       IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

LILLY LEA PERRY,                                       )
                                                       )
       Plaintiff,                                      )
                                                       )
            v.                                         )   C.A. No. 2017-0290-JTL
                                                       )
DIETER WALTER NEUPERT and CÔTE                         )
D’AZUR ESTATE CORPORATION,                             )
                                                       )
       Defendants,                                     )
                                                       )
            and                                        )
                                                       )
THE BGO FOUNDATION,                                    )
                                                       )
       Relief Defendant.                               )
                                                       )
------------------------------------------------------ )
CÔTE D’AZUR ESTATE                                     )
CORPORATION,                                           )
                                                       )
       Counterclaim Plaintiff,                         )
                                                       )
            v.                                         )
                                                       )
LILLY LEA PERRY,                                       )
                                                       )
       Counterclaim Defendant.                         )


                                MEMORANDUM OPINION

                              Date Submitted: February 5, 2019
                              Date Decided: February 15, 2019

Jeremy D. Anderson, FISH & RICHARDSON P.C., Wilmington, Delaware; Counsel for
Lilly Lea Perry.

Norris P. Wright, William M. Kelleher, Phillip A. Giordano, GORDON, FOURNARIS &
MAMMARELLA, P.A., Wilmington, Delaware; Counsel for The BGO Foundation.
Douglas D. Hermann, James H. S. Levine, PEPPER HAMILTON LLP; Counsel for Côte
d’Azur Estate Corporation.

Dieter Walter Neupert, pro se.

LASTER, V.C.
       The parties dispute who owns the equity of defendant Côte D’Azur Estate

Corporation. The entity came into existence in 2001 as a single-member, member-

managed, Delaware limited liability company named Côte D’Azur Estate LLC. Non-party

Israel Igo Perry was its sole member. Israel died in 2015, survived by plaintiff Lilly Lea

Perry (his wife) and non-parties Tamar and Yael Perry (their daughters).1 Lilly contends

that Israel was the LLC’s sole member when he died and that his interest in the LLC passed

to his estate. The disposition of the estate is currently subject to probate proceedings in the

United Kingdom.

       In 2016, as part of the events giving rise to this litigation, defendant Dieter Walter

Neupert filed a certificate of conversion with the Delaware Secretary of State that

converted the company into a corporation. For simplicity, this decision refers to the entity

in both manifestations as the “Company.” Neupert also filed a new certificate of

incorporation for the Company that authorized 10,000 shares of stock, and he prepared

minutes and a share certificate which purported to document the fact that all of the

Company’s shares were owned by The BGO Foundation (the “Foundation”).2 Lilly asserts




       1
        To avoid confusion, this decision uses first names to refer to members of the Perry
family. Some of the exhibits that the parties introduced into evidence refer to Lilly as
“LLP” or “LP” and Israel as “IIP” or “IP.” Israel also used the alias “Ivor Friedman,” which
appears at times in the exhibits.
       2
        The Foundation originally was named the Ludwig-Polzer-Hoditz Foundation. In
2015, it changed its name to The BGO Foundation. Both of these names and their
abbreviated versions, such as “LPH” and “BGO,” appear in the exhibits. The name change
does not matter for purposes of this decision.

                                              1
that Neupert had no authority to take these actions.

       The Foundation is a private Liechtenstein foundation, which is an entity roughly

analogous to a Delaware statutory trust. The Foundation is one of over thirty entities

comprising Israel’s complex estate plan, which he and his advisors called “the Structure.”

Neupert, a Swiss attorney, was the chief architect of the Structure. Non-party Lopag Trust,

a Swiss commercial trust company, formed and manages many of the entities in the

Structure, including the Foundation. Principals and employees of Lopag, including non-

party Dominik Naeff, served on the Foundation’s governing board of trustees and acted on

its behalf. Neupert was a co-founder of Lopag, and he served on its governing board when

he took the actions that Lilly challenges.

       Lilly originally sued the Company and Neupert, seeking to invalidate the conversion

and establish her beneficial ownership of the Company’s equity in her capacity as Israel’s

sole heir under his last will and testament. She subsequently moved for and received leave

to add the Foundation as a relief defendant. The Foundation responded by moving to

dismiss the complaint for lack of personal jurisdiction. I deferred ruling on the

Foundation’s motion, holding that an evidentiary hearing was necessary to resolve whether

personal jurisdiction existed.

       A Delaware court can exercise personal jurisdiction over a non-resident co-

conspirator who knew or had reason to know that the conspiracy had a Delaware nexus.

Lilly proved that the Foundation and Neupert conspired to seize the Company’s equity,

thereby extinguishing her beneficial interest and engaging in the tort of conversion. Lilly

proved that as part of that conspiracy, Neupert caused corporate documents to be filed with

                                             2
the Delaware Secretary of State, establishing the necessary Delaware nexus. Lilly proved

that Naeff and his colleagues at Lopag, acting on behalf of the Foundation, helped Neupert

develop his plan and assisted him in his efforts. These activities support the exercise of

personal jurisdiction over the Foundation as Neupert’s co-conspirator.

       In response to Lilly’s contentions, the Foundation and its co-defendants claim they

could not have engaged in a conspiracy because (i) the Foundation already owned all of

the equity in the Company long before Neupert acted in 2016, and (ii) the Foundation

granted Neupert a power of attorney in February 2016, executed in its capacity as the

Company’s sole member, which authorized Neupert to act as he did. The defendants

ground their claim on a deed of assignment that Israel executed on May 1, 2013 (the “Deed

of Assignment”), which recites that he was assigning his equity interest in the Company

and three other entities to the Foundation.

       The Deed of Assignment did not effectuate a transfer of Israel’s member interests

to the Foundation, nor could it have resulted in the Foundation becoming the Company’s

sole member. The Deed of Assignment documented Israel’s intent to make an inter vivos

gift. Israel never completed the gift, both because he never delivered his member interests

to the Foundation, and because the Deed of Assignment was not an effective donative

instrument. When signing the Deed of Assignment, Israel did not intend to accomplish an

immediate transfer of his equity; he wanted to evaluate the tax implications of the move

before completing it. The transfer was never completed. Instead, Israel revoked the gift in

December 2013 when he decided not to complete the transfer because of adverse tax

consequences in France.

                                              3
       Assuming counterfactually that Israel had intended for the transfer of interests to be

immediately effective, the transaction could not have resulted in the Foundation becoming

the Company’s sole member. The transfer at most would have resulted in the Foundation

becoming an assignee. Moreover, under the Delaware Limited Liability Company Act (the

“LLC Act”) as it existed in May 2013, the transfer would have resulted in the Company

having no members, causing it to dissolve. Along this alternative timeline, the Foundation

could not have become the Company’s sole member and could not have authorized

Neupert’s actions.

       The evidence proves that the Foundation’s representatives knew that the Deed of

Assignment was never implemented. Despite this knowledge, they caused the Foundation

to participate fully in Neupert’s scheme to assert control over the Company. They did so

in an effort to coerce Lilly into accepting the disposition of Israel’s property that Neupert

and Lopag wanted to implement. As part of that scheme, the Lopag representatives helped

Neupert manufacture documents to substantiate the Foundation’s claim of ownership.

Naeff and his colleagues at Lopag also sought to obtain a legal opinion attesting to the valid

issuance of the shares. In an effort to secure a favorable opinion, Naeff and a Lopag

colleague misled the law firm by withholding material information. When the law firm

balked at issuing the opinion, Neupert claimed he could provide a power of attorney from

the Foundation that gave him the power to act. In late September or October 2016, Lopag

and Neupert manufactured the power of attorney and backdated it to February 5, 2016,

ostensibly before Neupert filed the certificate of conversion and certificate of

incorporation. In this court and elsewhere, the Foundation has aligned itself with Neupert,

                                              4
asserted that it owns all of the Company’s equity, and argued in favor of the effectiveness

of the Deed of Assignment, the power of attorney, the conversion, and other manufactured

corporate documents. The evidence shows that these claims are false.

       Under the conspiracy theory of jurisdiction, the Foundation is properly subject to

personal jurisdiction in this court as a relief defendant for purposes of claims challenging

its ownership of the Company’s equity. The Foundation’s motion to dismiss for lack of

personal jurisdiction is denied.

                          I.       FACTUAL BACKGROUND

       During a two-day evidentiary hearing, the parties introduced a total of 234 exhibits,

and two fact witnesses testified live. The parties lodged two depositions and stipulated to

the introduction of two affidavits from a third witness in lieu of live testimony. They

submitted thirty stipulations of undisputed fact.3

       For purposes of the hearing, two competing adverse inferences were in play.

Because Neupert refused to be deposed and declined to appear at the hearing, I ruled that I




       3
         Citations in the form “[Name] Tr.” refer to witness testimony from the evidentiary
hearing. Citations in the form “[Name] Dep.” refer to witness testimony from depositions.
Citations in the form “BX — at —” refer to exhibits that the Foundation introduced during
the evidentiary hearing. Citations in the form “PX — at —” refer to exhibits that Lilly
introduced. Pages are designated by the last three digits of the control number. The parties
provided translations of PX 25, 93, 94, 98, 101, 102, 103, 104, 106, 109, 110, 111, 113,
122, 129, 131, and BX 5. See Dkt. 187. Quotations from these exhibits are drawn from the
translations. In cases where I have edited the translation for clarity, I have provided the
original text. Citations in the form “Stip. ¶ —” refer to stipulated facts. See PX 136; BX
61. As discussed in the Legal Analysis, I have found that Lilly is not bound by one of her
stipulations. See Part II.A.1., infra.


                                              5
could draw inferences in Lilly’s favor and adverse to the Foundation based on any relevant

testimony that Neupert reasonably could have offered.4 Because Lilly failed to timely

review Israel’s home computer and to produce responsive documents that it contained, I

ruled that I could draw inferences in the Foundation’s favor and adverse to Lilly based on

information that the computer reasonably could have contained.5

       The burden of proof to establish facts supporting jurisdiction rests with the party

asserting that jurisdiction exists.6 The standard of proof is more flexible. “If the motion is

decided on affidavits, the court should require only that plaintiff make out a prima facie

case.”7 Eventually, however, the plaintiff must prove the facts necessary to establish




       4
           Dkt. 173 at 68–71.
       5
           Dkt. 175 at 31.
       6
         Werner v. Miller Tech. Mgmt., L.P., 831 A.2d 318, 326 (Del. Ch. 2003); see Hart
Hldg. Co. v. Drexel Burnham Lambert Inc., 593 A.2d 535, 539 (Del. Ch. 1991) (Allen, C.)
(explaining that plaintiff “bear[s] the burden to establish defendant’s amenability to suit, if
that issue is raised by a motion”); Newspan, Inc. v. Hearthstone Funding Corp., 1994 WL
198721, at *1 (Del. Ch. May 10, 1994) (Allen, C.) (“On a motion that seeks to adjudicate
the court’s power over the person of a defendant, plaintiff bears the burden of showing by
evidence some basis upon which a fact finder could find that the factual predicate for
jurisdiction has been proven.”). Some federal courts have held that “[o]nce a plaintiff has
established minimum contacts, the burden shifts to the defendant to show the assertion of
jurisdiction would be unfair.” Wein Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir.
1999); see 5B Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, & A. Benjamin
Spencer, FEDERAL PRACTICE AND PROCEDURE § 1351 n.27 (3d ed. & Supp. Nov. 2018)
(collecting other cases). Delaware courts have not adopted the burden-shifting approach.
       7
           Hart Hldg., 593 A.2d at 539.


                                              6
personal jurisdiction “by a preponderance of the evidence.”8 If the court holds an

evidentiary hearing on jurisdictional issues, then the court may make findings based on a

preponderance of the evidence standard, or a court may use a less onerous “likelihood of

success” standard.9 In my view, a court would use the lower standard if the record presented

at the evidentiary hearing provided some support for the assertion of jurisdiction but fell

short of a preponderance. By asserting jurisdiction on a preliminary basis under the

likelihood-of-success test, the court permits the case to proceed through discovery so that

the court can make more definitive findings at trial.

       This decision makes findings of fact based on a preponderance of the evidence.

Using this standard is warranted given the thoroughness and persuasiveness of the factual

record, which predominantly consists of contemporaneous emails that provide a detailed

account of the parties’ actions. Its use also recognizes the substantial overlap between key

facts relevant to the personal jurisdiction analysis, such as the validity of the Deed of

Assignment, and the ultimate merits of the case. It is fair to the parties to apply this standard

because, except for Neupert, all of the parties participated fully in the evidentiary hearing




       8
         Id.; see Travelers Indem. Co. v. Calvert Fire Ins. Co., 798 F.2d 826, 831 (5th Cir.
1986) (“However, ‘at any time when the plaintiff avoids a preliminary motion to dismiss
by making a prima facie showing of jurisdictional facts, he must still prove the
jurisdictional facts at trial by a preponderance of the evidence,’ or, as otherwise stated,
‘[e]ventually, of course, the plaintiff must establish jurisdiction by a preponderance of the
evidence, either at a pretrial evidentiary hearing or at a trial.’” (quoting Data Disc, Inc. v.
Sys. Tech. Assocs., 557 F.2d 1280, 1285 n.2 (9th Cir. 1977) and Marine Midland Bank,
N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981))).
       9
           Newspan, 1994 WL 198721, at *3 n.8.

                                               7
and in the discovery leading up to it. Applying this standard is also fair to Neupert, because

he could have participated, but chose not to. Moreover, for purposes of the issues litigated

at the evidentiary hearing, Neupert’s interests aligned with those of the other defendants.

In addition, the law firm that represented the Company at the hearing had represented

Neupert from the start of the case until April 6, 2018, seven weeks before the evidentiary

hearing, and on May 11, 2018, submitted a letter to the court from Neupert.

       As the party asserting that the Foundation is subject to jurisdiction, Lilly bore the

burden to prove the necessary jurisdictional facts. Because the Deed of Assignment

reflected an inter vivos gift, the Foundation, as donee, bore “the burden of establishing, by

clear and convincing evidence, all facts essential to the validity of the purported gift.”10

A.     The Structure, The Villa, And The Company

       During his lifetime, Israel accumulated significant wealth. To protect his wealth and

minimize its tax burden, Israel moved the bulk of his assets into the Structure—a web of

more than thirty entities domiciled in jurisdictions around the world.11

       The chief architect of the Structure was Neupert, a Swiss attorney and senior partner

at Neupert Vuille Partners, a law firm based in Zurich, Switzerland. 12 Neupert describes

himself as “an advocate specializing in aviation, banking, tax and cross-jurisdictional




       10
            Estate of Reed v. Grandelli, 2015 WL 1778073, at *3 (Del. Ch. Apr. 17, 2015).
       11
            See Naeff Tr. 78; BX 6; PX 20 at ‘151–52; PX 25; see also BX 5; BX 7.
       12
            Stip. ¶ 3.


                                              8
corporate law in Switzerland.”13

       Other key contributors to the Structure included Dominik Naeff, Louis Oehri, and

Ann Naeff-Oehri. They are principals of Lopag, which is an acronym for Louis Oehri and

Partners AG.14 Neupert co-founded Lopag, held shares in the firm, and served as a member

of its governing board until November 18, 2016, when he resigned from the board and sold

his interest.15

       One of Israel’s assets was La Treille, a villa in the south of France (the “Villa”). To

acquire the Villa and hold title to it, Israel caused the Company to be formed on May 1,

2001.16 Its limited liability company agreement, also dated May 1, 2001, established a

single-member, member-managed, Delaware limited liability company.17 Israel was its




       13
            Dkt. 33 Ex. 3 ¶ 1.
       14
          See Naeff Tr. 7-8 (explaining that in 2009, he joined Lopag and “started to work
for the family business of my father-in-law”). See generally Lopag, www.lopag.li/en/ (last
visited Feb. 11, 2019). Some documents spell Naeff as “Näff.” For consistency, this
decision uses Naeff.
       15
            See Dkt. 33 Ex. 3 ¶ 43.
       16
         Stip. ¶ 9. The certificate of formation suggests it was formed on April 17, 2001,
but the parties stipulated to a formation date of May 1. PX 1 at ‘028–29; see also PX 2.
The difference is immaterial.
       17
            PX 1 at ‘024-26.


                                              9
sole member.18 Later in May 2001, the Company acquired the Villa.19

B.     The Deed Of Assignment

       In mid-April 2013, Israel asked Neupert, Naeff, and Oehri to meet in Tel Aviv “in

order to discuss the reorganization of the [F]oundation” and other estate-planning issues.20

Israel was living under house arrest, so the meeting had to take place at his apartment.21

According to public documents, Israel had been convicted of “embezzl[ing] more than

£110m from a pension and insurance scheme that he set up in Israel in 1983.”22

       In preparation for the meeting, Lopag updated the governing documents of the

Foundation.23 At the time, the members of the Foundation’s board of trustees were Naeff,




       PX 1 at ‘024 (“Mr. Israel Perry (the ‘Member’) is the sole member of the
       18

Company.”).
       19
            See PX 2.
       20
         Naeff Tr. 11; see BX 3 (email dated April 24, 2013, confirming arrangements for
meeting).
       21
            Naeff Tr. 13.
       22
         David Connett, Israel Fraudster Fights UK Attempt to Seize Assets, Independent
(Mar. 18, 2012), https://www.independent.co.uk/news/uk/crime/israeli-fraudster-fights-
uk-attempt-to-seize-assets-7576433.html; see id. (“The scheme was designed to exploit a
deal between the then West Germany and Israel to permit eligible Israelis to receive a
German state pension. Some 30,000 people signed up to it, including many who survived
Holocaust death camps such as Auschwitz.”).
       23
         See BX 2 (Foundation bylaws referring to “the statutes of [the Foundation] dated
30.04.2013”); see also BX 5 (email dated April 30, 2013, from French attorney advising
Neupert about reporting requirements for “a trust with French connections”). As noted, a
Lichtenstein foundation is roughly analogous to a statutory trust. See Neupert Tr. 9 (“The
BGO Foundation . . . is comparable to a trust.”); BX 18 (describing the Foundation as
“similar” to a trust). The “statutes” are its constitutive document, analogous to a trust

                                            10
Oehri, and Markus Giger, a financial officer with Lopag.24 Also in preparation for the

meeting, Lopag prepared a series of documents for Israel to sign. Many of them would

transfer aspects of his property to or among the various entities comprising the Structure.25

          In one of the anticipated moves, Israel would transfer the Company’s equity to the

Foundation.26 In preparation for the Tel Aviv meeting, tax counsel warned Neupert and

Naeff that if the Foundation became the owner of the Company on or before June 15, 2013,

it would have adverse tax consequences in France for the 2013 tax year.27

          Neupert, Naeff, and Oehri flew to Tel Aviv on April 30, 2013.28 On May 1, Neupert,




certificate or, for a corporation, the certificate of incorporation. The fact that the Bylaws
refer to the “statutes” as dated April 30, 2013, suggest that the Foundation may have been
formed in anticipation of the Tel Aviv meeting. BX 2. Naeff, however, testified that he had
been a director of the Foundation since 2011. Naeff Tr. 7. I therefore infer that the
Foundation’s governing documents were amended or restated in anticipation of the Tel
Aviv meeting. See BX 7 (agenda for Tel Aviv meeting referring to “renovation and
expansion of the existing structure”).

         See BX 2 at ‘106. At the time of the evidentiary hearing, the members of the
          24

Foundation’s board of trustees were Naeff, Giger, Stefan Metzler, and Rupert Neudorfer.
Naeff Tr. 8. Metzler and Neudorfer are affiliated with Lopag. Id.
          25
               See BX 11 (email collecting and sending the many documents signed during the
visit).
          26
         See BX 6 (agenda for Tel Aviv meeting); BX 7 (same); see also Naeff Tr. 13
(agreeing that Israel may have mentioned the transfer in advance of the meeting).
          27
         See BX 5 (Neupert sharing an email from French tax counsel with Naeff that
explained that if a “trust owns any French situs assets (with the exception of financial
investments)” before June 15, 2013, then the trustees of the trust would be subject to
heightened reporting requirements).
          28
               BX 4.


                                               11
Naeff, and Oehri met with Israel in his apartment.29

       During the meeting, Israel signed a document titled “Deed of Assignment.” In its

entirety, it stated:

       The Undersigned, Israel I. Perry, born 23 April 1942, Israeli Passport No.
       10922443 herewith assigns the entire share capital of the following
       companies

       1.       Greetnwin.com Inc, Delaware/USA
       2.       Solid Virgin Islands Ltd, BVI
       3.       Cote d’Azur Estate LLC, Delaware/USA
       4.       The Heritage Collection

       as well as

                       all the pieces of art listed in the ARTLID List
                               (pending approval by SOCA of the
                               items contained in their Chattel List)

       to the LUDWIG POLZER-HODITZ FOUNDATION, LI-9491 Ruggell

       a Foundation according to Liechtenstein Law

       The assignee herewith accepts the aforementioned assignment

       Ruggell, 1st May 201330

Naeff and Oehri signed for the Foundation.31



       29
            Stip. ¶ 14; Naeff Tr. 12.
       30
         BX 8; see BX 11 at ‘182 (attaching Deed of Assignment as one of “the documents
signed during the last visit in Israel”).
       31
         At the evidentiary hearing, the parties disputed the provenance of the Deed of
Assignment. In August 2016, when Neupert falsely claimed to have rediscovered the Deed
of Assignment (which he had known about all along), he wrote in two emails that he
remembered typing it himself in Israel’s apartment on Israel’s computer. See PX 103; PX
98 at ‘971. Building on Neupert’s emails, Naeff testified during the evidentiary hearing
and Oehri averred in an affidavit that Neupert drafted the Deed of Assignment in Israel’s

                                                 12
      After the meeting ended, Naeff took the original back to Liechtenstein and kept it

in his office.32 On May 14, Naeff’s secretary emailed Israel a copy of the executed Deed

of Assignment along with other documents signed during the meeting in Tel Aviv.33

      Although Naeff testified during the evidentiary hearing and Oehri averred in an



apartment on Israel’s computer. See Naeff Tr. 107; BX 63 ¶ 2(e); see also Naeff Tr. 13–
14. Lilly disputed this account, and I do not find it convincing. For one, the re-discovery
of the Deed of Assignment was itself a false claim, and Neupert’s emails are replete with
other dubious assertions. For another, it seems much more likely that the Deed of
Assignment was drafted in advance. Neupert, Naeff, and Oehri are careful, document-
focused people. During their visit to Tel Aviv, they obtained signatures on numerous
documents, and no one has suggested that the others (which are similar in form to the Deed
of Assignment) were drafted on Israel’s computer. See BX 11 (collecting documents signed
during the Tel Aviv meeting). The transfers also appear to have been planned in advance,
rather than something Israel thought of in Tel Aviv and asked Neupert to document on the
fly. See BX 5; BX 6; BX 7. Neupert, Naeff, and Oehri notably took other steps in advance
of the meeting, such as revising the Foundation’s governing documents and obtaining tax
advice on the transfers. See BX 2; BX 5. The advance preparation of the Deed of
Assignment also explains why the signature block says “Ruggell,” which is the town where
Lopag has its home office. As with other documents that Lopag prepared, that notation
reflects where the Deed of Assignment was created. See BX 6. For their part, the defendants
have not been able to explain why a reference to Ruggell would appear on a document
drafted in Tel Aviv.

       It does appear that Neupert edited the Deed of Assignment and other pre-drafted
documents during the meeting. See PX 138–39 (screen shots of eight versions of file titled
“Deed of Assignment” on Israel’s desktop); PX 140–147 (versions of document titled
“Deed of Assignment” reflecting variations from final version). In any event, it does not
matter for the purposes of determining the validity or effectiveness of the Deed of
Assignment whether the document was drafted and signed in Tel Aviv, or prepared in
Ruggell, edited in Tel Aviv, and then signed there. The Deed of Assignment was not an
effective transfer because of other factors.
      32
           Naeff Tr. 16.
      33
        See BX 10 (Israel requesting documents); BX 11 (Naeff’s assistant sending
documents, including Deed of Assignment).


                                            13
affidavit that they believed the Deed of Assignment effected an immediate transfer of the

member interests in the Company from Israel to the Foundation, 34 the contemporaneous

evidence tells a different story. Those documents show that Israel, Neupert, Naeff, and

Oehri did not intend for the signing of the Deed of Assignment to implement an immediate

transfer, because they wanted to avoid any adverse tax consequences for the Foundation

during the 2013 tax year.35 They believed that completing the transfer would require

additional steps, and they planned to complete those steps after June 15.

C.     Israel Decides Not To Complete The Transfer.

       On June 14, 2013, just before the key date for tax reporting in France, Naeff emailed

Israel to start the process of formally effectuating the transfers contemplated by the Deed

of Assignment.36 He explained that he needed a “direct contact to the local representative

(Trust Company or lawyer) that can assist us in doing the necessary [sic].”37

       After not hearing back from Israel, Naeff sent the same email on June 25, 2013, to




       34
          See BX 59 ¶ 6; Naeff Tr. 26–29, 37; see also id. at 26 (describing the actions
taken after signing the Deed of Assignment as “solely an administrative process”). But see
id. at 113 (Naeff: “I didn’t really know how an LLC functions.”).
       35
            See BX 5.

        BX 13 (“We would like to register the following shares based on the Deed of
       36

Assignment,” listing the Company, Greetnwin, Solid Virgin, and Heritage).
       37
            Id. (original in bold and all caps).


                                                   14
Jennifer Risse, Israel’s assistant in the United States.38 He followed up on July 1, then again

on July 16.39 On August 8, Naeff asked Risse to have the Company’s registered agent

“provide the necessary documents (e.g. share transfer agreement)” to complete the

transfer.40

       On October 1, 2013, Risse put Naeff in touch with Augustin Partners, Israel’s tax

counsel in the United States.41 Naeff asked them for help completing the transfers.42 They

“resigned shortly thereafter.”43

       Later that month, Risse told Naeff that she was “going to need the Trust Documents

regarding . . . Cote D’Azur” and the other entities “in order to do the share transfer.”44

Naeff replied that his assistant would provide the information.45 Risse arranged for the law

firm of Wiggin and Dana LLP to begin representing Israel “in connection with the transfer

of [his] ownership interests in Cote D’Azure” and the other entities addressed in the Deed




       38
         BX 14 at ‘388; Stip. ¶ 17 (“Jennifer Risse was Mr. Perry’s assistant in the United
States up until Mr. Perry’s death.”).
       39
            BX 14 at ‘387.
       40
            Id.
       41
            BX 16; see Naeff Tr. 29 (describing Augustin Partners as “tax counsel”).
       42
            See BX 16 (“Can you support us in changing the shareholder / directors?”).
       43
            Naeff Tr. 31.
       44
            BX 17.
       45
            BX 18.


                                              15
of Assignment.46 No one at the Wiggin firm ever spoke directly with Israel.47 The Wiggin

firm eventually prepared a set of draft documents to implement the transfer of the

Company’s equity, consisting of (i) a statement of assignment of Israel’s member interest

to the Foundation, (ii) a letter to the Company from Israel advising the Company about the

Deed of Assignment and the statement of assignment, and (iii) an amendment to the

Company’s LLC agreement to reflect the Foundation as a new member.48

       On November 5, 2013, Naeff checked in with Risse about the status of the transfer,

which still had not been completed.49 When Naeff followed up a week later, Risse told him

that she was giving the attorneys “all the information” and that “[i]t’s going to take some

time.”50 Throughout November and early December 2013, Naeff continued to follow up

with Risse.51



       46
         PX 5 at ‘372; see Stip. ¶ 15 (“Mr. Perry first contacted Wiggin and Dana LLP
through Jennifer Risse, on October 14, 2013”); id. ¶ 18 (“Jennifer Risse was a point of
contact for Wiggin and Dana’s representation of Mr. Perry and served as a conduit for
communications and legal advice between Mr. Perry and Wiggin and Dana.”).
       47
            Stip. ¶ 16.
       48
            Stip. ¶ 21; see BX 21.
       49
         BX 20 (email from Naeff to Risse: “How far are the attorneys with the transfer of
shares of . . . COTE D’AZUR . . .”).
       50
            Id.
       51
          PX 8 (email dated November 28, 2013, from Naeff to Risse: “Please tell me how
far they are. Who are the attorneys in charge and why does it take that long?”); BX 22
(email dated December 6, 2013, from Naeff to Risse: “[W]here are we with the transfer of
shares.”); see also PX 11 (email dated December 10, 2013, from Naeff to Neil Duggan,
another of Israel’s advisors, asking for help completing the documents: “[W]e would

                                            16
      Finally, on December 6, 2013, Risse circulated the documents from the Wiggin firm

to both Naeff and Israel. She asked Israel to “look them over and let me know if they are

good.”52

      Israel never executed the documents.53 Naeff followed up with Risse on December

11, 2013, but Israel still had not approved them.54 On December 23, Naeff emailed Israel

directly: “Based on the Deed of Assignment, signed on 01 May 2013, both, Greetnwin.com

INC and Cote D’Azur Estate [sic] should have been transferred to [the Foundation]. Is

there any reason from your side not to execute this transactions [sic]?”55 Israel seemed to

approve transferring the Company’s equity, responding: “There is no reason why not to

transfer the cote d’azure [sic] shares. We are checking now, weather [sic] the transfer of

GnW shares would be considered as a tax event in the USA.”56 But subsequent documents




appreciate if this could be finished after 6 months of continuous efforts. Do you have
concrete plans to visit US? Eventually this could help to increase pace.”).
      52
           BX 21.
      53
           Stip. ¶¶ 23–26; Naeff Tr. 132.
      54
         BX 23 (email dated December 11, 2013, from Risse to Naeff: “I have not received
an okay from Mr. P. yet.”).
      55
         BX 23. During the evidentiary hearing, Naeff testified that he was asking in this
email “whether this transfer should be—should be canceled.” Naeff Tr. 127. That
testimony inverts the obvious meaning of the email. It was not credible.
      56
         BX 24. Naeff testified at the evidentiary hearing that he interpreted Israel’s
statement to mean that the Deed of Assignment had been “immediately effective.” Naeff
Tr. 40. Were that the case, then there would not have been any need for further steps, and
Naeff would not have kept trying to complete the transfer. See, e.g., BX 25 (email dated

                                            17
establish that Israel decided not to complete the transfer to avoid adverse tax consequences

in France.57

D.     The Status Of The Company At Israel’s Death

       Israel died on March 18, 2015. At the time of his death, no further action had been

taken to implement the transfer of the Company’s equity. As noted, Israel had decided not

to complete the transfer to avoid tax consequences in France, and he never signed the

documents that the Wiggin firm prepared.




February 25, 2014, from Naeff to Duggan stating “Transfer of Côte D’Azur Estate LLC . .
. still not finalized. See assignment agreement, dated 01.05.2013. Still being progressed.”).
       57
          See BX 26 (email dated March 28, 2015, from Naeff: “This is [sic] assignment is
known to us, but it was never executed as far as we are aware. And I’m glad about it with
respect to Cote d Azure since reporting obligations in France (relevant due to the Villa in
France) became very strict “); PX 27 (email dated September 17, 2015, from Risse: “Mr.
Perry was the sole member and this was done for tax reasons. . . . Regarding transferring
the shares to the Trust. I have attached his draft documents which we never went any further
with per IP.”); see also PX 25 at ‘058 (email dated August 28, 2015, from Neupert:
“According to French law it is absolutely legal for the Delaware company to be [part of the
Structure]—IIP simply wanted to save the 3% yearly flat tax and therefore [identified
himself as] the ultimate beneficiary”; translated from “Nach französischem Recht ist es
absolut legal, wenn die Delaware Gesellschaft in einer Struktur eingebunden ist - IIP wollte
einfach die 3% jährliche Flat Tax aparen und hat sich deshalb als Ultimate Beneficiary
geoutet”); PX 94 at ‘554 (email dated July 18, 2016, from Naeff: “Until his death the settlor
was the sole shareholder of Côte d’Azur LLC, Delaware, an entity that holds a property in
France. At some point the plan was to bring this company into one of the trusts (and the
[Letter of Wishes] also provided for that). Since France does its best (taxes, reporting etc.)
to torpedo such structures, this idea was dismissed.”); PX 103 at ‘617 (email dated August
10, 2016, from Naeff: “IIP endowed the Cote d’Azur shares to the Foundation. Initially we
had no access and later on we did not implement it due to the consequences in France.”);
Naeff Tr. 171–72. The Company never listed the Foundation as its owner on any of the its
tax filings. See BX 29; BX 44; PX 79.


                                             18
       When Israel died, his immediate family consisted of his wife Lilly and their two

daughters, Tamar and Yael.58 Israel named Lilly as his sole heir in his will, and his estate

would be subject to probate in the United Kingdom (the “UK Estate”). Israel’s will named

Neupert as his executor,59 but because of disputes that later arose between Neupert and

Lilly, Neupert was never appointed to that role.60

       Under Israel’s complex estate plan, only personal property that Israel owned at his

death would pass under his will. Israel had transferred all of his other property to the

Structure. Control over the transferred property rested with the advisors who controlled the

entities in the Structure. To specify what he hoped they would do with the property, Israel

dictated a document called the “Letter of Wishes.”61 The advisors were not legally bound

to follow the Letter of Wishes, but as a business matter they would attempt to fulfill their

client’s requests.62

       After Israel’s death, Lilly, Tamar, and Yael wanted to know what would happen to

the Villa, which represented approximately twenty percent of the family’s wealth.63 In the




       58
            Stip. ¶ 2.
       59
            BX 15 at ‘178.
       60
            Naeff Tr. 159.
       61
            Stip. ¶ 4; see PX 19.
       62
            See Naeff Tr. 64.
       63
            See Naeff Tr. 94–95.


                                            19
Letter of Wishes, Israel had expressed a desire for the Villa to be transferred to a trust for

Lilly’s benefit.64 Approximately one week after Israel’s death, however, a lawyer

representing Tamar found a copy of the Deed of Assignment. He asked Naeff about it.65

On March 28, 2015, Naeff responded, copying Neupert:

       This is [sic] assignment is known to us, but it was never executed as far as
       we are aware. And I’m glad about it with respect to Cote d Azure since
       reporting obligations in France (relevant due to the Villa in France) became
       very strict in the meantime and we have to plan the transfer into THE LIZA
       TRUST carefully now. Who can inform us about the actual
       shareholders/directors of Cote d Azure?66

At the evidentiary hearing, Naeff testified that by “never executed” he meant “that this

transfer has not been completed or finalized.”67 That is consistent with the evidentiary

record before Israel’s death.



       64
          See PX 19 at 454. The Letter of Wishes described a series of trusts that had
received portions of Israel’s property. See PX 19 at ‘450–51; Lilly Tr. 266; Naeff Tr. 66.
The Foundation has argued that this case should be moot because Israel transferred the
equity to a trust for Lilly, and the Foundation claims the trust has the “same potential
beneficiaries as does the Foundation.” Dkt. 182 at 26; see Naeff Tr. 55 (“The circle of
potential beneficiaries in the trust and in the foundation are identical.”). Delaware respects
distinctions among entities, and it is not possible for this court to ignore the distinction
between a trust for Lilly’s benefit and the Foundation. Moreover, the key distinction is not
between the Foundation and the trust, but rather between the Foundation and the UK Estate.
If the Company’s equity is part of the UK Estate, then the parties with a beneficial interest
in the Company’s equity will include Israel’s creditors, who would have priority over
Lilly’s residual interest.
       65
          BX 26 at ‘870 (email dated March 27, 2015 from Tamar’s attorney with the
subject line: “herewith is an assignment of Cote d Azure and Greetnwin - pls check”).
       66
            Id.
       67
            Naeff Tr. 53.


                                             20
      Shortly thereafter, Naeff circulated a chart of the Structure. He did not know where

to put the Company, writing “??? TRUST.”68 He did not assert that the Foundation owned

the Company’s equity. In August 2015, Naeff circulated an updated version of the chart.

This time he listed the Company as owned by “IIP {personally}.”69

      Based on their conclusion that Israel owned the Company’s equity when he died

and that it passed to the UK Estate, Lopag representatives repeatedly told Lilly that the

Villa was her responsibility. While alive, Israel personally paid for the maintenance

expenses of the Villa.70 After his death, Lilly asked Naeff and other Lopag representatives

to have the Foundation cover the maintenance expenses.71 They consistently told her that

the Foundation did not own the Company, could not take any action with respect to the

Villa, and would not cover any expenses.72



      68
           PX 20 at ‘151–52.
      69
           PX 21 at ‘033; see Naeff Tr. 201.
      70
           Naeff Tr. 68; Lilly Tr. 236.
      71
         See BX 27 at ‘441 (email dated July 7, 2015, from Lilly’s accountant requesting
a top-up of Lilly’s account and explaining that Lilly has been forced, since, “to pay the
French bills” out of her personal funds); see also PX 96 (redacted email chain between
Naeff and Neupert following up on Lilly’s email).
      72
          See PX 23 (email dated August 17, 2015, from Neupert to property manager,
copying Naeff: “[W]e should not forget that formally all agreements concerning the Villa
should be concluded by the owner, ie. Cote d’ Azur Real Estate LLC, Delaware . . .
Formally the late Mr. Perry had declared to be the sole sharholder [sic] of the company, so
– from a legal point of view – the shares in the Company fall under the UK Probate.”); PX
26 (email dated September 17, 2015, from Naeff to Monsenego, Neupert, and others: “La
Treille belongs to the estate”); PX 36 (email dated November 23, 2015, from Neupert to
Tamar, Naeff, and a property manager noting that the Company belongs to the “personal

                                               21
E.     The Threat Posed By The UK Probate Proceedings

       After Israel’s death, Neupert and the principals of Lopag attempted to carry out the

desires that Israel expressed in the Letter of Wishes.73 They hoped to broker a global

settlement among Lilly, Tamar, and Yael that would achieve that result.74 But Neupert

recognized that the probate process threatened the family’s ownership of the Villa. Because

Israel had owned the Company’s equity personally when he died, the equity was part of

the UK Estate and subject to the claims of Israel’s creditors, including a class action seeking

to recover millions on behalf of the pension funds that Israel had been convicted of




assets of IIP”); PX 37 (email dated November 25, 2015, from Neupert to Tamar, copying
Naeff, Yadlin, and Duggan and explaining that “[t]he assets [of Israel] certainly include
the shares in Côte d’Azur Real Estate LL.C. [sic]”); PX 38 (email dated November 25,
2015, from Neupert to Tamar noting that the Company was “held privately by your
father”); PX 14 at ‘645 (email dated December 15, 2015, from Naeff to Tamar: “La Treille
is held by Cote d’Azur Real Estate and a[s] such part of the estate. We are neither
shareholders nor directors, so we can only act based on goodwill of the involved.”); PX 99
at ‘928 (email dated August 1, 2016 from Naeff-Oehri to the property administrator:
“Maybe you are not aware that there is still no agreement between the Trusts and Lilly -
therefore (and as Lilly has been declared to be the owner of La Treille towards the French
Tax Office) would you be so kind to tell her that she is personally responsible for the
maintenance costs of the Villa.”); see also Naeff Tr. 69. At times, Lopag provided some
funds to maintain the Villa from another entity in the Structure. See BX 31; BX 35; BX 37;
PX 39; PX 44; Naeff Tr. 68–69.
       73
            See PX 98; Naeff Tr. 15.
       74
         See Naeff Tr. 55 (explaining that “not all family members agreed with the letter
of wishes”); id. at 202 (“Between March 2015 and the summer of 2017, these settlement
talks were taking place. And some of the survivors were not willing to accept the letter of
wishes.”).


                                              22
defrauding.75 Having the Company’s equity pass through the UK Estate would also result

in significant tax liabilities.

       Neupert wanted to claim that the Company’s equity was not part of the UK Estate

but rather part of the Structure. In August 2015, he asked Naeff to find documents that

would enable Neupert to “show that [the Company] was somewhere in the [S]tructure.”76

Later that month, Neupert told Naeff that they needed documentation that would enable

them to appoint a new director for the Company who could issue equity to show that the

Company was part of the Structure.77 Naeff agreed that they needed someone with authority

to issue equity, and he asked whether Neupert could sign the necessary documents as

Israel’s executor under the will.78 Neupert responded that if he signed the necessary

documents in his capacity as executor, then they could not avoid having the equity become




       75
            See PX 92 at ‘563 (citing a class action).
       76
            PX 24 at ‘643.
       77
          See PX 25 at ‘060 (“How far have you gotten with the documentation of Côte
d’Azur Estates LLC – after all, we need a new director and would possibly have to bring
the shares into [the Structure].”).
       78
          Id. (“In the U.S., we have so far concentrated on Greetn’win und Solid ISG
Capital US, because these companies are part of the structures controlled by us. In terms
of Cote d’Azure Estates LLC, the question is who is authorized to sign resolutions or a
transfer of shares. Can you do that in your function as executor? Purely formally, we now
know how changes of directors and shareholders work in Delaware and we could prepare
the documents. In case the shares are being transferred, the tax consequences in France will
definitely be a topic.”).


                                               23
part of the UK Estate.79

       At this point, Naeff remembered the Deed of Assignment and suggested that it

provided a way to create a document trail that would place the Company within the

Structure:

       I see a starting point here. On [May 1, 2013], IIP signed an assignment of
       Côte d’Azure Estates LLC to the Foundation. Therefore, the Foundation
       could also appoint a new director. However, I believe that that would have
       tax consequences in France. It is well known that the rules there are very
       strict.80

Neupert agreed that Israel had never implemented the transfer because of the tax

consequences in France.81 But he thought using the Deed of Assignment seemed promising




       79
           See id. at ‘059 (“Since it was IIP’s idea to [move] the properties into the
[S]tructure, we can simply issue new shares to [the Foundation] or one of the trusts (to be
signed by the new director); I cannot act in this connection as the executor, because they
the shares would become part of the estate and, in accordance with the U.K. last will, would
automatically become the property of Lilly. In France we could still declare Lilly as [the
ultimate beneficial owner], once the settlement is signed – the date for the meeting between
Zeev Scharf with Lilly’s new attorney has just been postponed from August 31 to
September 11”; translated from “Nachdem die Idee von IIP ja war, dass die Liegenshaften
in die Struktur eingebunden warden sollten, könnten wir einfach neue Shares auf BGO oder
einen der Trusts asstellen (durch den neuen Director zu unterzeichnen), als
Testamentsvollstrecker kann ich nicht aktiv warden, da die Aktien sonst Bestandteil des
Nachlasses würden. In Frankreich können wir immer noch Lilly als WB angeben, wenn
einmal der Vergleich unterzeichnet ist – das Datum für das Treffen von Zeev Scharf mit
dem neuen Anwalt von Lilly bei uns wurde soeben vom 31. August auf den 11. September
verschoben.”).
       80
            Id. at ‘058.
       81
          See id. (“According to French law it is absolutely legal for the Delaware company
to be [part of the Structure] – IIP simply wanted to save the 3% yearly flat tax and therefore
[identified himself as] the ultimate beneficiary.”).


                                             24
and asked for a copy. 82 Naeff sent him a .pdf version.83

       After this exchange, Naeff and Neupert evaluated how to use the Deed of

Assignment to claim that the Company was not part of the UK Estate. As part of this

process, in September 2015, Naeff obtained from Risse the documents that the Wiggin firm

had prepared to effectuate the transfer of the Company’s equity. Risse confirmed that the

transfer had not been completed:

       I have attached the documentation that I have passed around for Cote d’Azur.
       There wasn’t a director, Mr. Perry was the sole member and this was done
       for tax reasons.

       If you recall, I had spoken to someone at Wiggin and Dana, Mark Kaduboski,
       in December of 2013. Regarding transferring the shares to the Trust. I have
       attached his draft documents which we never went any further with per IP.84

Naeff immediately forwarded Risse’s email and the attachments to Neupert. The

Foundation redacted the text of Naeff’s email.

       Naeff and Neupert also evaluated what ownership options within the Structure

would be optimal from a tax perspective. They believed that once they deployed the Deed

of Assignment to remove the shares from the UK Estate, then they could document




       82
          See id. (“[W]ould you still have a copy of the [Deed of Assignment] for me (I
probably prepared it myself at the time in Tel Aviv)?”; translated from “hattest Du mir
noch eine Kopie der Widmung vom 01.05.2013 (wahrscheinlich habe ich die damals sogar
selber in Tel Aviv aufgesetzt)?”).
       83
          See id. (email from Naeff to Neupert: “You will find the [Deed of Assignment] in
the attachment”; translated from “Die Widmung finds du im Anhang.”).
       84
            PX 27 (emphasis added).


                                            25
whatever internal ownership allocation they wished, as long as the family members

agreed.85

F.     Interactions With The French Lawyers

       For help on the tax questions, Naeff and Neupert contacted Julien Monsenego, a

lawyer with Olswang France LLP, who had advised Israel on tax matters involving the

Company.86 Naeff described various ownership allocations that Israel’s surviving family

members might agree to and asked about the tax consequences. He wrote:

       With respect to the ownership of the LLC the situation is as follows:

       IIP was the sole member of the LLC according to the LLC - documentation
       available to us. But there is an assignment agreement from 01.05.2013 as
       well in which IIP assigned his shares in the LLC to a foundation. From my
       point of view we should focus on the feasible future options now and then
       decide what needs to be done to document the transfer properly.

       Starting point: until his demise IIP was reported as the UBO [“Ultimate
       Beneficial Owner”] of the LLC

       What would be the one-off and future (tax-) consequences if the ownership
       of the LLC would change to:

       a) The heirs (e.g. 40% to his wife and 30% / 30% to his both children)

       b) To the foundation or to a Trust (discretionary)

       c) To the foundation or to a Trust (with named beneficiaries)



       85
          See PX 25 at ‘058 (“Following the execution of the settlement between the Israeli
attorneys that will hopefully take place on September 11, we can then proceed to the tax
optimization, for example by declaring Lilly as the beneficiary to the tax authorities instead
of IIP, but internally making sure the property remains with the family.”).
       86
         See id. at ‘059 (describing Monsenego as “the tax advisor for Cote d’Azure
Estates LLC in France”).


                                             26
       I think these are ultimately the options. Furthermore would there be a benefit
       to transfer ownership of La Treille from the LLC to a SCI [i.e. a French real
       estate investment company]? At the end we need a solution that is 100%
       compliant to the legislation in France.87

Notably, Naeff proposed taking a malleable approach towards ownership. He felt the

advisors should “focus on the feasible future options now and then decide what needs to

be done to document the transfer properly.”

       Unlike Naeff and Neupert, Monsenego and his colleagues at Olswang cared about

the historical facts and were not comfortable manufacturing a different ownership

allocation. After receiving Naeff’s email, the Olswang lawyers asked for confirmation that

the Company’s equity had been transferred to and registered with the Foundation. 88 Naeff

drafted a proposed response, which he sent to Neupert. It stated: “IIP assigned on 01 May

2013 the LLC to the foundation but the transfer has never been registered in a register of

members or similar according to our knowledge.”89 After consulting with Neupert, Naeff

did not send his response. Instead he told Olswang that he would respond to their questions

after consulting with Lopag’s lawyers.90




       87
         PX 28 at ‘672; see Naeff Tr. 62 (explaining that “during the settlement talks, many
options were discussed”).
       88
          Id. at ‘670 (“We understand from your email below that the shares in the LLC
have been transferred in May 2013 to a Liechtenstein foundation. Has the transfer been
registered in the shareholders’ registry (or other similar document) of the LLC?”).
       89
            Id. (original text is entirely capitalized).
       90
            BX 33 at ‘302.


                                                  27
       One month later, on October 20, 2015, Naeff finally responded to Olswang. He

abandoned any reliance on the Deed of Assignment, stating flatly: “IIP was the sole

shareholder of Cote D’Azur Estates LLC until his demise in March 2015.” 91 On October

26, 2015, Neupert followed up with Olswang and confirmed Naeff’s representation.92

G.     The French Tax Audit

       In March 2016, French tax authorities began auditing the Company. Olswang

represented the Company.

       The Company’s tax filings in France had always identified Israel as the ultimate

beneficial owner of the Company’s equity. To respond to the French government’s

inquiries, Olswang needed a certification confirming that this representation had been true

in 2013 and 2014. 93 Neupert claimed that it was impossible to certify that Israel had owned

the Company’s equity because the “files were lost (hidden somewhere in a bankruptcy

courthouse).”94 As a solution, he proposed obtaining a certificate under false pretenses

from a Delaware registered agent:



       91
         Id. at ‘301. Lopag’s advisors prepared the response at a meeting the previous day.
PX 30 at ‘160.
       92
           PX 32 (“Formally 100% of the shares in [the Company] were held by the late Mr
Perry . . . . Pending the execution of his Last Will, the shares now belong to the community
of heirs.”); accord PX 46 at ‘115 (email dated February 29, 2016, from Neupert: “[I]t was
discovered that the widow of Mr Perry [, Lilly,] will inherit 100% of the shares of the
Company owning La Treille according to Mr Perry’s Last Will.”).
       93
            See PX 53 at ‘473, 475.
       94
            Id. at ‘472.


                                            28
      [A]s I do not have the grant of authorisation from the British Probate Court,
      the only way around was to convince the new registered agent in Delaware,
      The Company Corporation, that I am the Executor of the Last Will and
      therefore the legitimate new Director of Cote d’Azur (fortunately in
      Delaware they do not know anything about UK probate procedure).95

Neupert had started this process in September 2015 when he reached out to the registered

agent to obtain a Certificate of Good Standing.96 When doing so, he claimed to be the

“executor of the Last Will of Mr Israel Perry,” even though this issue was being contested

in the probate proceedings and Neupert had never been (and never was) appointed to that

role.97 In March 2016, he again approached the registered agent and again claimed falsely

that he was the “Executor of Mr Perry’s Last Will.”98

      Olswang needed to respond to the French tax authorities by the end of March 2016,

but Neupert expected it would be a few weeks before he could obtain documentation from

Delaware. As a substitute, Neupert offered to provide “a letter from me addressed to

[Monsenego] in my capacity as the Executor of the Last Will that IP was the only

shareholder of Cote d’Azur Estate LLC from its incorporation until [his] death.”99 After




      95
           Id.
      96
         See PX 29. The Lopag advisors were aware of Neupert’s actions. PX 30 at ‘160
(minutes of meeting among Lopag advisors dated October 19, 2015: “Company currently
not in good standing. D. Neupert in contact with registered agent in Delaware.”)
      97
           PX 29 at ‘575; see Naeff Tr. 149.
      98
           PX 54 at ‘298.
      99
           PX 59; see PX 60.


                                               29
Monsenego expressed concern about alerting the French tax authorities to Israel’s death,

Neupert offered to provide “a confirmation of the ownership of Mr Perry in my capacity

as Director of Cote D’Azur Estate LLC,”100 even though he knew that he did not have any

role with the Company. Facing the deadline, Monsenego sent the tax authorities a letter

from Neupert stating that Israel owned the Company’s equity during 2013 and 2014.101

      As part of this process, Neupert circulated a document he had received from the

registered agent in Delaware.102 It was a resolution appointing Neupert as manager of the

Company (he claimed it appointed him as a director).103 The signature line read, “Lilly

Perry[,] Member.”104

      Tamar objected, complaining that Neupert had no authority to declare that Lilly

owned the Company.105 Neupert told her that Lilly had to be listed as the owner because




      100
            PX 63.
      101
          See PX 69 at ‘986–87; PX 70 at ‘761. In May 2016, Olswang asked Neupert to
“confirm that [the Company] was not contributed to the [Foundation].” BX 43 at ‘976.
Neupert confirmed that Israel “was indeed the owner of the shares until his death.” BX 43
at ‘974. Neupert copied Naeff on the email.
      102
            PX 65.

        Id. at ‘880. The resolution was a standard form document. It ignored the fact that
      103

the Company was a member-managed LLC.
      104
            Id. (formatting altered).
      105
            PX 68 at ‘533, 535.


                                           30
she was the sole heir under Israel’s will.106 The dispute continued for more than a week,

during which Neupert maintained that the Company’s equity was part of the UK Estate.107

H.     The Rift Between Neupert And Lilly

       Ever since Israel’s death, Neupert and Lopag worked to broker an agreement among

Lilly, Tamar, and Yael that would resolve their competing claims to Israel’s assets and

fulfill as nearly as possible the desires Israel expressed in the Letter of Wishes.108 By spring

2016, a division had emerged among the members of Israel’s immediate family, with Yael

on one side and Lilly and Tamar on the other. Neupert and Lopag aligned themselves with

Yael. Other advisors sided with Lilly and Tamar.109

       To resolve one part of the dispute, Neupert tried to reach agreement on the

Company’s ownership. In substance, he proposed that Lilly receive title to the Villa, but

commit that ownership would pass equally to Tamar and Yael when she died. The family

members’ use of the Villa and their responsibility for maintenance costs would be governed

by the Letter of Wishes.110

       As part of his efforts to advance this proposal, Neupert repeatedly asked Lilly to



       106
             Id. at ‘532.
       107
             See PX 68; PX 73; PX 119.
       108
           See Naeff Tr. 55–56 (explaining that “not all family members agreed with the
letter of wishes” and describing efforts to achieve a settlement).
       109
             See Naeff Tr. 54, 63–64, 75–76; PX 102.
       110
             PX 74.


                                              31
sign the resolution from the Delaware registered agent in which she purported to act as sole

member of the Company to appoint Neupert as manager.111 Lilly refused to sign.112

I.     Neupert Takes Control Of The Company.

       After Lilly’s refusal, Neupert seized control of the Company. He first emailed the

registered agent, telling them: “We would like to transform the LLC into a corporation, so

instead of a member we would have a 100% shareholder. Would you be so kind as to

prepare the necessary forms?”113

       On June 30, 2016, Neupert caused a certificate of conversion to be filed with the

Delaware Secretary of State that converted the Company from an LLC into a

corporation.114 He also caused a certificate of incorporation for the Company to be filed

that authorized the issuance of up to 10,000 shares of common stock.115

       Neupert next informed Olswang that the family members and their advisors “were




       111
             PX 78; see PX 77; PX 83; BX 45.
       112
             See PX 83.
       113
             PX 85 (formatting altered).
       114
             Stip. ¶ 28.
       115
          Id. ¶ 30. According to minutes of a board meeting dated July 1, 2016, Neupert
and Tanja Tandler, one of his personal assistants, acted as the sole directors of the Company
to appoint Neupert as President. They then issued 10,000 shares of the Company’s stock
to the Foundation. Id. Neupert signed a stock certificate in the name of the Foundation. See
PX 87; see BX 46. As discussed below, the evidence convinces me that the board resolution
and stock certificate were not prepared until December 2016, at which point they were
backdated to July 1.


                                             32
not able to decide whether Lilly Perry should be the Sole shareholder of [the Company].”116

He then sent Olswang “extracts of the Delaware Commercial Registry showing that the

LLC has been transformed into a Corporation.”117 He added: “[A]ll the shares are held by

me as Executor of the Last Will (until the UK probate procedure has come to an end).”118

       Monsenego questioned Neupert’s claims:

       You stated that you are starting with the probate procedure now. In other
       words, you have not currently been confirmed as executor of late Mr Perry.
       I simply do not have the information that would be required to mention you
       as the sole shareholder of the LLC. In addition, to mention you personally as
       shareholder of the LLC would contradict the declaration that Lilly Perry is
       the sole shareholder of the LLC which we already made to the French tax
       authorities for the purposes of the 3% tax. Should you insist to be mentioned
       as sole shareholder I would have to consult with beneficiaries.119

Neupert threatened Monsenego that if he filed a tax declaration listing Lilly or Tamar as

the owner of the Company, “this will be considered as a criminal act.”120

J.     Neupert And Naeff “Discover” The Deed Of Assignment.

       Neupert believed that he could coerce Lilly into going along with the actions he had

taken. On July 15, 2016, he summarized the plan in an email to Yael, Naeff, and other

advisors in their faction: “We have to convince Lilly . . . that If [sic] she does not cooperate




       116
             PX 86 at ‘620.
       117
             PX 89 at ‘121.
       118
             Id.
       119
             PX 91 at ‘201.
       120
             Id. at ‘200.


                                              33
she might get the Assets (Bank Accounts in London, La Treille shares) minus Liabilities

(NIS 69mio Class Action) but nothing from the [Letter of Wishes].”121 At the evidentiary

hearing, Lilly testified that Neupert had threatened to deprive her of any money from the

Structure.122

       On July 18, 2016, a lawyer representing Lilly and Tamar emailed Naeff, copying

Neupert, to complain about Neupert’s actions.123 Naeff forwarded the letter to Hugo Sele,

a lawyer who represented various entities in the Structure, and explained that Israel had

owned the Company’s equity when he died:

       Just for the sake of completeness. Until his death the settlor was the sole
       shareholder of Côte d’Azur LLC, Delaware, an entity that holds a property
       in France. At some point the plan was to bring this company into one of the
       trusts (and the [Letter of Wishes] also provided for that). Since France does
       its best (taxes, reporting etc.) to torpedo such structures, this idea was
       dismissed. As I see it, Côte d’Azur LLC is clearly part of the estate, and Dr.
       Neupert, as the executor, surely has the task of taking care of it. I don’t see
       any reason for LOPAG to respond to [the lawyer’s] (threatening) letter.124




       121
          PX 92 at ‘564; see also PX 93 (email dated July 15, 2016, from Neupert to Giger
and Naeff: “As far as you know, are there still other stocks (similar to Côte d’Azur) that
IIP personally held and that are therefore [deemed to be] located in London . . . ? They will
then of course go to Lilly – after all, she doesn’t get anything else!”; translated from “gibt
es Deines Wissens noch andere Aktien (ähnlich der Cote d'Azur) die IIP persönlich
gehalten hat und die demnach als in London gelegen zu qualifizieren sind . . . ? Die gehen
dann natürlich an Lilly - aber sie bekommt ja sonst nichts !”).

        See Lilly Tr. 247 (“[H]e told me if I don’t sign it, he was not going to give me
       122

any money.”).
       123
             See PX 94 at ‘557 (referring to letter).
       124
             Id. at ‘554–55; see also Naeff Dep. 48 (identifying Hugo Sele).


                                                34
Sele agreed that the Company’s equity was part of the UK Estate, making Lilly and

Tamar’s objections an issue for Neupert rather than for Lopag and the Foundation.125

       On August 5, 2016, Lilly and Tamar’s attorney sent another letter to Neupert,

threatening to hold him responsible for any damages resulting from “the transformation of

the LLC in a Corp which you directed and your apprehension of the shares were made

without power and without authorization.”126 Neupert conferred with Naeff and Sele about

whether he could rely on the Letter of Wishes as a source of authority for his actions, but

they agreed that it would not suffice.127

       Without any other options, on the morning of August 10, 2016, Neupert asked Naeff

about the Deed of Assignment.128 Naeff told him that Israel had signed the Deed of

Assignment, but that it had never been implemented because of the “consequences in

France.”129 Neupert proposed to invoke it anyway.130



       125
             PX 94 at ‘554 (“Agreed! As Lopag I would not react.”); accord PX 101 at ‘494.
       126
             PX 99 at ‘928.
       127
             See PX 99 at ‘926–27.
       128
          PX 103 at ‘617 (“Were the Cote d’Azur’s holdings (shares) actually endowed by
IIP to the structure [sic] or was that forgotten at the time – after all, we know in the
meantime that a request in the [Letter of Wishes] cannot be interpreted as an endowment,
with the result that the shares are today part of the official estate.”).

         Naeff Tr. 171–72; see PX 103 at ‘617 (“IIP endowed the Cote d’Azur shares to
       129

the Foundation. Initially we had no access and later on we did not implement it due to the
consequences in France.”).
       130
          See PX 98 at ‘971–72 (email from Neupert to Naeff and Sele: “This is great – I
did seem to remember that I myself typed this [Deed of Assignment] in Tel Aviv (IIP’s PC

                                             35
       Later that afternoon, Neupert emailed Yael and Gal Levita, an attorney for the

Foundation.131 His email read:

       Surprise - we just found the Original of the Assignment from May 2013 (I
       remember that I typed it myself, because IPs PC wanted to write from right
       to left)

       So the situation with the Delaware Corp is now clear:

       1. The shares belong to the Foundation and I am acting as CEO (nothing to
       do with the Executor - Therefore not falling under the UK probate )

       2. As the Foundation has no Protector the Trustee may act as they think fit

       3. Based on the LoW wie [sic] might offer Lilly some sort of usufruct and


always wanted to type from right to left). We can now distinguish two phases: 1. The [Deed
of Assignment], i.e. I will issue the shares and deliver them to you (and, based on a power
of attorney [signed] by the Foundation, I will be able to act in the future). In France, nothing
will change for the moment, since in the 3% declaration IIP [disclosed] himself as [ultimate
beneficial owner] and we now provisionally declared Lilly. In the U.K. that means that the
shares will definitely not fall under the probate. 2. Then it must only be [examined] whether
we (as trustees and protectors) can take the responsibility for transferring the shares to the
Liza Trust in accordance with the [Letter of Wishes] or whether they should formally
remain with the Foundation because of tax implications. The new situation will surely be
a main point in the negotiations with Yossi regarding the settlement!”; translated from “Das
ist hervorragend – ich glaubte doch, mich zu erinnern, dass ich diese Widmung in Tel Aviv
selber getippt hatte (der PC von IIP wollte doch immer von rechts nach links schreiben)[.]
Wir können nun 2 Phasen unterscheiden: 1. Die Widmung von 2013, dh. Ich werde die
Aktien ausstellen und Euch einliefern (und in Zukunft Aufgrund einer Vollmacht der
Stiftung agieren können) In Frankreich ändert das im Moment nichts, da sich IIP ja in der
3% Erklärung als WB geoutet Hatte und wir nun provisorisch Lilly deklariert haben 2.
Alsdann ist lediglich zu prüfen, ob wir es (als Trustees and Protektoren) verantworten
koennen, die Aktien gemäss dem LoW an den Liza Trust zu übertragen oder ob sie wegen
der Steuerkonsequenzen formell bei der Stiftung bleiben sollen Die neue Situation wird
sicher in den Verhandlungen mit Yossi betreffend das Settlement Einen Hauptpunkt
darstellen !”). Yossi represented Lilly in the negotiations. See BX 43 at ‘974; see also PX
92; PX 98.
       131
             See Naeff Tr. 167.


                                              36
       continue to pay the Maintenance, if she fulfills the conditions of the
       settlement (to be renegotiated ) - such a Solution would also be in line with
       the French 3% Tax Declaration that Lilly is the Beneficiary

       4. If the shares remain with the Foundation there will be no adverse Tax
       Consequences in France Until Lilly passes away

       The beauty is that Yossi will immediately realize that Lilly may not expect
       any favours from Tami but only from Dominik - which will probably make
       her shift her loyalty to the Board of the Foundation (The Body that decides
       when she might use the property).132

Neupert copied Naeff on the email, and Naeff remained complicitly silent regarding

Neupert’s counterfactual claim that the Deed of Assignment had just been discovered. At

the evidentiary hearing, Naeff could not explain why Neupert would claim they had just

discovered the Deed of Assignment when Naeff had it in his possession since Israel signed

it, and when Neupert and Naeff had discussed it repeatedly during the ensuing years.133

K.     The Legal Opinion

       To bolster their newly embraced claim that the Deed of Assignment had validly

transferred the equity of the Company to the Foundation, Neupert and Naeff sought a legal



       132
           PX 103. Sele questioned whether the transfer had been completed and whether
Neupert could rely on it. See PX 98 at ‘970–71. Neupert took a pragmatic view. He did not
think Lilly could afford to challenge the Deed of Assignment, because the litigation would
be costly and uncertain and a successful challenge would mean that the equity would end
up in the UK Estate, where it would be subject to the claims of Israel’s creditors. See PX
98 at ‘969–70; id. at ‘967; see also id. at ‘970 (“What would be the result if the family were
to prevail? Exactly what Tami wants to avoid, namely that her sister receives at least 25%
of the shares as her property – and during the many years of litigation among the claimants
(with many legal opinions regarding the law in the U.K., Delaware, Israel and France as
well as conflict of law rules) the Foundation would rent the villa to third parties!!!”).
       133
             See Naeff Tr. 172–73.


                                             37
opinion from Zeichner Ellman & Krause LLP (“ZEK”), a New York law firm with an

office in Israel. Daniel Rubel, a partner at ZEK, led the team.

       Michael Weiser, a Lopag employee, provided Rubel with a package of documents

consisting of the Company’s certificate of formation, its LLC agreement, the certificate of

conversion, the certificate of incorporation, the purchase agreement for the Villa, and a

power of attorney.134 Weiser told the firm that Risse might possess other documents, but

that “it is currently not advisable to contact [her] from a strategic perspective.”135 ZEK

never received any of the many documents indicating that the Deed of Assignment was

never implemented before Israel’s death. ZEK also did not receive the French tax filings

or the interactions regarding the Villa which evidenced that the Foundation’s

representatives at Lopag did not believe that the Foundation owned the Company’s equity.

       Notably, the package did not include minutes of a board meeting which supposedly

took place on July 1, 2016, during which Neupert and his secretary purportedly acted as

directors to issue shares of stock to the Foundation. It also did not include a stock certificate

in the name of the Foundation that purportedly was signed on July 1.136 The record

convinces me that those documents were created in December 2016, then backdated in an

effort to create a more persuasive paper trail.




       134
             See PX 110 at ‘679.
       135
             PX 107 at ‘715.
       136
             See PX 87; BX 46.


                                               38
      As noted, the package of documents that Weiser provided included a power of

attorney. The defendants claim that it was a power of attorney ostensibly dated February

5, 2016, in which the Foundation granted Neupert the authority to execute all legal acts

“concerning Cote d’Azur Estate LLC/Corp., Delaware” (the “Foundation Power of

Attorney”).137 The evidence convinces me that the power of attorney that Weiser provided

was a different power of attorney that the Company granted to two agents in May 2001 to

authorize them to acquire the Villa on the Company’s behalf.138 The evidence convinces

me that Neupert and Naeff created the Foundation Power of Attorney in late September or

October 2016, after Rubel identified a series of problems with Neupert’s authority to act

on behalf of the Company. Neupert and Naeff backdated the Foundation Power of Attorney

to February to create the impression that the Foundation gave Neupert the authority to act.

      Rubel did not believe that the documents Weiser provided would enable him to

opine that the Deed of Assignment validly transferred the equity in the Company. After

conferring with Neupert, Weiser falsely told Rubel that there were no additional




      137
          BX 40 (formatting altered). The Foundation Power of Attorney was dated
“05.02.2016.” BX 40. At the evidentiary hearing, Naeff testified that the date was written
in European format and meant February 5, 2016. Naeff Tr. 95. A board resolution dated
January 25, 2017, passed by Neupert and Tandler, refers to a power of attorney granted on
May 2, 2016. PX 132 at ‘908. ZEK appears to have drafted the resolution and likely
misinterpreted the date format. This decision concludes that the power of attorney was
backdated, making the difference between February and May immaterial. In either event,
the backdating provided a paper trail for the actions Neupert took in June and July 2016.
      138
            See PX 2.


                                            39
documents.139 No one mentioned the documents that the Wiggin firm had prepared, the

exchanges involving the French tax authorities, or the documents relating to the

management of the Villa.140

      On August 31, 2016, Rubel asked Weiser a series of critical questions:

      [T]he LLC Agreement states that Israel Perry was the sole shareholder. Can
      you confirm that he remained the sole shareholder?

      A certificate of conversion you provided us lists Dieter Neupert as president.
      Do you have any documentation regarding his appointment?

      When were the assignment of shares registered with the books of the
      company?

      Was his estate involved at all with the assignment or registration? 141

Weiser responded:

      Yes, Mr. Perry was the sole shareholder and remained the sole shareholder.

      To our knowledge, Mr. Neupert is the president of the company, however we
      do not have any further documents other than already provided to you.

      The assignment of shares was never registered in the books of the company,
      as the administering law firm filed bankruptcy.

      Could you please explain your questions regarding the involvement of Mr.
      Perry’s estate in the assignment or registration?

      The assignment was signed before the demise of Mr. Perry, thus we can only
      answer your question after we receive your conclusion whether this




      139
            See PX 110 at ‘678; PX 113 at ‘833.
      140
            See Naeff Tr. 142–43.
      141
            PX 113 at ‘832–33.


                                            40
       assignment was valid or not?142

Eighteen minutes later, Naeff forwarded the email exchange to Neupert and warned him

that the validity of the assignment was “not clear.”143 Neupert responded that he had the

power to effectuate the changes as the executor of Israel’s estate (even though he was never

appointed to that role). He suggested that “if necessary, we might still have to document”

that he acted “on the basis of a power of attorney by the [Foundation].”144 This appears to

be the first appearance in the record to what became the Foundation Power of Attorney.

       On September 2, 2016, after receiving Neupert’s response to Naeff, Weiser asked

Neupert whether he could represent to ZEK that Neupert had “acted as the executor” when

converting the Company into a corporation.145 Neupert agreed: “[Y]es, definitely – you can

report this as stated (but keep it away from Tami since it would otherwise be inconsistent

with my actions related to the [Deed of Assignment] (but as stated previously, this could

be remedied with a power of attorney).”146 Neupert did not reference a specific power of

attorney. He spoke of a potential solution (“could be remedied”). If the Foundation Power

of Attorney already existed, either Neupert or the Lopag representatives would have




       142
             Id.
       143
             Id. at ‘831.
       144
             Id. at ‘830.
       145
             Id.
       146
             Id.


                                            41
mentioned it.

       Weiser did not take up the reference to a power of attorney. Instead, he promptly

told Rubel that Neupert claimed authority to effectuate the conversion as the executor of

Israel’s estate.147 In a follow-up email, Weiser told Rubel that Neupert agreed that he had

never been appointed as a director or president of the Company and had only acted as

executor of Israel’s estate.148

       On September 9, 2016, Rubel concluded that “Neupert did not have authority to

sign the certificate of conversion dated March 2016 converting the LLC to a corporation”

and that consequently the filing either needed to be ratified or cancelled.149 Neupert was

furious that ZEK was “questioning his authority.”150 Neupert told Naeff that the solution

was for the Foundation “approve my actions retroactively.”151

       Frustrated that Rubel was not going along with his plan, Neupert contacted him

directly, claiming there were “two phases” to his actions:

       1. Phase I (before the Original of the Assignment was discovered)

                a) In my capacity as Executor / Trustee of the late Israel Perry all his


       147
          PX 114 at ‘977 (“Neupert informed us that he was able to achieve the changes
for [the Company] as executor of the estate.”).
       148
          Id. (“Neupert has never been appointed as President/Director of [the Company].
Mr. Neupert did act as executor based on a power of attorney. Thus, the previous
information provided to you in this specific regard . . . was not correct.”).
       149
             PX 121.
       150
             Naeff Tr. 177–78.
       151
          PX 122 (“Since now everything belongs to [the Foundation], [the Foundation]
has to approve my actions retroactively, which is no problem at all!”).
                                               42
      membership Rights were automatically vested in me according to § 18-705
      of the Delaware LLC Code (Code)

             b) as there was already a draft on the table how the shares should be
      allocated among the heirs (Lilly 40 %, the daughters each 30 %) I had
      complete authority to convert the LLC into a Corporation and to become its
      Director

      2. Phase II (After the Original Deed of Assignment was discovered)

             a) according § 18-301 and 18-702/4 of the Code the Late Israel Perry
      lost his membership by assigning his entire interest to BGO Foundation
      (Ludwig Poltzer at the time ) and BGO became the Sole new Member

            b) BGO Foundation has approved my actions by Special Power of
      Attorney and I recognized as Executor / Trustee of the Last Will that Cote
      d’Azur LLC (now Corp) belongs to BGO Foundation (by issuing the entire
      Share Capital to BGO)

      So all you have to do is checking the quoted provisions in the Code and sign
      off my opinion - If you are not familiar with the Delaware precedents/
      jurisprudence I suggest we ask a Collegue [sic] from Wilmington to give his
      opinion

      The validity of the Assignment has become a rather urgent issue as the
      French Tax Adviser is not even copying me (as Director ) in but just acts on
      the instructions of Tami Perry - I have to replace him as soon as possible!152

Neupert’s description of the discovery of the Deed of Assignment was false. He and Naeff

had known about it since 2013 and had discussed it in 2014 and 2015. This email marks

the first time that anyone suggested to ZEK that the Foundation had authorized Neupert’s

actions with a power of attorney.

      On September 12, 2016, Neupert spoke directly with Rubel.153 Later that day, Rubel




      152
            PX 123.
      153
            See id.

                                           43
emailed Naeff, Weiser, and Neupert about another problem with Neupert’s story:

       [I]n Delaware, when a sole shareholder of an LLC assigns all of his shares,
       then he is no longer a member. However, the assignee cannot become a
       member of the LLC until his shares are registered, which did not occur here.
       There is a special analysis that may be applied to this type of situation.
       However, the analysis is further complicated by the filing of the certificate
       of conversion, its potential impact and the question of its validity. 154

Neupert turned to a power of attorney as the solution: “If you think that there is a missing

link in the chain of documents please tell us and we shall let you have . . . a PoA by BGO

in my favour to convert the LLC into a Corp, become its Director and to issue a Share

Certificate in favour of BGO.”155 Neupert again did not refer to a specific power of

attorney. He was contemplating creating a document to fill in “a missing link in the chain.”

       Once again, the Lopag representatives did not back up Neupert’s reference to a

power of attorney. Naeff separately wrote Rubel to confirm that “Neupert is the Executor

/ Trustee of the late IIP.”156 Naeff’s statement was false in its own right: Neupert had never

been made executor of Israel’s estate.

       On October 31, 2016, Neupert asked Monsenego for the Company’s tax-related

documents, declaring that he was “chairman of the [Company]” and asserting that his




       154
             PX 126 at ‘594.
       155
             PX 124 at ‘578.
       156
          PX 125 (“I confirm that Dr. Neupert is the Executor / Trustee of the late IIP and
IIP was prior to the assignment dd 01.05.2013 the former sole owner of Cote D’Azur Real
Estate. We are looking forward for a conclusive plan to bring all corporate documents in
order. This is the basis for all further steps that have to be taken in FR and US.”)


                                             44
authority was “legitimized” by the Foundation.157 Neupert attached the Deed of

Assignment and the Foundation Power of Attorney. This is the first time the Foundation

Power of Attorney appears in the record as part of a communication among the parties.

Based on the contemporaneous documents, I find that Neupert and Naeff created the

Foundation Power of Attorney after September 12 and before October 31. They backdated

it to February 2, 2016, to make it appear that the Foundation had prospectively authorized

the actions Neupert took in June.

       On December 5, 2016, one of Neupert’s secretaries contacted the Company’s

registered agent to request “a Corporation Kit . . . i.e., a seal of the company, the share

certificates and the minutes Book or whatever.”158 By email dated December 28, another

one of Neupert’s secretaries, Tanja Tandler, sent him the share certificate and a draft set of

minutes.159 Tandler asked whether to sign the documents. Neupert told her to sign, then

“affix the seal!”160




       157
             PX 128 at ‘389–90.
       158
             PX 130.
       159
           PX 131 at ‘027 (Tandler: “Attached you will find, in addition to the copy of the
share certificate, the minutes of the constituent board of directors’ meeting, including the
resolution to issue the share certificate. Regarding the by-laws: Did you receive from
Delaware a CD with the documents (in addition to the Corporate Seal Machine, etc.) or
shall I copy by hand the whole document of the by-laws of Cote d’Azure Estate Corp.
which you have included with the little folder?”).

         Id. at ‘026 (Neupert: “[N]o, we are going to sign the document as is (I inserted
       160

the name of the company) and affix the seal!”).


                                             45
       The minutes purported to document a meeting that took place on July 1, 2016,

during which Neupert and Tandler acted as the board of directors of the Company,

appointed themselves as president and secretary, and issued all of the Company’s shares to

the Foundation.161 The stock certificate reflected the Foundation’s ownership of 10,000

shares of stock.162 I find that these documents were drafted in December 2016 and

backdated to July 1. At the evidentiary hearing, Naeff testified that he did not receive them

until December 2016 and agreed it was “certainly odd” that they were dated July 1.163

       On February 14, 2017, ZEK finally delivered its legal opinion. In a single, non-

reasoned paragraph, it stated:

       COTE D’AZUR ESTATE LLC . . . was converted into the Corporation;
       BGO Foundation is the owner of all of the authorized and outstanding shares
       of the Corporation and can thereby exercise control of the Corporation; the
       duly elected directors of the Corporation are Dr. Dieter Neupert and Ms.
       Tanja Tandler; and the duly appointed officers of the Corporation are Dr.
       Neupert, President, [and] Ms. Tandler, Secretary . . . .164

Rubel did not sign the opinion. Another ZEK partner signed it.

L.     This Litigation

       On April 14, 2017, Lilly filed this action against Neupert and the Company. She

seeks a declaration that the conversion was invalid. Neupert and the Company answered




       161
             See BX 46.
       162
             See PX 87.
       163
             Naeff Tr. 196–97.
       164
             PX 150.

                                             46
and asserted affirmative defenses in which they relied on the validity of the Deed of

Assignment.

       After Lilly filed this litigation, the Foundation commenced a lawsuit of its own in

the Princely District Court of Lichtenstein. The Foundation’s complaint named Lilly,

Tamar, and Yael as defendants and sought a declaration that the Foundation owned the

Company’s equity based on the effectiveness of the Deed of Assignment.165

       Recognizing that she needed to challenge the validity of the assignment of the

Company’s equity to the Foundation, Lilly moved to join the Foundation as an involuntary

counterclaim plaintiff pursuant to Court of Chancery Rule 19.166 By memorandum opinion

dated December 6, 2017, I joined the Foundation as a relief defendant.167 Once served, the

Foundation moved to dismiss Lilly’s complaint pursuant to Court of Chancery Rule

12(b)(2).168

                                II.    LEGAL ANALYSIS

       The Foundation contends that this court cannot exercise personal jurisdiction over

it under the Delaware Long-Arm Statute.169 Determining whether a Delaware court can




       165
             See Dkt. 33 Exs. 4, 5.
       166
             Dkt. 24.
       167
             Perry v. Neupert, 2017 WL 6033498, at *1 (Del. Ch. Dec. 6, 2017).
       168
             Dkt. 48.
       169
             See 10 Del. C. § 3104.


                                             47
exercise personal jurisdiction over a non-resident defendant under the Long-Arm Statute

requires a two-step analysis.170 In the first step, the court determines whether the plaintiff

has satisfied the statutory requirements.171 In the second step, the court determines whether

exercising personal jurisdiction over the defendant passes muster under the Due Process

Clause of the United States Constitution.172 To satisfy due process, “‘a nonresident

defendant must have sufficient ‘minimum contacts with [the forum state] such that the

maintenance of the suit does not offend traditional notions of fair play and substantial

justice.’”173

       The Delaware Supreme Court has adopted what is known as the conspiracy theory

of jurisdiction.174 Under this theory,

       a conspirator who is absent from the forum state is subject to the jurisdiction
       of the court, assuming he is properly served under state law, if the plaintiff
       can make a factual showing that: (1) a conspiracy to defraud existed; (2) the
       defendant was a member of that conspiracy; (3) a substantial act or
       substantial effect in furtherance of the conspiracy occurred in the forum state;
       (4) the defendant knew or had reason to know of the act in the forum state or
       that acts outside the forum state would have an effect in the forum state; and
       (5) the act in, or effect on, the forum state was a direct and foreseeable result




       170
             See Matthew v. Fläkt Woods Gp. SA, 56 A.3d 1023, 1027 (Del. 2012).
       171
             Id.
       172
             Id.
       173
         Id. (alteration in original) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310,
316 (1945)).
       174
             Id.


                                              48
         of the conduct in furtherance of the conspiracy.175

The theory “is based on the legal principle that one conspirator’s acts are attributable to the

other conspirators.”176 Thus, “if the purposeful act or acts of one conspirator are of a nature

and quality that would subject the actor to the jurisdiction of the court, all of the

conspirators are subject to the jurisdiction of the court.”177

         The five elements of the conspiracy theory of jurisdiction functionally encompass

both the statutory and constitutional prongs of the test for personal jurisdiction.178 The first

three elements of the Istituto Bancario test satisfy the statutory prong by covering the

requisite elements the Long-Arm Statute. That statute provides for jurisdiction in

circumstances that include the following:

         (c) As to a cause of action brought by any person arising from any of the acts
         enumerated in this section, a court may exercise personal jurisdiction over
         any nonresident, or a personal representative, who in person or through an
         agent:

               (1) Transacts any business or performs any character of work or service
                   in the State;



         175
               Istituto Bancario Italiano SpA v. Hunter Eng’g Co., 449 A.2d 210, 225 (Del.
1982).
         176
               Fläkt Woods, 56 A.3d at 1027.
         177
               Istituto Bancario, 449 A.2d at 222.
         178
          See iBio, Inc. v. Fraunhofer-Gesellschaft Zur Förderung der Angewandten
Forschung E.V., 2018 WL 6493503, at *3 (Del. Ch. Dec. 10, 2018); Perry, 2017 WL
6033498, at *14; Konstantino v. AngioScore, Inc., 2015 WL 5770582, at *6–7 (Del. Ch.
Oct. 9, 2015); Virtus Capital L.P. v. Eastman Chem. Co., 2015 WL 580553, at *12 (Del.
Ch. Feb. 11, 2015).


                                                49
             (2) Contracts to supply services or things in this State;

             (3) Causes tortious injury in the State by an act or omission in this State
                 . . . .179

Under the statute, “‘a single transaction is sufficient to confer jurisdiction where the claim

is based on that transaction.’”180 Satisfying the third Istituto Bancario element—whether a

“substantial act or substantial effect in furtherance of the conspiracy occurred in the forum

state”—therefore satisfies the statutory requirement that a party have transacted business

in the state, performed work in the state, or caused tortious injury in the state through an

act or omission in the state.

       The Long-Arm Statute expressly recognizes that forum-directed activity can be

accomplished “through an agent.”181 The first and second Istituto Bancario elements—the

existence of a conspiracy and the defendant’s membership in it—provide grounds for

imputing the jurisdiction-conferring act to the non-resident defendant under agency

principles, because “conspirators are considered agents for jurisdictional purposes.”182

       It remains true that the conspiracy theory itself is not an independent basis for



       179
             10 Del. C. § 3104(c)(1)–(3).
       180
          Crescent/Mach I P’rs, L.P. v. Turner, 846 A.2d 963, 978 (Del. Ch. 2000)
(quoting Kahn v. Lynch Commc’n Sys., Inc., 1989 WL 99800, at *4 (Del. Ch. Aug. 24,
1989)); accord LaNuova D & B S.p.A. v. Bowe Co., 513 A.2d 764, 768 (Del. 1986).
       181
             10 Del. C. § 3104(c).
       182
          Hercules Inc. v. Leu Trust & Banking (Bahamas) Ltd., 611 A.2d 476, 481 (Del.
1992); accord Carlton Invs. v. TLC Beatrice Int’l Hldgs., Inc., 1995 WL 694397, at *12
(Del. Ch. Nov. 21, 1995) (Allen, C.).


                                               50
jurisdiction that alleviates the need to meet the statutory prerequisites of the Long-Arm

Statute.183 But the first, second, and third Istituto Bancario elements correspond

sufficiently with the statutory requirements such that satisfying the former accomplishes

the latter.

        The same analytical overlap between the Istituto Bancario factors and the personal

jurisdiction test exists for the constitutional dimension. The fourth and fifth Istituto

Bancario elements—whether the defendant “knew or had reason to know of” the forum-

directed activity and the degree to which the forum-directed activity was “a direct and

foreseeable result of the conduct in furtherance of the conspiracy”—speak to due process

and whether there are sufficient minimum contacts between the defendant and the forum

such that the defendant could reasonably anticipate being sued there.184

        [A] defendant who has so voluntarily participated in a conspiracy with
        knowledge of its acts in or effects in the forum state can be said to have
        purposefully availed himself of the privilege of conducting activities in the
        forum state, thereby fairly invoking the benefits and burdens of its laws.185

The “participation is a substantial contact with the jurisdiction of a nature and quality that

it is reasonable and fair to require the defendant to come and defend an action there.”186



        183
              Hercules, 611 A.2d at 482 n.6.
        184
              See Carlton Invs., 1995 WL 694397, at *12.
        185
              Istituto Bancario, 449 A.2d at 225.
        186
         Id.; accord Hercules, 611 A.2d at 482 n.6 (explaining that the conspiracy theory
“provides a framework with which to analyze a foreign defendant’s contacts with
Delaware”).


                                               51
       Consequently, if a plaintiff can address satisfactorily all five elements of the

conspiracy theory, then the plaintiff will have met both prongs of the jurisdictional test.

This decision therefore uses the conspiracy theory as the framework for analysis.

A.     The Tortious Conspiracy

       The first Istituto Bancario elements asks whether a tortious conspiracy existed.187

The second Istituto Bancario elements asks whether the defendant was a member of that

conspiracy.188 Although Istituto Bancario literally speaks in terms of a “conspiracy to

defraud,” the principle is not limited to that particular tort.189 In this case, the relevant torts

are fraud and conversion.190 Because the analysis of the conversion claim is sufficient to

establish jurisdiction, this decision only addresses that tort.



       187
             449 A.2d at 225.
       188
             Id.
       189
           See id. at 222–25 (describing underlying theory without fraud-based limitation);
BrandRep, LLC v. Ruskey, 2019 WL 117768, at *3 (Del. Ch. Jan. 7, 2019) (finding
jurisdiction where allegations sufficiently implied conspiracy to misappropriate trade
secrets); iBio, 2018 WL 6493503, at *3 (finding jurisdiction where allegations sufficiently
implied conspiracy to misappropriate technology); Dow Chem. Co. v. Organik Kimya
Hldg. A.S., 2017 WL 4711931, at *11 (Del. Ch. Oct. 19, 2017) (finding jurisdiction where
allegations sufficiently implied conspiracy to misappropriate trade secrets and technology);
Carsanaro v. Bloodhound Techs., Inc., 65 A.3d 618, 635-36 (Del. Ch. 2013) (noting that
theory encompasses claims of breach of fiduciary duty and aiding and abetting), abrogated
on other grounds by El Paso Pipeline GP Co. v. Brinckerhoff, 152 A.3d 1248, 1264 (Del.
2016) (rejecting Carsanaro’s analysis of post-merger derivative standing); Hamilton P’rs
v. Englard, 11 A.3d 1180, 1197 (Del. Ch. 2010) (same); Crescent/Mach I, 846 A.2d at 977
(rejecting construction of Istituto Bancario that would require a “specific allegation that
[the defendants] agreed to conspire ‘to defraud’ minority stockholders”).
       190
             See Dkt. 1 ¶¶ 24–49, 40–43.


                                                52
       1.       The Conspiracy To Convert The Company’s Equity

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

another, in denial of [the plaintiff’s] right, or inconsistent with it.”191 Lilly has proven by a

preponderance of the evidence that Neupert and the Foundation exercised dominion over

the Company’s equity in a manner inconsistent with Lilly’s property rights.

       First, Lilly proved that when Israel died, he personally owned the Company’s

equity. The overwhelming evidence on this point consists of:

      Contemporaneous evidence from May 2013 indicating that the Deed of Assignment
       should not be immediately effective because it would cause adverse tax
       consequences for the Foundation during the 2013 tax year.192

      Contemporaneous emails between July and December 2013 evidencing Naeff’s
       unsuccessful efforts to complete the transfer of the Company’s equity described in
       the Deed of Assignment.193

      Contemporaneous emails evidencing that Israel decided not to complete the transfer
       of the Company’s equity described in the Deed of Assignment to avoid adverse tax
       consequences in France, including Naeff’s email to that effect dated March 28,
       2015, barely one week after Israel’s death.194

      Naeff’s testimony that when he wrote in his email dated March 28, 2015, that the
       Deed of Assignment “was never executed,” he meant “that this transfer has not been




       191
         Drug, Inc. v. Hunt, 168 A. 87, 93 (Del. 1933); accord Arnold v. Soc. for Sav.
Bancorp, Inc., 678 A.2d 533, 535–36 (Del. 1996).
       192
             See BX 5.
       193
             See BX 13; BX 14; BX 16; BX 20; BX 23; PX 8; PX 11.
       194
             See BX 26; PX 27; PX 25 at ’73; PX 94; PX 103; Neff Tr. 171–72.


                                               53
       completed or finalized.”195

      Naeff’s chart of the Structure in 2015 which reflected that the Company’s equity
       was part of the UK Estate.196

      Contemporaneous emails from 2015 and 2016 in which Lopag representatives
       advised Lilly that she was responsible for the expenses and upkeep of the Villa
       because the Foundation did not own the equity of the Company; rather it had passed
       to the UK Estate.197

      Contemporaneous emails from 2015 and 2016 in which Naeff, Neupert, and others
       advised the Company’s tax counsel in France that Israel had owned the Company’s
       equity when he died and that the Foundation had not owned it.198

      Representations that Neupert made for the Company’s tax counsel to use in
       responding to an audit by the French tax authorities in which Neupert confirmed
       that Israel was the sole owner of the Company’s equity from the formation of the
       Company until his death.199

      Neupert’s insistence during a dispute with Tamar that the Company’s equity was
       part of the UK Estate.200

Because Israel personally owned the equity when he died, it passed to the UK Estate. As

Israel’s sole heir under his will, Lilly had a beneficial interest in the property belonging to

the UK Estate (subject to the claims of the UK Estate’s creditors).




       195
             Naeff Tr. 53.
       196
             See PX 20 at ‘151–52; PX 21 at ‘033.
       197
             See BX 27; PX 14 at ‘645; PX 23; PX 26; PX 37; PX 38; PX 99 at ‘928.
       198
           BX 33 at ‘302 (email dated October 20, 2015, from Naeff to Olswang: “IIP was
the sole shareholder of Cote D’Azur Estates LLC until his demise in March 2015.”); accord
PX 32; PX 43.
       199
             See PX 69; PX 70; BX 43 at ‘974; see also PX 59; PX 60; PX 63.
       200
             See PX 68; PX 73; PX 119

                                              54
       To the exclusion of Lilly’s ownership interest as a beneficiary of the UK Estate, the

defendants maintain that the Foundation owns the Company’s equity. Neupert asserted

dominion over the Company’s equity by converting the Company into a corporation and

purporting to issue all of its shares to the Foundation. Those acts constituted wrongful

conversion because Neupert had no authority to take them. The Foundation’s assertion of

ownership constitutes wrongful dominion because it has no valid basis for its claim. Lilly

has proven by a preponderance of the evidence that Neupert and the Foundation conspired

to deprive her of her beneficial interest in the Company’s equity, thereby engaging in the

tort of conversion.

       The conspiracy between Neupert and the Foundation began because they did not

want the Company’s equity to become part of the UK Estate, which would make it subject

to the claims of Israel’s creditors and trigger significant tax liabilities. To avoid this result,

Neupert and Naeff schemed about how to make it appear that the Company’s equity had

been transferred into the Structure before Israel died. They decided to claim that the Deed

of Assignment had been implemented, then allocate the ownership of the Company among

Israel’s heirs according to a settlement they would broker. Moving the Company’s equity

outside of the UK Estate would evade the claims of Israel’s creditors, and any resulting

allocation among the family could be structured to be tax efficient.

       To give them the authority to re-paper the Company’s ownership, Neupert

concluded that they should convert the Company into a Delaware corporation, establish a

new board that Neupert would control (it ended up being Neupert and one of his

secretaries), and appoint Neupert as President. Neupert then would use his authority at the

                                               55
board and officer levels to take the corporate actions necessary to implement the settlement

among Israel’s heirs. At the evidentiary hearing, Naeff testified that Neupert wanted to

convert the Company to facilitate transferring the entity’s equity, and I agree that the

greater ease with which that could be accomplished was one advantage of the

conversion.201 But the evidence convinces me that the real benefit of these machinations

was to manufacture a chain of transactions that would obscure Israel’s ownership of the

Company’s equity at the time of his death.202 Once the Company had been converted into

a corporation and new papers drafted, anyone inquiring about an entity’s ownership stake

could be provided with share certificates and board resolutions, resulting in a seemingly

clean claim of title. To determine the real facts, a regulator or other interested party would

have to dig into the Company’s history and obtain internal documents. The corporate

conversion and subsequent transactions would operate as a form of ownership laundering.




       201
           Naeff Tr. 95–96. Neupert and Naeff clearly understood that it was possible to
transfer the equity of an LLC. After all, they had been getting ready to transfer the equity
in 2013, before Israel’s death, until Israel decided not to complete the transaction because
of adverse tax consequences in France. Admittedly, it is relatively easier to transfer shares
than LLC interests. Neupert also may have thought that the language of the Company’s
LLC agreement, which described Israel as the sole member and owner of 100% of the
equity, precluded the transfers if Israel did not approve them himself, or at least raised a
question as to their validity. Converting the Company into a corporation with a certificate
of incorporation that did not contain similar restrictions would mitigate that risk.
       202
          See PX 25 at ‘059 (email from Naeff discussing the need to “issue new shares”
to the Foundation); id. at ‘060 (email from Naeff explaining that “formally, we now know
how changes of directors and shareholders work in Delaware and we could prepare the
documents”); cf. PX 28 at ‘672 (Naeff discussing the option of splitting the ownership of
the Company between the heirs); PX 30 at ‘160 (Lopag memorandum discussing same).


                                             56
       To put himself in a position to take these steps, Neupert falsely represented to a

registered agent in Delaware that he had authority to act on behalf of the Company because

he was the executor of Israel’s estate. In reality, Neupert never received authority to act in

that role. Evidencing his knowledge of this fact, Neupert bragged to Naeff and other

advisors that he successfully misled the registered agent:

       [A]s I do not have the grant of authorization from the British Probate Court,
       the only way around was to convince the new registered agent in Delaware,
       The Company Corporation, that I am the Executor of the Last Will and
       therefore the legitimate new Director of Cote d’Azur (fortunately in
       Delaware they do not know anything about UK probate procedure).203

But to mitigate the legal risk he faced, Neupert sought to have Lilly sign a resolution in her

capacity as the Company’s sole member (a role she did not yet hold because of the probate

proceedings). That resolution would have purported to appoint Neupert to the position of

manager, ostensibly giving him authority to act.204

       Unfortunately for Neupert, Lilly and Tamar refused to accept the proposed

settlement, and Lilly would not participate in Neupert’s scheme to launder the Company’s

ownership. The breakdown of the settlement negotiations caused Israel’s heirs and former

advisors to split into two factions, with Neupert and Naeff opposing Lilly and Tamar.

       Neupert responded by seizing control of the Company. On June 30, 2016, Neupert




       203
             PX 53 at ‘472.
       204
          The resolution could not have had that effect because Company was a member-
managed LLC. See PX 1 § 21. As a result, the resolution could not have appointed Neupert
to a non-existent position of manager.


                                             57
caused a certificate of conversion to be filed with the Delaware Secretary of State that

converted the Company from an LLC into a corporation.205 He also caused a certificate of

incorporation for the Company to be filed that authorized the issuance of up to 10,000

shares of common stock.206

       Neupert believed that he and his faction could coerce Lilly into accepting the new

state of affairs. He told his confederates, including Naeff and two other Lopag principals,

that if Lilly did not accept what he had done, he would ensure that she did not receive any

money from the Structure.207 She might receive whatever remained in the UK Estate after

probate, including the Company’s equity if she could prove that Neupert’s actions were

unauthorized, but that might be little or nothing depending on the claims of Israel’s

creditors.208

       Contrary to Neupert’s expectations, Lilly did not back down and refused to ratify

his actions. Lilly’s refusal forced Neupert to try to come up with another source of authority

to justify what he had done. He could not rely on any authority conferred by the role of

executor of the UK Estate, because he had never been appointed to that role. He consulted

with Naeff and Sele about the Letter of Wishes, but they agreed that it did not have any




       205
             BX 61 ¶ 28.
       206
             BX 61 ¶ 30.
       207
             See PX 92; PX 93; Lilly Tr. 247; see also PX 98 at ‘967, ‘969–70.
       208
             See PX 92; PX 93.


                                              58
legal force.209 With no other options, they returned to the Deed of Assignment, claiming

falsely to those not in the know that they had just discovered it.210

       Recognizing that their claims about the Deed of Assignment were counter-factual

and legally debatable,211 Neupert and Naeff sought to obtain a legal opinion regarding the

Foundation’s ownership of the Company’s shares. With Naeff and Neupert coordinating

matters behind the scenes, a representative of Lopag (Weiser) provided ZEK with a

package of documents consisting of the Company’s certificate of formation, its LLC

agreement, the certificate of conversion, the certificate of incorporation, and documents

relating to the original purchase of the Villa in 2001, including a power of attorney that

was used in connection with the purchase. Weiser did not provide ZEK with the many

contemporaneous documents indicating that Israel decided not to complete the assignment

for tax reasons. Weiser told ZEK that Risse might possess other documents, but instructed

that it was “not advisable to contact [her] from a strategic perspective.”212 By giving ZEK

an incomplete and misleading package of documents, Weiser, Neupert, and Naeff

fraudulently misled ZEK.

       The lead attorney at ZEK (Rubel) did not believe that the documents would support



       209
             See PX 99 at ‘926–27.
       210
             PX 103; accord PX 98 at ‘970–71.
       211
          See PX 98 (debate among Neupert, Naeff, and Sele about whether the Foundation
could rely on the Deed of Assignment).
       212
             PX 107 at ‘715.


                                             59
an opinion. After conferring with Neupert, Weiser told Rubel that there were no additional

documents.213 That was false. Then, when Rubel continued to resist rendering the

opinion,214 Neupert intervened, telling Rubel that he had authority to act as executor of the

UK Estate (which was false) and that the Foundation had approved his actions by executing

the Foundation Power of Attorney (a document no one had previously mentioned or

produced).215 Naeff chimed in and attempted to support Neupert by reiterating (falsely) that

Neupert was the executor of the UK Estate.216 As discussed in the Factual Background, the

evidence convinces me that during late September or early October 2016, Naeff and

Neupert fabricated the Foundation Power of Attorney and backdated it to February 5, 2016.

       In this litigation, Lilly initially stipulated that the Foundation Power of Attorney was

executed on February 5, 2016.217 That stipulation is so contrary to the weight of the

evidence that I will not hold Lilly to it. “A stipulation is, in effect, an agreement or

admission made in a judicial proceeding by the parties thereto in respect to s[o]me matter

incident to the proceeding for the purpose of avoiding delay, trouble, and expense.”218



       213
             See PX 110 at ‘678; PX 113 at ‘833.
       214
             PX 113 at ‘832; PX 121.
       215
             See PX 124 at ‘578; PX 126 at ‘594;
       216
             PX 125.
       217
             Stip. ¶ 27.
       218
           In re Wilmington Suburban Water Corp., 203 A.2d 817, 832 (Del. Super. 1964),
aff’d in part and rev’d in part on other grounds, 211 A.2d 602 (Del. 1965).


                                              60
       Private stipulations are to be favored and should not be lightly set aside. . . .
       However, a court has the inherent power to avoid a stipulation in law or
       equity.

       Courts have broad discretion in determining whether to hold a party to a
       stipulation and may set aside a stipulation where enforcement would not be
       conducive to justice. . . . [A] trial court may, in the exercise of judicial
       discretion, upon proper cause shown, relieve a party from a stipulation
       entered into in the course of a judicial proceeding when it appears that such
       relief is necessary to prevent manifest injustice to the parties seeking it and
       that the granting of such relief will not place the adverse party at any
       disadvantage by reason of having acted in reliance upon the stipulation.219

The “manifest injustice” standard comes from a Federal Rule of Civil Procedure, which

provides that a “court may modify [a pretrial order] only to prevent manifest injustice.”220

There is no Court of Chancery analogue to Federal Rule 16(e), but the law of the case

doctrine points in the same direction and permits a court to revisit an interlocutory ruling

if good cause exists.221



       219
           73 AM. JUR. 2d Stipulations § 12, WestLaw (database updated Jan. 2019)
(footnotes omitted).
       220
             Fed. R. Civ. P. 16(e); see 73 AM. JUR. 2d Stipulations § 12 n.8.
       221
          See Zirn v. VLI Corp., 1994 WL 548938, at *2 (Del. Ch. Sept. 23, 1994) (Allen,
C.) (“Once a matter has been addressed in a procedurally appropriate way by a court, it is
generally held to be the law of that case and will not be disturbed by that court unless
compelling reason to do so appears.”); Siegman v. Columbia Pictures Entm’t, Inc., 1993
WL 10969, at *3 (Del. Ch. Jan. 15, 1993) (“Prejudgment orders remain interlocutory and
can be reconsidered at any time, but efficient disposition of the case demands that each
stage of the litigation build on the last, and not afford an opportunity to reargue every
previous ruling.” (internal quotation marks omitted)). Court of Chancery Rule 54(b)
recognizes that an interlocutory order “is subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and liabilities of the parties.” The rule
does not identify a standard for determining when it would be warranted to revise an earlier
interlocutory order. The law-of-the-case doctrine fills the gap.


                                               61
       In this case, good cause exists. Lilly entered into the stipulation on May 4, 2018,

before receiving documents that were subject to a motion to compel.222 After Lilly

prevailed on the motion, the defendants produced their communications with ZEK. Those

documents provided compelling evidence that the Foundation and Neupert created the

Foundation Power of Attorney in late September or early October 2016, then backdated it

in an effort to retroactively validate Neupert’s actions. Before obtaining those documents,

Lilly had no basis to question the date of the Foundation Power of Attorney. After the

defendants produced the documents, both sides proceeded as if the stipulation was no

longer dispositive. Lilly argued that the Foundation and Neupert backdated the Foundation

Power of Attorney,223 and Lilly’s counsel questioned Naeff extensively on this subject at

the evidentiary hearing.224 The defendants responded on the merits.225 In my view, it would

result in manifest injustice to hold Lilly to a stipulation she made when the defendants were

withholding material information from production, where the parties subsequently treated

the issue as an open point for the court to resolve.

       Lilly established that Naeff and other Lopag representatives, acting on behalf of the

Foundation, were deep in the mix of a conspiracy to convert the Company’s equity. They

participated as equal partners with Neupert and provided him with substantial assistance.



       222
             Compare Stip. with Dkt. 174 at 39–48.
       223
             See Dkt. 180 at 42–46; Dkt. 184 Ex. B at 42–48.
       224
             See Naeff Tr. 149–51, 155, 161, 180, 183–84, 187, 191–94.
       225
             See Dkt. 182 at 6–7, 31–33.

                                             62
Lilly established the first and second elements of the Istituto Bancario test.

       2.       The Deed Of Assignment Was Ineffective.

       The Foundation contends that it could not have conspired with Neupert to deprive

Lilly of any ownership interest because the Deed of Assignment validly transferred

ownership of the Company’s equity to the Foundation in May 2013. That contention is

contrary to the weight of the evidence, which establishes that the transfer was not

completed before Israel’s death. The Foundation responds that although everyone may

have believed that the equity was not transferred, the Deed of Assignment was effective

when signed as a matter of Delaware law. That is incorrect, both under the law governing

donative gifts and under the Delaware Limited Liability Company Act (the “LLC Act”).

                a.     The Law of Gifts

       The transfer of equity contemplated by the Deed of Assignment lacked

consideration, making it a gift.226 “As a general rule a gift must be executed (a) by the

donor’s complete and unconditional delivery of the property that is the subject of the gift

and (b) by the donee’s acceptance of the gift.”227 Although Lilly bore the burden of proving

the facts necessary to support jurisdiction over the Foundation, the Foundation as “[t]he

donee has the burden of establishing, by clear and convincing evidence, all facts essential



       226
             See Naeff Tr. 221 (agreeing that the transfer lacked consideration).
       227
          Hudak v. Procek, 806 A.2d 140, 150–51 (Del. 2002); see RESTATEMENT (THIRD)
OF PROPERTY: WILLS AND OTHER DONATIVE TRANSFERS § 6.1 (Am. Law Inst. 2003)
[hereinafter Restatement] (“To make a gift of property, the donor must transfer an
ownership interest to the donee without consideration and with donative intent.”).


                                               63
to the validity of the purported gift.”228

       The Restatement (Third) of Property recognizes two ways to execute a transfer of

personal property that will perfect a gift: (1) by delivering the property to the donee, or (2)

by inter vivos donative document.229 In each case, the evidence must establish “an act of

finality” that demonstrates the passing of title from donor to donee.230 Until the gift is

completed, the donor may revoke it.231

       The evidence does not prove that Israel delivered the Company’s equity to the

Foundation. Delivery requires an irrevocable transfer of “dominion and control over the

property.”232 If “anything remains to be done to accomplish the gift, the transaction



       228
           Estate of Reed, 2015 WL 1778073, at *3; see In re Estate of Smith, 1986 WL
4873, at *4 (Del. Ch. Apr. 24, 1986) (Allen, C.) (placing the burden of proof on the donee).
See generally 38A C.J.S. Gifts § 83, WestLaw (database updated Feb. 2019) (“The person
asserting the gift must prove all the essential elements by clear, direct, positive, express,
and unambiguous evidence, or by clear and convincing evidence.” (footnotes omitted)).
“This burden arises out of the rebuttable presumption, often seen in the context of resulting
trusts, that a purchaser of property intends that purchase property to inure to her own
benefit.” Estate of Reed, 2015 WL 1778073, at *3; see Adams v. Jankouskas, 452 A.2d
148, 152 (Del. 1982) (“In imposing a resulting trust, the court presumes, absent contrary
evidence, that the person supplying the purchase money for property intends that its
purchase will inure to his benefit, and the fact that title is in the name of another is for some
incidental reason.”).
       229
             Restatement, supra, § 6.2.

         Id. cmt. b (“The ‘wrench’ of delivery impresses on the donor that he or she has
       230

engaged in an act of finality.”).
       231
          See 38A C.J.S. Gifts § 67, WestLaw (database updated Feb. 2019); see generally
Highfield v. Equitable Tr. Co., 155 A. 724, 726 (Del. 1931).
       232
             Hudak, 806 A.2d at 151.


                                               64
constitutes merely an executory agreement to give, and the title to the property does not

pass.”233 Except for the Deed of Assignment itself, there is no evidence that Israel delivered

the Company’s equity to the Foundation. Israel did not deliver a membership interest

certificate in his own name to the Foundation and endorse it in favor of the Foundation.

Before Israel’s death, no membership certificate was issued in the Foundation’s name.

Actual delivery never occurred.

       The evidence does not prove that the Deed of Assignment was an inter vivos

donative document that was intended to effectuate an immediate transfer. The

contemporaneous communications show that Israel and his advisors did not intend for the

Deed of Assignment to transfer the equity immediately upon its execution on May 1, 2013,

because they understood that the transfer would have adverse tax consequences for the

Foundation during the 2013 tax year.234 Instead, they wanted the transfer to take place after

June 15, 2013. Consequently, beginning in June 2013, Naeff sought to take the additional

steps necessary to effectuate the transfer, which he understood involved additional legal

documentation.235 The numerous communications involving Naeff and Risse evidence

their efforts to create that documentation and their belief that the transfer had not yet

occurred. In October 2013, the Wiggin firm was hired to prepare a set of documents to




       233
             Id.
       234
             See BX 5.
       235
             See, e.g., BX 14 at ‘387; BX 23.


                                                65
implement the transfer, but they were never executed.

       The evidence proves that Israel decided to revoke the inchoate transfer contemplated

by the Deed of Assignment. In December 2013, Risse asked Israel to sign off on the

transfer. Subsequent documents establish that Israel decided not to proceed because the

transfer would have adverse consequences in France.236

       Under the law governing gifts, the transfer contemplated by the Deed of Assignment

was never completed. After the Wiggin firm prepared documents that would have

completed it, Israel decided not to proceed, revoking his gift. The member interests in the

Company were never transferred to the Foundation.

                b.     The LLC Act

       Assuming counterfactually that Israel intended for the Deed of Assignment to

effectuate an immediate transfer, the governing provisions of the LLC Act foreclose the

possibility that the Foundation became a member as a result of that document. At most, the

Foundation would have become an assignee, and the Company would have dissolved

because it lacked any members.

       Section 18-702(b) of the LLC Act governs the assignment of an LLC interest in an

LLC. In May 2013, when Israel signed the Deed of Assignment, Section 18-702(b) stated:

       Unless otherwise provided in a limited liability company agreement:

       (1) An assignment of a limited liability company interest does not entitle the
       assignee to become or to exercise any rights or powers of a member;

       (2) An assignment of a limited liability company interest entitles the assignee


       236
             See PX 27; see also PX 25 at ‘058; BX 26.

                                             66
       to share in such profits and losses, to receive such distribution or
       distributions, and to receive such allocation of income, gain, loss, deduction,
       or credit or similar item to which the assignor was entitled, to the extent
       assigned; and

       (3) A member ceases to be a member and to have the power to exercise any
       rights or powers of a member upon assignment of all of the member’s limited
       liability company interest. . . . 237

This provision established the default rule that applied unless the operative limited liability

company agreement stated otherwise. The Company’s LLC agreement did not state

otherwise.238 To the contrary, it stated: “Mr. Israel Perry (the “Member’) is the sole member

of the Company.”239 If anything, this language implied that Israel could not assign his

member interest without amending the LLC agreement, which never occurred.240

       Under Section 18-702(b), if Israel had intended to assign his membership interest in

the Company to the Foundation effective immediately (an assumption that is contrary to

the evidence), then the Foundation would have become an assignee. To become a member,

the Foundation would have to be admitted to the LLC. Section 18-101(11) of the LLC Act

defines a “[m]ember” as “a person who is admitted to a limited liability company as a




       237
             6 Del C. § 18-702(b) (2013).
       238
             See PX 1.
       239
             Id. § 2.
       240
           As noted, the existence of this provision may well have contributed to Neupert’s
belief that he needed to convert the LLC into a corporation before transferring equity
interests to entities in the Structure.


                                              67
member as provided in § 18-301 of this title.”241

       Section 18-301, entitled “Admission of members,” identifies a variety of means by

which a person can become a member. Subsection 18-301(b) states:

       After the formation of a limited liability company, a person is admitted as a
       member of the limited liability company:

       ...

       (2) In the case of an assignee of a limited liability company interest, as
       provided in § 18-704(a) of this title and at the time provided in and upon
       compliance with the limited liability company agreement or, if the limited
       liability company does not so provide, when any such person’s permitted
       admission is reflected in the records of the limited liability company . . . .242

As with Section 18-702(b), Section 18-301 defers in the first instance to the operative LLC

agreement. The Company’s LLC agreement did not address the admission of new

members, so the default rule applies.243

       Section 18-301(b) distinguishes between (i) the act of admitting an assignee as a

member and (ii) the point when the admission becomes effective. Initially, the assignee

must be admitted “as provided in § 18-704(a).” Once this happens, the admission takes

effect “at the time provided on and upon compliance with the limited liability company

agreement.” If the operative LLC agreement is silent, then the admission becomes effective

when “such person’s permitted admission is reflected in the records of the limited liability




       241
             6 Del. C. § 18-101(11).
       242
             Id. § 18-301(b)(2).
       243
             See PX 1.

                                              68
company.”

       In May 2013, when Israel signed the Deed of Assignment, Section 18-704(a)

identified two possibilities for a permitted admission:

       An assignee of a limited liability company interest may become a member:

                (1) As provided in the limited liability company agreement; or

               (2) Unless otherwise provided in the limited liability company
       agreement, upon the affirmative vote or written consent of all of the members
       of the limited liability company.244

Because membership ceases upon assignment of the member’s interest in the LLC, Section

18-704(a) created a unique requirement for single-member LLCs. Lacking an existing

member who could consent to the admission of an assignee, the assignee only could be

admitted to a single-member LLC if the LLC agreement contained a clause providing for

automatic admission.245 Without this clause, an assignment of a member interest in a

single-member LLC would result in an LLC that had no members. Under Section 18-

801(a)(4) of the LLC Act, “[a] limited liability company is dissolved and its affairs shall

be wound up [if] . . . [a]t any time there are no members . . . .” 246 The transfer of the sole

member’s interest in a single-member LLC with an LLC agreement that lacked an



       244
             6 Del. C. § 18-704(a) (2013).
       245
           See Practical Law Corporate & Securities, 2016 Amendments to Delaware
Corporate and Alternative-Entity Statutes Signed into Law, WestLaw (June 24, 2016); see
also Single-Member LLC Entity Member Form, 69 Bus. Law. 745, 763–64 (2014)
(containing a clause that automatically and simultaneously admits an assignee as a member
of the limited liability company).
       246
             6 Del. C. § 18-801(a)(4).

                                              69
automatic admission clause thus would result in the dissolution of the LLC.

       In 2016, the General Assembly addressed this trap for the unwary by amending

section 18-301(b) to provide as follows:

       An assignee of a limited liability company interest may become a member:

       ...

       (3) Unless otherwise provided in the limited liability company agreement by
       a specific reference to this subsection or otherwise provided in connection
       with the assignment, upon the voluntary assignment by the sole member of
       the limited liability company of all of the limited liability company interests
       in the limited liability company to a single assignee. An assignment will be
       voluntary for purposes of this subsection if it is consented to by the member
       at the time of the assignment and is not effected by foreclosure or other
       similar legal process.247

After this amendment, the sole assignee of the entire member interest in a single-member

LLC becomes a “permitted admission” by virtue of the assignment. This provision was not

operative in May 2013. Moreover, the General Assembly did not revise Section 18-

301(b)(2), which explains that admission takes effect only “at the time provided on and

upon compliance with the limited liability company agreement or . . . when any such

person’s permitted admission is reflected in the records of the limited liability company.”

The timing of the admission still depends on updating the LLCs records.

       The Foundation argues that Section 18-704(a)(3) should apply retroactively to

validate the immediate transfer that the Deed of Assignment allegedly effectuated three

years before. Applying the statute retroactively would break with the “time-honored




       247
             Id. § 18-704(a)(3).

                                             70
principle that [Delaware courts] ‘will not infer an intention to make an act retrospective,’

and that ‘to give an act a retrospective operation would be contrary to the well settled

principles of law applicable to the construction of statutes unless it be plainly and

unmistakably so provided by the statute.’”248 The General Assembly specified that the

amendment would become effective on August 1, 2016.249 There is no indication that it

would apply retroactively.250 Moreover, compliance with Section 18-704(a) only would

grant the Foundation the status of “permitted admission.” To effect an admission, there

would still need to be a document reflecting the admission of the Foundation on the

Company’s records. There is no such document.

       For purposes of this case, if the Deed of Assignment had validly effected an

assignment of all of Israel’s member interest immediately upon execution (an assumption

contrary to the evidence), then the transfer would have resulted in the Company having no

members and triggered its dissolution. At that point, dissolution would have occurred

unless the last remaining member of the LLC appointed a new member within ninety days




       248
         Chrysler Corp. v. State, 457 A.2d 345, 351 (Del. 1983) (quoting Keller v. Wilson
& Co., 190 A. 115, 125 (Del. 1936)).
       249
           See Del. H.B. 372, 148th Gen. Assem. §11 (2016) (“This Act shall become
effective August 1, 2016.”).
       250
           The amendment did apply to all Delaware LLCs, even those formed before the
amendment, and it governed their affairs from the effective date forward. See Total Hldgs.
USA, Inc. v. Curran Composites, Inc., 999 A.2d 873, 878 (Del. Ch. 2009) (Strine, V.C.).
That is different from retroactively applying a statute to alter the effect of past acts.


                                            71
of assigning the interest, which Israel did not do.251

       Facing this result, the Foundation argues that the Company could not have dissolved

pursuant to Section 18-801(a)(4) because the Company’s LLC agreement contained a

dissolution provision that stated: “The Company shall dissolve and its affairs shall be

wound up at such time, if any, as the Member may elect. No other event (except an entry

of a decree of judicial dissolution under § 18-802 of the Act) will cause the Company to

dissolve.”252 That language is not sufficient to displace the dissolution trigger in Section

18-801(a)(4), which does not state that it can be varied by an LLC agreement.253 By

definition an LLC must have one or more members. 254 Without any members, the LLC

dissolves.

       Under the LLC Act, the Deed of Assignment could not have resulted in the

Foundation becoming the sole member of the Company on May 1, 2013, when the Deed

of Assignment was executed. If the Deed of Assignment had purported to transfer Israel’s



       251
           See 6 Del. C. § 18-801(a)(4) (“provided, that the limited liability company is not
dissolved and is not required to be wound up if: a. Unless otherwise provided in a limited
liability company agreement, within 90 days or such other period as is provided for in the
limited liability company agreement after the occurrence of the event that terminated the
continued membership of the last remaining member, the personal representative of the last
remaining member agrees in writing to continue the limited liability company and to the
admission of the personal representative of such member or its nominee or designee to the
limited liability company as a member, effective as of the occurrence of the event that
terminated the continued membership of the last remaining member . . . .”).
       252
             PX 1 § 15.
       253
             Compare 6 Del. C. § 18-801(a)(4) with id. §§ 18-801(a)(1), (3).
       254
             Id. § 18-101(6).

                                              72
interest immediately, then it would have resulted in the Foundation becoming an assignee

and the Company dissolving. As a matter of law, the Deed of Assignment could not have

achieved the result that the defendants claim.

       3.       The Foundation Benefitted.

       In an odd line of reasoning, the Foundation contends that even if it never had any

right to the Company’s equity, the conversion was not tortious because the Foundation did

not receive any benefit. This argument fails on the law and the facts.

       As a legal matter, a party does not need to benefit to face a remedy for the tort of

conversion. The Delaware Supreme Court explained in 1933 that “the property alleged to

have been converted” does not necessarily need to be “applied to the use of the

defendant.”255

       Regardless, as a factual matter, the Foundation did benefit. Before the conversion,

it did not own the equity of the Company and did not beneficially own a French villa worth

millions of dollars. After the conversion, it did. Neupert even suggested that the Foundation

could generate income during the pendency of this dispute by renting out the Villa.256

B.     The Forum-Related Acts

       The third Istituto Bancario element asks whether “a substantial act or substantial




       255
             Drug, 168 A. at 354.
       256
             See PX 98.


                                             73
effect in furtherance of the conspiracy occurred in the forum state.”257 Filing a corporate

instrument in Delaware to facilitate the challenged transaction satisfies this element.258

       The record plainly reflects that Neupert engaged in Delaware-directed activity

sufficient to satisfy the third Istituto Bancario element and provide the statutory

prerequisite for jurisdiction under the Long-Arm Statute. Neupert signed the certificate of

conversion and caused it to be filed with the Delaware Secretary of State, representing

falsely that he was President of the Company. This act converted the Company from an

LLC to a corporation. Neupert next caused the filing of a certificate of incorporation for

the Company that authorized the issuance of up to 10,000 shares of common stock, again

representing falsely that he was President of the Company.259

       The Delaware-directed acts were an important part of the conspiracy. Using the

authority ostensibly provided by these certificates, Neupert asserted to Lilly that he had




       257
             449 A.2d at 225.
       258
           E.g., Fläkt Woods, 56 A.3d at 1027 (filing certificate of cancellation); Carsanaro,
65 A.3d at 635 (filing various certificates required by DGCL for challenged transactions,
including certificates of amendment, certificates of designation, certificates of correction,
and certificate of cancellation); Benihana of Tokyo, Inc. v. Benihana, Inc., 2005 WL
583828, at *8 (Del. Ch. Feb. 4, 2005) (filing certificate of designations); Gibralt Capital
Corp. v. Smith, 2001 WL 647837, at *6 (Del. Ch. May 9, 2001) (filing certificate of
designations); Crescent/Mach I, 846 A.2d at 977 (filing certificate of merger). See
generally 1 R. Franklin Balotti & Jesse A. Finkelstein, THE DELAWARE LAW OF
CORPORATIONS AND BUSINESS ORGANIZATIONS § 13.4[B], at 13-13 (3d ed. 2014) (“The
filing of corporate instruments with the Delaware Secretary of State may also constitute an
action in Delaware sufficient to support jurisdiction.”).
       259
             See PX 87.


                                             74
deprived her of her interest in the Company’s equity in her capacity as a beneficiary of the

UK Estate. He threatened that if she did not go along with his actions, then he would ensure

that she did not receive any money from the Structure. Neupert and the Foundation also

relied on the certificates when securing a legal opinion that the Foundation owned all of

the Company’s equity.

C.     The Foundation’s Knowledge Of The Forum-Related Acts

       The fourth and fifth Istituto Bancario elements evaluate whether “the defendant

knew or had reason to know of the act in the forum state” and the degree to which “the act

in . . . the forum state was a direct and foreseeable result of the conduct in furtherance of

the conspiracy.”260 In substance, these elements require evidence “from which one can infer

that a foreign defendant knew or should have known that the conspiracy would have a

Delaware nexus.”261 Actual knowledge is not required; “the applicable standard is whether

the foreign [defendant] knew or should have known [about the] activity in Delaware.”262

       At the evidentiary hearing, Naeff repeatedly attempted to distinguish Neupert’s

words and actions from his own.263 The factual record indicates otherwise. Naeff and

Neupert worked together, and Neupert acted with the Foundation’s support and consent.




       260
             449 A.2d at 225.
       261
             Fläkt Woods, 56 A.3d at 1024.
       262
             Id.
       263
             See, e.g., Naeff Tr. 180.


                                             75
       In August 2015, Neupert and Naeff began discussing how to appoint a director who

could sign documents that would create the impression that the Company was owned by

an entity in the Structure.264 It was Naeff who remembered the Deed of Assignment and

perceived its potential use to create a new document trail.265 He suggested the idea to

Neupert, not the other way around.

       Naeff and Neupert also evaluated what ownership options within the Structure

would be optimal from a tax perspective. After relying on the Deed of Assignment to take

the shares out of the UK Estate, they believed they could document whatever ownership

allocation they wished.266 Neither saw any reason to stick with the historical facts regarding

the chain of ownership. They would paper a new one.

       Neupert and Naeff’s plan to rely on the Deed of Assignment foundered initially

because the French attorneys at Olswang cared about the historical facts of ownership, not

manufactured facts.267 Faced with their refusal to embrace creative documentation, Neupert

and Naeff agreed for purposes of filings with the French tax authorities that Israel had




       264
             See PX 24; PX 25 at ‘059–60.
       265
             See PX 25 at ‘058.
       266
             See id.; PX 28 at ‘672.
       267
          PX 28 at ‘670 (“We understand from your email below that the shares in the LLC
have been transferred in May 2013 to a Liechtenstein foundation. Has the transfer been
registered in the shareholders’ registry (or other similar document) of the LLC?”).


                                             76
owned the Company’s equity from its formation until his death.268

       But after Lilly refused to sign a resolution purporting to appoint Neupert to the

position of manager, Neupert implemented the plan he had developed with Naeff to convert

the Company from an LLC to a corporation. Then, when they needed a plausible basis to

claim that Neupert had authority to implement the conversion, Naeff again mentioned the

Deed of Assignment.269 With Naeff remaining complicitly silent, Neupert claimed

repeatedly to have just discovered the Deed of Assignment, which he asserted resulted in

the Foundation owning the shares since May 2013.270

       From this point on, Naeff and his colleagues at Lopag embraced and endorsed

Neupert’s assertion of authority over and purported conversion of the Company. To assist

Neupert, Naeff and Weiser misled ZEK when requesting a legal opinion. Naeff and Weiser

initially provided ZEK with a limited set of documents designed to create the

misimpression that the Deed of Assignment became effective immediately. The Lopag

representatives did not provide any of their documents showing that the assignment had

not been implemented in 2013 or at any time thereafter. They also did not provide any of

the documents in which they maintained that the equity in the Company belonged to the

UK Estate. Instead, after conferring with Neupert, Weiser falsely told Rubel that there were




       268
             BX 33 at ‘302; PX 32; PX 30 at ‘160; accord PX 43.
       269
             Naeff Tr. 171–72; see PX 103.
       270
             PX 103.


                                             77
no additional documents.271 When still ZEK resisted giving the opinion, Weiser and Naeff

falsely represented to ZEK that Neupert had authority to effectuate the conversion of the

corporation as the executor of the UK Estate, a role that they knew Neupert never held.272

When ZEK still would not issue the opinion, Naeff and Neupert created the Foundation

Power of Attorney. Although they prepared it in late September or October 2016, they

backdated it to February 5, 2016. By doing so, Naeff, Lopag, and the Foundation helped

create a paper trail that would seem to validate Neupert’s Delaware-related acts.

      In evaluating Naeff’s claims that Neupert acted unilaterally and without the

involvement of anyone acting on behalf of the Foundation, I have taken into account

Naeff’s pattern of making false statements in the contemporaneous documents, as well as

multiple instances in which he offered less-than-credible testimony.

     As discussed, Naeff falsely represented to ZEK that Neupert had authority to
      effectuate the conversion of the corporation as the executor of Israel’s Estate, a role
      that Naeff knew Neupert did not hold.

     As discussed, Naeff remained silent when copied on emails in which Neupert
      invented the story that he and Naeff had recently discovered the Deed of
      Assignment.

     Naeff testified at the evidentiary hearing that he believed the Deed of Assignment
      effected an immediate transfer of the member interests in the Company from Israel
      to the Foundation.273 The contemporaneous evidence shows that Israel and his
      advisors did not intend for the signing of the Deed of Assignment to implement an
      immediate transfer, because they believed the transfer would have adverse tax


      271
            See PX 110; PX 113 at ‘833.
      272
            PX 114; PX 125.
      273
            See Naeff Tr. 26–29, 37, 42; see also id. at 26. But see id. at 113.


                                               78
      consequences for the Foundation during the 2013 tax year if completed before June
      15, 2013.274 Consistent with their belief, Naeff started attempting to implement the
      transfer in mid-June 2013 and maintained his efforts through February 2014.275

     Naeff testified at the evidentiary hearing that he did not know who owned the
      Company’s equity between December 2013, when Israel declined to execute the
      documents prepared by the Wiggin firm, and February 2017, when ZEK opined
      based on a misleading record that the Deed of Assignment was effective.276 During
      the period when Naeff claimed to be uncertain, he represented definitively on
      numerous occasions in contemporaneous emails that the UK Estate owned the
      Company’s equity.277

     Naeff testified that he did not hear about the conversion of the Company into a
      corporation until December 2016.278 This testimony was not credible. As early as
      August 2015, Naeff appeared on emails discussing a conversion.279 In August 2016,
      Naeff and Neupert discussed sources of authority for a conversion, with Naeff
      suggesting the Deed of Assignment.280 During Weiser’s interactions with ZEK, he
      provided ZEK with the conversion documents,281 and he conferred with Naeff


      274
            See BX 5.
      275
            See BX 13; BX 14; BX 16; BX 20; BX 23; BX 25; PX 8; PX 11.
      276
            Naeff Tr. 53.
      277
            See, e.g., BX 26 (email dated March 28, 2015, from Naeff: “This is [sic]
assignment is known to us, but it was never executed.”) BX 33 (email dated October 20,
2015, from Naeff: “IIP was the sole shareholder of Cote D’Azur Estates LLC until his
demise in March 2015.”); PX 14 at ‘645 (email dated December 15, 2015, from Naeff to
Tamar: “La Treille is held by Cote d’Azur Real Estate and a[s] such part of the estate.”);
PX 26 (email dated September 17, 2015, from Naeff to Monsenego, Neupert, and others:
“La Treille belongs to the estate”); PX 94 at ‘554 (email dated July 18, 2016, from Naeff:
“Until his death the settlor was the sole shareholder of Côte d’Azur LLC, Delaware, an
entity that holds a property in France.”).
      278
            Naeff Tr. 196–97.
      279
            See PX 25; see also Naeff Tr. 95–96; PX 28 at ‘672; PX 30 at ‘160.
      280
            See PX 98; PX 99; PX 103.
      281
            See PX 107.


                                            79
       during that process.282

Naeff acted and testified like a co-conspirator.

       This decision has also drawn an adverse inference from Neupert’s refusal to be

deposed or to appear and participate in the evidentiary hearing. The resulting inference is

that Neupert’s testimony would have supported a finding that the Foundation knew about

Neupert’s acts and provided him with substantial assistance.

       The knowledge of Naeff, Wieser, and other Lopag representatives is attributable to

the Foundation. Moreover, during this period, Neupert was a member of the governing

board of Lopag; he did not resign from that position until November 18, 2016.283 The close

coordination between Neupert and Lopag provides an additional reason to attribute

Neupert’s Delaware-directed activities to the Foundation.

       The Foundation’s representatives should have known that the Foundation could be

sued in a Delaware court for its role in a conspiracy to use the Delaware Secretary of State

as part of an effort to manufacture title to all of the equity in a Delaware entity. It is

consistent with fundamental notions of fair play and due process for the Foundation to be

subject to personal jurisdiction in this court.




       282
             See PX 113.
       283
             See Dkt. 33 Ex. 3 ¶ 43.

                                              80
                               III.     CONCLUSION

       Lilly proved by a preponderance of the evidence that this court can exercise personal

jurisdiction over the Foundation. The Foundation’s motion to dismiss for lack of personal

jurisdiction is denied.




                                            81
