IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN RE SWERVEPAY ) Consolidated C.A. No. ACQUISITION, LLC ) 2021-0447-KSJM
POST-TRIAL MEMORANDUM OPINION ADDRESSING LACHES
Date Submitted: July 10, 2025 Date Decided: July 30, 2026
Peter J. Walsh, Jr., Nicholas D. Mozal, Ryan M. Crowley, POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; Orion Armon, COOLEY LLP, Denver, Colorado; Luke Cadigan, Timothy Cook, COOLEY LLP, Boston, Massachusetts; Caroline Pignatelli, Alessandra Rafalson, Katelyn Kang, COOLEY LLP, New York, New York; Matthew Martinez, COOLEY LLP, San Diego, California; Bradley Levison, Carrie A. Herschman, HERSCHMAN LEVISON PLLC, Chicago, Illinois; Counsel for SPOSC Investment Holdings, LLC, Jaeme Adams, Katrina Adams, and Christopher Hamilton.
A. Thompson Bayliss, Caleb Theriot, ABRAMS & BAYLISS LLP, Wilmington, Delaware; Jay P. Lefkowitz, Dan Cellucci, Mary T. Reale, Amal El Bakhar, KIRKLAND & ELLIS LLP, New York, New York; Anna Rotman, KIRKLAND & ELLIS LLP, Houston, Texas; Jeremy Fielding, KIRKLAND & ELLIS LLP, Dallas, Texas; Counsel for OSC Investment, L.P., OSC Investment GP, LLC, New Mountain Capital, LLC, New Mountain Partners V, L.P., New Mountain Investments V, LLC, BSIP OS, LLC, Eir Partners LLC, and Robert Wechsler.
McCORMICK, C. This is the second post-trial decision issued in litigation arising from OSC
Investment, L.P.’s acquisition of SwervePay, LLC (“Legacy SwervePay”).1 In post-
trial briefing, each side argues that aspects of the other’s complaint are time-barred.
Buyers seek dismissal of Sellers’ claims against a group of defendants first added in
their first amended complaint—New Mountain Partners V, L.P. (“Fund V LP”), New
Mountain Investments V, LLC (“Fund V GP”), BSIP OS, LLC, and Eir Partners LLC
(collectively, the “Newly Added Defendants”).2 Sellers seek dismissal of Buyers’ sole
remaining claim for fraud based on misrepresentations concerning SwervePay’s
contract with Worldpay LLC (the “Worldpay Contract”), which was first mentioned
in Buyers’ second amended complaint.3 The court agrees with both sides. This
decision dismisses Sellers’ claims against the Newly Added Defendants and Buyers’
sole remaining claim against Sellers.
1 This opinion refers to OSC Investment, L.P.; OSC Investment GP, LLC; New Mountain Capital, LLC; New Mountain Partners V, L.P.; New Mountain Investments V, LLC; BSIP OS, LLC; Eir Partners LLC; SwervePay Holdings, LLC; OSC Payments, Inc.; and Robert Wechsler collectively as “Buyers” and to SPOSC Investment Holdings, LLC; Jaeme Adams; Katrina Adams; and Christopher Hamilton collectively as “Sellers.” This opinion cites to: C.A. No. 2021-0447-KSJM docket entries (by docket “Dkt.” number); trial exhibits (by “JX-” number); the trial transcript, Dkts. 611–14, 626 (“Trial Tr.”); and stipulated facts in Section II of the Parties’ Stipulation and Pre-Trial Order, Dkt. 584 (“PTO”). Before the acquisition, Legacy SwervePay owned the SwervePay business. PTO ¶¶ 1, 55–56. Legacy SwervePay changed its name to SPOSC Investment Holdings, LLC on February 26, 2020. Id. ¶ 55. An entity called SwervePay Acquisition, LLC (“New SwervePay”) then acquired the business from Legacy SwervePay. Id. ¶ 81. New SwervePay changed its name to SwervePay, LLC on April 8, 2020. Id. For simplicity, this decision refers to the business and its operations generally as “SwervePay.” 2 Dkt. 637 (“Buyers’ Post-Trial Opening Br.”) at 90–92.
3 Dkt. 639 (“Sellers’ Post-Trial Reply Br.”) at 89–90. I. LEGAL ANALYSIS
The equitable doctrine of laches derives from the maxim that “equity aids the
vigilant, not those who slumber on their rights.”4 Claims filed after the applicable
limitations period are “considered presumptively untimely, and . . . barred under
laches” unless a tolling doctrine applies or the claims relate back to a timely filed
claim.5 Thus, “the court may dismiss a [claim] on grounds of laches if ‘it is clear . . .
that an affirmative defense exists and that the plaintiff can prove no set of facts to
avoid it.’”6
The first step in a laches analysis is determining when the claim accrued. 7 A
claim accrues “at the time of the wrongful act, even if the plaintiff is ignorant of the
cause of action.”8 “For tort claims, . . . the wrongful act occurs at the time of injury.”9
Accrual occurs at the moment any harm—however minor—results from the alleged
wrongful conduct, irrespective of the plaintiff’s awareness.10
4 Reid v. Spazio, 970 A.2d 176, 182 (Del. 2009) (quoting 2 Pomeroy’s Equity Jurisprudence §§ 418, 419 (5th ed. 1941)). 5 In re Ebix, Inc. S’holder Litig., 2014 WL 3696655, at *8 (Del. Ch. July 24, 2014).
6 Bocock v. INNOVATE Corp., 2022 WL 15800273, at *11 (Del. Ch. Oct. 28, 2022)
(quoting Reid, 970 A.2d at 183). 7 Largo Legacy Gp., LLC v. Charles, 2021 WL 2692426, at *9 (Del. Ch. June 30, 2021)
(“The statute of limitations begins to run at the time that the cause of action accrues[.]”) (quoting In re Tyson Foods, Inc. Consol. S’holder Litig., 919 A.2d 563, 584 (Del. Ch. 2007)). 8 Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 319 (Del. 2004).
9 ISN Software Corp. v. Richards, Layton & Finger, P.A., 226 A.3d 727, 732 (Del.
2020). 10 Id. at 732–33.
2 A. Sellers’ Claims Against The Newly Added Defendants
Sellers first named the Newly Added Defendants as defendants in their
Amended Complaint filed on October 4, 2023.11 The Newly Added Defendants face
claims of fraudulent inducement and conspiracy to commit fraud. Claims sounding
in fraud have a three-year statute of limitations under Delaware law,12 as do claims
for civil conspiracy.13
Sellers based their fraudulent inducement claims against the Newly Added
Defendants on an email that New Mountain Capital’s Michael Oshinsky sent to
Jaeme Adams14 on February 8, 2020 (the “February 8 Email”)15 representing that
Ontario Systems, LLC (“Ontario”) had $34 billion in payments volume. So the fraud
claims accrued on February 8, 2020. Sellers predicate their claim of civil conspiracy
on the fraud claims.16 Sellers’ claim of civil conspiracy therefore also accrued on
February 8, 2020.
11 Compare Dkt. 238 (“Sellers’ Am. Compl.”), with Dkt. 1 (“Sellers’ Original Compl.”).
Sellers included the Newly Added Defendants again in their Second Amended Complaint. Dkt. 325 (“Sellers’ Second Am. Compl.”). 12 10 Del. C. § 8106; Winklevoss Cap. Fund, LLC v. Shaw, 2019 WL 994534, at *5
(Del. Ch. Mar. 1, 2019). 13 Atlantis Plastics Corp. v. Sammons, 558 A.2d 1062, 1064 (Del. Ch. 1989).
14 This decision refers to Jaeme Adams by his first name to distinguish him from his
spouse, Katrina Adams. The court intends no familiarity or disrespect. 15 See Buyers’ Post-Trial Opening Br. at 90–91; JX-685.
16 Buyers’ Post-Trial Opening Br. at 90–91.
3 Sellers do not dispute that the claims accrued on February 8, 2020.17 Thus,
under a three-year statute of limitations, Sellers’ claims against the Newly Added
Defendants are time-barred unless they relate back under Court of Chancery Rule
15(c) or were tolled. Sellers bear the burden of proving both theories.18
1. Relation Back
Sellers argue that the statute of limitations does not apply to their Amended
Complaint because their claims against the Newly Added Defendants relate back to
Sellers’ Original Complaint under Rule 15(c).19
“The purpose of Rule 15(c) ‘is to permit amendments to pleadings when the
limitations period has expired, so long as the opposing party is not unduly surprised
or prejudiced.’”20 Rule 15(c) states that an amendment to a pleading relates back to
the date of the original pleading when:
(1) the law that provides the applicable statute of limitations allows relation back;
(2) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading; or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(2) is satisfied and, within 120 days of the filing of the complaint,
17 Dkt. 634 (“Sellers’ Post-Trial Opening Br.”) at 82–84; Sellers’ Post-Trial Reply Br.
at 71–73. 18 Fike v. Ruger, 754 A.2d 254, 261 (Del. Ch. 1999), aff’d, 752 A.2d 112 (Del. 2000);
Henderson v. Best Buy, 2011 WL 382857, at *2 (Del. Super. Feb. 3, 2011). 19 Sellers’ Post-Trial Opening Br. at 84 n.36.
20 Buttonwood Tree Value P’rs, L.P. v. R. L. Polk & Co., 2023 WL 9053173, at *10
(Del. Ch. Dec. 29, 2023) (quoting Chaplake Hldgs., Ltd. v. Chrysler Corp., 766 A.2d 1, 7 (Del. 2001)).
4 or such additional time the Court allows for good cause shown, the party to be brought in by amendment:
(A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits; and
(B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.21
Sellers’ Amended Complaint added several new defendants, so Rule 15(c)(3) is
the relevant provision. Sellers’ Amended Complaint satisfies several of Rule 15(c)(3)’s
necessary elements. The claims against the Newly Added Defendants—that they
conspired to fraudulently induce Sellers into the purchase agreement—arise out of
the same transaction described in Sellers’ Original Complaint, which satisfies Rule
15(c)(2). And the Newly Added Defendants received notice of this action through
their relationships with parties named in Sellers’ Original Complaint, which satisfies
Rule 15(c)(3)(A).22 Thus, the analysis turns on Rule 15(c)(3)(B): whether Sellers
proved that the Newly Added Defendants knew or should have known that they
would have been defendants but for a “mistake” concerning the identity of the proper
party.
Delaware has traditionally followed a “strict” approach to mistake under Rule
15(c), meaning that “a mistake occurs when the petitioner makes a true mistake as
21 Ct. Ch. R. 15(c).
22 Fund V LP is managed by Defendant New Mountain Capital. PTO ¶ 61. Fund V GP is Fund V LP’s general partner. Id. ¶ 62. Eir Partners is a management partner of Defendant OSC Investment, L.P. Id. ¶ 68. BSIP OS, LLC (“Blue Star”) is an affiliate of Blue Star Innovation Partners GP, LLC, which was named in Sellers’ Original Complaint. Id. ¶ 67; Sellers’ Original Compl.
5 to the identity or name of the proper party as opposed to where the plaintiff merely
chose the wrong party to sue.”23 Although the U.S. Supreme Court recently
instructed that the inquiry under Rule 15(c)’s federal corollary that “should focus
solely on ‘what the party to be added knew or should have known[,]’”24 applications
of the “strict” approach remain good law in Delaware.25 “[A] party seeking relief
under Rule 15(c) must still show it was mistaken as to the identity of the proper
defendant.”26
Sellers have not demonstrated that they were mistaken as to the identities of
the Newly Added Defendants. Fund V LP, Eir Partners, and Blue Star are parties to
OSC Investment, L.P.’s Limited Partnership Agreement.27 The Limited Partnership
Agreement’s capitalization table shows that New Mountain holds its ownership
interest through Fund V LP.28 Fund V GP signed the Limited Partnership
Agreement on Fund V LP’s behalf, and Brett Carlson, CEO of Eir Partners, signed it
23 CCS Invs., LLC v. Brown, 977 A.2d 301, 313 (Del. 2009), as corrected (Aug. 10,
2009). 24 DiFebo v. Bd. of Adjustment of New Castle Cnty., 132 A.3d 1154, 1158 (Del. 2016)
(quoting Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 539 (2010)). 25 See Allmaras v. Bd. of Adjustment of Sussex Cnty., 238 A.3d 142, 2 (Del. 2020)
(TABLE) (stating that the U.S. Supreme Court’s guidance in Krupski “does not need to be . . . squared with our previous ‘strict’ interpretation of Rule 15(c)” in every case); Mishoe v. City of Dover Planning Comm’n, 2025 WL 786049, at *12 (Del. Super. Mar. 12, 2025) (“In Allmaras II, the Delaware Supreme Court affirmed the lower court’s application of the strict requirement. When it did, it expressly declined to apply Krupski in a manner that changed Delaware’s approach.”). 26 Allmaras, 238 A.3d at 2.
27 JX-279 at 76, 90, 94.
28 See id. at 76, 103.
6 on behalf of Eir Partners.29 Sellers’ Original Complaint contains numerous
allegations accusing New Mountain and Carlson of committing fraud in connection
with the acquisition.30 As parties to the Limited Partnership Agreement, Sellers
knew the Newly Added Defendants’ identities and could have concluded that they
were proper defendants at the time Sellers’ Original Complaint was filed.31 The
claims against the Newly Added Defendants do not relate back under Rule 15(c)(3).
2. Tolling
Sellers argue that the limitations period was tolled.32 “The Delaware courts
recognize three doctrines that may toll the statute of limitations: (1) inherently
unknowable injuries, (2) fraudulent concealment, and (3) equitable tolling following
a breach of fiduciary duties.”33 But actual notice or inquiry notice cuts off any tolling
period.34 A plaintiff is on inquiry notice of a claim when she “becomes aware of facts
sufficient to put a person of ordinary intelligence and prudence on inquiry which, if
29 Id. at 76, 90; PTO ¶ 73.
30 See, e.g., Sellers’ Original Compl. ¶¶ 8, 43–44, 50–52, 54, 57–62, 103.
31 See Mishoe, 2025 WL 786049, at *12 (declining to invoke Rule 15(c)(3) relation back
where the plaintiff knew the newly added defendants’ identities before filing and the original pleading contained allegations depicting them as adverse to the plaintiff). 32 Sellers’ Post-Trial Opening Br. at 83–84.
33 Murray v. Rolquin, 2023 WL 2421687, at *10 (Del. Ch. Mar. 9, 2023) (quoting Vichi
v. Koninklijke Philips Elecs. N.V., 2009 WL 4345724, at *17 (Del. Ch. Dec. 1, 2009)). 34 See Forman v. CentrifyHealth, Inc., 2019 WL 1810947, at *7 (Del. Ch. Apr. 25,
2019); Brown v. Court Square Cap. Mgmt., L.P., 2022 WL 841138, at *3 (Del. Ch. Mar. 22, 2022).
7 pursued, could lead to the discovery of the injury.”35 Tolling does not extend beyond
the point when the plaintiff “was objectively aware, or should have been aware, of
facts giving rise to the wrong.”36
Sellers argue that the limitations period on the fraud and civil conspiracy
claims was tolled until the fall of 2020, when Jaeme learned that Houlihan Lokey had
advised Ontario that it would incur very little liability on the earnouts, even before
the earnout period had begun.37 Buyers, on the other hand, argue that Sellers were
on inquiry notice of their claims by June 8, 2020, when Durrett emailed Jaeme a
December 2019 analysis showing $5.2 billion in payments volume.38
Sellers do not dispute that Jaeme received Durrett’s analysis on June 8, 2020
(the “June 8 Email”).39 Jaeme was tasked by Ontario’s new CEO, Tim O’Brien, with
investigating SwervePay’s post-acquisition payments opportunity and tracking down
the represented $34 billion in monetizable payments volume.40 As part of that
exercise, Jaeme was told in June, orally and in writing, that Durrett had previously
created an estimate showing that Ontario had approximately $5 billion of payments
35 CentrifyHealth, 2019 WL 1810947, at *7 (quoting Whittington v. Dragon Gp. LLC,
2009 WL 1743640, at *9 (Del. Ch. June 11, 2009)). 36 In re Tyson Foods, Inc., 919 A.2d at 585.
37 Sellers’ Post-Trial Opening Br. at 84.
38 Buyers’ Post-Trial Opening Br. at 91–92; JX-1058; Trial Tr. at 224:15–226:12 (J.
Adams). 39 JX-1058; Trial Tr. at 228:5–18, 247:23–248:6 (J. Adams).
40 Trial Tr. at 214:4–11 (J. Adams).
8 volume flowing through its systems.41 Durrett explicitly contrasted that figure with
the $30+ billion figure from Blount.42 And on June 8, Durrett sent Jaeme his
analysis, which stated that payments volume was a tenth of what Jaeme initially
thought.43 These developments should have put Sellers on actual notice or at leasat
inquiry notice of their fraud and conspiracy claims against Buyers.
Sellers object to this conclusion on several grounds.
First, they argue that nothing about the February 8 Email or Durrett’s
December 2019 analysis gave Jaeme a reason to suspect fraud, so they were not on
inquiry notice of their claims.44 They rely on this court’s ruling denying Buyers’
motion to dismiss the Sellers’ Second Amended Complaint on laches grounds.45 But
in that motion to dismiss, Buyers argued that Sellers’ claims against the Newly
Added Defendants were time-barred solely because Sellers were on inquiry notice
after Jaeme received an email from Durrett stating that he had conducted a “bottoms-
up” analysis and concluded that the payments volume available to Ontario was $5.5
billion (the “June 1 Email”).46 Durrett did not send his December 2019 analysis in
the June 1 Email.47
41 JX-1035; JX-1058; Trial Tr. at 224:15–21 (J. Adams).
42 JX-1035.
43 JX-1058; JX-666.
44 See Sellers’ Post-Trial Reply Br. at 71–72.
45 Id. at 72; see also JX-1799 (“7/9/2024 Hr’g Tr.”) at 44:1–12, 45:19–22.
46 Dkt. 335 at 59–60; see also JX-1035 (“We had a top-down TAM ($30B via Steve B)
and bottoms-up SOM ($5.5B via JD)[.]”). 47 See JX-1035.
9 Drawing all reasonable inferences in Sellers’ favor as the court must at the
pleading stage, the court found that it was reasonably conceivable that the June 1
Email was insufficient to put Sellers on inquiry notice.48 Sellers are no longer entitled
to plaintiff-friendly inferences to establish their claims, and they bear the burden of
proving tolling. The trial record reflects that Jaeme and Ontario team members were
in active discussions regarding Ontario’s payments volume and that Jaeme received
Durrett’s full analysis on June 8. The preponderance of the evidence demonstrates
that Sellers were on notice of their claims by that date.
Second, Sellers argue that the June 8 Email did not put them on inquiry notice
because Jaeme did not see the June 8 Email or the link containing Durrett’s analysis
at the time the email was sent.49 And they argue that this was reasonable, because
Jaeme, the Ontario team, Blue Star, and McKinsey were all tasked by O’Brien with
investigating Ontario’s payments volume and the different workstreams created
“confusion” that obscured the June 8 Email.50 But this argument is weak. Durrett
sent the June 8 Email to only five recipients.51 An email on the same thread sent less
than two hours earlier is addressed to Jaeme.52 And Jaeme was focused on
48 7/9/2024 Hr’g Tr. at 44:1–45:22.
49 Sellers’ Post-Trial Reply Br. at 71–73.
50 Sellers’ Post-Trial Opening Br. at 83–84; see also Trial Tr. at 66:17–67:12, 214:4–
15 (J. Adams), 990:6–991:15 (Durrett). 51 JX-1058 at 1.
52 Id. at 2.
10 investigating Ontario’s payments volume.53 Sellers have not proven that there is any
reason why Jaeme should not have read the June 8 Email or investigated its contents.
Finally, Sellers claim that tolling applies to Eir Partners because they had no
notice of Eir Partners’ involvement until May 2023 after receiving discovery. 54 But
Eir Partners’ CEO Carlson—who is discussed in Sellers’ Original Complaint55—was
involved throughout the process and signed the Limited Partnership Agreement on
Eir Partners’ behalf.56 Sellers thus had inquiry notice of Eir Partners’ involvement
at the same time as the other Newly Added Defendants’ involvement.
Because neither Rule 15(c) nor tolling applies to the fraud or civil conspiracy
claims against the Newly Added Defendants, those claims are dismissed.
B. Buyers’ Claim Against Sellers
Post-trial, Buyers’ four counts in their Fourth Amended Complaint57 narrowed
to one count for contractual fraud based on the representations in Section 3.27 of the
Membership Interest Purchase Agreement (the “Purchase Agreement”).58
53 Trial Tr. at 214:4–11 (J. Adams).
54 Sellers’ Post-Trial Opening Br. at 84.
55 Sellers’ Original Compl. ¶¶ 43–44, 62, 103.
56 PTO ¶ 73.
57 Dkt. 590 (“Buyers’ Fourth Am. Compl.”).
58 Emerald P’rs v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (“Issues not briefed are
deemed waived.”). The court barred Buyers from bringing claims under Section 3.14(c) of the Purchase Agreement. Dkt. 609 at 30:12–16 (“[R]aising a new contractual provision as a basis for breach right before trial is unfair. So the causes of action that are based exclusively on Section 3.14(c) are struck, and they may not be included in the new pleading.”).
11 Buyers claim that Legacy SwervePay knowingly made false representations
and warranties in the Purchase Agreement by stating that it was not in breach of any
“Material Contracts,” even though it was actively breaching the Worldpay Contract.59
Like Sellers’ fraud claims, Buyers’ fraud claim is subject to a three-year statute
of limitations. Buyers acquired SwervePay on February 24, 2020.60 “‘Because
representations and warranties about facts pre-existing, or contemporaneous with, a
contract’s closing are to be true and accurate when made,’ a breach of such
representations and warranties ‘occurs on the date of the contract’s closing and hence
the cause of action accrues on that date.’”61 This reasoning extends to claims of
contractual fraud based on a transaction agreement. Buyers’ claim thus accrued on
February 24, 2020, and the limitation period expired on February 24, 2023.
Buyers filed their Fourth Amended Complaint on October 24, 2024—after the
statute of limitations had run. Thus, the claim can only survive if Buyers can
demonstrate that tolling or relation back under Rule 15(c) applies. Buyers bear the
burden of proof. Buyers do not argue that any tolling principle applies. They instead
argue that Buyers’ fraud claim satisfies Rule 15(c)(2) and relates back to prior
complaints.62
59 Buyers’ Post-Trial Opening Br. at 96.
60 PTO ¶ 93.
61 Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldgs. LLC, 2012 WL 3201139, at
*17 (Del. Ch. Aug. 7, 2012) (quoting GRT v. Marathon GTF Tech., Ltd., 2011 WL 2682898, at *6 (Del. Ch. July 11, 2011)). 62 Dkt. 642 at 49–50 & n.21.
12 Buyers first mentioned Worldpay in their Second Amended Complaint.63 The
Fourth and Third Amended Complaints thus arguably related back to the Second
Amended Complaint. But Buyers filed the Second Amended Complaint on October
3, 2023, after the limitations period expired.
Buyers must show, therefore, that their fraud claim based on the Worldpay
Contract relates back to their Original Complaint filed on July 30, 2021 or the First
Amended Complaint filed on November 4, 2021.64
Buyers made no mention of Worldpay in either of their first two complaints.
Buyers’ Original Complaint only states that Sellers had fraudulently misrepresented
SwervePay’s technological features and customer pipeline and had breached
representations by failing to disclose that three large customers had adverse changes
in their relationships with SwervePay.65 That First Amended Complaint also did not
mention Worldpay and again focused on allegedly misrepresented technology
features, customer pipelines, and material customers.66 There is nothing in the
Original Complaint or First Amended Complaint, therefore, that would have placed
Sellers on notice that they were being accused of fraud in connection with this discrete
contract, the Worldpay Contract.
63 See, e.g., Dkt. 236 (“Buyers’ Second Am. Compl.”) ¶ 135.
64 C.A. No. 2021-0666-KSJM, Dkt. 1 (“Buyers’ Original Compl.”); C.A. No. 2021-0447-
KSJM, Dkt. 51 (“Buyers’ First Am. Compl.”). 65 Buyers’ Original Compl. ¶¶ 119–45.
66 See, e.g., Buyers’ First Am. Compl. ¶¶ 170–85.
13 The alleged misrepresentation related to Worldpay does not connect to the
allegations of the original pleading. Legacy SwervePay thus did not have notice
under the First Amended Complaint that Buyers would bring a claim against it
relating to the Worldpay Contract, which is a “determinative factor” under Rule
15(c)(2).67
Buyers could have asserted the claim based on the Worldpay Contract much
earlier. Worldpay had notified SwervePay of its position that SwervePay was
breaching its agreement with Worldpay in August 2020.68 Worldpay shut down
services for SwervePay’s debt-collection customers in December 2020.69 Ontario
executives were aware of the Worldpay issues because they signed off on completing
the client transition by the end of November 2020.70 Buyers cannot obtain relief for
a claim they failed to plead timely.
II. CONCLUSION
Sellers’ claims against the Newly Added Defendants are dismissed. Judgment
is entered for the Newly Added Defendants. Buyers’ Fourth Amended Complaint is
dismissed. Judgment is entered for SPOSC Investment Holdings, LLC, the lone
defendant and Seller entity named in Buyers’ Fourth Amended Complaint.
67 Buttonwood, 2023 WL 9053173, at *10 (quoting Atlantis Plastics Corp. v. Sammons,
558 A.2d 1062, 1065 (Del. Ch. 1989)). 68 JX-2181 at 4; Trial Tr. at 242:6–21 (J. Adams).
69 JX-2111 at 5–7.
70 JX-2109 at 1.