United Atlantic Ventures, LLC v. TMTG Sub Inc. f/k/a Trump Media & Technology Group Corp.

• Court: Court of Chancery of Delaware
• Decided: September 2, 2025
• Docket: 2024-0184-LWW
• Status: Published

Opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

UNITED ATLANTIC VENTURES, ) LLC, ) ) Plaintiff, ) ) v. ) C.A. No. 2024-0184-LWW ) TMTG SUB INC. f/k/a TRUMP MEDIA ) & TECHNOLOGY GROUP CORP., ) TRUMP MEDIA & TECHNOLOGY ) GROUP CORP f/k/a DIGITAL WORLD ) ACQUISITION CORP., DONALD J. ) TRUMP, DEVIN G. NUNES, DONALD ) J. TRUMP, JR., KASHYAP “KASH” ) PATEL, DANIEL SCAVINO, JR., ERIC ) SWIDER, FRANK J. ANDREWS, ) EDWARD J. PREBLE, and JEFFREY A. ) SMITH, ) ) Defendants. )

MEMORANDUM OPINION

Date Submitted: May 15, 2025 Date Decided: September 2, 2025

Richard I. G. Jones, Jr., David B. Anthony & Harry W. Shenton IV, BERGER MCDERMOTT LLP, Wilmington, Delaware; Christopher Clark & Benjamin Dozier, CLARK SMITH VILLAZOR LLP, New York, New York; Counsel for Plaintiff United Atlantic Ventures, LLC

Theodore A. Kittila, M. Jane Brady, William E. Green, Jr. & John G. Harris, HALLORAN FARKAS + KITTILA LLP, Wilmington, Delaware; Counsel for Defendants TMTG Sub Inc. f/k/a Trump Media & Technology Group Corp., President Donald J. Trump, and Daniel Scavino, Jr. John L. Reed & Ronald N. Brown, III, DLA PIPER LLP, Wilmington, Delaware; Caryn G. Schechtman, DLA PIPER LLP, New York, New York; Josh Halpern & M. David Josefovits, DLA PIPER LLP, Washington, DC; Counsel for Defendants President Donald J. Trump, Trump Media & Technology Group Corp. f/k/a Digital World Acquisition Corp., Devin G. Nunes, Donald J. Trump, Jr., Kashyap “Kash” Patel, Eric Swider, Frank J. Andrews, Edward J. Preble, and Jeffrey A. Smith

WILL, Vice Chancellor This case arises from a soured business relationship between United Atlantic

Ventures (UAV) and Trump Media and Technology Group Corp. (TMTG), the

operator of social media platform Truth Social.

In February 2021, then-former President Donald J. Trump hired UAV to

consult on TMTG’s launch in exchange for an 8.6% stake in the company. UAV’s

primary task was to position TMTG to access public markets. To that end, UAV

identified a special purpose acquisition company (SPAC), Digital World Acquisition

Corp. (DWAC), as a merger partner. Under an October 2021 merger agreement,

legacy TMTG stockholders like UAV would receive shares in the newly-public

combined company as merger consideration.

The merger was mired by delays until mid-2023. In the interim, Trump and

UAV had a falling out. Though UAV was no longer involved with TMTG’s

business, it retained TMTG shares. In early 2024, TMTG purportedly authorized

the issuance of one billion additional shares. Believing that was an attempt to dilute

it, UAV filed this lawsuit in February 2024. TMTG responded with its own lawsuit

in Florida, seeking to have the services agreement declared void.

The same month, DWAC disclosed that amendments to its charter would

impose a 180-day lock-up, restricting all legacy TMTG stockholders from selling

their new public shares after the merger closed. The focus of this lawsuit then

1 shifted, with UAV amending its complaint to claim the lock-up was retaliatory and

contrary to Delaware law.

The merger closed and UAV received restricted shares, prompting yet another

amended pleading. The defendants moved to dismiss that third amended complaint.

This decision resolves the defendants’ motions.

UAV’s claims about the lock-up boil down to conspiracy theories

unsupported by factual allegations. None are viable. DWAC’s adoption of the

lock-up by charter amendment before the combined company’s shares were issued

complied with Delaware statute. The restriction on target stockholders was neither

unusual nor facially unreasonable in the de-SPAC merger context. And UAV pleads

no facts suggesting that legacy TMTG’s directors were involved in DWAC’s

adoption of the lock-up.

The two remaining claims about the services agreement are also dismissed,

without prejudice. The services agreement has a Florida forum selection clause, and

claims related to the agreement were first filed in Florida.

After briefing on the motions to dismiss was complete, the defendants moved

for dismissal or a stay based on temporary presidential immunity following President

Trump’s reelection. Because UAV’s complaint is dismissible on other grounds, I

decline to reach the novel immunity question.

2 I. BACKGROUND

Unless otherwise noted, the following facts are drawn from the Third

Amended Verified Complaint (the “Complaint”) and documents it incorporates by

reference.1

A. The Services Agreement

Plaintiff United Atlantic Ventures, LLC (UAV) is a Delaware limited liability

company with its principal place of business in Fort Lauderdale, Florida. 2 In

February 2021, then-former President Donald J. Trump and Trump Media LLC

signed a Services Agreement with UAV, under which UAV would help establish

Trump Media Group Corp. (“Legacy TMTG”).3 Trump signed on behalf of himself

and Trump Media. Andy Litinsky, a UAV member, signed for UAV.4

UAV was to form Legacy TMTG as a Delaware corporation.5 UAV would

provide consulting services on “targeted media and technology opportunities in

social media, internet infrastructure, podcast, digital streaming, mobile apps, book

1 Third Am. Verified Compl. (Dkt. 142) (“Third Am. Compl.”); see Freedman v. Adams, 2012 WL 1345638, at *5 (Del. Ch. Mar. 30, 2012) (“When a plaintiff expressly refers to and heavily relies upon documents in her complaint, these documents are considered to be incorporated by reference into the complaint . . . .”). 2 Third Am. Compl. ¶ 17. 3 Id. ¶ 32; see id. at Ex. B (“Services Agreement”). 4 Services Agreement 10 (signature page). Litinsky is a former “The Apprentice” contestant. See Andy Dean, Wikipedia, https://en.wikipedia.org/wiki/Andy_Dean (last visited Aug. 28, 2025). 5 Services Agreement § 2. 3 publication, and television production” for the new entity.6 Legacy TMTG later

launched Truth Social—a social media platform.7

The Services Agreement confirmed that “[t]he parties’ primary goal [was] to

position [Legacy TMTG] to access any of the private equity or public and private

equity capital markets . . . [including through] a business combination with a [

SPAC].”8 It granted UAV “a perpetual and exclusive right to plan, coordinate, and

finalize a [de-SPAC] transaction.”9

The Services Agreement contemplated that Legacy TMTG would be formed

with 100 million authorized shares of common stock.10 The shares were to be

allocated among three stockholders: 90 million shares (90%) to Trump; 8.6 million

shares (8.6%) to UAV; and 1.4 million shares (1.4%) to Bradford Cohen, an attorney

who advised Trump on the Services Agreement.11 UAV’s shares served as

6 Id. 7 See Third Am. Compl. ¶ 32. 8 Services Agreement § 8; Third Am. Compl. ¶ 33. 9 Third Am. Compl. ¶ 33; Services Agreement § 8. 10 Third Am. Compl. ¶ 34; Services Agreement § 5. The shares would have a par value of $.000001. 11 Third Am. Compl. ¶ 34; Services Agreement § 5. 4 compensation for the consulting services it provided.12 UAV was also entitled to

appoint two Legacy TMTG directors.13

UAV “set about forming [Legacy] TMTG and executing the business plan it

had developed for [Legacy TMTG].”14

B. Legacy TMTG’s Formation

On February 8, 2021, Legacy TMTG filed a certificate of incorporation in

Delaware.15 It authorized the issuance of 11,000 shares of common stock, rather

than the 100 million shares contemplated by the Services Agreement.16 It did not

impose any restrictions on the shares.17

In June 2021, Legacy TMTG’s three stockholders—Trump, UAV, and

Cohen—passed several formative resolutions by unanimous written consent.18 They

ratified and approved Legacy TMTG’s certificate of incorporation, set the number

of directors on Legacy TMTG’s Board of Directors at three, and appointed Trump

12 Services Agreement § 9 (“Other than with respect to the reimbursement of its out-of- pocket expenses . . . UAV shall be entitled to no additional compensation above and beyond the 8,600,000 vested shares of common stock in TM[T]G . . . .”). The Services Agreement did not discuss restricting these shares. See Third Am. Compl. ¶ 35. 13 Third Am. Compl. ¶ 37; Services Agreement § 16. 14 Third Am. Compl. ¶ 40. 15 Id. ¶ 42; see id. at Ex. C (Legacy TMTG certificate of incorporation). 16 Id. ¶ 43. 17 Id. ¶ 44; id. at Ex. C. 18 Id. ¶¶ 45-46; id. at Ex. D (“June 2021 Resolutions”). 5 and two UAV members—Litinsky and Wesley Moss—as directors.19 They also

elected Litinsky, Moss, and Trump as Legacy TMTG’s “Authorized Officers,” and

named Trump the company’s President, Chief Executive Officer, and Secretary.20

The resolutions permitted the Authorized Officers to “sell and issue” 10,000

shares of Legacy TMTG common stock, with 9,000 shares (90%) to Trump, 860

shares (8.6%) to UAV, and 140 shares (1.4%) to Cohen.21

C. The October 2021 Resolutions

The next month, on July 30, 2021, The Trump Organization’s Chief Legal

Officer told Legacy TMTG’s corporate counsel by email that the Services

Agreement “was simply not what [Trump and Trump Media] understood they were

agreeing to and that the actual terms of [the Services Agreement] had never been

adequately explained to them prior to signing.”22 The email, and an attached letter

from Eric Trump, purported to declare the Services Agreement and any related

agreements “void ab initio.”23

19 Id. ¶ 46; June 2021 Resolutions 1. Like Litinsky, Moss is a former “The Apprentice” contestant. Wes Moss, IMDb, https://www.imdb.com/name/nm1724573/ (last visited Aug. 28, 2025). 20 Third Am. Compl. ¶ 46; June 2021 Resolutions 2. 21 Third Am. Compl. ¶ 46; June 2021 Resolutions 2. This is the same allocation contemplated by the Services Agreement. See supra note 11 and accompanying text. 22 Third Am. Compl. Ex. J at Ex. 1; see id. ¶ 48. 23 Id. ¶ 48; see id. Ex. J. at Ex. 1. 6 On October 13, 2021, the three Legacy TMTG Board members met and

unanimously passed several resolutions.24 They (1) changed the corporation’s name

to Trump Media & Technology Group Corp. (also “Legacy TMTG”), (2) authorized

the filing of an amended and restated certificate of incorporation, and (3) increased

the number of authorized shares to 110,000,000.25

D. The Merger Agreement

On October 20, 2021, Legacy TMTG entered an Agreement and Plan of

Merger (the “Merger Agreement”) with Digital World Acquisition Corp. (DWAC),

a SPAC.26 The parties agreed that DWAC would combine with Legacy TMTG,

bringing Legacy TMTG’s business public as Trump Media & Technology Group

Corp. (“New TMTG”).27

The Merger Agreement stated that “[a]s consideration for the [m]erger,”

DWAC would amend its certificate of incorporation “in a form to be mutually agreed

between [DWAC] and [Legacy TMTG].”28 The amendment would occur “upon the

Effective Time,” defined as the time “the Certificate of Merger [was filed] . . . with

24 Id. ¶¶ 51-53; see id. at Ex. E (“October 2021 Resolutions”). 25 Id. ¶ 53; October 2021 Resolutions 1-3. 26 Third Am. Compl. ¶ 62; see id. at Ex. F (“Merger Agreement”). 27 Merger Agreement § 1.7. Legacy TMTG would merge into a subsidiary of DWAC, which was also a party to the Merger Agreement. Id. at 1. 28 Id. § 1.7; Third Am. Compl. ¶ 63. 7 the Secretary of State of the State of Delaware in accordance with the relevant

provisions of the DGCL.”29

The Merger Agreement also provided that all issued and outstanding shares

of Legacy TMTG stock would be canceled at the Effective Time “in exchange for

the right to receive the [s]tockholder [m]erger [c]onsideration,” meaning the total

DWAC shares payable to Legacy TMTG stockholders.30 Legacy TMTG’s

stockholders—UAV, Trump, and Cohen—would be entitled to receive their pro rata

merger consideration “upon delivery of the [t]ransmittal [d]ocuments” to the transfer

agent.31 DWAC was obligated to deposit the merger consideration with the transfer

agent “[a]t or prior to the Effective Time.”32

The Merger Agreement imposed a contractual lock-up on “Significant

Company Holders”—those holding at least 10% of Legacy TMTG’s issued and

outstanding shares.33 Any Significant Company Holder would enter into a lock-up

agreement with DWAC, the form of which was Exhibit B to the Merger

29 Merger Agreement § 1.7; see id. § 1.2 (defining “Effective Time”). 30 Id. § 1.9(a); Third Am. Compl. ¶ 65; see also Merger Agreement § 1.8(a) (defining “Stockholder Merger Consideration”). 31 Third Am. Compl. ¶ 65; Merger Agreement § 1.9(a); see also Third Am. Compl. ¶ 68. 32 Third Am. Compl. ¶¶ 67, 69; Merger Agreement § 1.10(a); see also id. § 1.2 (defining “Effective Time”). 33 Third Am. Compl. ¶ 74; Merger Agreement 2 (Recital F); id. § 11.1 (defining “Significant Company Holder”). 8 Agreement.34 Under the Lock-Up Agreement, the Significant Company Holder

could not sell or transfer New TMTG stock during specified periods.35 Because

UAV had only an 8.6% stake,36 it was not a Significant Company Holder subject to

the contractual lock-up.37

E. The Amended Merger Agreement

The merger was delayed by, among other things, a Securities and Exchange

Commission (SEC) investigation.38 It was “placed back on track” in mid to late

2023.39

Meanwhile, in March 2022, Trump allegedly asked Litinsky to transfer a

portion of UAV’s Legacy TMTG stock to his spouse, Melania Trump.40 When

Litinsky refused, Trump purportedly directed Devin Nunes—then Legacy TMTG’s

34 Merger Agreement 2 (Recital F); see Third Am. Compl. Ex. G (“Form of Lock-Up Agreement”). 35 A Significant Company Holder would be barred from selling during the period “ending on the earliest of (x) the six-months after the date of the Closing, (y) the date on which the closing price of the Purchaser Common Stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any twenty (20) trading days within any thirty (30) trading day period commencing at least one-hundred fifty (150) days after the Closing.” Form of Lock-Up Agreement § 1(a); see Third Am. Compl. ¶ 76. 36 See supra notes 11, 21 and accompanying text. 37 Third Am. Compl. ¶ 75. 38 Id. ¶ 78. 39 Id. 40 Id. ¶ 59. 9 CEO—to remove Litinsky from the Legacy TMTG Board.41 UAV’s other Board

designee, Moss, later resigned after “[Legacy] TMTG intentionally walled [him]

off.”42

At some point, Nunes, Kashyap “Kash” Patel, Daniel Scavino, Jr., and Donald

J. Trump, Jr. served as directors of Legacy TMTG.43

On August 9, 2023, DWAC and Legacy TMTG amended the Merger

Agreement.44 The amendment granted Trump high vote common stock representing

55% of New TMTG’s voting power.45 The amendment did not contemplate

additional lock-ups or restrictions on the sale or trading of New TMTG stock after

closing.46

41 Id. 42 Id. ¶ 61. 43 Id. ¶¶ 21-24. UAV does not specify the dates on which any of these individuals joined or departed the Legacy TMTG Board. 44 Id. ¶ 79; id. at Ex. H (“Second Am. to Merger Agreement”). 45 Third Am. Compl. ¶¶ 80-84; Second Am. to Merger Agreement § 1(k) (providing for “the creation of the Purchaser High Vote Common Stock to be issued to the Company Principal . . . [which] shall entitle its holder to a number of votes equal to the greater of (i) one vote and (ii) the number of votes that would cause the aggregate number of shares issued to the Company Principal as consideration in the Merger (excluding any Earnout Shares) to represent 55% of the voting power”); see also Merger Agreement § 11.1 (defining “Company Principal” as “former President Donald J. Trump”). 46 Third Am. Compl. ¶ 85. 10 F. DWAC’s Registration Statement

On January 18, 2024, UAV advised DWAC that its December 2023 Form S-4

Registration Statement omitted to mention UAV’s rights under the Services

Agreement.47 Four days later, on January 22, DWAC filed an amended Form S-4

stating that the Services Agreement had been “declared void nearly two and a half

years previously” by The Trump Organization.48 Also on January 22, Legacy

TMTG stockholder Cohen served a Section 220 books and records demand on

Legacy TMTG, seeking information about his ownership interests.49

On January 26—eight days after UAV’s letter and four days after Cohen’s

Section 220 demand—Legacy TMTG filed a third amended and restated certificate

of incorporation with the Delaware Secretary of State.50 The amended certificate

authorized the issuance of one billion shares of common stock, 900 million (90%)

of which were designated voting stock with the remaining 100 million (10%) non-

voting stock.51 Those additional shares were never issued.

47 Id. ¶ 87. 48 Id. ¶ 90; id. at Ex. I (Jan. 18, 2024 letter); see supra notes 22-23 and accompanying text (discussing the Trump Organization’s July 2021 letter). 49 Third Am. Compl. ¶ 97; id. at Ex. L (Cohen’s Section 220 demand). 50 Third Am. Compl. ¶ 94. 51 Id. 11 G. The Lock-Up

DWAC filed additional amendments to its Registration Statement with the

SEC.52 In its fourth amended Registration Statement dated February 12, “DWAC

disclosed that it would adopt post-[m]erger charter amendments to lock-up certain

stock” (the “Lock-Up”).53 DWAC’s charter would be amended to:

include Lock-Up Trading Restrictions, which shall apply to holders who received New Digital World common stock in exchange for their [Legacy] TMTG common stock, but excluding shares of New Digital World common stock issued to holders of [Legacy] TMTG common stock, which were issued by [Legacy] TMTG prior to the Closing in exchange for their TMTG Convertible Notes.54

DWAC’s proposed amended charter was attached (the “Second Amended

Charter”).55

52 Id. ¶ 107; Digit. World Acq. Corp., Am. No. 6 to Registration Statement (Form S-4) (Feb. 14, 2024) (“DWAC Sixth Am. Registration Statement”); see also Third Am. Compl. Ex. K (Excerpt, Sixth Am. Registration Statement); Third Am. Compl. ¶¶ 101-02. 53 Third Am. Compl. ¶ 102; see Digit. World Acq. Corp., Am. No. 4 to Registration Statement (Form S-4) (Feb. 12, 2024) (“Fourth Am. Registration Statement”). 54 Third Am. Compl. ¶ 102; Fourth Am. Registration Statement 142, 173; see also Third Am. Compl. ¶ 101 (noting that the Lock-Up was not disclosed in the initial Registration Statement or the first three amended Registration Statements). The fifth and sixth amendments to the Registration Statement—both filed on February 14—also disclosed this Lock-Up. Id. ¶ 107; see Digit. World Acq. Corp., Am. No. 5 to Registration Statement (Form S-4) (Feb. 14, 2024) 143, 175, 328; Sixth Am. Registration Statement 143, 175, 328. 55 Fourth Am. Registration Statement, Annex B; see also id. at 2. 12 The Lock-Up was again disclosed in the fifth and sixth amendments to

DWAC’s Registration Statement. “Amendment No. 6 was approved by the SEC on

February 14 and became DWAC’s final [R]egistration [S]tatement.”56

H. The Delaware Litigation

On February 29, 2024, UAV filed this action against Legacy TMTG.57 It

sought declarations that (a) it owned 8.6% of Legacy TMTG’s issued and

outstanding stock; (b) the authorization of the one billion shares in Legacy TMTG’s

third amended certificate of incorporation was invalid; and (c) UAV maintained an

anti-dilution right under the Services Agreement.58 It also sought related injunctive

relief.59

UAV amended its complaint a week later.60 It added individual defendants

Trump, Nunes, Trump, Jr., Patel, and Scavino, Jr.—each in their capacities as

Legacy TMTG directors.61 UAV claimed that those individuals breached their

fiduciary duties regarding the purported “dilution scheme.”62

56 Third Am. Compl. ¶ 107. 57 Verified Compl. (Dkt. 1). 58 Id. ¶¶ 81-97. 59 Id. ¶¶ 98-107. 60 First Am. Compl. (Dkt. 13). 61 Id. ¶¶ 19-23. 62 Id. ¶¶ 151-63; see supra notes 50-51. 13 I. Closing

On March 22, 2024, DWAC’s stockholders approved the business

combination with Legacy TMTG.63 They also voted to adopt the Second Amended

Charter, including the Lock-Up.64

The Second Amended Charter states that “the Locked-up Holders may not

Transfer any Lock-up Shares until the end of the Lock-up Period.”65 “Lock-up

Shares” are “the shares of capital stock [] of [New TMTG] received by the

stockholders of [Legacy] TMTG, excluding[] shares of capital stock of [New

TMTG] issued in exchange for [Legacy] TMTG shares that were issued by [Legacy]

TMTG to holders of Company Convertible Notes.”66 “Locked-up Holders” are “the

holders of Lock-up Shares.”67

63 Third Am. Compl. ¶ 108. 64 Id. ¶¶ 108, 113; see Opening Br. of Defs. TMTG, Nunes, Trump, Jr., Patel, Swider, Andrews, Preble, and Smith in Supp. of Mot. to Dismiss Verified Third Am. Compl. (Dkt. 176) (“New TMTG Defs.’ Opening Br.”) Ex. D (“Second Am. Charter”) § 4.8. 65 Third Am. Compl. ¶ 113 (quoting Second Am. Charter § 4.8(a)). Section 4.8(a) excludes permitted transfers under Section 4.8(b). Second Am. Charter § 4.8(a). 66 Second Am. Charter § 4.8(c); see Third Am. Compl. ¶ 113. 67 Second Am. Charter § 4.8(c); see Third Am. Compl. ¶ 113. 14 A Certificate of Merger was filed with the Delaware Secretary of State at 8:19

a.m. on March 25.68 The Second Amended Charter was filed four minutes later, at

8:22 a.m.69

J. UAV’s Restricted Shares

UAV promptly sent its letter of transmittal to New TMTG’s transfer agent,

entitling it to merger consideration.70 On March 28, UAV learned that it owned

7,472,141 restricted shares of New TMTG stock.71 The shares were “subject to the

limitations on transfer and lock-up restrictions described in section 4.8 of the

[Second Amended Charter].”72

K. The Florida and Delaware Litigation

On March 24—the night before the merger with DWAC closed—New TMTG

sued UAV, UAV members Litinsky and Moss, and DWAC’s former director and

officer Patrick Orlando in the Circuit Court for the Twelfth Judicial Circuit in and

for Sarasota County, Florida Civil Division (the “Sarasota Action”).73 New TMTG

sought “(1) a declaration that UAV has no contractual rights to appoint members of

68 Third Am. Compl. ¶ 110. 69 Id. ¶ 112. 70 Id. ¶ 109. 71 Id. ¶ 116. 72 Id. 73 Id. ¶ 122; see id. at Ex. A (“Sarasota Action Compl.”). 15 TMTG’s Board of Directors or to own shares in [New TMTG]; (2) restitution of the

shares issued to UAV (or their value) that UAV failed to earn; [and] (3) damages for

Moss and Litinsky’s breaches of fiduciary duty in their management of [TMTG] and

for Orlando’s active involvement and participation in those breaches.”74

The Sarasota Action promoted activity in the Delaware suit. On April 2, UAV

moved for leave to file a second amended complaint in this court, which was

granted.75 UAV’s second amended complaint added claims about the Lock-Up

imposed by New TMTG’s Second Amended Charter.76 It also named five new

defendants: New TMTG, Eric Swider (a former DWAC and current New TMTG

director), and three other New TMTG Directors.77

The Sarasota Action was stayed on June 27 in deference to this action.78 New

TMTG and Legacy TMTG then filed another lawsuit in Sarasota (the “Second

Sarasota Action”) that was assigned to a different Florida judge.79 Their allegations

74 Sarasota Action Compl. ¶ 5; see also Third Am. Compl. ¶ 123. 75 Dkts. 57, 100. 76 Second Am. Compl. (Dkt. 81). 77 Id. ¶¶ 23-25. The other new individual defendants were W. Kyle Green, Linda McMahon, and Robert Lighthizer. UAV also asserted that Nunes, Patel, and Trump, Jr. were directors of New TMTG. Id. ¶¶ 17-21. 78 Letter from UAV’s Counsel (Dkt. 138) Ex. A (“Sarasota Action Stay Op.”) 5. 79 See Letter from UAV’s Counsel (Dkt. 160). Legacy TMTG was now called TMTG Sub Inc. The defendants were DWAC’s former officer and director Orlando and DWAC’s sponsor ARC Global Investments II, LLC. 16 are similar to those in the original Sarasota Action.80 Although UAV was not named

as a defendant in the Second Sarasota Action, the plaintiffs sought to enjoin UAV

from selling certain New TMTG shares after the expiration of the Lock-Up.81 The

Florida court declined to dismiss or stay the Second Sarasota Action in deference to

this action, or to consolidate it with the original Sarasota Action.82

Back in Delaware, UAV sought leave to file a third amended complaint, which

was unopposed.83 That operative Complaint was filed on July 9, 2024. UAV

expanded its allegations about the Lock-Up and breaches of fiduciary duty, and

added claims for aiding and abetting breaches of fiduciary duty and civil conspiracy.

It also dropped certain New TMTG directors as defendants,84 replacing them with

three former DWAC directors: Orlando (who was later dismissed from the suit),

Frank J. Andrews, Edward J. Preble, and Jeffrey A. Smith.85

80 Compare id. at Ex. A (“Second Sarasota Action Inj. Mot.”) ¶ 5, with Sarasota Action Compl. ¶¶ 23, 52(b)-(c). 81 Second Sarasota Action Inj. Mot. 2 (stating that “UAV cannot be permitted to sell [its] . . . locked-up shares of TMTG”). 82 UAV’s Reply in Further Supp. of Mot. for Contempt (Dkt. 155) Ex. C (order of the Florida court). 83 See Order Granting Mot. for Leave to File Third Am. Compl. (Dkt. 141). 84 Green, McMahon, and Lighthizer were dropped. See supra note 77. 85 Third Am. Compl. ¶¶ 26-39; see Notice of Voluntary Dismissal of Def. Patrick F. Orlando (Dkt. 174). 17 Two sets of defendants moved to dismiss the Complaint in October.86 UAV

filed an answering brief in November.87 Reply briefs were filed in December.88

While briefing was underway, Trump was reelected to his second term as

President of the United States, taking office on January 20, 2025.89 A few days later,

the defendants moved for a stay on the basis of temporary presidential immunity.90

On May 15, after the immunity motion was fully briefed,91 oral argument was

presented on both sets of motions.92 The motions were taken under advisement.

86 See Opening Br. of Defs. TMTG Sub Inc., President Trump, and Scavino, Jr. in Supp. of Mot. to Dismiss Third Am. Compl. (Dkt. 175) (“Legacy TMTG Defs.’ Opening Br.”); New TMTG Defs.’ Opening Br. (defined supra note 64). 87 Pl.’s Answering Br. in Opp’n to Defs.’ Mots. to Dismiss Third Am. Verified Compl. (Dkt. 179) (“Pl.’s Answering Br.”). 88 Reply Br. of Defs. TMTG, Nunes, Trump, Jr., Patel, Swider, Andrews, Preble, and Smith in Further Supp. of Mot. to Dismiss Verified Third Am. Compl. (Dkt. 192) (“New TMTG Defs.’ Reply Br.”); Reply Br. of Defs. TMTG Sub Inc., President Trump, and Scavino, Jr. in Further Supp. of Mot. to Dismiss Third Am. Verified Compl. (Dkt. 191) (“Legacy TMTG Defs.’ Reply Br.”). 89 See In re Books-A-Million, Inc. S’holders Litig., 2016 WL 5874974, at *1 (Del. Ch. Oct. 10, 2016) (providing that the court may take judicial notice of “facts . . . not subject to reasonable dispute” (citing In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 170 (Del. 2006))). 90 Defs.’ Mot. to Dismiss, or Alternatively, to Stay on Basis of Temporary Presidential Immunity (Dkt. 195). 91 Pl.’s Opp’n to Defs.’ Mot. to Dismiss, or Alternatively, to Stay on Basis of Temporary Presidential Immunity (Dkt. 213); Reply in Further Supp. of Defs.’ Mot. to Dismiss, or Alternatively, to Stay on Basis of Temporary Presidential Immunity (Dkt. 215). 92 Tr. of May 15, 2025 Oral Arg. on Defs.’ Mots. to Dismiss (Dkt. 223) (“Hr’g Tr.”). 18 II. ANALYSIS

UAV’s Complaint advances eight counts. The first five counts concern the

Lock-Up, with theories ranging from violations of the Delaware General

Corporation Law (DGCL) to breach of fiduciary duty and conspiracy. The sixth and

seventh counts concern the validity and enforceability of the Services Agreement.

And the eighth count seeks an anti-suit injunction of the Sarasota Action.

The defendants move for the dismissal of all counts on various grounds. They

assert that UAV states no claim on which relief can be granted under Court of

Chancery Rule 12(b)(6). For the Services Agreement-related claims, they argue that

a forum selection provision warrants dismissal under Court of Chancery Rules

12(b)(1) and 12(b)(3), or that the claims should be dismissed in deference to the

Sarasota Action.

In the alternative, the defendants ask that I dismiss or stay this case while

President Trump remains in office. “[I]mmunity questions should be decided at the

earliest possible stage of the litigation.”93 Still, “[a] fundamental and longstanding

principle of judicial restraint requires that courts avoid reaching constitutional

questions in advance of the necessity of deciding them.”94 In keeping with that wise

93 Clinton v. Jones, 520 U.S. 681, 686 (1997). 94 Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988); see also Kajmowicz v. Whitaker, 42 F.4th 138, 153-54 (3d Cir. 2022) (observing the importance of 19 policy, the defendants have asked that I first consider their other dismissal-related

arguments, which were fully briefed before President Trump began his second

term.95

As such, I first address the Rule 12(b)(6) motion on the Lock-Up-related

claims and conclude that each are legally insufficient. I then turn to the Services

Agreement-related claims and dismiss them without prejudice under Rule 12(b)(3)

and in deference to the Sarasota Action. Because UAV declined to brief its anti-suit

injunction claim, it is dismissed as waived.96

None of UAV’s claims survive. I therefore decline to address the issue of

presidential immunity.97

A. Claims Regarding the Lock-Up

UAV brings six claims regarding the Lock-Up. Count I is a claim against

New TMTG that the Lock-Up violates 8 Del. C. § 202.98 Count II, brought against

New TMTG in the alternative to Count I, is a claim that the Lock-Up violates 8 Del.

courts adhering to “principles of constitutional avoidance and judicial restraint,” “no matter how novel, significant, or interesting” the question presented may be). 95 See Hr’g Tr. 15-16. Emerald P’rs v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (“Issues not briefed are deemed 96

waived.”). 97 See supra note 94 and accompanying text. 98 Third Am. Compl. ¶¶ 150-71. 20 C. § 151.99 In Counts III and IV, UAV alleges that Legacy TMTG’s directors

breached their fiduciary duties by causing the Lock-Up, aided and abetted by New

TMTG and DWAC’s former directors.100 Count V is a civil conspiracy claim against

all defendants regarding the Lock-Up.101

The defendants have moved to dismiss these claims under Rule 12(b)(6). In

resolving those motions, I must “(1) accept all well pleaded factual allegations as

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.”102 But I am “not required to accept every strained interpretation

of [UAV’s] allegations.”103 Nor must I accept conclusory assertions “unsupported

by allegations of specific facts.”104

99 Id. ¶¶ 172-80. 100 Id. ¶¶ 181-85 (alleging a breach of fiduciary duty claim against Nunes, Trump, Jr., Patel, Trump, and Scavino, Jr.); id. ¶¶ 186-91 (alleging an aiding and abetting claim against New TMTG, Swider, Andrews, Preble, and Smith). 101 Id. ¶¶ 192-96. 102 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)). 103 Gen. Motors (Hughes), 897 A.2d at 168 (quoting Malpiede v. Townson, 780 A.2d 1075, 1083 (Del. 2001)). 104 In re Lukens Inc. S’holders Litig., 757 A.2d 720, 727 (Del. Ch. 1999), aff’d sub nom., Walker v. Lukens, Inc., 757 A.2d 1278 (Del. 2000). 21 1. Section 202

In Count I, UAV claims that the Lock-Up in the Second Amended Charter is

invalid for failure to comply with Delaware law.105 Section 202(b) of the Delaware

General Corporation Law provides:

A restriction on the transfer or registration of transfer of securities of a corporation, or on the amount of a corporation’s securities that may be owned by any person or group of persons, may be imposed by the certificate of incorporation or by the bylaws or by an agreement among any number of security holders or among such holders and the corporation. No restrictions so imposed shall be binding with respect to securities issued prior to the adoption of the restriction unless the holders of the securities are parties to an agreement or voted in favor of the restriction.106

Restrictions on the transfer of stock must also be “reasonable to achieve a legitimate

business purpose,” given the “traditional judicial policy favoring the free transfer of

securities.”107

UAV maintains that the Lock-Up violates Delaware law in two ways. First,

the Lock-Up allegedly contravenes “the strict statutory requirements of [Section]

202.”108 Second, even if Section 202(b) were complied with, the Lock-Up is

105 Third Am. Compl. ¶¶ 151-71. 106 8 Del. C. § 202(b). 107 Cap. Gp. Cos. v. Armour, 2005 WL 678564, at *5, *8 (Del. Ch. Mar. 15, 2005). 108 Third Am. Compl. ¶ 151; see also Pl.’s Answering Br. 28-32. 22 allegedly unreasonable because it was added “for purposes of retaliating against

UAV.”109 Neither contention supports a reasonably conceivable claim.

a. Section 202(b)’s Requirements

Section 202(b) permits a corporation to impose transfer restrictions through

its charter. A restriction is not binding on “securities issued prior to the adoption”

of the charter unless the affected securityholders consent to it.110 UAV’s members

never consented to the Lock-Up, which was approved by DWAC stockholders.

Thus, the pertinent question is whether UAV was “issued” its New TMTG stock

after the “adoption” of the Second Amended Charter.

UAV asserts that its New TMTG stock was issued before the Lock-Up was

adopted.111 Its argument is as follows. Under the Merger Agreement, all shares of

Legacy TMTG stock were canceled at the Effective Time and Legacy TMTG

stockholders gained the right to a pro rata share of New TMTG stock worth $875

million.112 The Effective Time was when the Certificate of Merger was filed with

the Delaware Secretary of State, at 8:19 a.m. on March 25, 2024.113 The Merger

Agreement provides that at or before the Effective Time, New TMTG would deposit

109 Third Am. Compl. ¶ 167; see also Pl.’s Answering Br. 21-22. 110 8 Del. C. § 202(b); see supra note 106 (quoting Section 202(b)). 111 See Pl.’s Answering Br. 28-29. 112 Third Am. Compl. ¶ 68; see supra notes 30-31 and accompanying text. 113 Third Am. Compl. ¶ 110; see id. ¶ 71; Merger Agreement § 1. 23 the merger consideration with its transfer agent.114 The Second Amended Charter

was filed four minutes after the Effective Time, at 8:22 a.m. Based on this sequence,

UAV posits that the stock was “issued” (i.e., delivered to the transfer agent) before

the Lock-Up was “adopted” (i.e., when the Second Amended Charter was filed in

Delaware).

The defendants argue that UAV’s position is baseless for two reasons. First,

it improperly conflates the effectiveness and adoption of the Second Amended

Charter.115 And second, it is “based on a false distinction between when [UAV]

thinks it was issued its shares” (at the Effective Time) and “when it was actually

issued its shares” (after the Second Amended Charter was filed).116 I agree.

The defendants’ interpretation of Section 202 is the only reasonable one. The

Second Amended Charter was adopted, for purposes of Section 202, when DWAC’s

stockholders voted to approve it. UAV’s claim fails on that basis alone. Even if

adoption arguably occurred on March 25, UAV’s claim would still fail because its

114 Third Am. Compl. ¶ 69; Merger Agreement § 1.10(a) (“At or prior to the Effective Time, [New TMTG] shall deposit, or cause to be deposited, with the [Transfer] Agent the Stockholder Merger Consideration . . . .”). 115 New TMTG Defs.’ Opening Br. 16-17; see also New TMTG Defs.’ Reply Br. 7-9. 116 New TMTG Defs.’ Opening Br. 15; see also id. at 19-20; New TMTG Defs.’ Reply Br. 5-7. 24 shares were not issued until after the Second Amended Charter was filed, which I

address below in the context of UAV’s Section 151 claim.117

i. The Meaning of “Adoption”

“It is axiomatic that a statute or an ordinance is to be interpreted according to

its plain and ordinary meaning.”118 “Where a statute contains unambiguous

language that clearly reflects the intent of the legislature, then the language of the

statute controls.”119 Undefined terms “must be given their ordinary, common

meaning,” and should not be “construed as surplusage if there is a reasonable

construction which will give them meaning.”120

In Section 202(b), “adoption” is undefined and unambiguous.121 “Delaware

courts look to dictionaries for assistance in determining the plain meaning of terms

117 See infra Section II.A.2. 118 New Cingular Wireless PCS v. Sussex Cnty. Bd. of Adjustment, 65 A.3d 607, 611 (Del. 2013); see also Chase Alexa, LLC v. Kent Cnty. Levy Ct., 991 A.2d 1148, 1151 (Del. 2010) (noting that if a statute is unambiguous, the “plain meaning of the statutory language controls” (citation omitted)). 119 State Farm Mut. Auto. Ins. v. Kelty, 126 A.3d 631, 635 (Del. 2015) (quoting Hoover v. State, 958 A.2d 816, 820 (Del. 2008)). 120 Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 900 (Del. 1994); see also Wilson v. Gingerich Concrete & Masonry, 285 A.3d 445, 452 (Del. 2022) (same). 121 Pl.’s Answering Br. 30; see also 8 Del. C. § 202(b). Although there “may be more than one dictionary definition, and parties may disagree on the meaning of the definition as applied to their case,” if “merely applying a definition in the dictionary suffices to create ambiguity, no term would be unambiguous.” Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 740 (Del. 2006) (citation omitted). 25 which are not undefined . . . .”122 Black’s Law Dictionary defines “adoption” as a

“deliberative assembly’s act of agreeing to a motion or the text of a resolution, order,

rule, or other paper or proposal.”123 Merriam-Webster similarly defines adoption as

“the act or process of giving official acceptance or approval to something.”124 In

both definitions, the adoption of an item is based on a body’s agreement to or

approval of it.

The words surrounding “adoption” in Section 202(b) reinforce that the

relevant act is the agreement or approval of a body. “The canon of noscitur a

sociis requires the court to interpret words as part of the larger phrase in which they

appear.”125 The first sentence of Section 202(b) states that restrictions may be

imposed by the certification of incorporation, the bylaws, or “an agreement among

122 Cephas v. State, 911 A.2d 799, 801 (Del. 2006) (citation omitted); see also Freeman v. X-Ray Assocs., P.A., 3 A.3d 224, 227 (Del. 2010) (“Because dictionaries are routine reference sources that reasonable persons use to determine the ordinary meaning of words, we often rely on them for assistance in determining the plain meaning of undefined terms.”); cf. Andrews v. State, 34 A.3d 1061, 1063 (Del. 2011) (noting that words in the criminal code should be given their common meaning unless otherwise defined). 123 Adoption, Black’s Law Dictionary (12th ed. 2024) (defined under parliamentary law). 124 Adoption, Merriam-Webster, http://merriam-webster.com/dictionary/adoption (last visited Aug. 18, 2025). 125 Agar v. Judy, 151 A.3d 456, 473 (Del. Ch. 2017). 26 any number of security holders.”126 Each of these methods to create a restriction

requires a form of approval—by the board of directors, the stockholders, or both.127

Section 202 treats adoption and effectiveness as distinct concepts. Section

202(b) discusses the “adoption” of a restriction.128 Section 202(a), by contrast,

addresses when a restriction may be “enforced” or is “ineffective.”129 Delaware

courts must “give meaning to every word in [a] statute” and presume that “the

General Assembly purposefully chose particular language.”130 “[W]hen different

terms are used in various parts of a statute[,] it is reasonable to assume that a

distinction between the terms was intended.”131

UAV’s argument therefore finds no support in the text of Section 202. The

“adoption” of a restriction involves the agreement or approval of a body of actors.

126 See 8 Del. C. § 202(b). 127 See id. § 242(b)(1) (noting that the “board of directors shall adopt a resolution setting forth the amendment proposed” before “calling a special meeting of the stockholders”); id. § 109(a) (noting that “the power to adopt, amend, or repeal bylaws shall be in the stockholders entitled to vote[,]” but that a “corporation may, in its certificate of incorporation, confer the power to adopt . . . upon the directors”). 128 Id. § 202(b). 129 Id. § 202(a) (“A written restriction . . . if permitted by this section and noted conspicuously . . . may be enforced . . . .” (emphasis added)); id. (“Unless noted conspicuously . . . a restriction . . . is ineffective.” (emphasis added)). 130 Salzberg v. Sciabacucchi, 227 A.3d 102, 117-18 (Del. 2020) (quoting Sussex Cty. Dep’t of Elections v. Sussex Cty. Republican Comm., 58 A.3d 418, 422 (Del. 2013)). 131 Giuricich v. Emtrol Corp., 449 A.2d 232, 238 (Del. 1982) (quoting C & T Assocs. v. Gov’t of New Castle, 408 A.2d 27, 29 (Del. Ch. 1979)). 27 Applied here, the Lock-Up was adopted for purposes of Section 202(b) on March

22, 2024, when DWAC stockholders voted to approve the Second Amended Charter.

ii. UAV’s Misguided Focus on Effectiveness

UAV further submits that “under Delaware law, a charter amendment is not

enforceable against a shareholder until it becomes effective, which occurs upon

filing with the Secretary of State.”132 That point is uncontroversial.133 It is also

irrelevant.

A charter amendment’s adoption is distinct from its effectiveness upon

filing.134 An amended certificate of incorporation must be adopted before it can be

lawfully filed.135 Here, the Second Amended Charter became effective on March 25

when it was filed with the Secretary of State, which was three days after its adoption.

132 Pl.’s Answering Br. 32. 133 See 8 Del. C. § 106 (providing that a corporation’s existence begins upon the filing of the certificate of incorporation with the Delaware Secretary of State, subject to Section 103(d)); id. § 103(d) (permitting the use of future effective dates); see also New TMTG Defs.’s Opening Br. 16. 134 See, e.g., AeroGlobal Cap. Mgmt., LLC v. Cirrus Indus., Inc., 871 A.2d 428, 438 (Del. 2005) (recounting a stockholder purchase agreement in which the adoption and filing of a certificate of incorporation are listed as separate, sequential acts); cf. Waggoner v. Laster, 581 A.2d 1127, 1131 (Del. 1990) (noting that one issue presented was whether an amendment to articles of incorporation was adopted though “a valid certificate of incorporation” had been filed); Belanger v. Fab Indus., Inc., 2005 WL 1076064, at *1 (Del. Ch. May 2, 2005) (stating that a corporation “ha[d] adopted by proper shareholder vote[] a plan of dissolution . . . [which allowed it] to sell all or substantially all of the corporation’s assets once a certificate of dissolution has been filed”). 135 See 1A Fletcher Cyclopedia of the Law of Corporations § 161 (Sept. 2025 Update) (explaining that “[c]ourts have found the filing of articles of incorporation ineffectual” where the articles were “fil[ed] without adoption or authorization by a majority of 28 UAV’s misdirection is not salvaged by the precedent it relies on. The cited

cases concern a charter amendment’s effectiveness or enforceability.136 None

address the adoption of a charter amendment for purposes of Section 202(b).

incorporators”); cf. 8 Del. C. § 241(b) (“The amendment of a certificate of incorporation authorized by this section shall be adopted by a majority of the incorporators, if directors were not named in the original certificate of incorporation or have not yet been elected, or, if directors were named in the original certificate of incorporation or have been elected and have qualified, by a majority of the directors.”); id. § 245(b) (“If the restated certificate of incorporation merely restates and integrates but does not further amend the certificate of incorporation . . . it may be adopted by the board of directors without a vote of the stockholders, or it may be proposed by the directors and submitted by them to the stockholders for adoption, in which case the procedure and vote required, if any, by § 242 of this title for amendment of the certificate of incorporation shall be applicable.”); id. (“If the restated certificate of incorporation restates and integrates and also further amends in any respect the certificate of incorporation . . . it shall be proposed by the directors and adopted by the stockholders in the manner and by the vote prescribed by § 242 of this title or, if the corporation has not received any payment for any of its stock, in the manner and by the vote prescribed by § 241 of this title.”); id. § 245(c) (noting that a restated certificate of incorporation could be “adopted by the board of directors without a vote of the stockholders”). 136 Pl.’s Answering Br. 31-32 (citing cases); see Aldridge v. Franco Wyoming Oil Co., 14 A.2d 380, 381 (Del. 1940) (holding that a voting right was unauthorized because of the absence of legal authority behind a charter amendment rather than issues around its filing or adoption); Belanger, 2005 WL 1076064, at *1 (discussing when a certificate of dissolution becomes effective under 8 Del. C. § 103); Di Loreto v. Tiber Holding Corp., 1999 WL 1261450, at *7 (Del. Ch. June 29, 1999) (holding that a company was estopped from invoking Section 202 to nullify a buyback provision when it neglected to timely file and give notice of the charter amendment, causing current stockholders to rely on a prior version to their detriment); Seavitt v. N-Able, Inc., 321 A.3d 516, 550 (Del. Ch. 2024) (rejecting a corporation’s incorporation of private agreements into its charter); Henry v. Phixios Hldgs., Inc., 2017 WL 2928034, at *9 (Del. Ch. July 10, 2017) (holding that a stock restriction was invalid in part because it was not noted on the stock certificate, and acknowledging that “a stock transfer restriction may be binding on existing securities through . . . inclusion in the certificate of incorporation”). 29 Finally, UAV argues that public policy supports treating the adoption of a

charter amendment under Section 202(b) as the moment of its filing.137 UAV

suggests that filing is the pertinent event so that “shareholders have knowledge of

restrictions before acquiring their stock” and “information about the corporation [is

made] available to investors and third parties.”138 This, too, is unavailing. The point

ignores that all stockholders of New TMTG (then DWAC)—the only stockholders

entitled to vote on the Second Amended Charter—knew of the restriction when they

approved it.139

During the three days between its approval by stockholders (March 22) and

its filing (March 25), the Second Amended Charter was ineffective. It became

effective once it was filed with the Secretary of State. But it was necessarily adopted

before then.140

137 See Pl.’s Answering Br. 30-32. 138 Id. at 31-32; see also id. at 31 (arguing that to allow DWAC stockholders to adopt a charter they are “not even subject to . . . makes little sense”). 139 The Second Amended Charter also became public as an exhibit to the Certificate of Merger. See New TMTG Defs.’ Opening Br. Ex. F 140 On top of its adoption argument, UAV contends that the Lock-Up violates Section 202(b) because UAV was “issued its stock when the Certificate of Merger was filed.” Pl.’s Answering Br. 29. This is incorrect. As I discuss later in this decision, issuance means receipt—not when the shares are deposited with the transfer agent. See infra Section II.A.2. 30 b. Legitimate Business Purpose

In addition to compliance with Section 202, Delaware law requires that

restrictions on the transfer of stock be “reasonable to achieve a legitimate corporate

purpose.”141 Before Section 202’s enactment in 1967, Delaware courts upheld

transfer restrictions if they were reasonable.142 Although the passage of Section 202

created “some uncertainty” over the relevance of this requirement, the Court of

Chancery in Grynberg v. Burke confirmed that the statute was a “modern

codification” of these common law principles.143 Decades later, in Capital Group

Companies v. Armour, the court “reaffirm[ed] the holding in Grynberg that a

141 Cap. Gp., 2005 WL 678564, at *8. 142 See Lawson v. Household Fin. Corp., 152 A. 723, 728-29 (Del. 1930) (upholding a right of first refusal as reasonable and therefore valid); Greene v. E.H. Rollins & Sons, 2 A.2d 249, 251-53 (Del. Ch. 1938) (suggesting that a charter provision allowing the company to repurchase shares at net asset value might be invalid as unrelated to the company’s “successful operation”); see also Cap. Gp., 2005 WL 678564, at *5 (describing this historical approach); Capano v. Wilmington Country Club, 2001 WL 1359254, at *7 (Del. Ch. Nov. 1, 2001) (same). 143 Grynberg v. Burke, 378 A.2d 139, 142-43 (Del. Ch. 1977), rev’d on other grounds, Oceanic Expl. Co. v. Grynberg, 428 A.2d 1 (Del. 1981). Several Court of Chancery decisions after Grynberg further confirmed the reasonableness requirement implicit in Section 202. See Mitchell Assocs. v. Mitchell, 1980 WL 268106, at *2 (Del. Ch. Dec. 5, 1980) (citing Grynberg for the proposition that “a restriction on transfer is still required to be reasonable under [8] Del. C. § 202 even if in technical conformity to the statute”); Capano, 2001 WL 1359254, at *7-8 (applying the common law test to conclude that restrictions on country club share ownership were reasonable); see also supra note 144 and accompanying text. 31 reasonableness inquiry is required when restrictions on the transfer of stock are

contested.”144

UAV submits that the Lock-Up should be struck down as “unreasonable,

manifestly unjust, and serv[ing] no legitimate business purpose.”145 As the party

with the burden of proving the Lock-Up’s unreasonableness, it faces a formidable

challenge.146 The reasonableness inquiry is one “broadly deferential” to the

corporation, and the court must avoid “excessively scrutiniz[ing] the reasonableness

of the restriction.”147

144 Cap. Gp., 2005 WL 678564, at *7. This conclusion is bolstered by the legislature’s choice to leave Section 202 largely intact after Grynberg, despite making other changes to the statute. See PHL Var. Ins. v. Price Dawe 2006 Ins. Tr. ex rel. Christiana Bank & Tr. Co., 28 A.3d 1059, 1070 (Del. 2011) (“Courts should . . . interpret statutory law consistently with pre-existing common law unless the legislature expresses a contrary intent.”). Grynberg was issued in 1977, and Section 202 was subsequently amended in 1983 and 1999. See 64 Del. Laws, c. 112, §§ 19-20; 72 Del. Laws, c. 123, § 4. Section 202 was amended once more in 2017. 81 Del. Laws, c. 86, § 2. The only changes were to replace the word “sent” with “given” in Section 202(a). Id. 145 Third Am. Compl. ¶ 160; see Pl.’s Answering Br. 21-28. 146 See Cap. Gp., 2005 WL 678564, at *7; Grynberg, 378 A.2d at 143; see also Agranoff v. Miller, 1999 WL 219650, at *16-17 (Del. Ch. Apr. 12, 1999) (citing Grynberg for the proposition that “the burden of proving the unreasonableness of a restriction on the free transferability of shares is on the party attacking it”), aff’d, 737 A.2d 530, 1999 WL 636634 (Del. July 28, 1999) (ORDER). 147 Cap. Gp., 2005 WL 678564, at *8; see also Agranoff, 1999 WL 219650, at *16 (“Delaware public policy generally empowers market participants to decide for themselves whether to enter into contracts restricting their right to sell their shares.”). 32 Section 202(e) permits any “lawful” restriction on transfers of securities.148

To be lawful, a transfer restriction must not violate Delaware statutory law, or a

public policy settled by common law.149 A restriction will be upheld if it is

“reasonably necessary to advance the corporation’s welfare or attain the objectives

set forth in the corporation’s charter.”150

The allegations in the Complaint are insufficient to meet this standard. UAV

does not assert that the Lock-Up was unreasonable as a general matter. Rather, it

accepts that transfer restrictions were warranted for some Legacy TMTG

stockholders, such as Trump and current Legacy TMTG insiders. UAV merely

insists that the Lock-Up was a “bad faith” act of retaliation against it and Cohen.151

UAV suggests that the Lock-Up served no legitimate purpose because its

“practical effect” was to restrict Legacy TMTG’s minority stockholders. 152 The

148 8 Del. C. § 202(e) (“Any other lawful restriction on transfer or registration of transfer of securities, or on the amount of securities that may be owned by any person or group of persons, is permitted by this section.”). 149 See Robert S. Saunders et al., Folk on the Delaware General Corporation Law § 202.04 (7th ed. 2025-2 supp.) (“Since the statute clearly evinces a forceful legislative policy supporting needed transfer restrictions, the common law in Delaware should be liberally construed to sustain restrictions that the corporation and its stockholders deem appropriate.” (citing Folk, § 202 (1st ed. 1972)); see also Sterling v. Mayflower Hotel Corp., 93 A.2d 107, 117-18 (Del. 1952) (explaining that “lawful” does not only mean permitted by statute). 150 Cap. Gp., 2005 WL 678564, at *5. 151 See Third Am. Compl. ¶ 167. 152 Pl.’s Answering Br. 27. 33 Merger Agreement already gave DWAC the right to lock up the post-merger stock

of Trump and other Legacy TMTG insiders.153 UAV thus postulates that the

additional Lock-Up must have been designed to harm it and Cohen. It points out

that the Lock-Up was first announced in DWAC’s fourth amended Registration

Statement on February 12, 2024—after UAV’s counsel sent its January 18 letter

accusing New TMTG of making false disclosures in the Registration Statement and

Cohen served his Section 220 demand.154

UAV’s theory misapprehends the nature of the reasonableness inquiry. Under

Delaware law, transfer restrictions “need not be the least restrictive alternative that

the board could adopt. They need only be reasonable.”155 The court’s inquiry is not

whether a restriction is reasonable as applied to a specific stockholder, but whether

it is facially reasonable to achieve a legitimate corporate purpose.156

153 See Third Am. Compl. ¶ 161; see Merger Agreement 2 (Recital F); Merger Agreement § 11.1 (defining “Significant Company Holder”). 154 Third Am. Compl. ¶ 101 (“Neither the original [Form] S-4 nor the Amendments Nos. 1, 2, or 3 provide that DWAC would adopt the [] Lock-Up provisions post-[m]erger that would apply to UAV and lock-up UAV’s stock.”); see also id. ¶¶ 92, 97, 102; supra notes 47, 53 and accompanying text. 155 Cap. Gp., 2005 WL 678564, at *9. 156 See id. at *8-9 (rejecting the plaintiff’s argument that the court should consider whether a “stock transfer restriction [was] reasonable as it applie[d] to a particular individual”); see also Greene, 2 A.2d at 253 (examining whether restrictions were facially reasonable); Tracy v. Franklin, 67 A.2d 56, 59-60 (Del. 1949) (assessing the validity of a stock restriction in general, and not as applied to a particular stockholder). 34 There is no well-pleaded basis on which I can reasonably infer that the Lock-

Up unreasonably served no legitimate corporate end. Transfer restrictions on SPAC

insiders and target securityholders are common in de-SPAC mergers.157 Such

restrictions can prevent an oversupply of stock on the market after closing,

stabilizing the company’s stock price during a period of volatility.158

When target stockholders receive the combined company’s publicly traded

shares at a low-cost basis, they may sell immediately after closing to realize a quick

157 See Brown v. Matterport, 2024 WL 2745822, at *4 (Del. Ch. May 28, 2024) (describing a similar lock-up in a SPAC’s amended bylaws that applied to all target stockholders for 180 days after a business combination closed), aff’d and rev’d in part on other grounds, 2025 WL 1166116 (Del. Apr. 22, 2025) (ORDER); see also Market Trends: De-SPAC Transactions, LexisNexis (Mar. 6, 2022), https://www.lexisnexis.com /community/insights/legal/practical-guidance-journal/b/pa/posts/market-trends-de-spac- transactions (describing “notable” de-SPAC transactions, and highlighting that target stockholders were subject to transfer restrictions); SPAC Transactions – Considerations for Target-Company CFOs, Deloitte & Touche LLP & Cooley LLP, https://www.cooley.com/-/media/cooley/pdf/reprints/2020/cobranded-spac-transactions-- considerations-for-targetcompany-cfos-secured.pdf (last visited Sept. 1, 2025) (observing that “the typical lock-up period for target shareholders is 180 days from closing” of a de- SPAC); New TMTG Defs.’ Opening Br. 21 (citing sources); cf. Special Purpose Acquisition Companies: An Introduction, Harv. L. Sch. F. on Corp. Governance (July 6, 2018), https://corpgov.law.harvard.edu/2018/07/06/special-purpose-acquisition- companies-an-introduction (discussing the ubiquitousness of lock-ups in the SPAC context); Usha Rodrigues & Mike Stegemoller, Exit, Voice, and Reputation: The Evolution of SPACs, 37 DEL. J. CORP. L. 849, 873 (2013) (“Post-acquisition, sponsor shares are often subject to a lock-up period.”). 158 Cf. Initial Public Offerings: Lockup Agreements, SEC (Sept. 6, 2011), https://www.sec.gov/answers/lockup.htm (noting that companies typically impose lock-ups to ensure “that shares owned by . . . insiders don’t enter the public market too soon”); John C. Coffee, Jr. & Joshua Mitts, Can Section 11 Be Saved?: “Tracing” A Path to Its Survival, 15 HARV. BUS. L. REV. 2, 5 (2025) (“[L]ockups limit the supply of stock that can enter the market after the effective date . . . .”). 35 profit. An early sell-off by the target’s insiders and early investors risks downward

pressure on the stock price, impairing market confidence and future capital

raising.159 Lock-ups lessen this risk by creating an orderly process for SPAC insiders

and the target’s former stockholders to sell over time.160 This maintains a stable

market for the newly-public company’s stock, benefiting the corporation and all

stockholders.

The Lock-Up here bears an obvious relation to such purposes. It prevented

“Locked-Up Holders”—all Legacy TMTG stockholders—from transferring the

New TMTG shares they received as merger consideration for six months after

closing.161 The fourth amended Registration Statement explained that locking up

certain Legacy TMTG stockholders “would provide important stability to the

159 See Paul J. Shim, et al., Delaware Court of Chancery Finds Lock-Up Inapplicable in de-SPAC Transaction, Cleary Gottlieb (Jan. 20, 2022), https://www.clearymawatch.com/2022/01/delaware-court-of-chancery-finds-lock-up- inapplicable-in-de-spac-transaction/ (“Given frequent share price volatility both pre- and post-combination, lock-ups are a critical element of de-SPAC transactions . . . .”); cf. Coffee & Mitts, supra note 158, at 5 (“[L]ockups limit the supply of stock . . . increasing the likelihood of a positive runup in the stock price . . . .”); Cooley LLP, Early Lock-Up Releases: Overview and Trends, Cooley CapitalXchange (Jan. 20, 2025), https://capx.cooley.com/2025/01/20/early-lock-up-releases-overview-and-trends/ (“The theory is that, without lock-ups, existing stockholders could sell their shares shortly after the offering, potentially oversupplying the market with shares, [and] depressing the share price . . . ultimately hurt[ing] the . . . investors.”). 160 Cf. Coffee & Mitts, supra note 158, at 5 (“Lockups reassure investors that, at least for a given period of time, insiders are not bailing out, but retain significant ‘skin in the game.’”). 161 Second Am. Charter § 4.8(a). 36 leadership and governance of TMTG,” and noted that the Second Amended Charter

would contain additional restrictions.162

Even so, UAV asks that I look beneath the veneer of reasonableness to assess

whether malintent prompted the Lock-Up. It cites no basis in our law to inject a

good faith analysis into the review of a transfer restriction’s facial reasonableness.163

Even if there were, UAV cannot avoid the reality that DWAC—not Legacy

TMTG—is the entity that amended its charter to enact the Lock-Up. There is not a

single fact pleaded to suggest that DWAC undertook the Lock-Up for an illicit

motive.164 Nor are there any well-pleaded allegations that Legacy TMTG and its

directors caused DWAC to adopt the Lock-Up.165

162 Fourth Am. Form S-4 at 42. 163 UAV’s argument that the Lock-Up was adopted in bad faith forms the core of its breach of fiduciary duty claim, which I resolve below. See infra Section II.A.3. UAV also complains that considering whether transfer restrictions facially serve reasonable business purposes improperly “injects factual allegations” at the pleading stage. Pl.’s Answering Br. 38-39. Not so. The court may consider secondary authorities in assessing the prevalence of the transfer restriction. See, e.g., In re GGP, Inc. S’holder Litig., 282 A.3d 37, 56 n.97 (Del. 2022) (citing a textbook with respect to an appeal of a motion to dismiss decision); Ryan v. Gifford, 918 A.2d 341, 356 n.38 (Del. Ch. 2007) (considering public sources, including an article from the SEC’s website, on a motion to dismiss). 164 As discussed below, UAV alleges that the Merger Agreement “required DWAC and [Legacy] TMTG, with approval from both boards of directors, to agree upon a form of Amended Charter, which DWAC was required to adopt.” Third Am. Compl. ¶ 63; see infra Section II.A.3. The Merger Agreement required only that DWAC “amend and restate its Certificate of Incorporation in a form to be mutually agreed between [DWAC] and [Legacy TMTG]” to provide for the entity’s name change, the size and structure of the post-closing Board, and to remove provisions related to DWAC’s former SPAC status. Merger Agreement § 1.7. 165 See infra notes 182-185 and accompanying text. 37 UAV’s conspiracy theories attacking the Lock-Up are directed at Legacy

TMTG, which did not impose the Lock-Up. The Lock-Up’s benefits to DWAC and

its stockholders, however, are apparent from the face of the Second Amended

Charter. Under precedent and the legislative policy animating Section 202, there is

no reasonably conceivable basis to conclude that the Lock-Up is unlawful.166

2. Section 151

In Count II, UAV avers that if I conclude the Lock-Up “was adopted prior to

UAV[’s] shares being issued, the [] Lock-Up as imposed on UAV’s shares violates

8 Del. C. § 151.”167 Section 151(a), which authorizes and governs the issuance of

classes of corporate stock, provides:

Every corporation may issue 1 or more classes of stock or 1 or more series of stock within any class thereof, any or all of which classes may be of stock with par value or stock without par value and which classes or series may have such voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, as shall be stated and expressed in the certificate of incorporation or of any amendment thereto, or in the resolution or resolutions providing for the issue of such stock adopted by the board of directors pursuant to authority expressly vested in it by the provisions of its certificate of incorporation.168

166 See supra note 146 and accompanying text (citing case law explaining that it is the plaintiff’s burden to show unreasonableness). 167 Third Am. Compl. ¶¶ 172-80; see Pl.’s Answering Br. 21, 33. 168 8 Del. C. § 151(a) (emphasis added). 38 UAV believes that the statute was violated because the Lock-Up was not “clearly

and expressly set forth” in the Second Amended Charter when UAV’s New TMTG

shares were issued.169

As with its Section 202 claim, UAV’s reading of Section 151(a) is divorced

from Delaware law. UAV asserts that its New TMTG shares were issued “at 8:19

a.m. on March 25, 2024, [the Effective Time] when UAV’s pro rata share of the

[m]erger [c]onsideration was deposited with the [t]ransfer [a]gent,” which occurred

before the Second Amended Charter “was filed at 8:22 am on March 25, 2024.”170

But no New TMTG shares were issued to UAV at the merger’s Effective Time.

“Issue” means to “emit,” “send out,” or put stock in “circulation.” 171 To be

deemed issued, stock must “not only pass[] from the custody and control of the

169 Pl.’s Answering Br. 21 (“[W]hen UAV’s stock was issued, the then[-]effective Charter did not contain any stock restrictions and, therefore, no restrictions existed on UAV’s stock when it was issued.”); id. at 33 (“If Defendants are correct that the [c]harter [l]ock-[u]p was adopted on March 22, 2024, when UAV’s stock was issued upon the filing of the Certificate of Merger at 8:19 am on March 25, 2024, the then-existing and operative Charter did not include the lock-up restrictions on UAV’s stock.”). 170 Third Am. Compl. ¶¶ 175-76; see Pl.’s Answering Br. 30. 171 Anardarko Petroleum Corp. v. Panhandle E. Corp, 1987 WL 13520, at *4 (Del. Ch. July 7, 1987) (quoting Scott v. Abbott, 160 F. 573, 577 (8th Cir. 1908)); see also Saunders et al., supra note 149, § 152.05 (“The Court of Chancery has stated that stock is deemed issued when it actually or constructively comes into the possession of the stockholder by delivery to him or to some person acting as his agent.”); 11 Fletcher Cyclopedia of the Law of Corporations, supra note 134, § 5126 (“‘To issue’ means to send out, to put in circulation.”); supra notes 118-120 and accompanying text (discussing that statutes are interpreted according to the plain meaning of their terms). 39 [corporation] but also [be] delivered into the possession of the stockholder.” 172 At

the Effective Time, UAV only became “entitled to receive . . . a number of” New

TMTG shares as “[m]erger [c]onsideration.”173

The transfer agent did not—and could not—issue shares to UAV in the three-

minute window between the filing of the Certificate of Merger (i.e., the Effective

Time) and of the Second Amended Complaint. The post-merger shares were issued

after the Second Amended Charter, which “stated and expressed” the Lock-Up, was

filed.174 And whatever the timing, UAV’s shares were issued with a restrictive

legend reflecting the Lock-Up.175

Because the Lock-Up was in the Second Amended Charter when UAV

received its restricted stock, Count II is dismissed.

172 Smith v. Universal Serv. Motors Co., 147 A. 247, 249 (Del. Ch. 1929); see also Danvir Corp. v. Wahl, 1987 WL 16507, at *5 (Del. Ch. Sept. 8, 1987). Although “constructive or symbolic delivery” can satisfy the delivery requirement to issue stock, it is typically an exception for when “actual transfer of physical possession of a certificate is impractical.” McAllister v. Kallop, 1995 WL 462210, at *16 (Del. Ch. July 28, 1995), aff’d, 678 A.2d 526 (Del. 1996). That is not the case here. 173 Merger Agreement § 1.8; see also id. § 1.9 (“[A]ll shares of Company Stock issued and outstanding immediately prior to the Effective Time will automatically be cancelled and cease to exist in exchange for the right to receive the Stockholder Merger Consideration … upon delivery of the Transmittal Documents in accordance with Section 1.10 . . . .”). 174 8 Del. C. § 151(a) (requiring that “special rights, and qualifications, limitations or restrictions” on stock “shall be stated and expressed in the certificate of incorporation”). 175 Third Am. Compl. ¶ 116. 40 3. Breach of Fiduciary Duty

Count III is a breach of fiduciary duty claim against Nunes, Trump Jr., Patel,

Trump, and Scavino Jr., who served on Legacy TMTG’s Board.176 Those directors

purportedly breached their fiduciary duties to UAV by, “pursuant to an agreement

with New TMTG, caus[ing] the [Lock-Up] to be included in New TMTG’s Second

Amended Charter.”177 Doing so was purportedly a breach of the Legacy TMTG

Board’s duty of loyalty because the directors “act[ed] in bad faith and with

discriminatory and retaliatory purposes.”178

There are multiple problems with this claim, including the failure to plead its

most basic elements: (1) a fiduciary relationship and (2) a breach of the fiduciary’s

duty.179 The DWAC Board owed no fiduciary duty to UAV when the Lock-Up was

adopted. As for the Legacy TMTG Board that owed duties to UAV, the Complaint

does not mention a single action taken in connection with the Lock-Up.

First, when the Lock-Up was disclosed in DWAC’s Registration Statement

and adopted, UAV was a stockholder of Legacy TMTG. The Legacy TMTG Board

176 Id. ¶¶ 21-24, 181; see supra note 43 (explaining that UAV does not specify which directors were on the board and when). 177 Third Am. Compl. ¶ 182. 178 Id. ¶ 183. 179 Est. of Eller v. Bartron, 31 A.3d 895, 897 (Del. 2011) (“To establish liability for the breach of a fiduciary duty, a plaintiff must demonstrate that the defendant owed her a fiduciary duty and that the defendant breached it.”). 41 owed fiduciary duties to UAV. Even if it could be reasonably inferred that the Lock-

Up was adopted in bad faith,180 the DWAC Board—not the Legacy TMTG Board—

approved the Lock-Up.181

UAV’s duty of loyalty claim rests on an untenable leap. From a general

Merger Agreement clause requiring the parties to “mutually agree[]” on an amended

charter,182 UAV asks me to infer a multi-step scheme in which Legacy TMTG’s

Board proposed the Lock-Up to harm UAV and DWAC’s Board agreed to it at

Legacy TMTG’s request. The Complaint is devoid of facts to support this

narrative.183 UAV not only neglects to identify the directors who allegedly acted

disloyally, but also cites no action by any director that could constitute a breach.184

It does not even allege that Legacy TMTG and DWAC agreed to the Second

Amended Charter.

180 By making this assumption for the sake of my analysis, I am not concluding that UAV adequately pleaded bad faith. 181 See Third Am. Compl. ¶ 63. 182 Merger Agreement § 1.7; see Third Am. Compl. ¶ 63. 183 See Alston v. Admin. Off. of the Cts., 181 A.3d 614, 2018 WL 1080606, at *1 (Del. Feb. 23, 2018) (ORDER) (“Well-pleaded allegations include specific allegations of fact and conclusions supported by specific allegations of fact.”); In re Coca-Cola Enters., Inc., 2007 WL 3122370, at *2 (Del. Ch. Oct. 17, 2007) (rejecting a “bald assertion” without any facts pleaded in support as insufficient), aff’d sub nom., Int’l Bhd. Teamsters v. Coca-Cola Co., 954 A.2d 910 (Del. 2008). 184 UAV never identifies which directors were on the Legacy TMTG Board when the Lock- Up was adopted. See supra note 43. It also engages in impermissible group pleading. See Legacy TMTG Defs.’ Opening Br. 16 (citing sources). 42 Second, it was DWAC’s Board that included the Lock-Up in the Second

Amended Charter, disclosed it in the Registration Statement, and presented it to

DWAC’s stockholders for approval. At that point, UAV was a future stockholder,

and no fiduciary duties were owed to it by DWAC’s Board.185

4. Aiding and Abetting

Count IV is an aiding and abetting claim against the members of DWAC’s

Board and New TMTG. To state a claim for aiding and abetting a 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.”186

UAV alleges that “[w]ith knowledge of the fiduciary duties owed by the

[Legacy] TMTG Board to UAV, New TMTG and [the DWAC directors] actively

participated in and aided and abetted breaches of fiduciary duty by the [Legacy]

TMTG Board by, among other things, agreeing with [Legacy] TMTG to impose the

[] Lock-Up on UAV.”187 The claim fails for lack of an underlying breach. As

discussed above, UAV has not demonstrated that the members of Legacy TMTG’s

185 Anadarko, 545 A.2d at 1177 (holding that no fiduciary duties are owed to “prospective stockholders”). In re Mindbody, Inc. S’holder Litig., 332 A.3d. 349, 389 (Del. 2024) (quoting Malpiede, 186

780 A.2d at 1096). 187 Third Am. Compl. ¶¶ 188-89. 43 Board breached their fiduciary duties in connection with DWAC’s adoption of the

Lock-Up.

5. Civil Conspiracy

Count V is a civil conspiracy claim that, like the fiduciary duty and aiding and

abetting claims, stems from the imposition of the Lock-Up. A civil conspiracy claim

requires “(1) a confederation or combination of two or more persons; (2) an unlawful

act done in furtherance of the conspiracy; and (3) actual damage.”188 “[I]n the

absence of an actionable wrong, a civil conspiracy claim will fail.”189

UAV alleges that “[Legacy] TMTG, New TMTG, and their respective

directors . . . entered into a confederation and conspired with one another to impose

[the Lock-Up] in violation of Sections 202 and 151 of the DGCL and Delaware

law.”190 In its brief, UAV explains that its civil conspiracy claim “relies on the same

factual allegations underlying its aiding and abetting” claim.191 But I have rejected

UAV’s claims under the DGCL and for breach of fiduciary duty. Without an

188 AeroGlobal, 871 A.2d at 437 n.8 (citing Nicolet, Inc. v. Nutt, 525 A.2d 146, 149-50 (Del. 1987)). 189 Clouser v. Doherty, 175 A.3d 86, 2017 WL 3947404, at *9 (Del. Sept. 7, 2017) (ORDER). 190 Third Am. Compl. ¶ 193. 191 Pl.’s Answering Br. 52. 44 underlying wrong over which the defendants purportedly conspired, the conspiracy

claim likewise fails.192

B. Claims Regarding the Services Agreement

UAV’s final claims are for declaratory judgments related to the Services

Agreement. Count VI seeks a declaration that “Old TMTG approved and ratified

the Services Agreement” such that “New TMTG is now estopped from claiming that

the Services Agreement is void and unenforceable.”193 Count VII seeks a declaration

that the Services Agreement remains valid and enforceable despite The Trump

Organization’s statement that it was void.194

I dismiss those claims without prejudice for two reasons. First, a forum

selection clause in the Services Agreement requires that the claims be brought in

Palm Beach County, Florida. Second, the claims are better addressed in the pending

192 See Ramunno v. Cawley, 705 A.2d 1029, 1039 (Del. 1998) (explaining that “civil conspiracy is not an independent cause of action . . . it must arise from some underlying wrong”). 193 Third Am. Compl. ¶ 199; see also id. ¶¶ 197-201. 194 Id. ¶¶ 202-08; see supra note 22 and accompanying text. 45 1. Dismissal for Improper Venue

In addition to arguments on the merits, the defendants move to dismiss Counts

VI and VII under Court of Chancery Rules 12(b)(1) and 12(b)(3).195 The Services

Agreement contains a forum selection clause, which chooses courts in Palm Beach

County, Florida.196 “The proper procedural rubric for addressing a motion to dismiss

based on a forum selection clause is found under Rule 12(b)(3), improper venue.”197

Under Rule 12(b)(3), the Court of Chancery “will grant a motion to dismiss based

upon a forum selection clause where the parties ‘use express language clearly

indicating that the forum selection clause excludes all other courts before which

those parties could otherwise properly bring an action.’”198

a. The Forum Selection Clause

“When a contract contains a forum selection clause, this court will interpret

the forum selection clause in accordance with the law chosen to govern the

contract.”199 “Delaware courts will generally honor a contractually-designated

195 See Dkts. 148-49 (moving to dismiss the Third Amended Complaint under Rules 12(b)(1), 12(b)(3), and 12(b)(6)). 196 See infra note 208 and accompanying text (quoting the forum selection clause). 197 Baker v. Impact Hldg., Inc., 2010 WL 1931032, at *2 (Del. Ch. May 13, 2010); see also Simon v. Navellier Series Fund, 2000 WL 1597890, at *1 (Del. Ch. Oct. 19, 2000). 198 Ashall Homes Ltd. v. ROK Entm’t Gp. Inc., 992 A.2d 1239, 1245 (Del. Ch. 2010) (quoting Eisenbud v. Omnitech Corp. Sols., Inc., 1996 WL 162245, at *1 (Del. Ch. Mar. 21, 1996)). 199 Ashall, 992 A.2d at 1245. 46 choice of law provision so long as the jurisdiction selected bears some material

relationship to the transaction.”200 A material relationship may exist where a party’s

principal place of business is in the selected state.201

The Services Agreement is governed by Florida law.202 Each of the

signatories to the Services Agreement listed Florida addresses as their residences.203

The entity that the Services Agreement contemplated forming—TMTG—is

headquartered in Sarasota, Florida.204 The Services Agreement therefore has a

material relationship to Florida.

As in Delaware, “Florida courts recognize the right of contracting parties to

select and agree on a forum in which to resolve future disputes.”205 Forum selection

clauses are presumptively valid, unless the challenging party can show that

200 J.S. Alberici Const. Co. v. Mid-W. Conveyor Co., 750 A.2d 518, 520 (Del. 2000); Annan v. Wilm. Tr. Co., 559 A.2d 1289, 1293 (Del. 1989). 201 E.g., Shadewell Grove IP, LLC v. Mrs. Fields Franchising, LLC, 2006 WL 1375106, at *7 (Del. Ch. May 8, 2006). 202 Services Agreement § 23 (“This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Florida without regard to principles of conflicts of law.”). 203 See id. at 1 (listing Trump’s address as Palm Beach, Florida; Trump Media’s address as Fort Lauderdale, Florida; and UAV’s address as Fort Lauderdale, Florida). On a Rule 12(b)(3) motion, the court may consider facts and evidence outside the complaint. See In re Bay Hills Emerging P’rs I, L.P., 2018 WL 3217650, at *4 (Del. Ch. July 2, 2018). 204 See Trump Media & Technology Group Corp., Annual Report (Form 10-K) (Apr. 1, 2024) 1 (listing a Sarasota, Florida address for the company’s principal executive office). 205 Travel Exp. Inv. Inc. v. AT & T Corp., 14 So. 3d 1224, 1226 (Fla. Dist. Ct. App. 2009). 47 enforcement would be unreasonable or unjust.206 As the party seeking to avoid the

clause, UAV “must demonstrate that trial in the agreed-upon forum ‘will be so

gravely difficult and inconvenient that he will for all practical purposes be deprived

of his day in court.’”207

Enforcement often hinges on whether the forum selection clause’s terms are

mandatory or permissive. The forum selection provision clause at issue here states

that “any” disputes about the Services Agreement “shall” be resolved in Florida:

Any dispute arising from or relating to this Agreement shall be resolved in the federal courts of the United States of America for the Southern District of Florida or the courts of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida and all parties hereby expressly and irrevocably consent to the personal jurisdiction and venue of such courts.208

“[F]orum selection clauses which state or clearly indicate that any litigation must or

shall be initiated in a specified forum are mandatory.”209

206 See Manrique v. Fabbri, 493 So. 2d 437, 440 (Fla. 1986) (holding that “forum selection clauses should be enforced in the absence of a showing that enforcement would be unreasonable or unjust”); see also Ingres Corp. v. CA, Inc., 8 A.3d 1143, 1146 (Del. 2010) (“Forum selection[] clauses are ‘presumptively’ valid and should be ‘specifically’ enforced unless the resisting party ‘. . . clearly show[s] that enforcement would be unreasonable and unjust, or that the clause [is] invalid for such reasons as fraud and overreaching.” (quoting Cap. Gp. Cos. v. Armour, 2004 WL 2521295, at *3 (Del. Ch. Oct. 29, 2004))). 207 Am. Patriot Brands, Inc. v. Skip Jack APB Hldg., LLC, 320 So. 3d 322, 325 (Fla. Dist. Ct. App. 2021) (quoting McWane, Inc. v. Water Mgmt. Servs., Inc., 967 So. 2d 1006, 1007 (Fla. Dist. Ct. App. 2007)). 208 Services Agreement § 23 (emphasis added). 209 Shoppes Ltd. P’ship v. Conn, 829 So. 2d 356, 358 (Fla. Dist. Ct. App. 2002). 48 UAV’s declaratory judgment claims both “arise from” and “relate[] to” the

Services Agreement. In contrast to its claims about the Lock-Up, Counts VI and VII

solely concern the validity and enforceability of the Services Agreement. UAV was

therefore required to bring these claims in Palm Beach County, Florida based on the

clear terms of the forum selection clause.

b. Waiver

UAV does not assert that the forum selection clause resulted from fraud or

deceit, would contravene a significant public policy of Florida (or Delaware), or

would deprive it of its day in court if enforced.210 It instead maintains that the clause

was waived when Legacy TMTG filed the Sarasota Action, claiming that UAV

lacked enforceable rights under the Services Agreement. Sarasota, Florida is not in

Palm Beach County—the venue selected by the forum selection clause. But Legacy

TMTG, which filed the Sarasota Action, is not a party to the Services Agreement.

Even if Legacy TMTG could be viewed as so closely related to the Services

Agreement that it foresaw being bound by the forum clause,211 Trump may enforce

210 See Manrique, 493 So. 2d at 438, 440. 211 See Deloitte & Touche v. Gencor Indus., Inc., 929 So. 2d 678, 684 (Fla. Dist. Ct. App. 2006) (“[W]here the interests of a non-party are directly related to or completely derivative of those of the contracting party, the non-signatory is bound by the contract’s forum selection clause.”); Venus Concept USA, Inc. v. Angelic Body, LLC, 362 So. 3d 258, 264 (Fla. Dist. Ct. App. 2023) (“We are . . . guided by the factors outlined in Deloitte & Touche, which consider whether: there is a close relationship between the signatory and nonsignatories; the nonsignatories’ interests are derivative of the signatory’s interests; and 49 the forum selection clause. Like UAV, he is a party to the Services Agreement. He

did not, however, file claims in Sarasota that waived the clause.212

UAV insists that Trump should be deemed to have waived the clause because

he “controls” Legacy TMTG and must have consented to the filing of the Sarasota

Action.213 It cites no authority for the notion that a company’s actions bind its

controlling stockholder for purposes of waiving a forum selection clause.214 Legacy

TMTG is a distinct legal person from its owners.215

* * *

The Services Agreement, to which UAV and Trump are parties, contains a

mandatory forum selection clause. Legacy TMTG’s filing of the Sarasota Action

the claims involving the nonsignatories arise directly out of the agreement.”). UAV does not make this argument. I consider it for the sake of thoroughness. 212 The defendants invoke a non-waiver provision in the Services Agreement, which states that “[t]he parties understand and agree that no failure to or delay by any party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, and no single or partial exercise of any right, power, or privilege hereunder shall preclude any other or further exercise of any right, power, or privilege.” Services Agreement ¶ 24. That language addresses language by omission—not commission. It does not provide that Legacy TMTG’s filing of the Sarasota Action was a non-waiver for purposes of this suit. 213 Pl.’s Answering Br. 54-57. 214 In Delaware, the standard for proving waiver is “quite exacting.” AeroGlobal, 871 A.2d at 444. It requires “knowledge of all material facts and an intent to waive, together with a willingness to refrain from enforcing [certain] contractual rights.” Id. 215 Cf. Cargill, Inc. v. JWH Special Circumstance LLC, 959 A.2d 1096, 1109 (Del. Ch. 2008) (“Even though every stockholder of a corporation may change, the corporation maintains its own identity in perpetuity, because it is a separate and distinct legal entity from its shareholders.”). 50 did not waive the forum selection clause as to Trump, who may continue to enforce

it. Dismissal is therefore warranted under Rule 12(b)(3).

2. Dismissal in Deference to Florida

The defendants also request the dismissal or stay of this action in favor of the

Sarasota Action, citing the McWane doctrine.216 Under McWane, this court may

exercise its discretion to stay an action “when there is a prior action pending

elsewhere, in a court capable of doing prompt and complete justice, involving the

same parties and the same issues.”217 “If the foreign action is not ‘first-filed,’ the

Court will pursue an inquiry ‘akin to a forum non conveniens analysis.’”218

When this action was filed on February 29, 2024, UAV did not sue on the

Services Agreement.219 Old TMTG then filed the Sarasota Action on March 24,

2024.220 Weeks later, on April 11, UAV filed its Second Amended Complaint,

which raised the Services Agreement for the first time in Delaware.221

216 See Legacy TMTG Defs.’ Opening Br. 36-40; Legacy TMTG Defs.’ Reply Br. 29-30. 217 McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263 A.2d 281, 284 (Del. 1970). 218 Cnty of York Emps. Ret. Plan v. Merrill Lynch & Co., 2008 WL 4824053, at *2 (Del. Ch. Oct. 28, 2008) (quoting Biondi v. Scrushy, 820 A.2d 1140, 1159 (Del. Ch. 2003)). 219 See Dkt. 1. 220 See Pl.’s Answering Br. Ex. I (Sarasota Action complaint). 221 Second Am. Verified Compl. (Dkt. 81). 51 If UAV’s amended claims about the Services Agreement “relate back” to its

original complaint, then this case would be treated as first filed for McWane

purposes.222 They do not. Although UAV’s original complaint discussed the

Services Agreement as background, no count so much as mentioned the Services

Agreement.223 In seeking expedition of this case, UAV represented that it was “not

suing on the Services Agreement.”224 For McWane purposes, the Sarasota Action

was the first suit filed over the Services Agreement.

Under McWane, “Delaware courts should exercise discretion in favor of a stay

where a prior action, involving the same parties and issues, is pending elsewhere in

a court capable of doing prompt and complete justice.”225 The Sarasota Action is a

prior action regarding the Services Agreement. It involves UAV’s purported rights

under the Services Agreement—the same issues raised in Counts VI and VII here.

222 See Choice Hotels Int’l, Inc. v. Columbus-Hunt Park DR. BNK Invs., L.L.C., 2009 WL 3335332, at *6-7 (Del. Ch. Oct. 15, 2009) (noting that where the substance of a case remains the same, the “court will treat the modified action as if filed on the original date”). 223 See Dkt. 1. 224 Pl.’s Reply in Further Supp. of Mot. for Expedited Proceedings (Dkt. 31) ¶ 26 (“As Defendants know, Plaintiff is not suing on the Services Agreement, nor is TMTG a party to the Services Agreement. UAV is suing for its rightful share of TMTG stock as established by valid and enforceable Board and stockholder resolutions. Plaintiff also seeks to rescind the Dilution Scheme based on breaches of fiduciary duty.”). 225 Ingres, 8 A.3d at 1145. 52 The parties are not identical but overlap.226 Most critically, the Florida court is more

than capable of doing prompt and complete justice in addressing a contract that

selects Florida law.

UAV does not dispute that deference to the Sarasota Action is appropriate

under McWane. It argues that it would be “disorderly, inefficient, and inconsistent

with principles of comity, the underlying policy of McWane, to send this dispute

back to Florida” when the Sarasota Action was stayed in deference to Delaware.227

Circumstances were different, though, when the Florida court stayed the Sarasota

Action. This case was proceeding apace, with several claims expedited.228

The current situation is quite different. The gravamen of this case is about the

Lock-Up. Each of UAV’s claims about the Lock-Up are dismissed for failure to

state a claim. Only two claims about the Services Agreement remain to be

resolved.229 In the Sarasota Action, there are multiple causes of action focused on

the validity of the Services Agreement.

There is no compelling reason for UAV’s claims about the Services

Agreement to proceed here rather than in Florida. The Florida court has a strong

226 See Davis Int’l, LLC v. New Start Gp. Corp., 2005 WL 2899683, at *2 (Del. Ch. Oct. 27, 2005) (discussing that “substantial or functional identity” of the parties may be sufficient to support a stay under McWane). 227 Pl.’s Answering Br. 57; see id. at Ex. M (“Florida Stay Order”). 228 See Florida Stay Order 4-5. 229 To be clear, I have not considered whether these claims are viable. 53 interest in resolving a dispute between parties with their principal places of business

in Florida that involves issues of Florida law about a contract for services to be

performed in Florida. Delaware has a comparatively slight interest in the matter.

The outcome is the same under the Cryo-Maid test.230 The relative ease of

access to proof and compulsory process for witnesses favor Florida, where most of

the relevant parties are located. Practical matters also favor Florida since most of

the evidence and persons with knowledge are likely located there. The applicable

law likewise favors Florida, since Florida law governs the Services Agreement. And

the Sarasota Action is already pending; it is merely stayed.

Accordingly, Counts VI and VII are appropriately dismissed without

prejudice in deference to the Sarasota Action.

III. CONCLUSION

Counts I through V are dismissed with prejudice under Rule 12(b)(6) for

failure to state a claim. Counts VI and VII are dismissed without prejudice under

Rule 12(b)(3) due to the forum selection clause in the Services Agreement and,

230 See Gramercy Emerging Mkts. Fund v. Allied Irish Banks, P.L.C., 173 A.3d 1033, 1036-37 (Del. 2017) (describing the Cryo-Maid factors: “(1) [t]he relative ease of access to proof; (2) the availability of compulsory process for witnesses; (3) the possibility of the view of the [premises], if appropriate; . . . (4) all other practical problems that would make the trial of the case easy, expeditious and inexpensive; . . . (5) whether or not the controversy is dependent upon application of Delaware law which the courts of this State more properly should decide than those of another jurisdiction”; and (6) “the pendency or nonpendency of a similar action in another jurisdiction” (citation omitted)). 54 alternatively, in deference to the Sarasota Action. Count VIII is dismissed with

prejudice as waived.

The Complaint is therefore dismissed in its entirety.