   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE


JPMORGAN CHASE BANK, N.A.,                  )
individually, and on behalf of itself and   )
other creditors similarly situated,         )
                                            )
             Plaintiff,                     )
                                            )
      v.                                    )   C.A. No. 2018-0274-AGB
                                            )
CLAUDIO BALLARD, KEITH                      )
DELUCIA, GARY KNUTSEN,                      )
SHEPHARD LANE, PETER LUPOLI,                )
IRA LEEMON, JOHN KIDD,                      )
CELESTIAL PARTNERS, LLC,                    )
ZAAH TECHNOLOGIES, INC.,                    )
VEEDIMS, LLC, POTENS                        )
PARTNERS LLC, AND                           )
DATATREASURY CORPORATION                    )
                                            )
              Defendants.                   )


                                    OPINION

                          Date Submitted: April 11, 2019
                           Date Decided: July 11, 2019


Gregory P. Williams and John D. Hendershot, RICHARDS, LAYTON & FINGER,
P.A., Wilmington, Delaware; Zachary G. Newman, Annie P. Kubic, and Steven R.
Aquino, HAHN & HESSEN LLP, New York, New York; Attorneys for Plaintiff
JPMorgan Chase Bank, N.A.

Michael A. Weidinger and Elizabeth Wilburn Joyce, PINCKNEY, WEIDINGER,
URBAN & JOYCE LLC, Greenville, Delaware; Attorneys for Defendants Claudio
Ballard, Keith DeLucia, Shephard Lane, Peter Lupoli, Ira Leemon, John Kidd,
Celestial Partners, LLC, and VEEDIMS, LLC.
Andrew D. Cordo, ASHBY & GEDDES, PA, Wilmington, Delaware; Rachel A.
Kerlek, WOODS, WEIDENMILLER, MICHETTI & RUDNICK, LLP, Naples,
Florida; Attorneys for Defendant Gary Knutsen.


BOUCHARD, C.
      In June 2005, JPMorgan Chase Bank, N.A., (“J.P. Morgan”) and Data

Treasury Corporation (“DTC”) entered into a licensing agreement to settle a patent

infringement lawsuit. In exchange for a license on DTC’s check imaging patents,

J.P. Morgan paid $70 million to DTC, subject to J.P. Morgan’s right to receive a

refund if DTC licensed the same patents to someone else on more favorable terms.

      Beginning in January 2006, DTC licensed its patents to many other companies

for a small fraction of what J.P. Morgan had paid for its license without telling J.P.

Morgan, in violation of DTC’s obligation to do so. After catching wind of this, J.P.

Morgan sued DTC and obtained a final judgment against DTC for $69 million in

June 2015. The judgment was affirmed on appeal in 2016 but remains unpaid.

      J.P. Morgan brings this action in aid of its efforts to collect on its judgment.

J.P. Morgan asserts claims against DTC, its directors at relevant times, and certain

affiliates to recover two categories of distributions that DTC allegedly made

unlawfully to evade its liability for the refund it owed to J.P. Morgan: (i) dividends

DTC paid its stockholders from 2006 to 2010, and (ii) other payments DTC made to

certain insiders from 2011 to 2013. J.P. Morgan’s two main claims are that DTC’s

directors should be personally liable for the dividends DTC paid from 2006 to 2010

under 8 Del. C. § 174, and that J.P. Morgan is entitled to recover all of the

distributions at issue (both the dividends and other payments) because they were

fraudulent transfers under the Delaware Uniform Fraudulent Transfer Act.

                                          1
      DTC moved to dismiss all of J.P. Morgan’s claims on a variety of grounds.

The motion implicates two questions of first impression concerning Section 174 of

the Delaware General Corporation Law, and a third question of first impression

concerning a limitations period in the Delaware Uniform Fraudulent Transfer Act.

      The first question is whether one must be a judgment creditor at the time of

an allegedly unlawful dividend to have standing to maintain a claim under Section

174 to recover the dividend for the benefit of the corporation’s “creditors” in the

event of the corporation’s insolvency. As explained below, the court concludes that

the answer to this question is no because the term “creditors” as used in Section 174

only requires that a person have a claim at the time of the allegedly unlawful

dividend. The court thus finds that J.P. Morgan has standing as a creditor of DTC

to assert a claim under Section 174 to recover for itself and other creditors of DTC

the dividends DTC paid from 2006 to 2010 even though J.P. Morgan did not obtain

its judgment against DTC until 2015.

      The second question is whether the six-year limitations period in Section 174

is a statute of limitations to which tolling principles may be applied, or a statute of

repose to which tolling principles do not apply. Based on the plain language of the

statute, as confirmed by the legal history of Section 174 dating back to the late

1800’s, the court concludes that the six-year limitations period in Section 174 is a

statute of repose. The court thus finds that J.P. Morgan’s Section 174 claim must be

                                          2
dismissed as untimely because it did not file this action until 2018, more than six

years after any of the challenged dividends were paid.

       The third question is whether the one-year discovery period in Section

1309(1) of the Delaware Uniform Fraudulent Transfer Act starts when the mere

existence of an allegedly fraudulent transfer is or could reasonably have been

discovered, or whether it starts when the fraudulent nature of the transfer was or

could reasonably have been discovered. Based on the reasoning and substantial

weight of authority in other jurisdictions that have considered the issue, the court

adopts the latter approach and finds that all of J.P. Morgan’s fraudulent transfer

claims (challenging both the dividends and other payments) were timely filed.

       For the reasons just summarized, and others explained below, defendants’

motion to dismiss the complaint is granted in part and denied in part.

I.     BACKGROUND
       The facts recited herein are based on the allegations of the Verified Complaint

(the “Complaint”) and documents incorporated therein.1 Any additional facts are

either not subject to reasonable dispute or are subject to judicial notice, including




1
  See Winshall v. Viacom Int’l, Inc., 76 A.3d 808, 818 (Del. 2013) (stating that “plaintiff
may not reference certain documents outside the complaint and at the same time prevent
the court from considering those documents’ actual terms” in connection with a motion to
dismiss) (internal quotation marks omitted).
                                            3
opinions in the action J.P. Morgan brought against DTC in the United States District

Court for the Eastern District of Texas (the “Texas Action”).

         A.    The Parties
         J.P. Morgan is a National Association organized under the laws of the United

States, with its principal place of business in Columbus, Ohio. It is a successor in

interest to Bank One Corporation.

         DTC is a Delaware corporation. Since 2005, DTC’s primary business was

suing financial institutions for infringement of two patents for check-imaging

technology, often settling such lawsuits by entering into licensing agreements. DTC

is a non-public company that allegedly maintained assets below $10 million so it

would not be subject to any reporting requirements of the Securities and Exchange

Commission.2

         The Complaint names seven individuals as defendants who served as directors

of DTC when the transactions at issue in this case occurred: Claudio Ballard, Keith

DeLucia, Gary Knutsen, Shephard Lane, Peter Lupoli, Ira Leemon, and John Kidd

(collectively, the “DTC Directors”). Ballard was the founder of DTC and its

Chairman at all relevant times. He died after this action was filed. Knutsen was

DTC’s Vice Chairman and a Finance Committee member before he resigned from

all of his positions at DTC on or about December 29, 2012.


2
    Compl. ¶ 61 n.4.
                                           4
          Defendant Celestial Partners, LLC was a Delaware limited liability company

“owned, operated, controlled, and dominated by Ballard” and is alleged to be the

alter ego of Ballard.3 Defendants Potens Partners LLC and VEEDIMS, LLC are

both Delaware limited liability companies that were owned and controlled by

Ballard. Defendant Zaah Technologies, Inc. is a Delaware corporation and an

affiliate of DTC.

          B.     The 2005 License Agreement Between DTC and J.P. Morgan and
                 Subsequent Licensing Agreements
          On June 28, 2005, J.P. Morgan and Bank One each entered into a licensing

agreement with DTC in connection with settling a lawsuit DTC had brought against

them for allegedly infringing its patents. Before the agreements were executed,

Bank One merged into JPMorgan Chase & Co., J.P. Morgan’s parent company.

These two licensing agreements are referred to together as the “JPM License

Agreement.”          DTC received a total of $70 million under the JPM License

Agreement, $30 million up front and the remaining $40 million in annual

installments through May 31, 2012.4

          Section 9 of the JPM License Agreement contains a most-favored license

provision (the “MFL Provision”). It states, in relevant part, that:

          If DTC grants to any other Person a license to any of the Licensed
          Patents, it will so notify [J.P. Morgan], and [J.P. Morgan] will be

3
    Id. ¶ 8.
4
    Id. ¶¶ 20, 23.
                                           5
          entitled to the benefit of any and all more favorable terms with respect
          to such Licensed Patents. . . . The notification required under this
          Section shall be provided by DTC to [J.P. Morgan] in writing within
          thirty (30) days of the execution of any such third party license and shall
          be accompanied by a copy of the third party license agreement, which
          may be redacted by DTC if necessary to comply with any judicial order
          or other confidentiality obligation.5

In a July 2005 press release, DTC stated that the JPM License Agreement included

“‘most favored licensee’ protection for JPMorgan Chase, giving the bank a

competitive edge in check-processing.”6 According to the Complaint, although J.P.

Morgan was unaware of it at the time, DTC began violating the MFL Provision soon

after entering into the JPM License Agreement by entering into licensing agreements

for the same patents with other parties without informing J.P. Morgan.7

          In January 2006, DTC granted NCR Corporation a lump-sum license for the

same patents for $2.85 million.8 A few months later, DTC granted another lump-

sum license for only $575,000.9 Between 2006 and 2013, DTC entered into dozens

of other licensing agreements involving the same patents, many of which were for

significantly less than the terms of the JPM License Agreement.10 In one license


5
    Id. Ex. C at 2.
6
    Id. ¶ 19 (citing id. Ex. A).
7
    Id. ¶ 21.
8
    Id. ¶ 22.
9
    Id.
10
  Id. ¶ 24; see also id. Ex. B (containing J.P. Morgan’s expert report in the Texas Action
discussing and quantifying the difference between the price terms).
                                              6
relevant to the outcome of the Texas Action, DTC licensed the same patents covered

under the JPM License Agreement to Cathay General Bancorp on October 1, 2012

for a lump sum of $250,000 (the “Cathay license”).11 DTC did not notify J.P.

Morgan about the Cathay license and did not include the refund owed to J.P. Morgan

on its financial statements, balance sheets, or list of liabilities.12

          On or about June 9, 2011, J.P. Morgan sent a letter to DTC indicating that it

learned that DTC had entered into other license agreements, requesting copies of

such agreements, and reminding DTC that a refund was due if any of those

agreements contained more favorable payment terms.13 On June 21, 2011, DTC

responded, confirming it would give J.P. Morgan “access to all of its license

agreements in accordance to the terms of the [JPM License] Agreement.”14 Over the

next few months, DTC sent letters to numerous subsequent licensees advising them

that DTC would provide copies of their license agreements to J.P. Morgan for

review.15




11
  JP Morgan Chase Bank, N.A. v. DataTreasury Corp., 79 F. Supp. 3d 643, 647 (E.D. Tex.
2015).
12
     Compl. ¶¶ 25, 33.
13
     Id. ¶ 34; id. Ex. C.
14
     Id. ¶ 35; id. Ex. D.
15
     Id. ¶ 35; see also id. Ex. E (DTC letters to subsequent licensees).
                                                7
          C.      DTC Issues Dividends (2006-2010)
          Between 2006 and 2010, while DTC continuously was entering into license

agreements for the same patents with more favorable terms than the JPM License

Agreement, it issued more than $117 million in dividends to its stockholders.16

These dividends are referred to hereafter as the “Challenged Dividends.”

          J.P. Morgan alleges that during this time period, DTC and its directors knew

or should have known that its business was in jeopardy. Not only should they have

known that DTC owed J.P. Morgan a large refund under the JPM License

Agreement,17 but they also knew that the America Invents Act18—signed into law in

2011—could impede DTC’s primary income source.19 J.P. Morgan alleges that

DTC’s board of directors willfully, recklessly, or negligently approved the payments

of these dividends at a time when DTC lacked sufficient surplus or net profits, that

DTC was insolvent or rendered insolvent at the time of the dividends, and that the

payments were made to avoid paying J.P. Morgan.20




16
     Id. ¶ 112.
17
     Id. ¶ 63.
18
     35 U.S.C. §§ 1 et seq.
19
     Compl. ¶¶ 40-43.
20
     Id. ¶¶ 53-57.
                                           8
          D.     DTC Transfers Funds to Insiders (2011-2013)
          Between 2011 and 2013, while DTC was on notice that it may owe J.P.

Morgan a large refund and after J.P. Morgan commenced litigation against it, DTC

transferred approximately $13.7 million to the following insiders and affiliates:21

 Recipient                 2011         2012           2013         Total

 Shephard Lane             $959,843     $3,112,586     $258,800     $4,331,229

 Keith DeLucia             $2,725,000   $925,000       $186,757     $3,836,757

 Celestial Partners        $863,009     $3,098,807     $0           $3,961,816
 (Ballard affiliate)

 Gary Knutsen              $52,000      $0             $52,000      $104,000

 Peter Lupoli              $52,000      $52,000        $52,000      $156,000

 Ira Leemon                $52,000      $52,000        $52,000      $156,000

 John Kidd                 $52,000      $52,000        $52,000      $156,000

 Potens                    $0           $110,208       $0           $110,208
 (Ballard affiliate)

 Zaah Technologies         $0           $0             $915,811     $915,811
 (DTC affiliate)


The transfers listed above are referred to hereafter as the “Challenged Transfers.”

DTC also made a $1.5 million loan to VEEDIMS in 2012.22


21
     Id. ¶¶ 125-33.
22
     Id. ¶ 84.
                                          9
          Several of these transfers were discussed during a board meeting on June 13,

2012. Knutsen asked about the payment to Potens, but Ballard could not recall why

the payment was made and DTC’s CEO DeLucia stated that he was not aware of any

authorized payments to Potens.23 Ballard promised to look into the reason for the

payment.24         At the same meeting, Knutsen questioned a $300,000 payment to

Celestial, DeLucia indicated that he was not aware of the payment, and Ballard could

not recall the exact reason for it but thought it may have been a loan to him.25

          E.       The Texas Action
          On November 29, 2012, J.P. Morgan sued DTC in the Texas Action.26 On

February 5, 2015, the district court partially granted J.P. Morgan’s motion for

summary judgment.27

          In its summary judgment motion, J.P. Morgan sought “the benefit of the more

favorable price and other terms of the Cathay license.”28 The district court concluded

that there was no material dispute that DTC was in breach of the JPM License

Agreement.29 It reasoned that the MFL Provision was self-executing because its


23
     Id. ¶ 86.
24
     Id. Ex. O.
25
     Id. ¶ 87; see also id. Ex. O.
26
     Id. ¶ 36.
27
     JP Morgan Chase Bank, 79 F. Supp. 3d at 646.
28
     Id. at 647-48 & n.4.
29
     Id. at 651.
                                           10
plain language “makes its operation automatic” and that DTC violated the provision

by failing to give J.P. Morgan timely notice of the Cathay license.30

          Turning to damages, the district court held that the MFL Provision applied

retroactively to lump-sum license agreements such as the Cathay license:

          Therefore, where a licensee with a most favored licensee clause seeks
          to replace what has become a less-favored lump-sum license payment
          with a later-granted, more favorable lump-sum payment, the only way
          to give meaning to the MFL clause is by retroactive substitution of the
          payment term. That is the outcome of the parties’ contract here.31

The district court also held that J.P. Morgan could take advantage of the more

favorable consideration term of the Cathay license, even if other aspects of the

Cathay license were less favorable, but that the court “must consider Cathay’s total

package of consideration.”32 That package included Cathay’s agreement to make

additional payments to cover later-acquired assets based on specific formulas

included in the Cathay license, which “would necessarily also have to be applied

retroactively” to J.P. Morgan.33 This created a factual dispute, however, because

there was no evidence in the record as to whether any companies J.P. Morgan had




30
     Id. at 649-51.
31
     Id. at 653.
32
     Id. at 654.
33
     Id. at 654-55.
                                            11
acquired after entering into the JPM License Agreement had used the covered

patents, which would reduce the recovery by J.P. Morgan.34

          On June 2, 2015, J.P. Morgan and DTC stipulated in the district court that

DTC was “unable to raise a genuine dispute as to any material fact controverting

[J.P. Morgan’s] claim of $69 million in damages and that [J.P. Morgan] is entitled

to judgment as a matter of law regarding damages.”35 That same day, the district

court entered a final judgment awarding J.P. Morgan “damages of $69 million

against DTC” (the “Judgment”).36

          On May 19, 2016, the United States Court of Appeals for the Fifth Circuit

affirmed the Judgment.37 The Fifth Circuit noted that “[t]he district court first

concluded that DTC breached the contract because the MFL is self-executing . . . .

DTC does not assign as error [this] conclusion, so it has waived any argument on

[it].”38 The court also emphasized that “DTC never even provided sufficient notice

of its earlier breaches as required by the MFL clause.”39




34
     Id. at 655.
35
     Compl. ¶ 36 (quoting Ex. F at 2).
36
     Id. Ex. G.
37
  JP Morgan Chase Bank, N.A. v. DataTreasury Corp., 823 F.3d 1006, 1007 (5th Cir.
2016).
38
     Id. at 1010.
39
     Id. at 1019.
                                          12
           F.    Post-Judgment Discovery in the Texas Action
           After the Judgment was entered in the Texas Action, J.P. Morgan served

discovery on DTC and its attorneys asking them to identify dividends DTC had paid

and other financial transactions.40 DTC objected to producing or having any non-

party produce such documents for the period before June 2011, contending they were

irrelevant “because June 2011 is the date [J.P. Morgan] first notified DTC of a

potential issue involving the most favored license clause.”41 For the time period after

June 2011, DTC did produce some documents.

           On April 13, 2017, during a meet and confer session, DTC’s counsel revealed

that after J.P. Morgan had made its post-Judgment discovery demands, DTC

transferred its corporate documents to an office in Florida leased by VEEDIMS.42

VEEDIMS abandoned the documents and permitted them to be destroyed by the

building’s landlord.43

           J.P. Morgan subpoenaed the DTC Directors in the Texas Action, but they

have produced no documents.44 Despite a March 2017 court order requiring DTC to

produce Lane for a deposition, DTC has not made him available for deposition,



40
     Compl. ¶ 44.
41
     Id. Ex. H at 1.
42
     Id. ¶ 45.
43
     Id.
44
     Id.
                                            13
allegedly due to health concerns, and DTC has not offered any alternative witness to

be deposed.45

           On December 15, 2017, the district court denied J.P. Morgan’s motion to

compel the pre-June 2011 documents it sought.46 That issue was on appeal in the

Fifth Circuit as of the date the instant motion to dismiss was argued.47

           Also on December 15, 2017, the district court ordered DTC to produce to J.P.

Morgan by February 13, 2018 financial records concerning matters that occurred on

or after June 1, 2011.48 On the deadline, DTC produced seven documents, none of

which provide any information as to whether DTC received consideration for the

allegedly fraudulent transfers.49 One document DTC did produce shows that DTC

issued dividends totaling at least $117,148,242.07 between January 2002 and May

2013.50 The Judgment remains unsatisfied.51




45
     Id.
46
     Id. Ex. H at 2.
47
     Id. ¶ 44.
48
  Id. ¶ 46 (citing Ex. H). The district court also ordered DTC to submit to twenty hours of
deposition, but DTC moved for a stay and has continued to refuse to produce a witness.
Id. ¶ 47.
49
     Id. ¶¶ 46, 72.
50
  Id. ¶ 52; see also id. ¶ 61 (citing Ex. I as containing an excerpt from a shareholder meeting
presentation detailing the dividends paid by DTC, which was produced to J.P. Morgan on
February 13, 2018).
51
     Id. ¶ 67.
                                              14
II.      PROCEDURAL HISTORY
         On December 27, 2017, J.P. Morgan filed an earlier action in this court against

the DTC Directors and Celestial Partners challenging as unlawful certain dividends

DTC issued in 2011 and 2012.52 The DTC Directors filed an answer, and that case

is in discovery.

         On April 12, 2018, J.P. Morgan filed this action, which focuses on the

Challenged Dividends and Challenged Transfers.              J.P. Morgan attempted to

consolidate this action with its earlier action, but the defendants refused to consent

to consolidation.53

         The Complaint contains four claims. Count I, which J.P. Morgan brings

“individually and on behalf of other legitimate creditors” of DTC,54 asserts that the

DTC Directors and Celestial Partners, as the alter ego of Ballard, are liable, jointly

and severally, for the amount of the Challenged Dividends because “DTC lacked

sufficient surplus or net profits, and/or was otherwise insolvent or rendered insolvent

by the payment of the dividends, in violation of” Sections 170, 172, 173, and 174 of

the Delaware General Corporation Law.55 Count II asserts that the Challenged


52
  JPMorgan Chase Bank, N.A. v. Ballard, C.A. No. 2017-0923-AGB, Verified Compl. ¶¶
81-87 (Dkt. 1).
53
     Tr. 54 (Oct. 16, 2018).
54
     Compl. at 45.
55
  Id. ¶ 114. As discussed below, J.P. Morgan asserts in the alternative that the Challenged
Dividends were fraudulent transfers. Id. ¶ 117.
                                            15
Transfers were fraudulent.56 Count III seeks an award of attorneys’ fees incurred in

connection with the investigation and prosecution of this action based on DTC’s

fraudulent transfers.57 In Count IV, which J.P. Morgan asserts as a judgment creditor

of DTC, J.P. Morgan seeks to collect payment on a note for $1.5 million that

VEEDIMS owes to DTC but has failed to pay.58

         On May 25, 2018, the DTC Directors, Celestial Partners, and VEEDIMS

moved to dismiss all the claims in the Complaint under Court of Chancery Rule

12(b)(6) for failure to state a claim for relief and, with respect to the fraudulent

transfer claims, under Court of Chancery Rule 9(b) for failure to plead fraud with

particularity.59 The remaining two defendants (Zaah Technologies, Inc. and Potens

Partners LLC) have failed to appear in this case even though it appears they were

served via their Delaware registered agents on May 2, 2018.60

         On January 22, 2019, after hearing oral argument on the motion to dismiss,

the court requested supplemental briefing on several issues concerning the six-year

time limitation in 8 Del. C. § 174(a). Supplemental briefing was completed on April

11, 2019.



56
     Id. ¶¶ 122-39.
57
     Id. ¶ 141.
58
     Id. ¶¶ 143-49.
59
     Dkt. 12.
60
     Dkt. 9.
                                         16
III.     ANALYSIS
         The standard governing a motion to dismiss under Court of Chancery Rule

12(b)(6) for failure to state a claim for relief is well settled:

          (i) all well-pleaded factual allegations are accepted as true; (ii) even
         vague allegations are “well-pleaded” if they give the opposing party
         notice of the claim; (iii) the Court must draw all reasonable inferences
         in favor of the non-moving party; and ([iv]) dismissal is inappropriate
         unless the plaintiff would not be entitled to recover under any
         reasonably conceivable set of circumstances susceptible of proof.61

Under Court of Chancery Rule 9(b), “the circumstances constituting fraud or mistake

shall be stated with particularity. Malice, intent, knowledge and other condition of

mind of a person may be averred generally.”62

         Defendants raise a variety of arguments as to why this court should dismiss

each of their claims. With respect to the Challenged Dividends, defendants assert

that J.P. Morgan (i) is barred by judicial estoppel; (ii) lacks standing under Section

174; and (iii) is time-barred based on the six-year limitation period in Section 174.

With respect to the Challenged Transfers, defendants assert J.P. Morgan’s claim is

untimely and inadequately pled. The court will examine these issues in that order

before turning to defendants’ arguments for dismissal of the claims against

VEEDIMS and Celestial Partners.



61
  Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002) (citations and internal
quotation marks omitted).
62
     Del. Ch. Ct. R. 9(b).
                                            17
         A.     J.P. Morgan’s Unlawful Dividend Claims Are Not Barred by
                Judicial Estoppel
         Defendants argue that J.P. Morgan’s pursuit of claims in this court challenging

dividends that DTC paid from 2006 to 2010 should be barred under the doctrine of

judicial estoppel.63 “Judicial estoppel applies when a litigant’s position ‘contradicts

another position that the litigant previously took and that the Court was successfully

induced to adopt in a judicial ruling.’”64 Put another way, judicial estoppel “acts to

preclude a party from asserting a position inconsistent with a position previously

taken in the same or earlier legal proceeding” that the court was persuaded to

accept.65 “The ‘persuaded to accept’ element is important [because] parties raise

many issues throughout a lengthy litigation and only those arguments that persuade

the court can form the basis for judicial estoppel.”66

         According to defendants, J.P. Morgan should be judicially estopped because

it obtained its Judgment in the Texas Action by “basing its breach claim upon pursuit

of the more favorable price term of the 2012 Cathay license, and not any earlier




63
   Defendants also argued initially that J.P. Morgan’s claims were barred by collateral
estoppel, but that argument was withdrawn. Tr. at 52.
64
  Motors Liqid. Co. DIP Lenders Tr. v. Allstate Ins. Co., 2018 WL 3360976, at *4 (Del.
July 10, 2018) (emphasis added) (quoting Siegman v. Palomar Med. Techs., Inc., 1998 WL
409352, at *3 (Del. Ch. July 13, 1998)).
65
     Motorola Inc. v. Amkor Tech., Inc., 958 A.2d 852, 859 (Del. 2008).
66
   Sheldon v. Pinto Tech. Ventures, L.P., 2019 WL 336985, at *5 (Del. Ch. Jan. 25, 2019)
(internal quotation marks omitted).
                                             18
license,” but J.P. Morgan now is seeking to rely on licenses DTC entered into

previously to establish that DTC breached the MFL Provision and that J.P. Morgan

became a creditor of DTC before it paid out the Challenged Dividends beginning in

2006.67 The fatal flaw in defendants’ argument is that defendants have not identified

any position J.P. Morgan advanced in the Texas Action that was adopted in a judicial

ruling and that is contrary to any of their claims in this case.

         In obtaining the Judgment in the Texas Action, J.P. Morgan relied on the

Cathay license to determine its damages. It made sense for J.P. Morgan to do so

because the amount Cathay paid for the license was relatively modest ($250,000)

and J.P. Morgan could only use the more favorable terms of one license agreement

to establish the amount of its damages. Critically, however, defendants have not

identified any occasion when J.P. Morgan took the position in the Texas Action that

DTC had not breached the MFL Provision before entering into the Cathay license

(e.g., by failing to provide notice to J.P. Morgan of earlier licensing agreements

containing more favorable terms than the JPM License Agreement), or that J.P.

Morgan was not a creditor of DTC before the Cathay license. Indeed, in affirming

the district court’s damages award, the Fifth Circuit expressly recognized that there




67
     Defs.’ Opening Br. 18.
                                           19
were “earlier breaches” of the MFL Provision than DTC’s failure to provide notice

of the 2012 Cathay license.68

         It is true, as defendants point out, that the district court denied J.P. Morgan

the opportunity to take post-Judgment discovery in the Texas Action for pre-June

2011 events.69 But that ruling was not based on a position J.P. Morgan advanced.

Rather, the district court declined to order production of pre-June 2011 matters based

on the arguments advanced by DTC.70 J.P. Morgan sought discovery in the district

court for events dating back to 2006, and has appealed to the Fifth Circuit the district

court’s refusal to permit such discovery.71

         In short, defendants’ judicial estoppel defense fails because they have not

identified any position J.P. Morgan advanced in the Texas Action that any court

relied on in making a ruling that is inconsistent with a position J.P. Morgan has

advanced in this case.



68
  JP Morgan Chase Bank, 823 F.3d at 1019 (“DTC never even provided sufficient notice
of its earlier breaches as required by the MFL clause.”).
69
     Defs.’ Opening Br. 15-16.
70
  See Compl. Ex. H at 2 (“The Court agrees with DTC. DTC first had notice of any
potential claim by [J.P. Morgan] in June 2011, when [J.P. Morgan] notified DTC of its
potential claim under the most-favored license clause. . . . Further, allowing discovery and
production of documents concerning matters that occurred before June 1, 2011 would not
be reasonable or proportional to the needs of this case.”).
71
  See id. at 1 (stating that J.P. Morgan’s “primary argument is that it is entitled to conduct
a broad inquiry into DTC’s pre-judgment disposal of its assets and their current location in
order to satisfy its Judgment and that discovery between 2006 and 2011 is proportional,
reasonable, and proper”).
                                             20
         B.     J.P. Morgan Has Standing to Pursue Its Unlawful Dividend Claims
                on Behalf of Itself and DTC’s Other Creditors
         Defendants argue that J.P. Morgan does not have standing to pursue its

unlawful dividend claims under 8 Del. C. § 174. In relevant part, Section 174

provides that:

         In case of any wilful or negligent violation of § 160 or § 173 of this
         title, the directors under whose administration the same may happen
         shall be jointly and severally liable, at any time within 6 years after
         paying such unlawful dividend or after such unlawful stock purchase or
         redemption, to the corporation, and to its creditors in the event of its
         dissolution or insolvency, to the full amount of the dividend unlawfully
         paid, or to the full amount unlawfully paid for the purchase or
         redemption of the corporation’s stock, with interest from the time such
         liability accrued.72

As the text emphasized above makes clear, in the event of a corporation’s

insolvency, the “creditors” of the corporation may obtain a recovery from the

directors personally if they willfully or negligently violated Section 173. That

section prohibits the payment of dividends that do not comply with other provisions

of the Delaware General Corporation Law, including the requirement to pay

dividends out of surplus or net profits. Thus, as a logical matter, only someone who

is a “creditor” within the meaning of the statute can have standing to bring such a

claim.




72
     8 Del. C. § 174(a) (emphasis added).
                                            21
         Defendants argue that J.P. Morgan was not a “creditor” and thus “does not

have standing to challenge dividends issued by DTC in years 2006 through 2010”

because J.P. Morgan “did not become a judgment creditor of DTC until 2015.”73 In

other words, defendants contend that one must have a judgment in hand to be a

“creditor” under Section 174.

         J.P. Morgan argues in response that the term “creditor” in Section 174 should

be construed more broadly to mean someone who has a “claim.” Applying the

statute in this manner, J.P. Morgan contends as a factual matter that it was a creditor

for purposes of Section 174 once DTC entered into a license with terms more

favorable than the JPM License Agreement given the self-executing nature of the

MFL Provision. The court agrees with J.P. Morgan.

         The term “creditor” is not defined in Section 174, and only one case has been

identified that touches on the issue—our Supreme Court’s 1985 decision in Johnston

v. Wolf.74 In that case, the Supreme Court considered whether three individuals

(Johnston, Praught, and Baron) had standing under Section 174 to challenge the

redemption of preferred stock by a company (“pre-merger Allied”) that subsequently

was merged into “New Allied.” In analyzing that question for two of the plaintiffs

(Johnston and Praught) whom the high court characterized as “creditors of New



73
     Defs.’ Opening Br. 32.
74
     487 A.2d 1132 (Del. 1985).
                                           22
Allied on account of certain trade indebtedness” it owed to them, the Supreme Court

concluded that they were not “‘creditors’ of pre-merger Allied within the meaning

of 8 Del. C. § 174 because, in fact, they did not have a claim against pre-merger

Allied when it went out of existence.”75 In other words, although it did not directly

analyze the meaning of the term “creditor” under Section 174, the Supreme Court

appeared to equate the term “creditor” to having a “claim” even though the claim

had not been reduced to a judgment.76

         Focusing on the third individual in Johnston (Baron) who sought standing to

bring a claim under Section 174, defendants argue that the Supreme Court suggested

that one must have a judgment to be a “creditor” under the statute. The court

disagrees. Baron was differently situated than the other two plaintiffs in Johnston:

Baron asserted that he was a creditor based on a “judgment for fees and expenses”

he had obtained in the Court of Chancery while, as noted above, the other two

plaintiffs (Johnston and Praught) based their Section 174 claim on “certain trade

indebtedness” owed to them.77 Importantly, in rejecting Baron’s standing argument,

the Supreme Court never opined that it was necessary to hold a judgment in order to


75
     Id. at 1136 (emphasis added).
76
  Id.; see also ProtoComm Corp. v. Novell, Inc., 55 F. Supp. 2d 319, 330 (E.D. Pa. 1999)
(construing Johnston to hold that “two of the plaintiffs [Johnston and Praught] were not
‘creditors’ under § 174 because they did not have a claim against the company before the
merger occurred”).
77
     Johnston, 487 A.2d at 1135-36.
                                          23
be a creditor under Section 174. It simply concluded that the judgment Baron held,

which was the basis for his Section 174 claim, 78 failed to give him standing against

pre-merger Allied because the judgment was obtained after the merger: “We hold

that Baron nevertheless lacks standing since the judgment on which he relies was

not obtained until after the merger.”79

       This timing issue was the central holding of Johnston with respect to all three

of the plaintiffs, i.e., that they were not entitled to recover because they were not

creditors at the time of the payment they sought to challenge.80 But the important

point for purposes of this case is that the Supreme Court tacitly suggested in its

analysis that having a claim that had not been reduced to a judgment as of the time

of the challenged payment would be sufficient to recover as a “creditor” under

Section 174. Significantly, two other areas of Delaware law also support construing


78
  Id. at 1135 (“[I]t is on that judgment Baron now relies to establish that he was a creditor
of pre-merger Allied.”).
79
  Id. at 1136; see also id. at 1137 (“Baron had no standing to bring this action under 8 Del.
C. § 174(a) [because] he was not a creditor of pre-merger Allied as of the date of the
merger.”).
80
   See 1 R. Franklin Balotti & Jesse A. Finkelstein, Delaware Law of Corporations and
Business Organizations § 5.32 (3rd ed. 2019 update) (citing Johnston for the proposition
that “[a] creditor who was not such at the time of the unlawful payment is not within the
protected class of creditors entitled to recover”); Barbara Black, Corporate Dividends and
Stock Repurchases § 4.5 (Nov. 2018 update) (“In Johnston v. Wolf, the Delaware Supreme
Court held that the statute protected only creditors at the time of the illegal distribution.”);
3A William Mead Fletcher, Fletcher Cyclopedia of the Law of Corporations § 1217 (April
2019 update) (citing Johnston for the proposition that “creditors of a successor corporation
do not have standing to sue for the predecessor’s redemption of shares in violation of
statute, when they were never creditors of the predecessor corporation”).
                                              24
the term “creditor” as someone with a “claim,” as well as generally construing the

term “creditor” broadly.

          In Mackenzie Oil Co. v. Omar Oil & Gas Co.,81 for example, this court held

long ago that “a simple contract creditor whose claim is evidenced by promissory

notes” had standing as a “creditor” under a statute authorizing the court to appoint a

receiver for an insolvent corporation “on the application of a ‘creditor.’”82 In

reaching this conclusion, the court explained that “[t]he word ‘creditor’ is a term of

very broad meaning” that had been “defined as to embrace, not alone judgment or

lien creditors, but as well general or simple contract creditors, or creditors at large.”83

          Additionally, the Delaware Uniform Fraudulent Transfer Act (“DUFTA”)

defines a “creditor” as someone “who has a claim.”84 The statute in turn defines the

term “claim” broadly to mean “a right to payment, whether or not the right is reduced

to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,

disputed, undisputed, legal, equitable, secured or unsecured.”85 Notably, although



81
     120 A. 852 (Del. Ch. 1923).
82
  Id. at 854-55. The statute in question, which was the predecessor of 8 Del. C. § 291,
provided, in relevant part, that: “Whenever a corporation shall be insolvent, the
Chancellor, on the application and for the benefit of any creditor or stockholder thereof,
may, at any time, in his discretion, appoint one or more persons to be receivers of and for
such corporation.” Id. at 852.
83
     Id. at 854.
84
     6 Del. C. § 1301(4).
85
     Id. § 1301(3).
                                            25
the statutes operate differently, DUFTA and Section 174 have a similar purpose—

both are designed to protect creditors of a corporation from distributions of corporate

funds viewed as inappropriate because they undermine the ability of the corporation

to repay its debts.86

       In light of the above authorities, all of which support construing the term

“creditor” broadly to encompass claims for the purpose of determining who can

recover under statutes designed to protect creditors, the court holds that J.P. Morgan

has pled facts sufficient to establish it has standing to assert claims on behalf of itself

and other creditors under Section 174 dating back to 2006 even though it did not

obtain its Judgment until 2015. This conclusion is supported by (i) the “self-

executing” nature of the MFL Provision, whereby J.P. Morgan became contractually

entitled to the benefit of more favorable license terms when DTC entered into

another license for the same patents on such terms,87 and (ii) the Complaint’s

allegations that DTC licensed its patents to NCR Corporation in January 2006 for



86
  See 6 Del. C. § 1304(a) (defining a fraudulent transfer under DUFTA as one where “the
debtor made the transfer . . . with actual intent to hinder, delay or defraud any creditor of
the debtor”); 8 Del. C. § 174(a) (holding directors liable “to [a corporation’s] creditors in
the event of its dissolution or insolvency, to the full amount of the dividend unlawfully
paid”).
87
   See JP Morgan Chase Bank, 79 F. Supp. 3d at 650 (“DTC’s assertion that the MFL
clause is not self-executing . . . is without merit.”); see also JP Morgan Chase Bank, 823
F.3d at 1010 (“The district court first concluded that DTC breached the contract because
the MFL is self-executing . . . . DTC does not assign as error [this] conclusion, so it has
waived any argument on [it].”).
                                             26
$2.85 million, a fraction of the $70 million J.P. Morgan agreed to pay to license the

same patents, $30 million of which was paid up front.88

         C.     The Unlawful Dividend Claims for 2006-2010 Are Not Timely
         Defendants next argue that J.P. Morgan’s unlawful dividend claims are

untimely based on the six-year limitations period set forth in Section 174. The part

of the statute relevant to this argument provides that “the directors . . . shall be jointly

and severally liable, at any time within 6 years after paying such unlawful dividend

or after such unlawful stock purchase or redemption.”89 It is not disputed that more

than six years elapsed between the date DTC paid the last of the dividends that J.P.

Morgan challenges in this action (in 2010) and the date that J.P. Morgan filed its

Complaint in this action (in April 2018).

         J.P. Morgan contends that the six-year period in Section 174 is a statute of

limitations that can and should be tolled under the doctrines of (i) inherently

unknowable injuries, (ii) fraudulent concealment, and (iii) equitable tolling.

According to J.P. Morgan, the six-year period in Section 174 should be tolled until

at least February 13, 2018, because DTC—“a closely held corporation not subject to

SEC reporting requirements”—concealed from J.P. Morgan the payment of



88
  Compl. ¶¶ 22-23 (alleging that J.P. Morgan “paid the $70 million license fee during the
course of several years: $30 million up front, with the remainder paid in annual
installments through May 31, 2012”).
89
     8 Del. C. § 174(a) (emphasis added).
                                            27
dividends from 2006 to 2010 until DTC was forced to disclose that information

“under compulsion of [a] court order on February 13, 2018.”90 If the six-year period

is tolled until February 13, 2018, J.P. Morgan’s unlawful dividend claims under

Section 174 would be timely.

          Defendants advance two arguments in response: first, that the six-year time

period in Section 174 is a statute of repose to which tolling principles do not apply,

and second, that even if the six-year time period is a statute of limitations that is

subject to tolling doctrines, J.P. Morgan is not entitled to tolling for various reasons.

Because the first issue is dispositive, the court does not reach the second issue.

         Whether the six-year provision in Section 174 is a statute of limitations or a

statute of repose is a question of first impression. None of the parties has identified

any authority that has decided this question.

         Both parties suggest that the Third Circuit in EBS Litigation LLC v. Barclays

Global Investors, N.A.91 viewed the six-year time period in Section 174 to be a statute

of limitations.92 I do not read EBS that way. EBS involved an appeal of the dismissal

of a third-party complaint filed on March 29, 2000, in an adversary action arising

out of a bankruptcy proceeding. The third-party complaint asserted, among other



90
     Pl.’s Opp’n Br. 39-41.
91
     304 F.3d 302, 306 (3d Cir. 2002).
92
     Defs.’ Opening Br. 40-41; Pl.’s Opp’n Br. 37.
                                             28
things, that the former directors of Edison Brothers Stores, Inc. breached their

fiduciary duties by distributing a stock dividend on June 29, 1995, i.e., less than five

years before the third-party complaint was filed.93 The Third Circuit noted that “[a]ll

parties agree that the statute of limitations for the alleged breaches of fiduciary duty

and related offenses is three years,” and thus “expired on June 29, 1998, unless the

statue was tolled during part or all of that period.”94 The statute of limitations to

which the parties were referring, however, logically would have been the three-year

statute of limitations in 10 Del. C. § 8106, which governs claims for breach of

fiduciary duty,95 and not the six-year period referenced in Section 174.

          In making the point that “[i]f the stock dividend occurred when Edison was

insolvent, or rendered insolvent, it was illegal under Delaware law, and voidable in

bankruptcy,” the Third Circuit quoted Section 174 but never analyzed whether the

six-year time period therein was a statute of limitations or one of repose.96 Indeed,

that time period was irrelevant because the challenged stock dividend occurred

within six years of the filing of the third-party complaint at issue in EBS.97


93
     EBS, 304 F.3d at 304-05.
94
     Id. at 305.
95
   See In re Dean Witter P’ship Litig., 1998 WL 442456, at *4 (Del. Ch. July 17, 1998) (“It
is well-settled under Delaware law that a three-year statute of limitations applies to claims
for breach of fiduciary duty.”), aff’d, 725 A.2d 441 (Del. 1999).
96
     EBS, 304 F.3d at 305-06.
97
  In Territory of U.S. Virgin Islands v. Goldman, Sachs & Co., 937 A.2d 760, 794 (Del.
Ch. 2007), the court commented that Section 174 “provides for a cause of action against
                                             29
         The United States Supreme Court recently described the difference between

statutes of limitation and statutes of repose in California Public Employees’

Retirement System v. ANZ Securities, Inc.98 as follows:

         [S]tatutory time bars can be divided into two categories: statutes of
         limitations and statutes of repose. Both are mechanisms used to limit
         the temporal extent or duration of liability for tortious acts, but each has
         a distinct purpose.
                Statutes of limitations are designed to encourage plaintiffs to
         pursue diligent prosecution of known claims. In accord with that
         objective, limitations periods being to run when the cause of action
         accrues—that is, when the plaintiff can file suit and obtain relief. In a
         personal-injury or property-damage action, for example, more often
         than not this will be when the injury occurred or was discovered.
                In contrast, statutes of repose are enacted to give more explicit
         and certain protection to defendants. These statutes effect a legislative
         judgment that a defendant should be free from liability after the
         legislatively determined period of time. For this reason, statutes of
         repose begin to run on the date of the last culpable act or omission of
         the defendant.99




the directors authorizing the dividends, with specific proof requirements, and contains a
six-year limitations period.” The issue before the court concerned distributions made from
a dissolved corporation, which implicated Sections 278 and 325(b) of the Delaware
General Corporation Law. The case did not involve a claim under Section 174, and the
court did not analyze whether the six-year limitations period in Section 174 was a statute
of limitations or one of repose. Id. at 794-95; see also Fotta v. Morgan, 2016 WL 775032,
at *12 (Del. Ch. Feb. 29, 2016) (referring to the “six-year statute of limitation set out in
Section 174” without analyzing whether the provision was a statute of limitation or one of
repose).
98
     137 S. Ct. 2042 (2017).
99
   Id. at 2049 (internal quotation marks and citations omitted); see also CTS Corp. v.
Waldburger, 573 U.S. 1, 7-8 (2014) (“Although there is a substantial overlap between the
policies of the two types of statute, each has a distinct purpose and each is targeted at a
different actor.”).
                                             30
The Supreme Court further explained that “[t]he purpose and effect of a statute of

repose . . . is to override customary tolling rules arising from the equitable powers

of courts” because the “object of a statute of repose [is] to grant complete peace to

defendants.”100

          In Delaware, our own Supreme Court explained the difference between a

statute of limitations and a statute of repose in Cheswold Volunteer Fire Co. v.

Lambertson Construction Co.101 as follows:

          While the running of a statute of limitations will nullify a party’s
          remedy, the running of a statute of repose will extinguish both the
          remedy and the right. The statute of limitations is therefore a
          procedural mechanism, which may be waived. On the other hand, the
          statute of repose is a substantive provision which may not be waived
          because the time limit expressly qualifies the right which the statute
          creates.102

In providing this explanation, the high court cited to a New York state court decision,

which states, in relevant part:

          [W]here, as here, a statute creates a right unknown at common law, and
          also establishes a time period within which the right may be asserted,
          the time limit is a substantive provision which “qualifies” the right in
          effect, a condition attached to the right as distinguished from a statute
          of limitation which must be asserted by way of defense. But to
          ascertain whether the substantive time limitation is to be applied rigidly,
          without exception, as respondent asserts, or whether there are


100
   ANZ Secs., 137 S. Ct. at 2051-52; see also IMO Estate of Lambeth, 2018 WL 3239902,
at *3 (Del. Ch. July 2, 2018) (“This Court and the United States Supreme Court have
explained that statutes of repose are not subject to tolling doctrines sourced in equity.”).
101
      489 A.2d 413 (Del. 1984).
102
      Id. at 421.
                                              31
         circumstances under which it may be tolled or extended, we must look
         to the statute itself and its purpose to determine the Congressional
         intent.103

         Given Cheswold’s reliance on authorities focusing on the context in which a

limitations period is adopted, the court requested that the parties submit

supplemental briefing to address “[t]he legislative history of Section 174 and, in

particular, the purpose of the six-year time period in Section 174(a).”104 A summary

of that history is set forth next.

         The first statutory provision in Delaware for recovering an unlawful dividend

was enacted in 1875 as part of Delaware’s first general corporation act. The 1875

Act was silent as to any time limit for asserting an unlawful dividend claim, but it

expressly provided that the claim may be enforced by a common law debt action:

         [I]t shall be unlawful for any board of directors or managers of any
         company incorporated by the provisions of this act, to declare dividends

103
    Lincoln First Bank of Rochester v. Rupert, 400 N.Y.S.2d 618, 619 (N.Y. App. Div.
1977) (internal citations omitted); see also Romano v. Romano, 227 N.E.2d 389, 391 (N.Y.
1967) (“If a statute creates a cause of action and attaches a time limit to its commencement,
the time is an ingredient of the cause. If the cause was cognizable at common law or by
other statute law, a statutory time limit is commonly taken as one of limitations and must
be asserted by way of defense.”); Kahn v. Trans World Airlines, Inc., 443 N.Y.S.2d 79, 82
(N.Y. App. Div. 1981) (“[T]he general rule in New York for distinguishing between
conditions precedent and Statutes of Limitation may be stated as follows: If the statute
containing the time limitation creates the cause of action, then the limitation will generally
be regarded as an ingredient of the cause of action and, thus, a condition precedent to suit.
If, on the other hand, the cause of action was cognizable at common law or is made such
by virtue of another or different statute, then a validly enacted time limitation will generally
be regarded as a mere Statute of Limitations, which may, if pleaded, preclude enforcement
of the remedy, but does not extinguish the right.”).
104
      Dkt. 42.
                                              32
         out of the capital stock of said company, and for a breach of this clause,
         those who assent thereto shall be liable, jointly or severally, to the
         creditors of the company, to the extent to which the capital stock has
         been encroached upon or impaired by such dividend, and such liability
         may be enforced by an action of debt, to be brought in the name of any
         one or more creditors of the company . . . .105

When the 1875 Act was adopted, a debt action was governed by a three-year statute

of limitations,106 which was the precursor of 10 Del. C. § 8106.107 This limitations

period was capable of being tolled.108

         The 1875 Act was repealed and replaced with a new general corporation act

in 1883. The six-year period for recovering an unlawful dividend from directors

personally found today in Section 174 of the Delaware General Corporation Law

appeared for the first time in Section 7 of the 1883 Act, and has been in place

continuously since then:109


105
      15 Del. Laws ch. 119, § 10 (1875) (emphasis added).
106
   Del. C. 1852, § 2742 (1852) (providing that “no action of debt . . . shall be brought after
the expiration of three years from the accruing of the cause of such action” subject to certain
exceptions); see also Dodd v. Wilson, 4 Del. Ch. 399, 400 (1872) (“The limitation of three
years will be applied in equity to a claim for relief by a decree for the repayment of money
paid for the use of the defendant, by analogy to the statutory period of limitation against
simple contract debts, in actions at law.”). This statute remained unchanged through at
least 1915. See Del. C. 1915, § 4671 (1915) (containing the same text as Section 2742 of
the 1852 code and indicating that the provision came directly from the 1852 code without
modification).
107
      See 10 Del. C. § 8106 (tracing the provision’s history back to Del. C. 1852, § 2742).
108
   See Del. C. 1852, §§ 2750-51 (allowing for tolling in specific instances such as when
the plaintiff is out of state or is a minor).
109
   See 8 Del. C. § 174; 71 Del. Laws ch. 339, §§ 26, 27 (1998); 59 Del. Laws ch. 106, § 6
(1973); 56 Del. Laws ch. 50, § 174 (1967); 8 Del. C. 1953 § 174; 41 Del. Laws ch. 130, §
1 (1937); 21 Del. Laws ch. 273, § 18 (1898); 17 Del. Laws ch. 147, § 7 (1883) (unlawful
                                              33
         It shall not be lawful for the directors of any bank or moneyed or
         manufacturing corporation in this State, or any corporation created
         under this act, to make dividends, except from the surplus or net profits
         arising from the business of the corporation . . . and, in case of any
         violation of the provisions of this section, the directors, under whose
         administration the same may happen, shall, in their individual
         capacities, jointly and severally, be liable at any time within the period
         of six years after paying any such dividends to the said corporation,
         and to the creditors thereof in the event of its dissolution or insolvency,
         to the full amount of the dividend made . . . .110

Section 7 of the 1883 Act dropped the reference in the prior statute to enforcing an

unlawful dividend claim “by an action of debt” and was silent on the means of its

enforcement, although Section 41 of the 1883 Act permitted an “action on the case”

“[w]hen any of the officers or directors of any company, or stockholders thereof,

shall be liable by the provision of this act to pay the debts of such company.”111

         An action on the case was a general cause of action at common law to obtain

a remedy where the conduct did not fall into another recognized cause of action.112




dividend statutes passed from the present back to 1883, all containing a six-year period
from when the dividend was paid to bring a claim).
110
      17 Del. Laws ch. 147, § 7 (1883) (emphasis added).
111
    Id. § 41. This Section was the precursor to 8 Del. C. § 325. See 1 David A. Drexler et
al., Delaware Corporation Law & Practice § 20.06, at 20-13 n.8 (2018 update) (explaining
that the Superior Court in John A. Roebling’s Sons Co. v. Mode (discussed below) “also
disagreed with the creditor that the predecessor to Section 325 would permit such a suit”).
112
    See Trespass, Black’s Law Dictionary (11th ed. 2019) (stating that “action on the case”
is another term for “trespass on the case,” which is defined as “[a]t common law, a lawsuit
to recover damages that are not the immediate result of a wrongful act but rather a later
consequence”).
                                             34
As the Delaware Superior Court explained in Wise v. Western Union Telephone

Co.:113

          Succinctly, therefore, where there exists a legal right on one side and a
          legal wrong on the other, accompanied by damage, the action of Case
          will furnish a remedy where no specific remedy exists.114

When the 1883 Act was adopted, an action on the case was governed by the same

three-year statute of limitations that governed debt actions.115

          In February 1899, a three-judge panel of the Delaware Superior Court issued

an important decision interpreting the unlawful dividend provision of the 1883 Act

in John A. Roebling’s Sons Co. v. Mode.116 The core issue before the court in

Roebling’s concerned whether a judgment creditor could recover the amount of its

judgment individually from a corporate director of an insolvent corporation based

on the payment of an illegal dividend instead of seeking a recovery for the

corporation of the entire illegal dividend. The court concluded that it could not:

          [Section 7] contemplates the recovery and restoration to the capital of
          the corporation of the entire amount thus illegally withdrawn, and, to
          that end, each director is made individually liable for such amount.
          When so recovered and restored, whether at the instance and in the
          name of the corporation primarily, or in the name and at the instance of
          the creditors, it becomes at once a part of the capital stock again, to be
          held and disposed of as such for the benefit of all concerned.


113
      172 A. 757 (Del. Super. Ct. 1934).
114
      Id. at 758.
115
      Del. C. 1852, § 2742.
116
      43 A. 480 (Del. Super. Ct. 1899).
                                             35
                                          *****

          We are unable to find anything in section 7 that will enable the plaintiff
          in this action on the case, or in any other common-law action, separately
          to sue for and recover his individual claim against the defendant. If this
          be a common fund, the remedy would be by proceedings in equity,
          where all persons interested would be made parties, and the rights and
          liabilities of each one could be fully considered and equitably
          adjusted.117

          Having concluded that the relief afforded under Section 7 ran to the

corporation, and for distribution to all creditors in the event of insolvency, the

Roebling’s court further determined “that the remedy by action on the case provided

by section 41 [of the 1883 Act] does not apply to cases arising under section 7, and

that provisions of section 7 can only adequately and properly be enforced by

proceedings in equity.”118 In reaching this conclusion, the court expressed concern

that it would be “unreasonable and inequitable” to use Section 41 to hold a director

liable under Section 7 because the director then would be entitled to be reimbursed

by the corporation under another provision of the 1883 Act, Section 42,119 which




117
      Id. at 481-82.
118
      Id. at 483.
119
    Section 42 of the 1883 Act provided that: “Any officer, director, or stockholder of a
company who shall pay any debt of the company for which he is made liable by the
provisions of this act, may recover the amount so paid in an action against the company,
for money paid for their use, in which action the property of the company only shall be
liable to be taken.” 17 Del. Laws ch. 147, § 42 (1883).
                                             36
would defeat the intent of Section 7 that directors be held personally liable for paying

unlawful dividends.120

         Less than five weeks after Roebling’s was decided, its holdings were

overturned by the adoption of the General Corporation Act of 1899. Specifically,

the unlawful dividend provision in the 1883 Act was modified in the 1899 Act to

state expressly that the provision could be enforced in an action on the case and that

it could be enforced for the benefit of a single creditor by adding the words “or any

of them,”121 while keeping the six-year time period intact:

         No corporation created under the provisions of this Act, nor the
         directors thereof, shall make dividends except from the surplus or net
         profits arising from its business . . . and in case of any violation of the
         provisions of this section, the directors under whose administration the
         same may happen shall be jointly and severally liable in an action on
         the case at any time within six years after paying such dividend to the
         corporation and its creditors or any of them in the event of its
         dissolution or insolvency, to the full amount of the dividend made . . .
         .122



120
   See Roebling’s, 43 A. at 483 (“It is equally clear that the action on the case provided by
section 41 does not apply to such restored capital, whether the restoration be made to the
company or to the creditors. In the absence of express provision, it would seem to be
unreasonable and inequitable to hold that when a director had participated in declaring,
paying, and receiving illegal and unearned dividends, and under section 41 has been
compelled to restore the same to the creditors of the company, he might then turn round,
under section 42, and recover back the amount from the company, as money paid for its
use.”).
121
   See Rockwood v. Foshay, 66 F.2d 625, 628 (8th Cir. 1933) (“The action on the case was
provided to meet the decision in the Roeblings Case, and a right of action was lodged in a
single creditor by the words ‘or any of them.’”).
122
      21 Del. Laws ch. 273, § 18 (1899) (emphasis added).
                                             37
         In 1937, the unlawful dividend statute was amended to remove the reference

to an action on the case and to reinstate “Roebling’s prohibition on individual

creditor actions”123 by removing the “or any of them” language from the 1899 Act:

         No corporation created under the provisions of this Chapter, nor the
         Directors thereof, shall pay dividends upon any shares of the
         corporation except in accordance with the provisions of this Chapter. .
         . . In case of any willful or negligent violation of the provisions of this
         Section, the Directors under whose administration the same may
         happen shall be jointly and severally liable, at any time within six years
         after paying such unlawful dividend, to the corporation and to its
         creditors, in the event of its dissolution or insolvency, to the full amount
         of the dividend so unlawfully paid . . . .124

The substance of the provision in the 1937 statute (italicized above) affording a

period of six years after payment to assert a claim for willful or negligent violations

of the restrictions on paying dividends, which now resides in Section 174, has been

materially unchanged since 1937.125




123
      1 Drexler § 20.06, at 20-14.
124
      41 Del. Laws ch. 130, § 1 (1937) (emphasis added).
125
    See 41 Del. Laws ch. 130, § 1 (1937); 8 Del. C. 1953 § 174 (1953); 56 Del. Laws ch.
50, § 174 (1967); 59 Del. Laws ch. 106, § 6 (1973); 71 Del. Laws ch. 339, §§ 26, 27 (1998);
8 Del. C. § 174. In 1967, Section 174 was broadened to apply to willful and negligent
violations of Section 160, which governs repurchases and redemptions of stock, in addition
to unlawful dividend claims. See 56 Del. Laws ch. 50, §§ 160, 174. This was the first time
that an express statutory time period was imposed on unlawful stock repurchase or
redemption claims. See id.; 8 Del. C. 1953, §§ 160, 174 (1953) (not containing any
limitation period); 25 Del. Laws ch. 154, § 1 (1909) (establishing for the first time that a
corporation had the power to purchase its own shares provided doing so would not “cause
any impairment of the capital of the corporation”).
                                             38
         Having reviewed the legislative history of Delaware’s unlawful dividend

statute, the court turns to the parties’ positions based on that history.

         J.P. Morgan argues that “Section 174 did not create a new right; it merely

reiterated creditors’ long-existing common law right to hold directors liable for

impairing corporate capital through dividends,” as, “in essence, a breach of trust.”126

An early expression of this common law right is Justice Story’s 1824 opinion in

Wood v. Dummer, holding that capital stock is a trust fund that “may be followed by

the creditors into the hands of any persons, having notice of the trust attaching to

it.”127 J.P. Morgan points out that a number of courts followed suit and, inspired by

the trust fund doctrine, allowed the maintenance of an unlawful dividend-type claim

in the late 1800’s and early 1900’s at common law.128 In essence, J.P. Morgan’s



126
      Defs.’ Suppl. Opp’n Br. 4, 10.
127
   30 F. Cas. 435, 437 (C.C.D. Me. 1824); see also Upton v. Tribilcock, 91 U.S. 45, 47
(1875) (adopting the trust fund doctrine and stating that “[t]he capital stock of a moneyed
corporation is a fund for the payment of its debts. It is a trust fund, of which the directors
are the trustees. It is a trust to be managed for the benefit of its shareholders during its life,
and for the benefit of its creditors in the event of its dissolution”).
128
    See, e.g., Jesson v. Noyes, 245 F. 46, 49 (9th Cir. 1917) (finding that dividends paid out
of capital gave rise to “a cause of action at common law” under Alaska law); Loan Soc’y
of Philadelphia v. Eavenson, 94 A. 121, 124-25 (Pa. 1915) (“[I]f directors who are quasi
trustees for the company improperly pay away the assets to the shareholders, they are liable
to replace them.”); Boyd v. Schneider, 131 F. 223, 227 (7th Cir. 1904) (“It seems clear to
us that [by declaring dividends out of capital stock], the directors are answerable in some
kind of action, directly to the persons to whom their duty ran . . . .”); Excelsior Petroleum
Co. v. Lacey, 63 N.Y. 422, 426 (N.Y. 1875) (acknowledging that “an action at common
law, without the aid of statute” could be brought against the directors in an unlawful
dividend case); Gratz v. Redd, 43 Ky. 178, 195 (Ky. 1843) (applying the trust fund doctrine
in an unlawful dividend case and stating that it is “unquestionable” that “the Directors
                                               39
argument boils down to the contention that, because this common law tradition

predated the enactment of the statutory provision that is now Section 174, the

adoption of a six-year time period in Section 174 did not qualify the creation of a

new right and thus must be a statute of limitations rather than one of repose. J.P.

Morgan also points out that other statutes of repose use language that more explicitly

qualifies the right to recover.

         Defendants counter that the court’s analysis should begin and end with the

language of Section 174, which they contend reads like a statute of repose because

it does not use the type of “accrual” language contained in most Delaware statutes

of limitation.129 According to defendants, in the absence of such accrual language,

the act of paying an unlawful dividend is an “objective trigger” from which the six-

year statute of repose period starts to run.130 Defendants argue further that if the

court was to look beyond the plain language of the statute, the history of the unlawful

dividend statute in Delaware shows that the legislature was seeking to implement a

statute of repose in this instance.




might be rendered personally liable for a fraudulent breach of trust, or gross negligence, or
a faithless misappropriation of the trust fund placed in their hands”).
129
   See, e.g., 10 Del. C. § 8106 (indicating that no action “shall be brought after the
expiration of 3 years from the accruing of such action”).
130
      Defs.’ Opening Br. 37.
                                             40
         The court agrees with defendants that Section 174 should be read as a statute

of repose rather than a statute of limitations. This conclusion is supported by the

plain language of the statute and confirmed by its legal history.

         Starting with the text of Section 174, the rules of statutory construction under

Delaware law are well settled:

         First, we must determine whether the statute is ambiguous. If it is
         unambiguous, then there is no room for judicial interpretation and the
         plain meaning of the statutory language controls. The statute is
         ambiguous if it is susceptible of two reasonable interpretations or if a
         literal reading of its terms would lead to an unreasonable or absurd
         result not contemplated by the legislature. If the statute is ambiguous,
         then we consider it as a whole and we read each section in light of all
         the others to produce a harmonious whole.131

For a statute containing a time bar, our Supreme Court’s decision in Cheswold also

invites consideration of the legal history of the statute, if it is ambiguous, to

determine whether the statute created a right unknown at common law such that the

adoption of a time limit should be considered a non-waivable qualification of the

right.132 In that vein, when interpreting Delaware’s appraisal statute, our Supreme

Court recognized that “‘[t]he legal history of a statute, including prior statutes on the

same subject, is a valuable guide for determining what object an act is supposed to




131
      CML V, LLC v. Bax, 28 A.3d 1037, 1041 (Del. 2011) (internal quotation marks omitted).
132
      See supra n.102-03 and accompanying text.
                                             41
achieve’ because frequently legislative enactments are not accompanied by a

contemporaneous Commentary.”133

         Here, the plain language of Section 174 demonstrates that it was intended to

be a statute of repose. The critical language in the statute provides that: “In case of

any wilful or negligent violation of . . . § 173 of this title, the directors under whose

administration the same may happen shall be jointly and severally liable, at any time

within 6 years after paying such unlawful dividend.”134 Section 173 provides that

“[n]o corporation shall pay dividends except in accordance with this chapter,”135 i.e.,

the Delaware General Corporation Law.136 Section 170, in turn, provides in general

terms that dividends may be paid only out of the corporation’s “surplus” or “net

profits for the fiscal year in which the dividend is declared and/or the preceding fiscal

year.”137 Thus, because the six-year time limit in Section 174 expressly qualifies the

right that Section 174 creates to hold directors personally liable for willful or




133
   Cede & Co. v. Technicolor, Inc., 758 A.2d 485, 495 (Del. 2000) (quoting 2A Norman
F. Singer, Sutherland Statutory Construction § 48.03 at 315 (5th ed. 1992)).
134
      8 Del. C. § 174(a) (emphasis added).
135
      Id. § 173.
136
      Chapter 1 of Title 8 of the Delaware Code is the Delaware General Corporation Law.
137
      8 Del. C. § 170(a).
                                             42
negligent violations of Section 173, it is a substantive provision that cannot be

waived under our Supreme Court’s teaching in Cheswold.138

            This interpretation is supported by the fact that the six-year period in Section

174 during which directors can be liable for an unlawful dividend is tied, not to the

accrual of a cause of action, but rather to the payment of a dividend. As the United

States Supreme Court explained in ANZ Securities, the major distinguishing factor

of a statute of repose is that the limitations period “begin[s] to run on the date of the

last culpable act or omission of the defendant.”139 Indeed, according to the Supreme

Court, “this point is close to a dispositive indication that the statute is one of

repose.”140

            Delaware courts have focused on this distinction in determining whether a

time bar is a statute of repose or a statute of limitations. For example, in City of

Dover v. International Telephone & Telephone Corp.,141 the Supreme Court

reaffirmed its decision in Cheswold that the Delaware Builder’s Statute, 10 Del. C.

§ 8127,142 is a statute of repose because “[t]he limitations period begins to run at the


138
   489 A.2d at 421 (holding that “the statute of repose is a substantive provision which
may not be waived because the time limit expressly qualifies the right which the statute
creates”).
139
      ANZ Secs., 137 S. Ct. at 2049 (internal quotation marks omitted).
140
      Id.
141
      514 A.2d 1086 (Del. 1986).
  The Builder’s Statute is rather intricate but, in essence, provides that “[n]o action” for
142

damages concerning “any alleged deficiency in the construction or manner of construction
                                               43
earliest of several designated dates, irrespective of the date of the injury” and thus

“prevents a claim from arising, whereas a statute of limitations bars an accrued cause

of action.”143

         Another Delaware statute, 10 Del. C. § 8126, which repeatedly has been

referred to as a statute of repose, also is instructive.144 It provides as follows:

         No action, suit or proceeding in any court, whether in law or equity or
         otherwise, in which the legality of any ordinance, code, regulation or
         map, relating to zoning, or any amendment thereto, enacted by the
         governing body of a county or municipality, is challenged, whether by
         direct or collateral attack or otherwise, shall be brought after the
         expiration of 60 days from the date of publication in a newspaper of
         general circulation in the county or municipality in which such adoption
         occurred, of notice of the adoption of such ordinance, code, regulation,
         map or amendment.145
This language explicitly ties the expiration of the claim not to when any alleged

claim accrued but rather to the date when notice of the ordinance to be challenged is

published in a local newspaper. The statute thereby precludes legal challenges by

those whose harm was discovered and accrued after the sixty days have passed, such


of any improvement to real property . . . shall be brought against” various persons “after
the expiration of 6 years from whichever of the following [eight] dates shall be earliest.”
10 Del. C. § 8127(b).
143
      City of Dover, 514 A.2d at 1089.
144
    See, e.g., Murray v. Town of Dewey Beach, 67 A.3d 388, 391 (Del. 2013) (recognizing
Section 8126 as “a statute of repose” and concluding that “the Court of Chancery lacked
jurisdiction to hear those claims because, under § 8126, they were extinguished 60 days
after the Town gave public notice of those actions”); Farmers for Fairness v. Kent Cty.
Levy Court, 2013 WL 3333039, at *5 (Del. Ch. July 1, 2013) (stating that “Section 8126 is
a statute of repose”).
145
      10 Del. C. § 8126(a).
                                            44
as those later moving into a neighborhood who may otherwise seek to challenge the

ordinance, and instead ties the repose period to the date of the newspaper publication.

      Although the language of Sections 8126 and 8127 of Title 10 differs from

Section 174 in certain respects, the common thread they share with Section 174 is

that the time bar is tied to a specific designated event irrespective of when the claim

accrues. As previously noted, this is a hallmark of a statute of repose.

      Finally, Section 174 cannot be viewed as ambiguous on the theory that reading

it to be a statute of repose would lead to an unreasonable or absurd result that the

legislature could not have contemplated. To the contrary, although no commentary

to the enactment of the six-year time period in Section 174 has been unearthed in

this case, it would be entirely reasonable for the legislature to make the policy

judgment that directors of Delaware corporations should be afforded certainty to be

free from personal liability for authorizing a dividend six years after the payment of

the dividend. This does not mean, of course, that the legislature could not have made

a different policy judgment, but just that the judgment to provide certitude to

directors is not an unreasonable one.

      For the reasons explained above, the court concludes that the plain language

of Section 174 supports the conclusion that the six-year time bar in that provision is

a statute of repose. Even if the meaning of the time bar in Section 174 were




                                          45
ambiguous, however, the legal history of Section 174 chronicled above confirms the

conclusion that the six-year time limit was intended to operate as a statute of repose.

          To repeat, the six-year period in Section 174 first appeared in Section 7 of the

1883 Act, which prohibited the payment of dividends “except from the surplus or

net profits arising from the business of the corporation” and provided that the

directors could be liable for any violation of that prohibition “at any time within the

period of six years after paying any such dividends.”146 Although Section 7 was

silent on the means of its enforcement, Section 41 of the 1883 Act provided a right

to bring an action on the case against directors when they “shall be liable by the

provisions of this act to pay the debts of such company.”147 In February 1899, the

Roebling’s court concluded that a claim for unlawful dividends under Section 7

could not be enforced in an action on the case under Section 41. Less than five

weeks later, in March 1899, what was Section 7 of the 1883 Act was modified to

state expressly that “in case of any violation of the provisions of this section, the

directors under whose administration the same may happen shall be jointly and

severally liable in an action on the case at any time within six years after paying such

dividend . . . .”148



146
      17 Del. Laws ch. 147, § 7 (1883).
147
      Id. § 41.
148
      21 Del. Laws ch. 273, § 18 (1899).
                                             46
         Importantly, an action on the case at the time was governed by a three-year

statute of limitations, to which tolling principles could be applied.149 In my view, it

would be illogical to infer that the legislature intended to incorporate a second,

conflicting six-year statute of limitations into the same statute when clarifying the

means to enforce an unlawful dividend claim. Rather, the only reasonable inference

is that the legislature intended that the right of creditors to sue directors for unlawful

dividends via an action on the case would continue to be governed by a three-year

statute of limitations, which could be tolled, but subject to an outside limit of six

years as a statute of repose.

         As the United States Supreme Court commented in ANZ Securities, the

“pairing of a shorter statute of limitations and a longer statute of repose is a common

feature of statutory time limits.”150 The legal history of Section 174, particularly the

rapid and unequivocal response to the Roebling’s decision reflected in the adoption

of the 1899 Act, supports that this was the legislative intent behind including a six-

year time period in the unlawful dividend statute. No reason has been suggested,

furthermore, why this intent would have changed when the statute was amended in



149
   Del. C. 1852, § 2742 (providing that “no action upon the case shall be brought after the
expiration of three years from the accruing of the cause of such action” subject to certain
exceptions). This statute remained unchanged through at least 1915. See Del. C. 1915, §
4671 (containing the same text as Section 2742 of the 1852 code and indicating that the
provision came directly from the 1852 code).
150
      ANZ Secs., 137 S. Ct. at 2045.
                                            47
1937 to remove the reference to “an action on the case” and the source of the right

to hold directors accountable for unlawful dividends became solely statutory in

nature.

         Finally, I am unpersuaded by J.P. Morgan’s contention that the six-year period

in Section 174 must have been intended to be a statute of limitations—and not a

substantive qualification of a newly created right—on the theory that a common law

right emanating from the trust fund doctrine was in existence to pursue unlawful

dividend claims against corporate directors when the six-year period was added to

the statute in 1883. Although a number of jurisdictions had recognized such a claim

at common law,151 no authority has been identified indicating that Delaware had

adopted the trust fund doctrine or anything equivalent at common law for this

purpose as of this time.        Indeed, it was not until 1931 that “Delaware first

acknowledged the trust fund doctrine in Asmussen v. Quaker City Corp.,”152 where

the court declined to adopt the doctrine.153

                                        *****

         For the reasons explained above, the court holds that the six-year time

limitation in Section 174 is a statute of repose. Accordingly, because J.P. Morgan


151
      See supra. n. 128.
152
      156 A. 180 (Del. Ch. 1931).
153
   Brent Nicholson, Recent Delaware Case Law Regarding Director’s Duties to
Bondholders, 19 Del. J. Corp. L. 573, 580 (1994).
                                           48
filed this action more than six years after any of the Challenged Dividends were paid,

Count I fails to state a claim for relief under Sections 170, 172, 173, and 174 of the

Delaware General Corporation Law.154 As an alternative to seeking relief under

these statutory provisions, J.P. Morgan alleges that the Challenged Dividends “were

actual fraudulent transfers.”155 This issue is considered next in the court’s analysis

of Count II of the Complaint.

         D.    J.P. Morgan’s Fraudulent Transfer Claims Are Not Time-Barred
         In Count II of the Complaint, J.P. Morgan seeks to recover approximately

$13.7 million of allegedly fraudulent transfers that were made to insiders of DTC

from 2011 to 2013 (as defined above, the “Challenged Transfers”). As just noted,

J.P. Morgan also seeks to recover the Challenged Dividends as fraudulent transfers

as an alternative to its unlawful dividend claim in Count I.

         The parties agree that the timeliness of J.P. Morgan’s fraudulent transfer

claims is governed by Section 1309(1) of DUFTA. That provision requires that a

fraudulent transfer claim be brought “within 4 years after the transfer was made or



154
   J.P. Morgan cites to IAC/InterActiveCorp. v. O’Brien, 26 A.3d 174, 177-78 (Del. 2011),
for the proposition that “‘the Chancellor will not be bound’ by a limitations period ‘if
unusual conditions or extraordinary circumstances make it inequitable.’” Pl.’s Opp’n Br.
38. IAC, however, concerns laches and statutes of limitations. No authority has been
identified to support extending this doctrine to statutes of repose. See Lambeth, 2018 WL
3239902, at *3 (“This Court and the United States Supreme Court have explained that
statutes of repose are not subject to tolling doctrines sourced in equity.”).
155
      Compl. ¶ 117.
                                           49
the obligation was incurred or, if later, within 1 year after the transfer or obligation

was or could reasonably have been discovered by the claimant.”156 All of the

transfers alleged to be fraudulent in this case, the last of which occurred in 2013,

were made more than four years before J.P. Morgan filed this action in 2018. Thus,

for J.P. Morgan’s fraudulent transfer claims to survive, they must have been brought

within one year of when the unlawful transfers were or “could reasonably have been

discovered.”157

            Neither side analyzes in any depth a key question at the center of their dispute

over the timeliness of J.P. Morgan’s fraudulent transfer claims: whether the one-

year time period under DUFTA starts when the mere existence of the transfers was

or could reasonably have been discovered, or whether it starts when the fraudulent

nature of the transfer was or could reasonably have been discovered. Citing In re

Primedia, Inc. Shareholders Litigation,158 a case applying equitable tolling to a

breach of fiduciary duty claim, J.P. Morgan argues that “mere knowledge of the

transfers, without more, does not mean [J.P. Morgan] had the ‘facts necessary to

plead the [fraud] claim and survive the motion to dismiss.’” 159 Defendants argue in

a footnote that Primedia is inapplicable because it does not address the tolling


156
      6 Del. C. § 1309(1).
157
      Id.
158
      2013 WL 6797114 (Del. Ch. Dec. 20, 2004).
159
      Pl.’s Opp’n Br. 47 (quoting Primedia, 2013 WL 6797114, at *12).
                                               50
provision in Section 1309(1) and, implicitly, seem to argue that knowledge of the

transfer itself is all that is needed.160 There does not seem to be any clear Delaware

authority on this issue, but what authority there is supports J.P. Morgan’s position.

            In In re Transamerica Airlines, Inc.,161 this court found that allowing an

amendment to a fraudulent transfer claim would be futile, as the claim was time-

barred under Section 1309(1) of DUFTA.162 The court relied on the fact that the

allegations in the complaint were based largely on a public 10K from 1987 and a

public article from 1987, so “Akande could have reviewed the TransAir 10K in 1987

or at any time from then through 2003 and learned the same information that caused

him to file this lawsuit in 2005.”163 The court’s analysis implies that the central

question under Section 1309(1) is, as J.P. Morgan argues, when the plaintiff

discovered or reasonably could have discovered the facts that caused it to file the

lawsuit, i.e., not just that a transfer had occurred but that the transfer was fraudulent

in nature.

            This approach is supported by a Delaware bankruptcy court decision that

declined to bar an action for fraudulent transfer under DUFTA.164 The court


160
      Defs.’ Reply Br. 35 n.105.
161
      2006 WL 587846 (Del. Ch. Feb. 28, 2006).
162
      Id. at *5.
163
      Id.
164
   Forman v. Kelly Capital, LLC, 2015 WL 3827003, at *7-8 (Bankr. D. Del. June 19,
2015).
                                            51
described Section 1309(1) as allowing that “[i]f the fraud is hidden, . . . the statute

of limitations is extended to one year after the fraud was or could reasonably have

been discovered by the creditor.”165 The court explained that the “Complaint

contains facts that are suggestive of the difficulty of reasonable discovery by a

creditor of any fraud committed” in part “[b]ecause the Debtor was not a public

company” and therefore “its board resolutions and financial records were not

available to creditors.”166 “Thus, from the face of the Complaint the Court [could

not] conclude that the equitable tolling provision [in Section 1309(1)] does not

apply.”167

            Looking at jurisdictions outside of Delaware, a treatise on the Uniform

Fraudulent Transfer Action (“UFTA”) reports that “[i]t is generally held that the

one-year discovery period commences when the fraudulent nature of the transfer is

discovered, rather than when the transfer itself is discovered,” and that authority to




165
      Id. at *8 (emphasis added).
166
      Id.
167
      Id.
                                           52
the contrary that “focuses on the literal language” of the statute is “sparse.” 168 The

Sixth Circuit’s decision in In re Fair Finance Co.169 is instructive.

          There, the court construed under Ohio law a provision identical to Section

1309(1) of DUFTA to mean that the one-year period “begins to run at the point when

a plaintiff discovers or, in the exercise of reasonable care, could have discovered the

transfer and its fraudulent nature.”170        In reaching this conclusion, the court

considered that (i) other jurisdictions had so concluded,171 (ii) this rule aligned “with

Ohio’s broader statute of limitations and discovery rule jurisprudence,” and (iii) the

broader purpose of UFTA is “to discourage fraud and provide aggrieved creditors



168
    Peter Spero, Fraudulent Transfers, Prebankruptcy Planning and Exemptions § 4.24
(Aug. 2018 update); see also Santander Bank, N.A. v. Branch Banking & Tr. Co., 2018
WL 8368857, at *2-3 (M.D. Pa. Feb. 5, 2018) (explaining that the “majority approach” is
that “the one-year period begins when [one] becomes aware of the fraudulent nature of the
transfer”).
169
      834 F.3d 651, 673-74 (6th Cir. 2016).
170
      Id. at 670, 674.
171
    See, e.g., Workforce Sols. v. Urban Servs. of Am., Inc., 977 N.E.2d 267, 278-79 (Ill.
App. Ct. 2012) (relying on Illinois discovery rule principles to interpret the UFTA one-
year period as beginning to run when “the injured plaintiff knows or reasonably should
have known that he has been injured and that his injury was wrongfully caused”); Moore
v. Browning, 50 P.3d 852, 859 (Ariz. Ct. App. 2002) (stating that the claim was time-barred
unless the plaintiffs could show that “they did not discover and could not have discovered
the fraudulent nature of the . . . transfers”); Duran v. Henderson, 71 S.W.3d 833, 839 (Tex.
Ct. App. 2002) (“A creditor’s cause of action to set aside a fraudulent conveyance accrues
when the creditor acquires knowledge of the fraud, or would have acquired such knowledge
in the exercise of ordinary care.”). But see Nat’l Auto Serv. Ctrs., Inc. v. F/R 550, LLC,
2016 WL 1238265, at *5 (Fla. Dist. Ct. App. Mar. 30, 2016) (relying on the plain language
to conclude that the one-year period runs from when the transfer was or could reasonably
have been discovered).
                                              53
with a means to recover assets wrongfully placed beyond their reach.”172 Regarding

the third consideration, the court reasoned that requiring “a claimant to bring suit

within one year of discovering a transfer, without having discovered facts that would

put the claimant on notice as to the transfer’s fraudulent nature, would be to interpret

[the statute] in a manner that is directly at odds with the animating purpose of the

UFTA.”173

          Schmidt v. HSC, Inc.174 also is instructive. There, the Supreme Court of

Hawaii concluded “that the one year limitations period that begins on the date a

transfer ‘was or could reasonably have been discovered by the claimant’ commences

when a plaintiff discovers or could reasonably have discovered a transfer’s

fraudulent nature.”175 In addition to taking into account the purpose of the statute,

the court found that the word “transfer” in the limitations provision “clearly refers

to the ‘fraudulent transfer’ identified in the preceding sentence” of the provision and

that “it would be legally absurd and unjust to interpret the discovery rule to preclude

claims under the UFTA if plaintiffs were never aware they held a potential claim.” 176



172
      Fair Finance, 834 F.3d at 672, 674.
173
    Id. at 674; see also Freitag v. McGhie, 947 P.2d 1186, 1189 (Wash. 1997) (en banc)
(“Common sense and the statutory purpose of the UFTA necessitate a finding that the
statute begins to run with the discovery of the fraudulent nature of the conveyance.”).
174
      319 P.3d 416 (Haw. 2014).
175
      Id. at 417.
176
      Id. at 426-27.
                                            54
         Based on the reasoning and the substantial weight of authority discussed

above, the court will apply the one-year period in Section 1309(1) of DUFTA as

starting when J.P. Morgan discovered or reasonably could have discovered the

fraudulent nature of the transfers for which it seeks relief, i.e., the Challenged

Transfers and Challenged Dividends. Defendants make essentially three arguments

why J.P. Morgan should be time-barred from asserting these claims as a factual

matter. They are addressed chronologically.

                1.     The Viewpointe Litigation

         Defendants first argue that J.P. Morgan should have discovered the unlawful

nature of the Challenged Dividends as early as 2008 when DTC produced documents

to J.P. Morgan’s counsel (Skadden, Arps, Slate, Meagher & Flom LLP) during

discovery in a patent litigation involving a related entity (Viewpointe) reflecting that

DTC had entered into other license agreements in violation of the License

Agreement between DTC and J.P. Morgan.177 This argument fails for two reasons.

         First, the argument fails for the same reason it was flatly rejected in the Texas

Action, albeit in the context of deciding whether notice of more favorable licenses

had been provided under the MFL Provision in the JPM License Agreement. Noting

that discovery in this “wholly different litigation” involving Viewpointe was

governed by a protective order, the district court held: “To claim that Skadden


177
      Defs.’ Reply Br. 9-12.
                                            55
should have violated that protective order is untenable. DTC’s argument is without

merit.”178 The same holds true here.

         Second, even if J.P. Morgan was on notice that DTC had entered into more

favorable licenses as of 2008 as a result of the litigation involving Viewpointe, no

showing has been made that J.P. Morgan was aware at that time that DTC was

issuing dividends, much less that J.P. Morgan was aware at that time of facts

suggesting that the dividends DTC paid were fraudulent in nature.

                2.    Pre-Judgment Discovery in the Texas Action

         Defendants next argue that J.P. Morgan “was on notice at least as of January,

2014 of information sufficient” to assert its fraudulent transfer claims based on

discovery it obtained in the Texas Action before the Judgment was obtained in June

2015.179 In particular, defendants rely on excerpts from two depositions taken in

January 2014 of Keith DeLucia, DTC’s CEO and President, and Shephard Lane,

DTC’s Secretary and General Counsel. Having reviewed all the testimony cited in

defendants’ briefs on this point, the court concludes that the argument is meritless.

         With respect to the Challenged Dividends, the cited testimony made J.P.

Morgan aware at most that DTC had issued some dividends in the 2008 to 2011 time



178
    JP Morgan Chase Bank, 79 F. Supp. 3d at 651 (indicating that “even if the Skadden
attorney received information regarding some of the Subsequent Licenses, it was during
discovery in a wholly different litigation”).
179
      Defs.’ Opening Br. 22-25.
                                           56
frame.180 The cited testimony, however, did not make J.P. Morgan aware of the

scope of DTC’s dividend payments or of DTC’s financial condition at the time so as

to put J.P. Morgan on notice that the dividends may have been fraudulent in nature.

In fact, DTC employed obstructionist tactics to preclude its witnesses from

answering questions intended to elicit such information, including questions about

DTC’s assets, financial health, cash position, the per-share value of any dividend,

the date of each dividend, and their total amounts.181 The following excerpt from

the deposition of DTC’s General Counsel, Shephard Lane, which was followed by a

lengthy series of instructions not to answer, is emblematic:

           Q. How many shares of Data Treasury are—are currently owned?
       What’s the total value of that dividend?
              MR. GILLILAND: Objection, form.
           A. I don’t know about my lawyer, but I consider these questions
       totally irrelevant to the issues of this case and a most favored nations,
       most favored licensee position of Chase, and there is no relevancy to
       your questions, nor will it lead to relevant testimony.


180
   See Gilliland Aff. Ex. A, at 48-50 (DeLucia testifying that he had received four or five
dividends from DTC between 2008 and 2011, which according to his estimates totaled
between $14-22 million); Gilliland Aff. Ex. B, at 59-60 (Lane testifying that the last
dividend was issued on 12/31/2011 and that it was “probably closer to sub 50 cents a share”
than to a dollar per share).
181
    See Gilliland Aff. Ex. A, at 47-48 (DeLucia refusing to specify the total amount of
dividends DTC had issued), 57:18-25 (DeLucia refusing to testify as to the amount of cash
DTC currently had); id. Ex. B, at 60-61 (Lane refusing to answer a question about the total
value of a 2011 dividend), 62-64 (Lane refusing to answer questions about DTC’s financial
situation and if it could pay J.P. Morgan $70 million); see also Freund Aff. Ex. A, at 203-
04 (Ballard refusing to testify as to the amount of dividends DTC gave its shareholders
between 2000 and 2010 and being instructed not to answer questions about “the financial
condition, the financial dealings of Data Treasury”).
                                            57
                MR. GILLILAND: And I’m going to—I’m going to support the
         witness’ statement in that I think the questions are harassing to the
         extent they go beyond any dividends he may have received directly,
         because as a witness, I think there may be some marginal relevance to
         that, but for the corporation in general, I see no relevance whatsoever
         to the case at hand.
                So I believe the questions are harassing and instruct him not to
         answer to the broader scope of the financial operations of the company.
             Q. (By Mr. Mayerfeld) Are you accepting your attorney’s
         instruction?
             A. Yes.182

         With respect to the Challenged Transfers, defendants do not cite any

deposition testimony that put J.P. Morgan on notice of the specifics of these

transfers, let alone that they may have been fraudulent. Rather, apart from the issue

of dividends, the cited testimony simply refers to compensation-related payments.183

                 3.     Post-Judgment Discovery in the Texas Action

         Defendants’ third argument is based on documents DTC produced to J.P.

Morgan “by October 1, 2015” as part of post-Judgment discovery in the Texas

Action.184 As an initial matter, defendants’ opening brief made no effort to identify

which documents it was referring to or to explain in any specific sense why the

documents should have placed J.P. Morgan on notice that any of the Challenged




182
      Gilliland Aff. Ex. B, at 60-61.
183
   See, e.g., Gilliland Aff. Ex. A, at 47 (DeLucia testifying that “paycheck, bonus, equity,
that’s what I’ve received. There—there’s nothing else that I believe that I’ve received
other than—the dividends would be, I guess, the only other thing that I received”).
184
      Defs.’ Opening Br. 23.
                                            58
Dividends or Challenged Transfers were fraudulent in nature.185                  This failure

constitutes a waiver.186

         Putting the issue of waiver aside, defendants’ reply brief identified several

exhibits attached to the Complaint that they contend “show the Company did not

have assets to pay a $69 million judgment” to J.P. Morgan.187 The cited documents

consist of (i) summary DTC financial information for 2011-2013, (ii) budgets for

2012 and 2013, and (iii) a set of minutes from a June 13, 2012 board meeting.188 The

information in these documents post-dates 2010 and provides no insight concerning


185
    Defendants’ opening brief only cites four pages of a privilege log that provides no
substantive information about the contents of any documents. See Defs.’ Opening Br. 23
(citing Gilliland Aff. Ex. D).
186
    See Zutrau v. Jansing, 2013 WL 1092817, at *6 (Del. Ch. Mar. 18, 2013) (noting that
“[u]nder the briefing rules, a party is obliged in its motion and opening brief to set forth all
of the grounds, authorities and arguments supporting its motion” and that “courts routinely
have refused to consider arguments made in reply briefs that go beyond responding to
arguments raised in a preceding answering brief”). Further, at argument defendants’
counsel discussed general ledgers that were produced to J.P. Morgan in August of 2015 as
providing notice of these transfers, but admitted that the “notice of that specific amount of
that specific transfer is not attached to the complaint or cited in our brief, because it would
be from a general ledger we did not attach.” Tr. 31-32. While the general ledgers were
produced after argument, Dkt. 40, defendants waived any arguments based on these ledgers
by failing to raise the issue until argument. See, e.g., Zutrau, 2013 WL 1092817, at *6.
187
   Defs.’ Reply Br. 33 (citing Compl. Exs. L-R). In their reply brief, defendants also cite
ten documents attached as exhibits H-P of the complaint that J.P. Morgan filed in C.A. No.
2017-0923. Id. at 33 n.97. Eight of these documents are the same as ones attached to the
Complaint in this action. See Compl. Exs. J-N, P-R. The other two documents are minutes
(with redactions) of DTC board meetings held on December 28, 2011 and December 20,
2012. Defendants’ reply brief makes no effort to explain what parts of those minutes they
believe are relevant to their time bar arguments, and the court declines to engage in a
scavenger hunt to attempt to do so.
188
      See Defs.’ Reply Br. 33 (citing Compl. Exs. L-R).
                                              59
the amounts of, or the circumstances under which, the Challenged Dividends were

paid during the 2006-2010 time period such that J.P. Morgan could be said to have

been placed on notice that any of these dividends were fraudulent in nature.

            Insofar as the Challenged Transfers are concerned, only one of the cited

documents—the June 2012 board minutes—specifically identifies any of these

transfers. Those minutes raise questions about the basis for two of the Challenged

Transfers, namely a $300,000 payment to Celestial Partners and a $110,208.84

payment to Potens.189 More specifically, the minutes reflect that Ballard “could not

recall the genesis of the payment” to Potens but that he would look into the matter,

and that Ballard believed the payment to Celestial Partners “was in fact a loan to

him,” which the board then ratified.190 Although this is a closer call than any of

defendants’ other arguments concerning the Challenged Payments, the questions

raised in the minutes about these two payments were not sufficient in the court’s

view to put J.P. Morgan on notice that they were fraudulent in nature without making

further inquiry given the explanations that Ballard provided.

            Significantly, it is alleged that J.P. Morgan’s ability to make further inquiries

in the Texas Action about the Challenged Payments was shut down. The Complaint



189
   Compl. Ex. O. The June 2012 board minutes also refer to two other transfers (a
$500,000 payment to Lane and a $396,000 payment to Celestial Partners), but those are
characterized as payments for compensation. Id.
190
      Id.
                                               60
specifically alleges that after DTC made its initial post-Judgment production of

documents, it “continuously failed to disclose any document or other materials

explaining or demonstrating that DTC received legitimate consideration in exchange

for these post-June 2011 transfers.”191 The Complaint further alleges that DTC has

refused to produce witnesses for depositions on multiple occasions and that DTC

permitted its corporate documents to be destroyed while J.P. Morgan’s post-

Judgment discovery demands in the Texas Action were outstanding.192 J.P. Morgan

only learned about the latter incident on April 13, 2017. The Complaint was timely

filed under Section 1309(1) of DUFTA within one year of this revelation.

          Turning back to the Challenged Dividends, it was not until February 13, 2018,

the last day permissible in the Texas Action, that DTC disclosed for the first time (i)

that it had paid approximately $117 million in dividends before 2011 and (ii) its total

revenue since formation.193 J.P. Morgan filed its Complaint less than two months

later, well within the one-year discovery period under Section 1309(1).

                                        *****




191
      Id. ¶ 44.
192
      Id. ¶¶ 45-47.
193
      Id. ¶ 61.
                                            61
         For the reasons explained above, the court concludes that all of defendants’

arguments concerning the timeliness of J.P. Morgan’s fraudulent transfer claims lack

merit.

         E.     J.P. Morgan Has Pled Facts Sufficient to State a Claim Under
                DUFTA with Respect to the Challenged Transfers and Dividends
         Defendants have moved to dismiss J.P. Morgan’s fraudulent transfer claims

for failure to meet the particularity requirements of Delaware Court of Chancery

Rule 9(b). Defendants also argue that J.P. Morgan failed to adequately plead the

“actual intent” necessary to state a fraudulent transfer claim under the less onerous

pleading standard of Rule 12(b)(6).

         Section 1304(a) of DUFTA defines a fraudulent transfer, in relevant part, as

follows:

         (a) A transfer made or obligation incurred by a debtor is fraudulent as
         to a creditor, whether the creditor’s claim arose before or after the
         transfer was made or the obligation was incurred, if the debtor made the
         transfer or incurred the obligation:
           (1) With actual intent to hinder, delay or defraud any creditor of the
           debtor.194

Section 1304(b) enumerates the following factors that may be considered in

determining “actual intent” for purposes of Section 1304(a)(1):

         (b) In determining actual intent under paragraph (a)(1) of this section,
         consideration may be given, among other factors, to whether:
           (1) The transfer or obligation was to an insider;


194
      6 Del. C. § 1304(a).
                                           62
             (2) The debtor retained possession or control of the property
             transferred after the transfer;
             (3) The transfer or obligation was disclosed or concealed;
             (4) Before the transfer was made or obligation was incurred, the
             debtor had been sued or threatened with suit;
             (5) The transfer was of substantially all of the debtor’s assets;
             (6) The debtor absconded;
             (7) The debtor removed or concealed assets;
             (8) The value of the consideration received by the debtor was
             reasonably equivalent to the value of the asset transferred or the
             amount of the obligation incurred;
             (9) The debtor was insolvent or became insolvent shortly after the
             transfer was made or the obligation was incurred;
             (10) The transfer occurred shortly before or shortly after a substantial
             debt was incurred; and
             (11) The debtor transferred the essential assets of the business to a
             lienor who transferred the assets to an insider of the debtor.195

            Under Court of Chancery Rule 9(b), “the circumstances constituting fraud or

mistake shall be stated with particularity.”196 “Intent, however, may be averred

generally.”197 Therefore, “[i]n order to state a fraudulent transfer claim, [J.P.

Morgan] must generally plead facts showing intent to defraud with specific

supporting facts describing the circumstances of the transfer.”198 J.P. Morgan has

met this pleading standard with respect to both the Challenged Transfers and the

Challenged Dividends.



195
      Id. § 1304(b).
196
      Del. Ch. Ct. R. 9(b).
197
    Quadrant Structured Prods. Co., Ltd. v. Vertin, 102 A.3d 155, 198 (Del. Ch. 2014)
(citing Del. Ch. Ct. R. 9(b)) (internal quotation marks omitted).
198
      Id.
                                              63
          With respect to the Challenged Transfers, the Complaint alleges with

particularity the circumstances of the allegedly unlawful transfers, i.e., the names of

the insiders to whom DTC transferred money, the amount of money transferred, and

the year in which the transfers occurred.199             With respect to the Challenged

Dividends, the Complaint alleges that DTC improperly declared and paid more than

$134 million in unlawful shareholder dividends, of which $117,148,242.07 were

paid from 2006 through May 2011.200 Given that the defendants obstructed J.P.

Morgan from obtaining discovery concerning the details of the dividends paid during

the period—information that is within their control—the particularity requirement

of Rule 9(b) has been satisfied with respect to the Challenged Dividends.201

          The Complaint also alleges numerous facts supporting many of the factors

listed in Section 1304(b), from which “actual intent” can be inferred. These factual

allegations serve as “badges of fraud” from which it is reasonably conceivable that


199
      Compl. ¶¶ 74, 84, 93, 125-33.
200
      Id. ¶ 52.
201
    See Alan Wright et al., 5A Federal Practice & Procedure § 1298 (Apr. 2019 update)
(explaining that under Fed. R. Civ. P. 9(b), which is identical to Del. Ch. Ct. R. 9(b), “courts
may relax Rule 9(b)’s fraud pleading requirement if the defendant is alleged to have
concealed the facts that would permit the plaintiff to plead fraud with particularity”); see
also Gregg v. Rowles, 1992 WL 364759, at *2 (Del. Ch. Dec. 2, 1992) (Allen, C.)
(providing that “[t]he test of whether an attempted pleading of fraud states sufficient
‘circumstances’ to satisfy Rule 9 is not scientific” and that “[g]enerally, it may be said that
an allegation of fraud is legally sufficient under Rule 9(b) if it informs defendants of the
precise transactions at issue, and the fraud alleged to have occurred in those transactions,
so as to place defendants on notice of the precise misconduct with which they are charged”)
(internal quotation marks and alterations omitted).
                                              64
DTC had a fraudulent intent as to both the Challenged Dividends and the Challenged

Transfers. They include the following:

        The challenged payments largely were made to insiders.202

        Given the self-executing terms of the JPM License Agreement, it is
         reasonably conceivable that DTC and its directors knew that DTC
         would be liable to J.P. Morgan for a significant sum when the
         dividends and transfers were being made.203

        DTC had a deficit of nearly $50 million at the end of 2011 and its
         net income in 2011, 2012, and 2013 was significantly less than the
         refund (approaching $70 million) owed to J.P. Morgan.204

        DTC concealed from J.P. Morgan many other license agreements
         with more favorable terms in violation of the JPM License
         Agreement.205




202
     Compl. ¶¶ 7-17, 74, 84, 93, 125-33 (listing the identity of the recipients of the
Challenged Transfers between 2011 and 2013 and their relationship to DTC as insiders);
id. ¶¶ 39, 66 (indicating that DTC’s board members and officers owned or controlled nearly
half of DTC’s equity and therefore benefitted disproportionately from the dividends issued
between 2006 and 2010).
203
    As discussed above, the district court in the Texas Action held that the plain language
of the MFL Provision in the JPM License Agreement “makes its operation automatic.” JP
Morgan Chase Bank, 79 F. Supp. 3d at 650. This holding was not challenged on appeal to
the Fifth Circuit. JP Morgan Chase Bank, 823 F.3d at 1010.
204
   Compl. ¶¶ 76-78, 89-90, 92; see 6 Del. C. § 1304(b)(9) (“The debtor was insolvent or
became insolvent shortly after the transfer was made or the obligation was incurred.”).
205
   Compl. ¶ 60; see Winner Acceptance Corp. v. Return on Capital Corp., 2008 WL
5352063, at *12 (Del. Ch. Dec. 23, 2008) (concluding that a fraudulent transfer was
adequately pled where “Plaintiffs allege Defendants diverted . . . funds . . . to Defendants’
own uses, . . . Defendants made the challenged transfers to insiders with the intent to
defraud Plaintiffs and at a time when there were inadequate assets . . . [and] Defendants
concealed the transfers and effectively caused the debtors . . . to abscond”); 6 Del. C. §
1304(b)(7) (“The debtor removed or concealed assets.”).
                                             65
       DTC engaged in obstructionist conduct during discovery, including
        refusing to permit witnesses to answer questions during pre-
        Judgment discovery, refusing to produce witnesses for questioning
        during post-Judgment discovery, and permitting the destruction of
        DTC’s documents during the pendency of the Texas Action.206

      With regard to the Challenged Transfers, the Complaint alleges additional

specific facts that provide further support that these transfers were fraudulent. These

facts include that DTC continued to make transfers even after J.P. Morgan (i) sent

DTC a letter in June 2011 indicating it had learned about other license agreements

and reminding DTC of its refund obligation under the MFL Provision and (ii) filed

the Texas Action in November 2012, which was pending throughout the period the

rest of the Challenged Transfers were made.207 All in all, J.P. Morgan pleads

numerous facts substantiating multiple “badges of fraud” from which it is reasonably

conceivable that J.P. Morgan can establish that the defendants had an actual intent

to defraud with respect to both the Challenged Dividends and the Challenged

Transfers.

                                      *****

      For the reasons explained above, defendants’ motion to dismiss J.P. Morgan’s

fraudulent transfer claims under Court of Chancery Rules 9(b) and 12(b)(6) with



206
   Compl. ¶¶ 44-47; see 6 Del. C. § 1304(b)(7) (“The debtor removed or concealed
assets.”).
  Compl. ¶¶ 34, 36, 75-76, 85, 94; see 6 Del. C. § 1304(b)(4) (“Before the transfer was
207

made . . . the debtor had been sued or threatened with suit.”).
                                          66
respect to the Challenged Dividends (pled in the alternative in Count I) and the

Challenged Transfers (Count II) will be denied.208

         In paragraph 137 of the Complaint, J.P. Morgan pleads in the alternative that

its fraudulent transfer claim with respect to the Challenged Transfers be considered

as an unlawful dividend claim.209 There is no claim for a constructive dividend in

Delaware,210 and no facts are pled from which it is reasonably conceivable that these

payments—which were made to specific individuals—constitute dividends that

would have been distributed to all stockholders. Accordingly, this aspect of Count

II will be dismissed.211




208
    Defendants argue that “Count III is dependent upon Plaintiff establishing claims for
relief under Counts I and II and, therefore, it should be dismissed for the same reasons.”
Defs.’ Opening Br. 25 n.16. Because the court is not dismissing Count II and parts of
Count I, it will not dismiss Count III either.
209
      Compl. ¶ 137.
210
   See Quadrant Structured, 102 A.3d at 201(“Delaware law does not recognize a claim
for constructive dividends.”).
211
   Defendant Knutsen argues that Counts II and III should be dismissed as to him to the
extent those claims relate to Challenged Transfers that were made in 2013 because he was
not on the DTC board at that time and thus could not have acted with a culpable state of
mind. See Goldman, Sachs & Co., 937 A.2d at 794 (“Likewise, to the extent the Uniform
Fraudulent Transfer Act might be used to hold stockholders liable for dividends or
distributions from a corporation, liability would be predicated on the recipients’ own state
of mind.”). The Complaint does not allege any facts suggesting that Knutsen was a DTC
insider after his resignation from the board on or about December 28, 2012. See Compl. ¶
10. Accordingly, Counts II and III will be dismissed as to Knutsen for Challenged
Transfers that were made in 2013.
                                            67
         F.     Count IV States a Claim for Relief

         In Count IV of the Complaint, J.P. Morgan contends it is entitled as a

judgment creditor of DTC to recover from VEEDIMS repayment of a loan exceeding

$1.5 million that DTC extended to VEEDIMS in or about November 2012, which is

currently due and owing.212 In a one-sentence argument, unsupported by any

authority, defendants contend that this claim should be dismissed because J.P.

Morgan “suffers disabling conflicts in that it is both: (a) suing DTC as a direct

defendant in this case, and (b) seeking to act on behalf of DTC in pursuing this claim

against VEEDIMS.”213 The court disagrees. The scenario described here does not

create a disabling conflict. J.P. Morgan is not alleged to owe any duty to DTC and

is not seeking to act on its behalf in any real sense. Rather, J.P. Morgan simply is

seeking to enforce and collect on its Judgment against DTC by obtaining repayment

of an outstanding liability that is due and owing to DTC. In other words, J.P. Morgan

is acting in DTC’s name only as a judgment creditor for J.P. Morgan’s own benefit.



212
    Compl. ¶¶ 143-44, 147. J.P. Morgan contends in the alternative that the loan to
VEEDIMS, an entity that was controlled by Ballard at the time, was a fraudulent transfer.
Id. ¶ 148. Defendants make no substantive argument specific to this theory. They rely
instead on the same arguments advanced in seeking dismissal of the fraudulent transfer
claim for the Challenged Transfers. Defs.’ Opening Br. 43 (“For the reasons argued above,
the fraudulent transfer claim is time-barred because the loan is over four years old and is
plead without particularity.”). Accordingly, insofar as this alternative theory is concerned,
the motion to dismiss fails for the same reasons the motion to dismiss Count II was denied
with respect to the Challenged Transfers.
213
      Defs.’ Opening Br. 43.
                                             68
         G.    The Claims Against Celestial Will Not Be Dismissed
         J.P. Morgan contends that Celestial Partners “is and was at all relevant times

the alter ego of Ballard” and that “Ballard is liable for the debts and obligations of

Celestial Partners, and vice versa.”214 Defendants argue that the claims against

Celestial Partners should be dismissed because (i) it will be “difficult, if not

impossible,” for J.P. Morgan to prove that Celestial Partners was Ballard’s alter ego

given that Ballard died in April 2018, and (ii) J.P. Morgan has taken no steps to

revive Celestial Partners’ charter, which was forfeited in May 2015 for failure to

maintain a registered agent in Delaware.215

         As to the first point, defendants have not directly challenged the overall

sufficiency of the Complaint’s allegations that Celestial Partners was Ballard’s alter

ego.216 Accordingly, although Ballard’s unavailability may impair J.P. Morgan’s

ability to establish a basis for veil piercing in certain respects, that is not grounds for

the court to preclude J.P. Morgan at the pleadings stage from the opportunity to

prove its case using evidence that is available after the completion of discovery.


214
      Compl. ¶¶ 108-09.
215
   Defs.’ Opening Br. 44-45. The court takes judicial notice that Celestial Partners “is no
longer in existence and good standing under the laws of the State of Delaware having
become forfeited [on May 13, 2015] for failure to obtain and designate a registered agent.”
JPMorgan Chase Bank, N.A. v. Ballard, C.A. No. 2017-0923-AGB, Celestial Partner’s
Mot. to Dismiss Ex. A (Dkt. 29) (certificate of Delaware Secretary of State).
216
   See Compl. ¶¶ 96-109 (alleging, among other things, that Ballard was the sole officer
and employee of Celestial Partners, failed to observe corporate formalities, used monies
paid to Celestial Partners as his own, and comingled resources).
                                            69
      As to the second point, there is no equity to defendants’ position that Ballard’s

estate should be able to evade potential liability in this case due to Ballard’s failure

to comply with a basic requirement of Delaware law with respect to Celestial

Partners, which was established as a Delaware limited liability company. The

parties’ briefs, however, do not address potential avenues that may exist to revive

the certificate of formation of Celestial Partners under the Delaware Limited

Liability Company Act so that relief can be sought against it by, for example, the

appointment of a receiver. Accordingly, the parties are directed to confer and to

report back to the court jointly within ninety days with their respective views on this

issue and a proposed course of action.

IV.   CONCLUSION
      For the reasons explained above, defendants’ motion to dismiss is granted in

part and denied in part. The parties are directed to confer and to submit an

implementing order consistent with this opinion within five business days.

      IT IS SO ORDERED.




                                          70
