

preferred stock issuances. Maisonette later restated its financials, suggesting the

financial information Maisonette provided to the plaintiffs in connection with their

investments was not accurate. Maisonette also represented in purchase agreements

with the plaintiffs that there was no action pending against any of its directors or

officers, when in fact, one Maisonette director was a defendant in a dozen federal

securities lawsuits arising from another company’s initial public offering.

The plaintiffs allege claims for fraud, civil conspiracy to commit fraud, breach

of contract, breach of fiduciary duty, aiding and abetting breach of fiduciary duty,

violation of the Florida Securities and Investor Protection Act, equitable fraud,

conversion, and unjust enrichment against different combinations of defendants,

including Maisonette, its directors and two officers, and another investor with

representation on Maisonette’s board. The defendants have moved to dismiss each

of these claims on separate grounds.

Affording the plaintiffs the benefit of all reasonable inferences, this

memorandum opinion largely denies the motions to dismiss. Given the outcome,

1 the decision strikes me as one better suited for a transcript ruling. But in an effort to

address multitudinous arguments, a lengthy written ruling follows instead.

I. BACKGROUND1 A. The Parties

Maisonette is a Delaware corporation and e-commerce startup that specializes

in children’s fashion and lifestyle products. Compl. ¶¶ 3, 23.

Nonparty Diem Investments is an alternative asset management firm that

invests in private companies in the software and e-commerce sectors. Id. ¶ 22. Diem

Investments manages plaintiffs Diem-II, LLC, Diem-III, LLC, and Diem-VIII, LLC

(collectively, “Plaintiffs”), Delaware limited liability companies formed to invest in

Maisonette. Id. ¶¶ 19–23.

Defendants Sylvana Durrett and Luisa Mendoza founded Maisonette in 2016.

Id. ¶¶ 23–25. Durrett served as Maisonette’s Chief Executive Officer (“CEO”) at all

relevant times, and Mendoza served as its President until May 2024.2 Id. ¶¶ 24–25.

Between December 2020 and April 2024, the Board comprised five members:

1 The following facts are taken from the Verified Complaint (the “Complaint”) and the documents incorporated by reference therein. Verified Compl. [hereinafter Compl.], Dkt. 1; see Allen v. Encore Energy P’rs, 72 A.3d 93, 96 n.2 (Del. 2013) (“A judge may consider documents outside of the pleadings only when: (1) the document is integral to a plaintiff’s claim and incorporated in the complaint . . . .” (citing Vanderbilt Income & Growth Assocs., L.L.C. v. Arvida/JMB Managers, Inc., 691 A.2d 609, 613 (Del. 1996))). 2 Maisonette’s board of directors (the “Board”) voted to appoint a new President on May 21, 2024, but Mendoza remains on the Board. Compl. ¶ 150.

2 Durrett, Mendoza, Anthony Florence, Marissa Mayer, and Pierre Poignant

(collectively, the “Director Defendants”). See id. ¶¶ 24–28.

Defendant New Enterprise Associates 15, L.P. (“NEA 15”) is a Delaware

limited partnership formed by nonparty New Enterprise Associates, Inc. (“NEA”) to

invest in Maisonette. Id. ¶¶ 26, 30. In 2018, NEA 15 led Maisonette’s Series A

financing round and secured a contractual right to designate a director on the Board.

Id. ¶¶ 37–38. NEA 15 designated Florence—NEA’s CEO, Managing General

Partner, Co-President, and Head of Technology Investing—to the Board.

Id. ¶¶ 26, 38.

Mayer invested in Maisonette and joined the Board in March 2019. Id. ¶ 27.

Another investor, nonparty Strategic Investments Group, designated Poignant to the

Board in December 2020. Id. ¶ 40.

In January 2021, Maisonette completed a $30 million Series B financing

round, after which NEA 15 became or remained Maisonette’s largest stockholder.

See id. ¶¶ 42, 47 n.2.

B. The Note

On July 30, 2021, the Board met in a “closed-door session” with two NEA

associates present to discuss Maisonette’s cash position and fundraising efforts,

which included plans to pursue a Series C financing round by the end of the year.

Id. ¶¶ 45–46.

3 Soon after, Maisonette hired defendant Myra Cortado to serve as its Chief

Financial Officer (“CFO”).3 Id. ¶ 29.

On September 13, Mendoza contacted Plaintiffs to solicit their participation

in the Series C financing round. Id. ¶ 48. Mendoza provided Plaintiffs with a

PowerPoint presentation (the “Series C Pitch Deck”) that presented historical and

prospective financial information for Maisonette. Id. ¶¶ 53, 55–57. As alleged in

the Complaint, Plaintiffs rely heavily on “unit economics” when evaluating growth-

stage startups, under the view that a metric like lifetime value per customer

acquisition cost (“LTV/CAC”) is more valuable than EBITDA for evaluating

startups that are not yet profitable.4 Compl. ¶¶ 4 & n.1, 50. Financial information

in the Series C Pitch Deck “demonstrated unit economics of 3.2x LTV/CAC over

2020 and 2021, with a pathway to 4.0x or greater, which would drive [Maisonette]

to profitability in 2024 ahead of an anticipated IPO in 2025.” Id. ¶ 5.

After reviewing the Series C Pitch Deck, Plaintiffs decided to pursue an

investment in Maisonette. Id. ¶ 59. On October 22, Cortado provided Plaintiffs with

3 This memorandum opinion refers to Maisonette, the Director Defendants, Cortado, and NEA 15 collectively as “Defendants.” 4 LTV/CAC is a ratio of a customer’s lifetime value divided by customer acquisition cost, derived by dividing gross profit from a customer over time by the cost to acquire that customer. See Jamie Sullivan & Alex Immerman, Why Do Investors Care So Much About LTV:CAC?, Andreessen Horowitz (Aug. 22, 2023), https://a16z.com/why-do-investors- care-so-much-about-ltvcac/.

4 Maisonette’s “unaudited financial statements”5 for fiscal year (“FY”) 2020 and the

first three quarters of FY 2021, along with financial projections for the remainder of

FY 2021 (the “October 2021 Financial Statements”). Compl. ¶¶ 62–64.

While Plaintiffs were conducting diligence, unbeknownst to them, the Board

met on November 16 to discuss Maisonette’s operations and financing

developments. Id. ¶ 76. In connection with that meeting, the Board received a slide

deck (the “November 2021 Board Deck”) that included a slide entitled “Assessment

of Finance Capabilities,” identifying improvements necessary to bring Maisonette

to where a “[h]igh [g]rowth company at [its] stage should be.” Id. ¶ 77; Maisonette

OB, Ex. 1 [hereinafter Board Deck] at 33. The slide noted that Maisonette’s

financial reporting relied on QuickBooks, which had “limited capabilities.” Id. The

slide further observed that “[d]ata sources for reporting [we]re directionally correct

but not entirely accurate”; “[p]rivate label accounting [was] non-existent”; and the

Company had not yet undergone an audit. Id.

On December 13, Plaintiffs purchased a convertible promissory note (the

“Note”), governed by New York law, with a face value of $8 million that would

5 The Complaint calls these documents “financial statements” but clarifies that Plaintiffs only “requested a ‘company financial model’ or the ‘key financial metrics over the last few quarters/years.’” Compl. ¶ 61. Maisonette’s briefing refers to these documents as “unaudited financial metrics.” Opening Br. in Supp. of Defs. Maisonette, Durrett, Florence, Mayer & Poignant’s Mot. to Dismiss the Verified Compl. [hereinafter Maisonette OB] at 10, Dkt. 23.

5 automatically convert into Maisonette Series C preferred stock (“Series C Preferred

Stock”) upon successful completion of the Series C financing round.6 Compl. ¶¶ 6,

75, 82–86; id., Ex. 1 [hereinafter Note].

C. The Series C SPA On January 10, 2022, Mendoza provided Plaintiffs with new unaudited

financial statements for the Company (the “Updated Financial Statements”). Compl.

¶ 89.

On February 2, Plaintiffs executed a Series C Preferred Stock Purchase

Agreement (the “Series C SPA”), converting Plaintiffs’ initial $8 million investment

under the Note into Series C Preferred Stock and investing an additional $2.4 million

in Series C Preferred Stock. Compl. ¶¶ 98–99; id., Ex. 2 [hereinafter Series C SPA].

6 The Note states that Plaintiffs’ investment “shall be converted into equity securities at the initial closing of the Company’s next sale of preferred stock in a single transaction or a series of related transactions yielding gross proceeds to the Company of at least $30,000,000,” upon which “[Maisonette] will automatically issue” “a number of shares of Standard Preferred Stock equal to the Conversion Amount divided by the price per share at which the majority of shares of the Standard Preferred Stock are sold to cash investors.” Note §§ 2(a), 2(a)(i)(1). In Section 6 of the Note, Plaintiffs acknowledged that they were “aware of the Company’s business affairs and financial condition and ha[d] acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Securities.” Note § 6(c). Plaintiffs also “acknowledge[d] that [they were] not relying upon any person, firm or corporation, other than the Company and its officers and directors, in making [their] investment or decision to invest in the Company.” Id. § 6(d).

6 Section 1.4 of the Series C SPA states that upon conversion of the Note,

Plaintiffs “waive[] . . . any and all demands, claims, suits, actions, causes of action,

proceedings, assessments and rights in respect of each of the Note Documents,

including, without limitation, past or present actual, deemed or alleged default or

event of default under such Note Documents.” Series C SPA § 1.4(e).

In Sections 2.7, 2.14, 2.15, 2.16, and 2.24 of the Series C SPA, Maisonette

made representations and warranties concerning litigation, its financial statements,

key employees, and the accuracy of representations and warranties.

Section 2.7 of the Series C SPA included the following “Absence of Litigation

Representation”:

2.7 Litigation. There is no claim, action, suit, proceeding, arbitration, complaint, charge or investigation pending or to the Company’s knowledge, currently threatened (i) against the Company or any officer, director or Key Employee of the Company . . . .

Id. § 2.7. Sections 2.14 and 2.15 included the following “Financial Statements

Representation” and “Financial Changes Representation”:

2.14 Financial Statements. The Company has delivered to each Purchaser its unaudited financial statements as of September 30, 2021 (the “Financial Statements Date”) and for the fiscal year ended December 31, 2020 (collectively, the “Financial Statements”). The Financial Statements have been prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods indicated, except that the unaudited Financial Statements may not contain all footnotes required by GAAP. The Financial Statements fairly present in all material respects the financial condition and operating results of the Company as of the dates, and for the periods, indicated therein, subject in the case of the unaudited

7 Financial Statements to normal year-end audit adjustments. Except as set forth in the Financial Statements, the Company has no material liabilities or obligations, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to September 30, 2021; (ii) obligations under contracts and commitments incurred in the ordinary course of business; and (iii) liabilities and obligations of a type or nature not required under GAAP to be reflected in the Financial Statements, which, in all such cases, individually and in the aggregate would not have a Material Adverse Effect. The Company maintains and will continue to maintain a standard system of accounting established and administered in accordance with GAAP.

2.15 Changes. Since the Financial Statements Date, there has not been: (a) any change in the assets, liabilities, financial condition or operating results of the Company from that reflected in the Financial Statements, except changes in the ordinary course of business that have not caused, in the aggregate, a Material Adverse Effect . . . .

Id. §§ 2.14, 2.15. Section 2.16 included the following “Key Employee

2.16 Employee Matters. . . . (d) To the Company’s knowledge, no Key Employee7 intends to terminate employment with the Company or is otherwise likely to become unavailable to continue as a Key Employee. The Company does not have a present intention to terminate the employment of any of the foregoing.

Id. § 2.16. Finally, Section 2.24 included the following “Disclosure

2.24 Disclosure. . . . No representation or warranty of the Company contained in this Agreement, as qualified by the Disclosure Schedule,

7 The Series C SPA defines a “Key Employee” to mean “any executive-level employee (including division director and vice president-level positions) as well as any employee or consultant who either alone or in concert with others develops, invents, programs or designs any Company Intellectual Property.” Series C SPA § 1.6(f).

8 and no certificate furnished or to be furnished to Purchasers at the Closing contains any untrue statement of a material fact or, to the Company’s knowledge, omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made.

Id. § 2.24.

D. The Casper Litigations

At the time Maisonette and Plaintiffs executed the Series C SPA, Florence,

who also served on the board of directors of Casper Sleep Inc. (“Casper”), was a

named defendant in a dozen federal securities lawsuits arising from Casper’s initial

public offering (the “Casper Litigations”). Compl. ¶¶ 16, 111 & n.4, 112.

E. The Series D SPA

By late 2023 and early 2024, Maisonette was engaged in discussions over a

new Series D financing round. Plaintiffs eventually agreed to lead Maisonette’s

Series D financing round, investing $2.9 million in exchange for Series D preferred

stock, a contractual right to designate a director on the Board, and rights to approve

the Company’s budget. Id. ¶¶ 11–12, 128, 131–32.

On April 15, 2024, Plaintiffs executed a Series D Preferred Stock Purchase

and Warrant Agreement (the “Series D SPA”). Id. ¶ 135; Compl., Ex. 3 [hereinafter

Series D SPA]. The Series D SPA included the same definitions and Absence of

Litigation Representation, Financial Statements Representation, Financial Changes

Representation, Key Employee Representation, and Disclosure Representation as in

9 the Series C SPA. Series D SPA §§ 1.6(f), 2.7, 2.14, 2.15, 2.16, 2.24. In connection

with the Series D SPA, Plaintiffs designated Seth Shevlin to the Board.

Compl. ¶ 147.

F. Mendoza’s Departure On April 26, Mendoza sent a letter to members of the Board8 and Maisonette’s

outside counsel claiming that she had been “forced out of her role (and defamed) by

the actions of Florence, Durrett, and Mayer.” Id. ¶ 143. The letter “threaten[ed]

litigation against [those individuals] and the Company, alleging that they had

defamed her and were working to push her out of the Company in an unlawful

scheme to retaliate against her and reduce her compensation and/or equity in the

Company.” Id. ¶ 148. Mendoza sent a second letter on May 1. Id.

On May 21, the Board held a meeting at which Durrett, Florence, Mayer, and

Poignant “determined that no Board action was needed to remove Mendoza as

President” because Mendoza had not been validly appointed to that position, and

“voted to appoint Adriane Nicholas as President” in her place. Id. ¶ 150.

G. The Restated Financial Statements

Sometime after Shevlin joined the Board in 2024, Plaintiffs learned that two

years prior, in 2022, Maisonette had restated its financials (the “Restated Financial

8 The Complaint does not identify which Board members received this letter. See Compl. ¶¶ 143, 148.

10 Statements”). See id. ¶¶ 9, 69, 156. The following table compares the lower net

revenue, gross profit, gross profit margin, and EBITDA figures disclosed in the

Restated Financial Statements with the figures in the Updated Financial Statements

that Plaintiffs received before investing in the Note and the Series C SPA:

Id. ¶ 91.

H. Procedural History

On March 31, 2025, Plaintiffs initiated this action through the filing of the

Complaint. Dkt. 1. The Complaint asserts ten counts:

11 • Count I alleges a claim for fraud against Maisonette, the Director

Defendants, and Cortado premised on alleged misrepresentations in

connection with the Note, the Series C SPA, and the Series D SPA. Id.

¶¶ 160–71.

• Count II alleges a claim for civil conspiracy to commit fraud against

Maisonette, the Director Defendants, Cortado, and NEA 15. Id.

¶¶ 172–78.

• Count III alleges a claim for breach of the Series C SPA against

Maisonette. Id. ¶¶ 179–84.

• Count IV alleges a claim for breach of the Series D SPA against

Maisonette. Id. ¶¶ 185–89.

• Count V alleges a claim for breach of fiduciary duty against the

Director Defendants. Id. ¶¶ 190–201.

• Count VI alleges a claim for aiding and abetting breach of fiduciary

duty against NEA 15. Id. ¶¶ 202–05.

• Count VII alleges a claim for violation of the Florida Securities and

Investor Protection Act against Maisonette, the Director Defendants,

and Cortado. Id. ¶¶ 206–20.

• Count VIII alleges a claim for equitable fraud against all Defendants.

Id. ¶¶ 221–29.

12 • Count IX alleges a claim for conversion against Maisonette. Id. ¶¶ 230–

34.

• Count X alleges an alternative claim for unjust enrichment against all

Defendants. Id. ¶¶ 235–43.

All Defendants but Mendoza moved to dismiss the Complaint on May 12.

Dkts. 10–12. Mendoza moved to dismiss the Complaint on May 19 (collectively,

the “Motions to Dismiss”), Dkt. 14, and the parties completed briefing on August

22.9 The Court heard oral argument on the Motions to Dismiss on January 23, 2026,

Dkt. 71, and Plaintiffs submitted supplemental authority on March 4. Dkt. 75.

II. ANALYSIS Defendants have moved to dismiss the Complaint under Court of Chancery

Rule 12(b)(6) for failure to state a claim. When reviewing a motion to dismiss under

Rule 12(b)(6), Delaware courts “(1) accept all well pleaded factual allegations as

9 See Maisonette OB, Dkt. 23; Opening Br. and Joinder in Supp. of Def. Myra Cortado’s Mot. to Dismiss the Verified Compl. [hereinafter Cortado OB], Dkt. 24; Opening Br. in Supp. of Def. New Enterprise Associates 15, L.P.’s Mot. to Dismiss the Verified Compl. [hereinafter NEA OB], Dkt. 25; Def. Luisa Mendoza’s Opening Br. in Supp. of Mot. to Dismiss [hereinafter Mendoza OB], Dkt. 29; Pls.’ Omnibus Answering Br. in Opp’n to Defs.’ Mots. to Dismiss [hereinafter PAB], Dkt. 38; Reply Br. and Joinder in Further Supp. of Def. Myra Cortado’s Mot. to Dismiss the Verified Compl. [hereinafter Cortado RB], Dkt. 49; Def. Luisa Mendoza’s Reply Br. in Supp. of Mot. to Dismiss, Dkt. 50; Reply Br. in Supp. of Defs. Maisonette, Durrett, Florence, Mayer & Poignant’s Mot. to Dismiss the Verified Compl., Dkt. 51; Reply Br. in Supp. of Def. New Enterprise Associates 15, L.P.’s Mot. to Dismiss the Verified Compl., Dkt. 52.

13 true, (2) accept even vague allegations as ‘well pleaded’ if they give the opposing

party notice of the claim, [and] (3) draw all reasonable inferences in favor of the

non-moving party . . . .” Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldgs.

LLC, 27 A.3d 531, 535 (Del. 2011) (citing Savor, Inc. v. FMR Corp., 812 A.2d 894,

896–97 (Del. 2002)).

A. Count I States A Claim For Fraud Against Maisonette, The Director Defendants, And Cortado. Count I of the Complaint alleges a claim for fraud against Maisonette, the

Director Defendants, and Cortado. In short, Plaintiffs allege that they were

fraudulently induced into executing the Note, the Series C SPA, and the Series D

SPA with misrepresentations concerning (1) Maisonette’s financial condition in the

October 2021 Financial Statements and the Updated Financial Statements,

(2) the absence of pending litigation against directors in the Series C SPA and Series

D SPA, and (3) the status of Mendoza as a “Key Employee” in the Series D SPA.

A claim for fraud or fraudulent inducement under Delaware law has five

elements:

(1) a false statement, generally of fact, made by the defendant; (2) the defendant’s knowledge or belief that the statement was false at the time it was made, or the defendant’s reckless indifference to [the] statement’s truth; (3) the defendant’s intent to cause the plaintiff to act or refrain from acting as a result of the statement; (4) the plaintiff’s justifiable reliance on that statement in acting or in refraining from acting; and (5) damages incurred as a result of that reliance.

14 Neurvana Med., LLC v. Balt USA, LLC, 2020 WL 949917, at *23 (Del. Ch. Feb. 27,

2020) (footnote omitted). “Court of Chancery Rule 9(b) imposes a heightened

pleading standard on plaintiffs asserting fraud claims.” Id. at *24. Rule 9(b) requires

a party to “state with particularity the circumstances constituting fraud.” Ct. Ch. R.

9(b). “Under Rule 9(b), the circumstances that must be stated with particularity are

the time, place, and contents of the false representation, the identity of the person(s)

making the representation, and what he intended to obtain thereby.” H-M Wexford

LLC v. Encorp, Inc., 832 A.2d 129, 145 (Del. Ch. 2003). Though the circumstances

of the fraud must be pled with particularity, “[i]t is not necessary under Rule 9(b) to

plead knowledge or intent with particularity[.]” KnighTek, LLC v. Jive Commc’ns,

Inc., 225 A.3d 343, 353 (Del. 2020).

Defendants argue that Count I must be dismissed because the Series C SPA

contains a waiver releasing all claims relating to the Note and, in any event, that the

Complaint fails to allege sufficient facts to state a claim for fraud.

1. The Series C SPA Does Not Waive Unknown Fraud Claims.

Defendants first argue that Count I must be dismissed to the extent it is based

on misstatements made in connection with the Note because Section 1.4(e) of the

15 Series C SPA waived all claims “in respect of” the Note.10 Maisonette OB at 25–

26.

“Delaware courts recognize the validity of general releases.” Deuley v.

DynCorp Int’l, Inc., 8 A.3d 1156, 1163 (Del. 2010). “If [a] claim falls within the

plain language of [a] release, then the claim should be dismissed.” Seven Invs., LLC

v. AD Cap., LLC, 32 A.3d 391, 396 (Del. Ch. 2011). “When determining whether a

release covers a claim, ‘the intent of the parties as to its scope and effect are

controlling, and the court will attempt to ascertain their intent from the overall

language of the document.’” Id. (quoting Corp. Prop. Assocs. 6 v. Hallwood Gp.

Inc., 817 A.2d 777, 779 (Del. 2003)).

Under at least one reasonable reading of Section 1.4(e), the parties did not

voluntarily and intentionally relinquish the right to pursue unknown fraud claims.

Section 1.4 addresses conversion of the Notes into Series C Preferred Stock. It

extinguishes Maisonette’s ongoing obligations under the Note, explaining that

“[u]pon conversion of the Convertible Notes, the Company shall have no further

obligations under the Convertible Notes and the Convertible Notes shall be

10 Defendants briefed additional waiver arguments under Sections 4 and 7 of the Note but withdrew them during oral argument. See Tr. of 1-23-2026 Oral Arg. on Mots. to Dismiss at 25:10–16, Dkt. 74.

16 cancelled.” Series C SPA § 1.4(d). Section 1.4(e) then waives Maisonette’s past

failures under the Note:

Other than each Conversion Purchaser’s right to receive the Shares set forth opposite such Conversion Purchaser’s name on Exhibit A and the rights provided for in this Agreement and the Transaction Agreements . . . as a holder of Shares, each Conversion Purchaser hereby waives (on behalf of himself, herself, or itself, as applicable) any and all demands, claims, suits, actions, causes of action, proceedings, assessments and rights in respect of each of the Note Documents, including, without limitation, past or present actual, deemed or alleged default or event of default under such Note Documents . . . .

Series C SPA § 1.4(e) (emphasis added). While Section 1.4(e) releases claims “in

respect of” the Notes—such as “actual, deemed or alleged default”—it arguably does

not evince a “voluntary and intentional relinquishment of a known right” to pursue

unknown claims for fraud. See Arnold v. Soc’y for Sav. Bancorp, Inc., 650 A.2d

1270, 1289 (Del. 1994).

Notably, if the parties had intended to broadly release unknown fraud claims,

they could have done so explicitly, but they did not. See Jhaveri v. K1 Inv. Mgmt.

LLC, 2025 WL 1779507, at *8 (Del. Ch. June 27, 2025) (finding a general release

barred fraud claims where the release stated that “[plaintiff] understands that this is

a full and final general release of all claims, demands, causes of action, [l]osses,

liabilities and obligations of any nature whatsoever, whether or not known . . . .”

(emphasis added)); Schonfeld Gp. Hldgs., LLC v. Trillium Hldgs., LLC, 2012 WL

727777, at *2, *4 (Del. Ch. Mar. 6, 2012) (explicitly releasing claims “whether

17 known or unknown”); Seven Invs., 32 A.3d at 396 (“The [g]eneral [r]elease

explicitly extinguished all claims, known or unknown, arising out of or in any way

related to the . . . [a]greements.” (emphasis added)). Because Section 1.4(e) of the

Series C SPA does not unambiguously waive claims for fraud, the Motions to

Dismiss Count I based on waiver are denied.

2. The Complaint Alleges False Statements. Defendants’ primary contention is that the Complaint fails to plead facts

supporting the elements of a claim for fraud. Defendants argue, first, that the

Complaint fails to plead facts supporting an inference that any Defendant made a

false statement. Plaintiffs respond that the Complaint adequately alleges false

statements concerning Maisonette’s financial condition in the October 2021

Financial Statements and the Updated Financial Statements; the absence of pending

litigation against directors in the Series C SPA and Series D SPA; and the status of

Mendoza’s availability as a “Key Employee” in the Series D SPA.

a. The Complaint Alleges Misstatements In Connection With The Note.

Plaintiffs allege that to induce their investment in the Note, the Director

Defendants, Cortado, and Maisonette provided them with the Series C Pitch Deck

and October 2021 Financial Statements, which falsely represented the Company’s

financial condition, as later revealed by the Restated Financial Statements. Although

the Restated Financial Statements reflect lower net revenue, gross profit, gross profit

18 margin, and EBITDA figures than the ones disclosed to Plaintiffs in the Series C

Pitch Deck and October 2021 Financial Statements, Defendants contend that any

misstatements of financial information in those documents are either “immaterial

Backward-looking Metrics or inactionable Forward-Looking Projections.”

Maisonette OB at 27.

“[I]ssues of materiality are generally held to be mixed questions of law and

fact, but predominantly questions of fact,” making materiality difficult to assess on

a motion to dismiss. Wells Fargo & Co. v. First Interstate Bancorp., 1996 WL

32169, at *10 (Del. Ch. Jan. 18, 1996). Despite Defendants’ arguments to the

contrary, the Court cannot conclude from the pleadings that inaccurate historical

information in the Series C Pitch Deck and October 2021 Financial Statements was

immaterial to Plaintiffs’ investment decision as a matter of law. This is particularly

true given that a representation that financial statements fairly present a company’s

financial condition is “one of the most important representations in any acquisition

agreement.” Abry P’rs V, L.P. v. F & W Acq. LLC, 891 A.2d 1032, 1042 (Del. Ch.

2006).

To advance their materiality argument, Defendants seize on Plaintiffs’

allegations that “commonplace valuation metrics like EBITDA multiples are rarely

used to assess startups” because “startup businesses frequently have negative

earnings during the first several years of their existence.” Maisonette OB at 28

19 (quoting Compl. ¶ 50). According to Defendants, because Plaintiffs focus on “unit

economics” like LTV/CAC to predict the growth potential of startup businesses,

historical financial information must be immaterial to their investment decisions. Id.

Defendants’ attempt to portray Plaintiffs’ investment thesis as wholly divorced from

historical financial information makes little sense, as the unit economics on which

Plaintiffs relied were derived from Maisonette’s historical performance.11 See, e.g.,

Compl. ¶¶ 5, 9, 59.

Further, to the extent Defendants suggest that Plaintiffs relied solely on

forward-looking projections derived from unit economics metrics, dismissal is

nevertheless inappropriate where forward-looking information was extrapolated

from false historical information. See DG BF, LLC v. Ray, 2021 WL 776742, at *23

(Del. Ch. Mar. 1, 2021) (declining to dismiss fraud claim based on projections

because “[t]o the extent the projections were based on [the company’s] past financial

performance, those numbers were fraudulent”). Thus, the Court cannot conclude

that misstated financial information in the Series C Pitch Deck and October 2021

Financial Statements was immaterial or inactionable as a matter of law.

11 See PAB at 27 (“[Plaintiffs’] claim is based upon fraudulent unit economics that were matters of historical fact, calculated based on misstated gross profit and profit margin figures that appeared in the fraudulent Series C [Pitch] Deck, [October 2021] Financial Statements, and Updated Financial Statements.” (citing Compl. ¶¶ 54–55, 69–74, 89–93)).

20 Because the Complaint adequately alleges misstatements of historical

information, the Court need not further parse whether additional forward-looking

misstatements are also actionable.

b. The Complaint Alleges Misstatements In Connection With The Series C SPA.

Plaintiffs allege that to induce their investment in the Series C SPA, the

Director Defendants, Cortado, and Maisonette provided them with the Updated

Financial Statements, which, like the Series C Pitch Deck and the October 2021

Financial Statements, falsely represented the Company’s financial condition, again

evidenced by the Restated Financial Statements.

Like the Series C Pitch Deck and the October 2021 Financial Statements, the

Updated Financial Statements provided to Plaintiffs included higher net revenue,

gross profit, gross profit margin, and EBITDA figures than those later reflected in

the Restated Financial Statements. For the same reasons explained above, the

Complaint alleges an actionable misrepresentation in the Updated Financial

Statements. See supra pp. 18–20.

Separately, Plaintiffs allege that the Absence of Litigation Representation in

the Series C SPA was false. That representation stated that “[t]here [wa]s no . . .

action, suit, proceeding, arbitration, complaint, charge or investigation

21 pending . . . against . . . any . . . director,”12 when, in fact, Florence was a defendant

in the Casper Litigations. Defendants do not contest for purposes of the Motions to

Dismiss that the Absence of Litigation Representation was false when made, but

argue that the representation was not material because federal securities lawsuits are

“standard fare for board directors of any company . . . after an initial public offering”

and the Casper Litigations “ha[d] no bearing on Florence’s participation in

Maisonette or the value of [Plaintiffs’] investment in the Company.” Maisonette OB

at 36.

Again, “[a] question of materiality is difficult to treat as a question of law on

a motion to dismiss.” Davidow v. LRN Corp., 2020 WL 898097, at *11 (Del. Ch.

Feb. 25, 2020) (quoting Wells Fargo, 1996 WL 32169, at *10). Defendants may

later show that the Casper Litigations were immaterial strike suits. But at the

pleadings stage, the fact that Plaintiffs bargained for, and were entitled to rely on,13

the Absence of Litigation Representation supports a reasonable inference that the

misrepresentation was material to Plaintiffs. See Abry P’rs, 891 A.2d at 1051

12 Series C SPA § 2.7. 13 See Series C SPA § 3.3 (Purchaser’s opportunity to discuss the business “does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement or the right of the Purchasers to rely thereon” (emphasis added)); id. § 3.10 (“The Purchaser acknowledges that it is not relying upon any Person, other than the Company and its officers and directors, in making its investment or decision to invest in the Company.”) (emphasis added); see also Series D SPA §§ 3.3, 3.10 (same).

22 (concluding that a plaintiff adequately alleged “statements were materially false”

when the “statements were represented and warranted in the [a]greement and were

therefore intended to induce the [b]uyer to sign the [a]greement and close the sale to

purchase the [c]ompany”); cf. Prairie Cap. III LP v. Double E Hldg. Corp., 132 A.3d

35, 62 (Del. Ch. 2015) (“It is reasonably inferable that defendants intended to induce

reliance on the representations because they appeared in a written agreement.”).

c. The Complaint Alleges Misstatements In Connection With The Series D SPA. Plaintiffs allege that to induce their investment in the Series D SPA, the

Director Defendants and Maisonette made the same Absence of Litigation

Representation as in the Series C SPA. The Complaint adequately alleges a

misstatement in connection with the Series D SPA for the same reasons explained

above. See supra pp. 21–23.

Separately, Plaintiffs allege that the Key Employee Representation in the

Series D SPA was false. That representation stated that “[t]o the Company’s

knowledge, no Key Employee intend[ed] to terminate employment with the

Company or [wa]s otherwise likely to become unavailable to continue as a Key

23 Employee[,]” and “[t]he Company d[id] not have a present intention to terminate the

employment of any of the foregoing.”14 Series D SPA § 2.16(d).

The Complaint fails to allege facts supporting an inference that the Key

Employee Representation was untrue when made—in other words, that Mendoza (as

the Key Employee at issue) intended to terminate her employment with the Company

or was likely to “become unavailable,” or that Maisonette had a “present intention”

to terminate her. The Complaint alleges that eleven days after the Series D SPA was

signed, Mendoza sent a letter to Maisonette directors threatening a lawsuit,

Compl. ¶ 139, and nearly a month later, the Board voted to hire a new President.

Id. ¶ 150. Those allegations do not support an inference that Mendoza intended to

(or did) terminate her employment or became “unavailable” prior to the execution

of the Series D SPA on April 15. Nor do they support an inference that the Company

intended to terminate Mendoza as of that date. At most, these allegations suggest

that when the Series D SPA was signed, Mendoza may have planned to threaten

legal action against the Company—but again, not that she intended to terminate her

own employment or that the Board anticipated doing so.

14 The Series D SPA also represented that “[s]ince the Financial Statements Date, there has not been: . . . (g) any resignation or termination of employment of any officer or Key Employee of the Company.” Series D SPA § 2.15(g). The Complaint does not allege that Mendoza resigned or was terminated before the Series D SPA was signed.

24 d. Which Defendants Conceivably “Made” The Misstatements? “One seeking to impose liability for fraud upon an agent, officer or employee

of a corporation as an individual . . . must both allege and prove facts sufficient to

impose liability upon him as an individual defendant.” St. James Recreation, LLC

v. Rieger Opportunity P’rs, LLC, 2003 WL 22659875, at *8 n.41 (Del. Ch. Nov. 5,

2003) (quoting 18B Am. Jur. 2d Corporations § 1882 (2003)). “This is particularly

true when, for example, two or more agents are involved and the facts relating to

liability are different as between them, with the result that one or more agents might

not be held to be individually liable for the fraud, depending upon such facts.” Id.

(quoting 18B Am. Jur. 2d Corporations § 1882 (2003)). “A plaintiff cannot lump

together defendants but must ‘identify specific acts of individual defendants’ and

‘who made any particular misrepresentation.’” Trusa v. Nepo, 2017 WL 1379594,

at *9 (Del. Ch. Apr. 13, 2017) (quoting Fortis Advisors LLC v. Dialog

Semiconductor PLC, 2015 WL 401371, at *8 & n.48 (Del. Ch. Jan. 30, 2015)).

The Complaint sufficiently alleges that the Director Defendants, Cortado, and

Maisonette “made” the misstatements in the Series C Pitch Deck, October 2021

Financial Statements, and Updated Financial Statements. The Complaint alleges

that “[t]he Series C [Pitch] Deck was prepared or reviewed and approved by each

of” the Director Defendants, after which “Mendoza caused [the Series C Pitch Deck]

. . . to be sent to [Plaintiffs].” Compl. ¶ 53. The Complaint further alleges that “in

25 preparation for the Series C financing, Cortado prepared . . . updated versions of the

Company’s financial statements” and then, “at the direction of the [Director

Defendants] and with the knowledge and authorization of each of them,”

“transmitted” the financial statements to Plaintiffs before they executed the Note.

Id. ¶¶ 62, 89. At the pleadings stage, allegations that the financial statements were

“prepared by” Cortado and “reviewed, adopted and approved by” the Director

Defendants are “sufficiently specific to ascribe the misleading statements in [those

documents] to all of those parties.” Metro Commc’n Corp. BVI v. Advanced

Mobilecomm Techs. Inc., 854 A.2d 121, 145 (Del. Ch. 2004).15

Cortado urges that misstatements in the financial statements cannot be

attributed to her because she merely “transmitted the Company’s financial

statements when directed to do so by the Board or prepared updated statements for

the Company,” Cortado OB at 7, and “was doing exactly what a CFO should—

reviewing the Company’s historical reporting processes and suggesting

improvements.” Cortado RB at 8. Given Cortado’s limited time at Maisonette prior

to the Series C financing, this argument may very well carry the day later on, but at

this early stage, the Court must accept the allegations of the Complaint as true and

15 Because Mendoza allegedly reviewed and approved the financial statements at issue as a member of the Board, her arguments that the Complaint does not allege with particularity that she made any misstatement cannot stand. See Mendoza OB at 5–14.

26 draw all reasonable inferences in Plaintiffs’ favor. Doing so, I conclude that the

Complaint supports an inference that false statements in the financial documents

may be attributed to Cortado as well as the Director Defendants.

The Complaint also sufficiently alleges that the Director Defendants16 made

the false Absence of Litigation Representation by reviewing and approving the

Series C SPA and Series D SPA. See Compl. ¶ 97 (alleging that the Director

Defendants “signed a written consent approving a Board resolution approving the

terms of, and ‘direct[ing]’ the Company to enter into, the Series C SPA”); id. ¶ 134

(alleging that “[e]ach of [the Director Defendants] reviewed the terms of the Series

D SPA . . . and directed the Company to consummate the Series D transaction”);

Metro Commc’n Corp. BVI, 854 A.2d at 145 (at the pleading stage, ascribing false

statements in reports to the parties who “reviewed, adopted, and approved” those

reports).

3. The Complaint Adequately Alleges Scienter. After identifying a misrepresentation, a plaintiff must allege that each

defendant knew that the representation was false or made the misrepresentation with

reckless indifference to the truth. Brody v. DCiM Sols., LLC, 2025 WL 1802239, at

*9 (Del. Ch. June 30, 2025) (citing Great Hill Equity P’rs IV, LP v. SIG Growth

16 Plaintiffs do not allege that Cortado made the Absence of Litigation Representation.

27 Equity Fund I, LLLP, 2018 WL 6311829, at *32 (Del. Ch. Dec. 3, 2018)). “[W]hen

a plaintiff pleads a claim of fraud that charges that the defendants knew something,

it must allege sufficient facts from which it can reasonably be inferred that this

‘something’ was knowable and that the defendants were in a position to know it.”

Abry P’rs, 891 A.2d at 1050. “[T]he position-to-know test simply describes the

allegations that make it reasonably conceivable that a defendant knew something.”

Matrix Parent, Inc. v. Audax Mgmt. Co., 319 A.3d 909, 934 (Del. Super. Ct. 2024).

a. The October 2021 Financial Statements And Updated Financial Statements Plaintiffs contend that the Director Defendants, Cortado, and Maisonette

either knew the October 2021 Financial Statements and Updated Financial

Statements misstated Maisonette’s historical financial performance, or acted with

reckless indifference to the truth of the financial information reported in those

documents.

To support this argument with respect to the Director Defendants, Plaintiffs

primarily rely on a slide entitled “Assessment of Finance Capabilities” in a

November 2021 Board Deck that was shared with the entire Board. See Board Deck

at 33. The slide noted that Maisonette’s financial reporting relied on QuickBooks,

which had “limited capabilities,” and explained that “[d]ata sources for reporting

[we]re directionally correct but not entirely accurate”; “[p]rivate label accounting

[was] non-existent”; and Maisonette had not yet undergone an audit. Id. The

28 inference of scienter Plaintiffs seek to draw from this single slide is weak. The slide

itself describes Maisonette’s reporting as “directionally correct,” and the Director

Defendants personally invested tens of millions of dollars in the Series C financing

round, seemingly based on the same financial information provided to Plaintiffs.

Maisonette OB at 34–35. But drawing all reasonable inferences in Plaintiffs’ favor,

as I must, I find it is reasonably conceivable—if only barely so—that the Director

Defendants disseminated the October 2021 Financial Statements and Updated

Financial Statements knowing that the financial information therein was “not

entirely accurate.” Board Deck at 33.

Cortado argues that she is differently situated than the Director Defendants

because she joined Maisonette as CFO in the midst of Maisonette’s Series C

fundraising efforts. Given that timing, she argues that it is not “reasonable to

infer . . . that Ms. Cortado should have conducted a complete audit of [Maisonette’s]

historical financials months into the job.” Cortado OB at 7. This argument misstates

Plaintiffs’ position, which is not that Cortado breached a duty by failing to undertake

an audit. Rather, Plaintiffs allege that Cortado, as Maisonette’s CFO, prepared

financial statements to provide to potential investors, including Plaintiffs, knowing

that the financial information therein was “not entirely accurate.” Board Deck at 33;

Compl. ¶ 89. Again, Cortado argues that she believed the financial statements were

“directionally correct,” but still, the Court must draw all reasonable inferences in

29 Plaintiffs’ favor at this stage. The Complaint adequately alleges—again, just

barely—that both the Director Defendants and Cortado acted with scienter with

respect to the October 2021 Financial Statements and Updated Financial Statements.

Because, as alleged, the Director Defendants and Cortado disseminated false

statements to benefit Maisonette, “[t]heir knowledge and acts are imputed to

[Maisonette,]” such that the Complaint adequately pleads scienter for Maisonette as

well. NetApp, Inc. v. Cinelli, 2023 WL 4925910, at *12 (Del. Ch. Aug. 2, 2023);

see, e.g., Metro Commc’n Corp. BVI, 854 A.2d at 153–55 (imputing scienter to a

company where its manager made false statements); New Enter. Assocs. 14, L.P. v.

Rich, 292 A.3d 112, 140 n.15, 176 (Del. Ch. 2023) (imputing knowledge to entities

when individuals were acting on their behalf).

b. Absence Of Litigation Representation

Plaintiffs also allege that the Director Defendants and Maisonette knew or

were in a position to know that the Absence of Litigation Representations in the

Series C SPA and Series D SPA were false when made.

The Complaint adequately alleges that Florence knew that the Absence of

Litigation Representations were false because he personally was a defendant in the

Casper Litigations. The Complaint further “supports a plausible inference that

[Florence] w[as] acting on behalf of” Maisonette, “making it reasonably conceivable

30 that [the Company] could be held liable for the fraud.” LVI Gp. Invs., LLC v. NCM

Gp. Hldgs., LLC, 2018 WL 1559936, at *13 (Del. Ch. Mar. 28, 2018).

Whether the Complaint supports a reasonable inference of scienter on the part

of the other Director Defendants with respect to this representation is, to my mind,

a very close call. The Complaint alleges on information and belief that the Director

Defendants knew the Absence of Litigation Representations were false, but it does

not allege that the Board ever actually discussed the Absence of Litigation

Representations or the Casper Litigations. See Compl. ¶ 112. Instead, Plaintiffs

argue that the other Director Defendants knew or were in a position to know that

Florence was a defendant in the Casper Litigations, rendering the Absence of

Litigation Representations false, because the Director Defendants approved the

terms of the Series C SPA and Series D SPA, had access to Florence as their co-

director, and could have discovered the Casper Litigations from public filings. See

PAB at 39–40. I conclude that, affording Plaintiffs the benefit of all reasonable

inferences, these allegations are sufficient to clear the low bar to aver knowledge

generally. See Abry P’rs, 891 A.2d at 1050 (“[S]tate of mind and knowledge may

be averred generally pursuant to Rule 9(b) because ‘any attempt to require specificity

in pleading a condition of mind would be unworkable and undesirable.’” (quoting

Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund, II, L.P., 624 A.2d

1199, 1208 (Del. 1993))). Whether Plaintiffs will bear their difficult burden at trial

31 to prove scienter on the part of the Director Defendants is yet to be determined, but

drawing all inferences in favor of Plaintiffs, as I must, it is reasonably conceivable

that the Director Defendants knew or should have known that the Absence of

Litigation Representations were false.

4. The Remaining Elements Of A Fraud Claim Are Adequately Pled.

The Complaint adequately pleads the remaining elements of a fraud claim

under Delaware law. “When a party sues based on a written representation in a

contract, . . . satisfying the remaining elements [of fraud] at the pleading stage is

relatively straightforward.” Levy Fam. Invs., LLC v. Oars + Alps LLC, 2022 WL

245543, at *6 (Del. Ch. Jan. 27, 2022) (alteration in original) (quoting Prairie Cap.,

132 A.3d at 62).

As set forth above, Plaintiffs adequately allege that the Director Defendants,

Cortado, and Maisonette made false representations in connection with the Note, the

Series C SPA, and (except for Cortado) the Series D SPA, and did so knowingly.

Plaintiffs allege that those Defendants did so to induce Plaintiffs’ investment and

that Plaintiffs relied on those representations when investing. Compl. ¶¶ 161, 165.

Moreover, as to the contractual representations, it is “reasonably inferable that the

defendants intended to induce reliance on the representations because they appeared

in a written agreement.” Levy Fam. Invs., 2022 WL 245543, at *6 (quoting Prairie

Cap., 132 A.3d at 62).

32 It is likewise reasonable to infer that Plaintiffs did rely on the alleged

misrepresentations when deciding to invest and suffered damages as a result.

Compl. ¶¶ 59, 70, 72, 82, 99, 146, 210; see, e.g., Prairie Cap., 132 A.3d at 62

(concluding that a plaintiff adequately alleged intent to induce reliance, reliance, and

damages where a contractual representation allegedly was false and caused plaintiff

“harm because it entered into an agreement it otherwise would not have signed”);

NetApp, 2023 WL 4925910, at *15–16 (finding after trial that a plaintiff proved

intent to induce reliance and justifiable reliance where the “[plaintiff] relied on [the

defendant’s] financial submissions when considering whether to pursue the deal”).

* * *

As set forth above, the Motions to Dismiss Count I are denied in part and

granted in part.

B. Counts III And IV State Claims For Breach Of Contract Against Maisonette.

Counts III and IV allege claims against Maisonette for breach of the Series C

SPA and Series D SPA, respectively.

Plaintiffs assert breaches of Sections 2.7, 2.14, 2.15(a), 2.15(m), and 2.24 of

the Series C SPA and Sections 2.7, 2.15(g), 2.16(d), 2.16(f), and 2.24 of the Series

D SPA. “Under Delaware law, a breach of contract claim comprises three elements:

(1) the existence of a contract; (2) a breach of an obligation imposed by that contract;

and (3) resultant damages.” Wenske v. Blue Bell Creameries, Inc., 2018 WL

33 3337531, at *9 (Del. Ch. July 6, 2018) (citing VLIW Tech., LLC v. Hewlett-Packard

Co., 840 A.2d 606, 612 (Del. 2003)).

Section 2.24 of both the Series C SPA and Series D SPA states that “[n]o

representation or warranty of the Company . . . contains any untrue statement of a

material fact.” Series C SPA § 2.24; Series D SPA § 2.24. I concluded above that

the Complaint alleges facts supporting an inference that the Absence of Litigation

Representations in Section 2.7 of the Series C SPA and Series D SPA were false.

See supra pp. 21–23. This satisfies the first and second elements of a breach of

contract claim.

Defendants argue that the Complaint fails to allege that the false Absence of

Litigation Representations resulted in any damage to Plaintiffs. Maisonette OB at

49–50. At this stage, Plaintiffs need not plead “a statement of damages with

precision.” Eni Hldgs., LLC v. KBR Gp. Hldgs., LLC, 2013 WL 6186326, at *22

(Del. Ch. Nov. 27, 2013). It is sufficient that Plaintiffs plead some theory of

compensable harm. Plaintiffs contend that they invested millions of dollars in

reliance on Maisonette’s contractual representations and warranties, and that “the

breaches of those representations resulted in [Plaintiffs] receiving interests worth

substantially less than they would otherwise have been, and which [Plaintiffs] would

not have purchased.” PAB at 54. See Prairie Cap., 132 A.3d at 62 (explaining that

a “plaintiff can claim causally related harm because it entered into an agreement it

34 otherwise would not have signed”; concluding that the plaintiff adequately alleged

damages where it “sufficiently allege[d] that it acquired a company it would not have

purchased, or at least would have paid materially less to own”). This theory of harm

is sufficient to support a claim for breach of contract on the pleadings.

Because Counts III and IV state claims for breach of at least one contractual

provision, I decline to address Plaintiffs’ myriad other theories of breach and

Maisonette’s responses thereto—including, for example, whether alleged

misrepresentations in the Company’s financial statements rendered false

Maisonette’s representation in Section 2.14 of the Series C SPA that “[t]he Financial

Statements fairly present in all material respects the financial condition and

operating results of the Company.” Series C SPA § 2.14 (emphasis added); see

inVentiv Health Clinical, LLC v. Odonate Therapeutics, Inc., 2021 WL 252823, at

*4 (Del. Super. Ct. Jan. 26, 2021, revised Feb. 18, 2021) (“[A]t the pleading stage

of a case, a trial judge is not a robed gardener employing Rule 12(b)(6) as a judicial

shear to prune individual theories from an otherwise healthily pled claim or

counterclaim.”).

The Motions to Dismiss Counts III and IV are denied.

C. Count V States A Claim For Breach Of Fiduciary Duty Against The Director Defendants.

Count V alleges a claim for breach of fiduciary duty against the Director

Defendants. Plaintiffs allege that the Director Defendants breached their fiduciary

35 duty of disclosure by approving the false Absence of Litigation Representation in

the Series D SPA when seeking stockholder approval to amend Maisonette’s

certificate of incorporation in connection with the Series D financing round.

Compl. ¶¶ 193, 199.

“When directors request discretionary stockholder action, they must disclose

fully and fairly all material facts within their control bearing on the request. This

application of the fiduciary duties of care and loyalty is referred to as the ‘fiduciary

duty of disclosure.’” Dohmen v. Goodman, 234 A.3d 1161, 1168 (Del. 2020)

(footnote omitted). “It is well-established that the duty of disclosure ‘represents

nothing more than the well-recognized proposition that directors of Delaware

corporations are under a fiduciary duty to disclose fully and fairly all material

information within the board’s control when it seeks shareholder action.’” Zirn v.

VLI Corp., 681 A.2d 1050, 1056 (Del. 1996) (quoting Stroud v. Grace, 606 A.2d 75,

84 (Del. 1992)). “Directors breach their fiduciary duty of disclosure when the

‘alleged omission or misrepresentation is material.’” Dohmen, 234 A.3d at 1168

(quoting Malone v. Brincat, 722 A.2d 5, 12 (Del. 1998)). “[A] beneficiary need not

demonstrate other elements of proof—reliance, causation, or damages.” Id.

Information is material if there is a “substantial likelihood that the disclosure of the

omitted fact would have been viewed by the reasonable investor as having

36 significantly altered the ‘total mix’ of information made available.” Arnold, 650

A.2d at 1277 (emphasis omitted).

For the same reasons the Absence of Litigation Representation supports a

claim for fraud against the Director Defendants, it also supports a conceivable breach

of the duty of disclosure. See supra pp. 21–23. The Director Defendants’ primary

argument for dismissal of Plaintiffs’ fiduciary duty claim is that it is duplicative of

their breach of contract claim. Maisonette OB at 51–54. When a “fiduciary duty

claim . . . arises from a dispute relating to the exercise of a contractual right,” then

“any fiduciary claims arising out of the same facts that underlie the contract

obligations would be foreclosed as superfluous.” Ogus v. SportTechie, Inc., 2020

WL 502996, at *11 (Del. Ch. Jan. 31, 2020) (emphasis in original) (quoting Nemec

v. Shrader, 991 A.2d 1120, 1129 (Del. 2010)). In other words,

the general rule under Delaware law, subject to only narrow exceptions, is that a plaintiff may not “bootstrap” a breach of fiduciary duty claim into a breach of contract claim merely by restating the breach of contract claim as a breach of fiduciary duty. Courts will dismiss the breach of fiduciary [duty] claim where the two claims overlap completely and arise from the same underlying conduct or nucleus of operative facts.

Grunstein v. Silva, 2009 WL 4698541, at *6 (Del. Ch. Dec. 8, 2009) (footnote

omitted). “This bootstrapping case law only requires dismissal where a fiduciary

duty claim wholly overlaps with a concurrent breach of contract claim.” Bäcker v.

Palisades Growth Cap. II, L.P., 246 A.3d 81, 109 (Del. 2021). If the fiduciary duty

37 claims “depend on additional facts” or “involve different considerations in terms of

a potential remedy,” both claims may proceed. Id. (quoting Schuss v. Penfield P’rs,

L.P., 2008 WL 2433842, at *10 (Del. Ch. June 13, 2008)).

I cannot conclude at this stage that Plaintiffs’ fiduciary duty claim is wholly

duplicative of their breach of contract claim. While the contract claim concerns the

breach of a representation in the Series D SPA, the fiduciary duty claim is premised

on the disclosure of false information when requesting stockholder action to amend

the certificate of incorporation. It is possible that these claims could give rise to

different remedies. The Motions to Dismiss Count V are therefore denied.

D. Count VII States A Claim For Violation Of The Florida Securities and Investor Protection Act Against The Director Defendants, Cortado, And Maisonette.

Count VII alleges a claim for violation of the Florida Securities and Investor

Protection Act (“FSIPA”) against the Director Defendants, Cortado, and Maisonette.

To allege a claim under FSIPA, a plaintiff must plead:

(1) a misrepresentation or omission of a material fact; (2) justifiabl[e] reli[ance]; (3) that the misrepresentation or omission was made in connection with a purchase or sale of securities; (4) with scienter or reckless disregard as to the truth of the communication; and (5) that the untruth was the direct proximate cause of the loss.

Compania de Elaborados de Café v. Cardinal Cap. Mgmt., Inc., 401 F. Supp. 2d

1270, 1280 (S.D. Fla. 2003).

38 Because the elements of a FSIPA claim closely track a claim for common law

fraud under Delaware law, Defendants incorporate their prior arguments in support

of dismissal. See Maisonette OB at 45 (“Because the factual allegations underlying

[Plaintiffs’] FSIPA claim are the same as those underlying its common law fraud

claim . . . this claim fails for the same reasons [Plaintiffs’] fraud claim fails.”).

Therefore, to the extent portions of Count I survive, Count VII also survives.17

E. Count II States A Claim For Civil Conspiracy To Commit Fraud.

Count II of the Complaint alleges a claim against all Defendants for civil

conspiracy to commit fraud. According to the Complaint, Maisonette, the Director

Defendants, and Cortado made or directed fraudulent statements to Plaintiffs to

induce them to enter into the Note, the Series C SPA, and the Series D SPA, and

NEA 15 conspired with them to do so. See Compl. ¶¶ 173, 175–77.

“To state a claim for civil conspiracy, a plaintiff must allege[:] ‘(1) the

existence of a confederation or combination of two or more persons; (2) that an

17 Cortado argues that the Complaint fails to state a FSIPA claim against her because she is not alleged to have “aided in making the sale or purchase.” See Cortado OB at 12–13 (citing Fla. Stat. § 517.211 (2025)). Assuming that is the correct standard, the Complaint alleges that Cortado prepared and delivered misstated financial statements to Plaintiffs, supporting a FSIPA claim. Contrast Dillon v. Axxsys Int’l, Inc., 385 F. Supp. 2d 1307, 1313 (M.D. Fla. 2005) (dismissing FSIPA claim against an officer who “had nothing to do with the sale”), aff’d, 185 F. App’x 823 (11th Cir. 2006), with Compl. ¶ 89 (“[I]n preparation for the Series C financing, Cortado prepared . . . updated versions of the Company’s financial statements . . . .”).

39 unlawful act was done in furtherance of the conspiracy; and (3) that the conspirators

caused actual damage to the plaintiff.’” LVI Gp. Invs., 2018 WL 1559936, at *14

(quoting Allied Cap. Corp. v. GC-Sun Hldgs., L.P., 910 A.2d 1020, 1036 (Del. Ch.

2006)). “Like fraud, conspiracy to commit fraud must be pled with particularity,

though knowledge may be averred generally.” Id. (citing Great Hill Equity P’rs IV,

LP v. SIG Growth Equity Fund I, LLLP, 2014 WL 6703980, at *20 (Del. Ch. Nov.

26, 2014)). To show a confederation, a plaintiff must allege that there was a

“meeting of the minds between or among” the alleged co-conspirators “relating to

the object [of the conspiracy] or [a] course of action.” Altabef v. Neugarten, 2021

WL 5919459, at *8 (Del. Ch. Dec. 15, 2021) (quoting Lake Treasure Hldgs., Ltd. v.

Foundry Hill HP LLC, 2013 WL 6184066, at *3 (Del. Ch. Nov. 21, 2013)).

Defendants advance two primary arguments for dismissing Count II. First,

Defendants argue that the Complaint fails to allege facts supporting a reasonable

inference that NEA 15 was part of a confederation to commit fraud or committed

any act in furtherance of a conspiracy. Second, Defendants submit that without NEA

15 as a member of the alleged conspiracy, Plaintiffs impermissibly allege a

conspiracy solely among a company and its fiduciaries.

The Complaint adequately alleges that NEA 15 entered into a “confederation

or combination” with Maisonette’s fiduciaries to commit fraud in connection with

the Note and the Series C SPA. NEA 15 asserts that the Complaint fails to plead

40 facts suggesting a “meeting of the minds between or among” the alleged co-

conspirators. NEA OB at 13. Reviewing the collective allegations of the Complaint,

I find “the pled behavior of the alleged conspirators” supports a pleadings-stage

inference of such a confederation. In re Am. Int’l Gp., Inc., 965 A.2d 763, 806 (Del.

Ch. 2009), aff’d sub nom., Tchrs.’ Ret. Sys. of La. v. PricewaterhouseCoopers LLP,

11 A.3d 228 (Del. 2011) (TABLE).

The Complaint alleges that through a series of financings beginning in 2018,

NEA 15 became Maisonette’s largest stockholder. See Compl. ¶¶ 11, 36, 38, 42. By

2021, NEA 15 learned of Maisonette’s “dire financial condition” through Florence’s

service on the Board. Compl. ¶ 175. According to the Complaint, to “bail out their

existing investments and preserve their existing roles in Maisonette[,]” NEA 15

conspired to induce Plaintiffs to invest “substantial new money” in the Company in

order to “keep [NEA 15’s] substantial prior investments in the Company afloat.” Id.

¶¶ 75, 175.

Admittedly, some of the factual allegations on which Plaintiffs premise this

theory are thin. For instance, the Complaint alleges that weeks before Plaintiffs

received the October 2021 Financial Statements in connection with the Note, two

NEA 15 employees participated in a “closed-door session” with Maisonette to

discuss fundraising. Id. ¶ 48. Aside from speculating about what might have

happened behind the “closed door,” the Complaint does not allege any facts

41 suggesting wrongdoing occurred at that meeting. See id. This allegation, standing

alone, would not support an inference of a conspiracy to commit fraud.

But the Complaint alleges more. The Complaint alleges that Maisonette

touted NEA 15’s participation in the Series C and Series D financing rounds to

convince Plaintiffs to invest. See id. ¶ 57 (noting that the Series C Pitch Deck lauded

“NEA’s role as an investor in the Company and its track record of other successful

investments”); see also, e.g., id. ¶¶ 75, 130 (alleging that Maisonette represented to

Plaintiffs that NEA 15 would invest in the Series C and Series D financing rounds

only if Plaintiffs “first put up a substantial amount of new money”). The Complaint

alleges that NEA 15, through Florence, negotiated the terms of the Series C financing

directly with Plaintiffs. See Compl. ¶ 115 (alleging that Plaintiffs “negotiated the

terms of the transaction with Florence and NEA”); id. ¶ 131 (alleging Plaintiffs

“negotiated the terms of the transaction with the Company and Florence and NEA

15,” during which “NEA 15 resisted granting [Plaintiffs] Board designee consent

rights” but ultimately “relented and consented to grant [Plaintiffs] the governance

rights it sought to secure [Plaintiffs’] further investment, which NEA and the

Company badly desired”). And the Complaint also alleges that Florence, acting to

advance NEA 15’s interests, oversaw Maisonette’s fundraising efforts, approved the

Series C Pitch Deck and the Updated Financial Statements as well as the Series C

SPA and Series D SPA, and omitted that he was a defendant in the Casper

42 Litigations. See Compl. ¶¶ 57, 68, 89, 97, 100, 107–08, 134, 166. It is conceivable,

based on those allegations, that NEA 15 reached “an agreement or common design”

with Maisonette and the other Defendants to defraud Plaintiffs.18 Prairie Cap., 132

A.3d at 63.

NEA 15 argues that Florence’s conduct in negotiating and approving the

subject transactions cannot be attributed or “imputed” to NEA 15. To hold NEA 15

responsible for Florence’s conduct, Florence must have acted at the direction of

NEA 15—or, to say it differently, he must have acted as NEA 15’s agent. See In re

Elec. Last Mile Sols., Inc. S’holder Litig., 2026 WL 207195, at *6 (Del. Ch. Jan. 27,

2026). The challenge here is that the Court cannot determine on the pleadings that

Florence acted solely on behalf of Maisonette, rather than at the behest of NEA 15.

See LVI Gp. Invs., 2018 WL 1559936, at *15 (acknowledging that “dismissal might

be appropriate” where individuals are “wearing only their [company] hats when

engaged in the conspiracy,” but explaining that “at the pleading stage, I cannot

exclude the possibility that the [i]ndividual [d]efendants were acting solely as agents

of [one entity] when they purportedly conspired with [another entity and its CEO]”).

18 Defendants rely on In re Swervepay Acquisition, LLC, 2022 WL 3701723 (Del. Ch. Aug. 26, 2022), in which the Court dismissed a seller’s claim for conspiracy to commit fraud against a group of unaffiliated buyer entities and their agents that was supported only by “threadbare contentions” of “participation at deal meetings” and communications among deal participants. Id. at *13. The Complaint alleges more than arm’s-length negotiations, as set forth above.

43 One inference to be drawn is that Florence’s actions were taken on behalf of NEA

15.

NEA 15 separately argues that if it “suspected there were inaccuracies in the

Series C pitch deck or other financial information, it goes without saying that NEA

15 would not have continued to invest in Maisonette.” NEA OB at 14–15. The

Complaint offers an alternative narrative: that NEA 15 was willing to participate in

the Series C and Series D financing rounds despite knowing of Maisonette’s “dire”

financial condition because this was the only way to secure Plaintiffs’ substantial

investment. Compl. ¶¶ 75, 175. At this stage, the Court cannot weigh competing

inferences and must instead draw all reasonable inferences in Plaintiffs’ favor.

This conclusion forecloses Defendants’ secondary dismissal argument, that

the Complaint impermissibly alleges a conspiracy solely among Maisonette and its

fiduciaries. “[A]s a general rule, agents of a corporation cannot conspire with one

another or aid and abet each other’s torts.” Anschutz Corp. v. Brown Robin Cap.,

LLC, 2020 WL 3096744, at *17 (Del. Ch. June 11, 2020); see also In re

Transamerica Airlines, Inc., 2006 WL 587846, at *6 (Del. Ch. Feb. 28, 2006) (“[A]

corporation generally cannot be deemed to have conspired with its wholly owned

subsidiary, or its officers and agents.”). But because the Complaint adequately

alleges NEA 15 as a member of the conspiracy, this argument is inapposite.

Accordingly, the Motions to Dismiss Count II must be denied.

44 F. Count VI States A Claim Against NEA 15 For Aiding And Abetting Breach Of Fiduciary Duty. Count VI alleges a claim for aiding and abetting breach of fiduciary duty

against NEA 15.

To state a claim for aiding and abetting breach of fiduciary duty, a plaintiff

must allege: “(1) the existence of a fiduciary relationship, (2) a breach of the

fiduciary’s duty, . . . (3) knowing participation in that breach by the defendants, and

(4) damages proximately caused by the breach.” In re Mindbody, Inc., S’holder

Litig., 332 A.3d 349, 389 (Del. 2024) (quoting Malpiede v. Townson, 780 A.2d 1075,

1096 (Del. 2001)). Knowing participation requires both “knowledge and

participation.” Id. at 390. Knowledge requires that “an aider and abettor know that

the [fiduciary’s] conduct constitutes a breach” and “that their conduct was legally

improper.” Id. at 390–91; RBC Cap. Mkts., LLC v. Jervis, 129 A.3d 816, 862 (Del.

2015). “[P]articipation in an aiding and abetting claim requires that the aider and

abettor provide ‘substantial assistance’ to the primary violator.” Mindbody, 332

A.3d at 392. “[F]actors that shed light on whether a secondary actor has substantially

assisted the primary actor in its wrongful conduct” include:

• The nature of the tortious act that the secondary actor participated in or encouraged, including its severity, the clarity of the violation, the extent of the consequences and the secondary actor’s knowledge of these aspects;

45 • The amount, kind, and duration of assistance given, including how directly involved the secondary actor was in the primary actor’s conduct;

• The nature of the relationship between the secondary and primary actors; and

• The secondary actor’s state of mind.

In re Columbia Pipeline Gp., Inc. Merger Litig., 342 A.3d 324, 358 (Del. 2025)

(citing Mindbody, 332 A.3d at 395–96).

As explained above, the allegations of the Complaint support an inference that

the Director Defendants breached their fiduciary duty of disclosure by approving the

false Absence of Litigation Representation in the Series D SPA when seeking

stockholder approval to amend Maisonette’s certificate of incorporation. See supra

pp. 35–38. NEA 15 argues that the Complaint fails to sufficiently allege that NEA

15 knowingly participated in that alleged breach of duty.

NEA 15’s knowledge is adequately pled here because (1) the Complaint

pleads facts sufficient to infer that Florence knew, based on his own status as a

defendant in the Casper Litigations, that the Absence of Litigation Representation

was false and misleading and constituted a breach of the Director Defendants’

fiduciary duties; and (2) Florence’s knowledge may be imputed to NEA 15 on a

motion to dismiss. See Tchrs.’ Ret. Sys. of La. v. Aidinoff, 900 A.2d 654, 671 & n.23

(Del. Ch. 2006) (explaining that an entity “is fairly charged with the knowledge and

conduct of its controlling persons” since “it is the general rule that knowledge of an

46 officer or director of a corporation will be imputed to the corporation”); Khanna v.

McMinn, 2006 WL 1388744, at *27 (Del. Ch. May 9, 2006) (“[The individual’s]

status as a . . . director and General and Managing Partner of [an entity] is sufficient

to impute knowledge of [his] conduct with respect to the BlueStar acquisition to [that

entity], for purposes of this motion to dismiss.”); Carlson v. Hallinan, 925 A.2d 506,

542 (Del. Ch. 2006) (“[Plaintiffs] satisfy the knowing participation element of the

claim because [the individual’s] knowledge as a director and officer of both [entities]

is imputed to them.” (footnote omitted)), op. clarified, 2006 WL 1510759 (Del. Ch.

May 22, 2006).

Whether NEA 15 can be said to have substantially participated in the alleged

fiduciary breach presents a closer question. Plaintiffs argue that NEA 15 “actively

supported” the Director Defendants’ disclosure violation by “keep[ing] Florence on

the Board” and by voting as a stockholder to amend Maisonette’s certificate of

incorporation. PAB at 60–62. As Defendants point out, Plaintiffs’ argument that

NEA 15 participated in a disclosure violation by keeping Florence on the Board is

tantamount to arguing that NEA 15 “passively stood by while [Florence] breached

[his] disclosure duty[,]” which is insufficient to support a claim for aiding and

abetting. See Mindbody, 332 A.3d at 401. Additionally, to the extent NEA 15 took

steps to consummate its own investment in the Series D financing round, that

conduct does not support an inference that NEA 15 facilitated the Director

47 Defendants’ failure to disclose material information to stockholders. See In re Xura,

Inc., S’holder Litig., 2018 WL 6498677, at *15 (Del. Ch. Dec. 10, 2018) (dismissing

aiding and abetting claim where the complaint “pled no facts to support an inference

that [the alleged aider-and-abettor] knowingly facilitated alleged disclosure

deficiencies or otherwise ‘knowingly participated’ in that aspect of the alleged

breach of fiduciary.” (emphasis added)).

Importantly, however, the Complaint also alleges that Florence oversaw

Maisonette’s fundraising efforts and approved the Series D SPA, including the false

Absence of Litigation Representation that failed to disclose the Casper Litigations

in which he personally was a defendant. See Compl. ¶¶ 57, 68, 89, 97, 100, 107–08,

134, 166; PAB at 61–62. On one hand, solely pointing to Florence’s conduct is

insufficient to demonstrate that NEA 15 participated in a breach. See, e.g., Caerus

Gp., LLC v. Chemicar Eur. NV, 2026 WL 668208, at *10 (Del. Ch. Mar. 10, 2026)

(rejecting an argument that a director and officer’s conduct was sufficient to support

a claim for aiding and abetting against an entity where the complaint failed to allege

that the entity took any action beyond “assistance”); Renovaro Inc. v. Gumrukcu,

2025 WL 3134533, at *11 n.136 (Del. Ch. Nov. 7, 2025) (explaining that

“knowledge can be imputed from a human to an entity in certain scenarios,” “[b]ut

action by the entity must be pled to state a claim against the entity”); In re Hennessy

Cap. Acq. Corp. IV S’holder Litig., 318 A.3d 306, 329 (Del. Ch. 2024) (explaining

48 that even where a director’s knowledge is imputed to another entity, the complaint

must allege “actual participation” by the entity), aff’d, 337 A.3d 1214 (Del. 2024)

(TABLE). On the other hand, as explained above in the context of Plaintiffs’

conspiracy claim, the Complaint pleads facts making it reasonably conceivable that

Florence’s actions were taken at the behest and to further the interests of NEA 15,

such that NEA 15 itself can be said to have acted in furtherance of the wrongful

conduct. See supra pp. 40–44; see also Calumet Cap. P’rs LLC v. Victory Park Cap.

Advisors, LLC, 2026 WL 374887, at *18 (Del. Ch. Jan. 29, 2026) (“That [disloyal

conduct] is inferably what the [i]nvestor wanted him to do, and he did it.”).19 These

allegations support a pleadings-stage inference that NEA 15, through Florence,

actively participated in the Director Defendants’ breach of fiduciary duty. Again,

the factual record will reveal whether Florence’s actions can in fact be attributed to

NEA 15, but at this stage, the Complaint states a conceivable claim for aiding and

abetting.

19 On March 4, 2026, Plaintiffs submitted Calumet Capital Partners LLC v. Victory Park Capital Advisors as supplemental authority to support their aiding and abetting claim. Dkt. 75. In Calumet, a director-designee allegedly misappropriated confidential information from the plaintiff company in order to advance the interests of his employer who designated him to the board. 2026 WL 374887, at *18. The Court found it was reasonable to infer that the director “engaged in disloyal conduct for the purpose of advancing [his employer’s] campaign” to unfairly compete with the company and that he “worked on the inside” to support his employer’s efforts, satisfying both the knowledge and substantial participation elements of “knowing participation.” Id.

49 The Motions to Dismiss Count VI are denied.

G. Count VIII States A Claim For Equitable Fraud Against Maisonette And The Director Defendants For Misstatements In Connection With The Series D SPA Only. Count VIII alleges a claim for equitable fraud against Maisonette, the Director

Defendants, and NEA 15 in connection with the Note, the Series C SPA, and the

Series D SPA.

Equitable fraud “requires proof of all of the elements of common law fraud

except ‘that plaintiff need not demonstrate that the misstatement or omission was

made knowingly or recklessly.’” Williams v. White Oak Builders, Inc., 2006 WL

1668348, at *7 (Del. Ch. June 6, 2006) (quoting H-M Wexford, 832 A.2d at 144).

The scienter requirement is substituted for either “(i) a special relationship between

the parties over which equity takes jurisdiction (like a fiduciary relationship) or

(ii) justification for a remedy that only equity can afford.” Fortis Advisors, 2015

WL 401371, at *9 (quoting Envo, Inc. v. Walters, 2009 WL 5173807, at *6 (Del.

Ch. Dec. 30, 2009), aff’d, 2013 WL 1283533 (Del. Mar. 28, 2013) (TABLE)). In

other words,

[t]o state a claim for negligent misrepresentation, a plaintiff must show: (1) “a particular duty to provide accurate information, based on the plaintiff[’s] pecuniary interest in that information;” (2) “the supplying of false information;” (3) “failure to exercise reasonable care in obtaining or communicating information; and” (4) “a pecuniary loss caused by justifiable reliance on the false information.”

50 Neurvana Med., 2020 WL 949917, at *23 (quoting H-M Wexford, 832 A.2d at 147

n.44).

Defendants move to dismiss Count VIII on grounds that “(i) it suffers the same

flaws as their common law fraud claim; and (ii) no special or fiduciary relationship

existed between the parties until after the execution of the Series C SPA.”

Maisonette OB at 45. The first argument is adequately addressed (and rejected)

above. See supra pp. 14–33. Count VIII states a claim against the Director

Defendants and Maisonette20 to the extent it is premised on the Series D SPA, at

which point the Director Defendants stood in a fiduciary relationship to Plaintiffs.

As for their second argument, Defendants are correct that Plaintiffs’ equitable

fraud claim cannot stand to the extent it is premised on the Note or the Series C SPA,

as no special relationship existed until they owned preferred stock. See Airborne

Health, Inc. v. Squid Soap, LP, 984 A.2d 126, 144 (Del. Ch. 2009) (holding that

there were no “special circumstance[s] that would merit exercising this Court’s

equitable power to go beyond the traditional framework of common law fraud”

where both parties were “sophisticated” and “negotiated [the deal] at arms’ length”).

Plaintiffs contend that Count VIII nonetheless states a claim for equitable

fraud in connection with the Note and the Series C SPA because “it is reasonably

20 Maisonette does not identify the lack of a special relationship with Plaintiffs as a basis to dismiss this claim against the Company. See Maisonette OB at 45–47.

51 conceivable that an equitable remedy is appropriate,” suggesting “rescission or

rescissory damages” could be “necessary to redress [Plaintiffs’] fraud claims.” PAB

at 72. But Plaintiffs make no attempt to explain why legal rescission (as opposed to

equitable rescission) would not provide an adequate remedy at law. See In re Tesla,

Inc. Deriv. Litig., 2025 WL 3689114, at *11 (Del. Dec. 19, 2025) (“In Delaware,

legal rescission is awarded by courts of law to invalidate a contract and award the

plaintiff money or property of which they have been deprived.”). Because the

Complaint fails to plead “that an action at law for damages would not provide an

adequate remedy and that only equity will afford it full, fair, and complete relief,”

Count VIII is dismissed to the extent it is premised on the Note and the Series C

SPA. See Envo, 2009 WL 5173807, at *6.

Count VIII also fails to state a claim for equitable fraud against NEA 15 in

connection with the Series D SPA because the Complaint does not allege that NEA

15 had a special relationship with Plaintiffs. Plaintiffs argue that Florence’s

knowledge and conduct are imputed to NEA 15 such that it may be held “liable for

acts taken by Florence to facilitate the fraud.” PAB at 73. Plaintiffs cite no authority

for the proposition that independent of a conspiracy or aiding and abetting claim,

NEA 15 may be held vicariously liable for the actions of Florence. See Shafi v.

Chien, 2025 WL 671854, at *17 (Del. Ch. Mar. 3, 2025) (rejecting a plaintiff’s

52 attempt to “extend [vicarious] liability to [a] non-fiduciary [stockholder] using the

doctrine of respondeat superior” (citing Khanna, 2006 WL 1388744, at *28)).

As set forth above, the Motions to Dismiss Count VIII are granted in part and

denied in part.

H. Count IX Fails To State A Claim For Conversion.

Count IX alleges a claim for conversion against Maisonette. As alleged in the

Complaint, Maisonette committed conversion by “wrongfully and tortiously

divest[ing] [Plaintiffs] of . . . the rights [they] enjoyed under the Note by

fraudulent[ly] executing the Series C SPA.” Compl. ¶¶ 232–33.

“Conversion is ‘any distinct act of dominion wrongfully exerted over the

property of another, in denial of [the plaintiff’s] right, or inconsistent with it.’”

Kuroda v. SPJS Hldgs., L.L.C., 971 A.2d 872, 889 (Del. Ch. 2009) (alteration in

original) (quoting Drug, Inc. v. Hunt, 168 A. 87, 93 (Del. 1933)). “Generally, the

necessary elements for a conversion under Delaware law are that a plaintiff had a

property interest in the converted goods; that the plaintiff had a right to possession

of the goods; and that the plaintiff sustained damages.” Goodrich v. E.F. Hutton

Gp., Inc., 542 A.2d 1200, 1203 (Del. Ch. 1988). “For a plaintiff to recover under a

theory of conversion, he must prove, inter alia, precisely what property the

defendant converted and that his interest in the property was viable at the time of the

53 conversion.” CIT Commc’ns Fin. Corp. v. Level 3 Commc’ns, LLC, 2008 WL

2586694, at *2 (Del. Super. Ct. June 6, 2008).

Under the terms of the Note, Plaintiffs’ right to the outstanding principal and

accrued interest on the Note was automatically “converted into equity securities at

the initial closing of” the Series C financing. Note § 2(a). Plaintiffs appear to argue

that they lost valuable contract rights under the Note as a result of Defendants’

fraudulent statements. But Defendants’ alleged fraud did not induce the

conversion—conversion was automatic upon closing of the Series C financing. I am

also unconvinced that the contract rights that were “converted into equity securities”

under the Note are “property” or “chattel” capable of being “converted” as a tort.

Although “[t]he types of property that can be converted include intangible

property[,]” Bamford v. Penfold, L.P., 2020 WL 967942, at *22 (Del. Ch. Feb. 28,

2020), Plaintiffs cite no authority supporting the unusual proposition that a

contractual right to repayment of principal and interest owed on a note can be

“converted.”

This claim is more appropriately cast as fraud or breach of contract, as

analyzed above; there is no need to create novel conversion theories. Count IX is

dismissed.

54 I. Count X States A Claim For Unjust Enrichment.

Count X alleges an alternative claim for unjust enrichment against all

Defendants. Plaintiffs allege that Defendants’ misrepresentations “unjustly deprived

[Plaintiffs] of its rights under the Note” and induced Plaintiffs “to join in the

purchase of additional shares of Series C Preferred Stock.” Compl. ¶ 238.

To state a claim for unjust enrichment, a plaintiff must allege “(1) an

enrichment, (2) an impoverishment, (3) a relation between the enrichment and the

impoverishment, [and] (4) the absence of justification.” Windsor I, LLC v.

CWCapital Asset Mgmt. LLC, 238 A.3d 863, 875 (Del. 2020) (quoting Nemec, 991

A.2d at 1130).

As an initial matter, I “reject [Defendants’] argument that the unjust

enrichment claim is precluded by the parties’ contractual relationship.” See

Narrowstep, Inc. v. Onstream Media Corp., 2010 WL 5422405, at *17 (Del. Ch.

Dec. 22, 2010). It is true that “[i]f a contract comprehensively governs the parties’

relationship, then it alone must provide the measure of the plaintiff’s rights and any

claim of unjust enrichment will be denied.” BAE Sys. Info. & Elec. Sys. Integration,

Inc. v. Lockheed Martin Corp., 2009 WL 264088, at *7 (Del. Ch. Feb. 3, 2009). “In

some situations, however, both a breach of contract and an unjust enrichment claim

may survive a motion to dismiss when pled as alternative theories of recovery.”

Narrowstep, 2010 WL 5422405, at *16 (emphasis omitted). The allegations

55 underlying Plaintiffs’ fraud claim do not solely concern the parties’ contractual

relationship and conceivably could “figure in the determination of an appropriate

remedy.” Id. at *17; see also City of Pittsburgh Comprehensive Mun. Pension Tr.

Fund v. Conway, 2024 WL 1752419, at *27 n.290 (Del. Ch. Apr. 24, 2024)

(explaining that where dismissing potentially duplicative claims “is unlikely to

simplify discovery or the presentation of evidence, and because there is no right to

a pleading stage ruling, there is no benefit to be gained from dismissing [an] unjust

enrichment claim”); Trust Robin, Inc. v. Tissue Analytics, Inc., 2022 WL 17423728,

at *6 (Del. Ch. Dec. 2, 2022) (“At the pleading stage, . . . it is appropriate to permit

the [unjust enrichment] claim to stand, pending development of a record on the

contract claim.”).

The Complaint alleges facts to support the elements of an unjust enrichment

claim. Based on the allegations in the Complaint and reasonable inferences drawn

from them, Plaintiffs have alleged sufficient facts to demonstrate that Maisonette

induced Plaintiffs’ investment in the Note and Series C SPA through misstatements,

enriching Maisonette to Plaintiffs’ detriment.

The same can be said of the Director Defendants. Defendants contend that

the Complaint fails to allege that the Director Defendants, Cortado, or NEA 15 were

enriched by Plaintiffs’ investments. Although those Defendants did not receive the

funds directly, Plaintiffs argue that their investments unjustly enriched all

56 Defendants by “extend[ing] the runway on their investments” to buy time for

Maisonette’s financial position to turn around or for Defendants to “offload their

equity on some other, unsuspecting investor.” PAB at 69–70. Defendants may later

prove that they did not in fact receive any benefit to disgorge. But at the pleading

stage, I must credit Plaintiffs’ allegations and cannot draw competing inferences in

Defendants’ favor. See Principal Growth Strategies, LLC v. AGH Parent LLC, 2024

WL 274246, at *13 (Del. Ch. Jan. 24, 2024).

The Motions to Dismiss Count X for unjust enrichment are denied.

III. CONCLUSION

The Motions to Dismiss are granted in part and denied in part. The parties are

directed to meet and confer on a form of order to implement this decision.