   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

TIMOTHY GLICK and RENEE                   )
GLICK,                                    )
                                          )
            Plaintiffs,                   )
                                          )
      v.                                  )   C.A. No. 12624-CB
                                          )
KF PECKSLAND LLC, a Delaware              )
limited liability company, THE            )
BLEACHERS CORPORATION, a                  )
Delaware corporation, and SAMUEL          )
KLEIN                                     )
                                          )
            Defendants.                   )

                           MEMORANDUM OPINION

                          Date Submitted: August 10, 2017
                          Date Decided: November 17, 2017


Kenneth J. Nachbar, Zi-Xiang Shen, MORRIS, NICHOLS, ARSHT & TUNNELL
LLP, Wilmington, Delaware; Attorneys for Plaintiffs.

P. Clarkson Collins, Jr., Albert J. Carroll, MORRIS JAMES LLP, Wilmington,
Delaware; Attorneys for Defendants.




BOUCHARD, C.
      In this post-trial decision, the Court finds that Samuel Klein fraudulently

induced Tim and Renee Glick into investing most of their life savings in a company

he used as his personal checking account on the promise that they would obtain an

ownership interest in another company called The Bleachers Corporation. Not long

after the Glicks entrusted Klein with their savings, Bleachers became defunct.

      Klein lived lavishly and portrayed himself to the Glicks as a highly successful

businessman. He perpetrated the fraud by befriending the Glicks and gaining their

confidence before offering them the “once-in-a-lifetime opportunity” to invest in a

“white hot” Bleachers. He pitched the investment as a favor he was doing for the

Glicks out of friendship so that Tim, a homebuilder in Jackson, Wyoming, could

earn some easy money and have “skin in the game” to invest in a real estate joint

venture with Klein, which never materialized. The Glicks were not sophisticated

investors, as was readily apparent to Klein, and they expressed reservations about

investing their savings in Bleachers. To close the deal, Klein promised to personally

buy back their shares if things did not work out.

      When the relationship ruptured, Klein reneged on his promise to buy back the

shares, which the record shows he never intended to keep. This lawsuit followed.

For the reasons explained below, the Glicks have met their burden under Wyoming

law to prove fraudulent inducement and are entitled to damages for the amount they

invested with Klein ($433,000) plus costs.



                                          1
I.       BACKGROUND
         The facts recited in this opinion are my findings based on over 100 trial

exhibits, deposition testimony, and live testimony from three fact witnesses who

testified at trial: Tim and Renee Glick1 and Samuel Klein. I accord the evidence the

weight and credibility I find it deserves.

         A.     The Parties

         Plaintiffs Tim and Renee Glick are married and reside together in Jackson,

Wyoming, with their three children.2 Tim owns and operates a business that designs

and constructs custom homes, named Dynamic Custom Homes (“Dynamic”).3

Renee is a stay-at-home mom who does some photography and makes gelato.4 Tim

attended Montana State University on a partial skiing scholarship, graduating in

1995.5 Renee graduated from the University of Massachusetts in 1999.6

         Defendant Samuel Klein, who is in his early sixties, is a resident of

Greenwich, Connecticut.7         Klein does not have a college degree, but has a



1
 I refer to the Glicks by their first names as they were used at trial for the sake of clarity.
No disrespect is intended.
2
    Tr. 123 (Renee).
3
    Pre-Trial Order (“PTO”) § II.1; Tr. 10-11 (Tim).
4
    Tr. 124 (Renee).
5
    Tr. 7-9 (Tim).
6
    Tr. 122-23 (Renee).
7
    Tr. 149-150 (Klein).


                                              2
background in real estate and commercial property development, and portrays

himself as a sophisticated and wealthy businessman.8 Before 2010, Klein primarily

engaged in property development and management, focusing on hotels and

healthcare facilities.9 He once pled guilty to a criminal misdemeanor for failing to

maintain adequate nursing staff at a nursing home he operated, which resulted in

restrictions being placed on his ability to operate nursing homes in New York.10

         Defendant The Bleachers Corporation (“Bleachers”) is a Delaware

corporation that was formed in 2010.11 Bleachers ceased to operate as of February

2017 and is now defunct.12 Defendant KF Pecksland LLC (“KF Pecksland”) is a

Delaware limited liability company that Klein created to hold Bleachers shares.13

Klein admits he used KF Pecksland as his personal checking account.14

         B.        The Early Years of Bleachers

         In 2010, Klein established Bleachers with the goal of streaming real-time

video of sporting events using operated and stationary high-definition cameras.15



8
    Tr. 150-51 (Klein); Tr. 13-14 (Tim).
9
    Tr. 150 (Klein).
10
     Tr. 227-29 (Klein).
11
     JX004; PTO § II.3.
12
     PTO § II.3.
13
     JX036 Glicks202-03; PTO § II.4.
14
     Tr. 229 (Klein).
15
     Tr. 151-54, 277-78 (Klein).


                                            3
Klein claims he started the company with an initial investment of approximately $3

million.16 Over the next two and a half years, Bleachers beta tested its streaming

technology at two private schools in Greenwich17 and hired employees who had

experience in sports technology from another sports startup.18 Bleachers’ business

model evolved over time to focus on installing fixed cameras at private and boarding

schools, where there is a high level of participation in sports and the students’

families tend to be wealthy and do not live nearby.19 Bleachers initially offered its

service as a “live streaming subscription on either a monthly or an annual basis.”20

Bleachers ended 2013 with a shareholders’ deficit of approximately $2,600,000.21

         C.     Klein Hires Tim to Build a Home in Jackson, Wyoming

         Klein and Tim first met in 2008, when Tim bid on a vacation home

construction project for Klein.22 In 2013, Klein called Tim to discuss building a

home on a different piece of property in Jackson, Wyoming.23




16
     Tr. 151-54, 277-78 (Klein); see also JX095 at 33-34 (Mommsen Dep.).
17
     Tr. 154 (Klein).
18
     Tr. 154 (Klein).
19
     Tr. 153 (Klein).
20
     JX095 at 73-74 (Mommsen Dep).
21
     JX006 BL114.
22
     Tr. 11-12, 81-82 (Tim).
23
     Tr. 12 (Tim).


                                            4
         In or around October 2014, Dynamic entered into a contract with Klein’s

company, Sleeping Indian III (“Sleeping Indian”), for Dynamic to serve as the

general contractor to build a 8,100 square foot custom home for Klein.24 The

contract anticipated a maximum price of roughly $5.8 million, with price overruns

to be borne by Dynamic.25 Construction began in October 2014. Klein flew out to

Jackson on a private jet with his daughters for a ground breaking ceremony on the

property and photographed the event with a $22,000 camera he had just purchased.26

         D.     Klein Befriends the Glicks and Discusses Bleachers

         In November 2014, Klein flew out to Jackson, again on a private jet, with

several family members.27 Renee prepared some gelato for Klein for his arrival.28

Klein invited Tim to ski with his family at Grand Targhee, a Wyoming ski resort,

and hired Tommy Moe, the former U.S. Olympian skier, as a guide for the ski trip.29

         Throughout late 2014, Klein and Tim spoke several times a week via text, e-

mail, and on the phone.30 Tim soon considered himself to be Klein’s good friend,

speaking with him “maybe three or four times each week” and discussing “almost


24
     Tr. 11-13 (Tim); Tr. 179-80, 256-57 (Klein).
25
     PTO § II.5, Tr. 180-82 (Klein); JX100 at 21, 122 (Tim Dep.).
26
     Tr. 12-13, 83 (Tim); Tr. 189-90, 256-57 (Klein).
27
     Tr. 14 (Tim).
28
     Tr. 124-125 (Renee).
29
     Tr. 83 (Tim).
30
     Tr. 15-16 (Tim).


                                              5
anything that guy friends talk about,”31 including business, cars, their personal lives,

and Tim’s business model and how it could be improved.32

         In December 2014, Klein invited Tim and Renee to a large party at a house he

was renting in Jackson at the high-end Amangani Resort.33 This was the first time

Renee met Klein. She brought two flavors of her gelato at Klein’s request.34 During

the party, Klein showed some of the guests videos Bleachers had taken.35

         After the party, the Glicks, Klein, and his girlfriend went to dinner.36 They

discussed potential business opportunities for the Glicks.37 Klein flattered Renee,

telling her that her gelato was better than any he had ever tasted in Italy and that she

should commercialize it.38         They also discussed Bleachers, which Klein had

identified to Tim as the “source of his current income.”39 Klein described Bleachers

as “a new and upcoming business, that it was just skyrocketing,” and told the Glicks




31
     Tr. 15-16 (Tim); accord Tr. 204-205 (Klein).
32
     Tr. 16-17 (Tim); Tr. 261 (Klein).
33
     Tr. 124-25 (Renee); accord Tr. 18-19 (Tim).
34
     Tr. 124-25 (Renee).
35
     Tr. 189 (Klein).
36
     Tr. 18-19 (Tim); Tr. 124-125 (Renee).
37
     Tr. 18-22 (Tim).
38
     Tr. 124-25 (Renee).
39
     Tr. 14-15 (Tim).


                                              6
“schools were lining up to -- to be a part of Bleachers.”40 The discussion piqued the

Glicks’ interest in Bleachers.41

         E.     Tim and Klein Begin Exploring Business Opportunities Together

         In late 2014 through early 2015, Tim and Klein spoke about the possibility of

working together on a real estate joint venture, considering it a natural fit with Tim’s

building experience and Klein’s work on real estate projects.42 Klein and Tim began

to discuss the terms of a joint venture more concretely in February 2015, and

explored a speculative housing project, i.e., purchasing a lot to build on and starting

construction before finding a buyer.43

         In preparation for the potential venture, Klein “walked Tim through hours of

how construction financing works,”44 and Tim looked into recent purchases made

by other builders as well as available lots in Teton County.45 In response to Tim’s

analysis of the potential properties, Klein was consistently positive about Tim’s

knowledge of the local market.46 Both parties testified at trial that they were




40
     Tr. 18-20 (Tim); accord Tr. 126 (Renee).
41
     Tr. 14-15 (Tim); Tr. 126 (Renee).
42
     Tr. 17-18 (Tim).
43
     JX208 (email from Klein seeking to discuss investment in potential lot).
44
     Tr. 185 (Klein).
45
     JX205.
46
     JX212; Tr. 25-26 (Tim); see also JX007; JX213.


                                                7
committed to the project,47 but Klein’s trial testimony was inconsistent with his

deposition, where he testified that, by January or February 2015, he “just didn’t trust

the guy [Tim]” and “wanted to start working Tim out of the project” of constructing

his home.48

         In early March 2015, Klein and Tim put in a “low-ball offer” on a piece of

property, which was rejected.49 Once Klein and Tim began working on their

potential joint venture, Klein told Tim he needed to have “skin in the game,”50 but

Tim did not have the capital to invest in such a venture.51

         F.     Klein Directs Tim to Inflate Withdrawals on Sleeping Indian’s
                Loan Account with the Bank of Jackson Hole

         Sleeping Indian, the entity that owned the property on which Tim was building

a house for Klein, obtained a loan from the Bank of Jackson Hole to finance the

construction.52 In February 2015, while Tim and Klein were discussing their

potential real estate joint venture, Klein directed Tim to inflate the progress of the

construction of Klein’s Jackson residence in order to secure the release of additional


47
     Tr. 20 (Tim); Tr. 205 (Klein).
48
     JX096 at 83-84 (Klein Dep.).
49
     Tr. 26 (Tim); accord JX0211; JX0213.
50
     Tr. 185 (Klein).
51
     Tr. 39 (Tim).
52
  In a construction loan, money is typically released as a builder certifies the degree of
completion of the construction to the homeowner’s representative and the bank. Tr. 27-
28, 110 (Tim).


                                            8
funds from the bank, which went to Klein for his personal use.53 Specifically, Klein

directed Tim to inflate the degree of completion on the project in the certifications

submitted to the bank (while submitting accurate certifications to the homeowner’s

representative to conceal the overstatements) and to transfer the inflated amounts to

KF Pecksland, Klein’s company, or to Annie Klein, Klein’s daughter, immediately

after Dynamic received the draws from the bank.54

         Apart from enriching Klein, this scheme hurt Tim by reducing the amount of

funds available from the bank for the actual costs of construction, placing Tim at

Klein’s mercy to make good on the difference. Bank records confirm that the total

amount of excess funds that Dynamic transferred to KF Pecksland was $2,423,608.55

Tim credibly testified that he did not “pocket any of the inflated amount.”56

         G.     Bleachers’ Performance Going into 2015

         In 2014, in an effort to generate higher revenues, Bleachers modified its

business model from a subscription service with revenues coming from users (i.e.,

parents and students) to a school-pay model selling its services directly to schools.57




53
     JX066; Tr. 28 (Tim); Tr. 189, 229 (Klein).
54
     Tr. 28-29, 38 (Tim); Tr. 229 (Klein); JX066; JX207.
55
     JX066 Glicks0265 (top chart).
56
     Tr. 111 (Tim).
57
     JX095 at 72-74 (Mommsen Dep.).


                                              9
The company also secured additional funding and hired additional employees. 58

Despite these initiatives, Bleachers generated only $135,528 in revenue and suffered

a net loss of $2,493,700 for the year ended December 31, 2014.59 It was apparent

going into 2015 that Bleachers would need more capital to survive.60

         H.     Klein and the Glicks Discuss an Investment in Bleachers

         In early 2015, Klein began to discuss having the Glicks invest in Bleachers.61

Klein told the Glicks that Bleachers was “successful” and “white-hot,” and that he

was offering the opportunity to invest “as a favor” to them so that they could use the

profits from Bleachers to “invest into the real estate venture together with [him].”62

Klein led Tim to believe that Bleachers was making money and was responsible for

Klein’s income and lavish lifestyle.63

         In April 2015, Klein told Tim about an opportunity Bleachers had to stream

coverage of sports teams for Division III colleges64 and about “vast” opportunities it

had in Australia.65 Klein also told the Glicks that the Australian market was


58
  Tr. 158-59, 191-92 (Klein); JX095 at 17 (Mommsen Dep.); JX05 BL174; JX06 BL114-
15.
59
     JX006 BL113; Tr. 110-11 (Tim).
60
     JX006 BL113; JX095 at 76, 79-80 (Mommsen Dep.).
61
     Tr. 126 (Renee); Tr. 189 (Klein).
62
     Tr. 39-40, 43-44 (Tim); Tr. 263 (Klein).
63
     Tr. 14-15 (Tim).
64
     Tr. 53-54 (Tim); Tr. 172-73 (Klein).
65
     Tr. 192 (Klein); see also Tr. 45-46 (Tim).


                                                10
“untouched” and promising for Bleachers.66 During this period, Klein was speaking

regularly with Richard Stokes, the chairman of the Australian Boarding School

Association (“ABSA”).67

         Despite the optimism Klein expressed to the Glicks about Bleachers’

prospects, the Glicks voiced reservations about investing in it, particularly since the

amount Klein was asking for—$250,000—was most of their life savings.68 To

reassure them, Klein told Tim that they would “make millions” and that he would

“personally guarantee” their investment:

         Q.     And what did Mr. Klein say in response?

         A.    He – he said, “Don’t worry about this Tim. You’re going to make
         millions. This thing is taking off like a – like a rocket. You’re going
         to make so much money on that” – that he personally guaranteed me –
         he knew it was such a good deal that he personally guaranteed me that
         he would buy back our initial investment in Bleachers if anything went
         wrong.

         Q.     Did Mr. Klein say that once, or more than once?

         A.     No. He said it multiple times to me.69

Klein once again repeated this personal guarantee during a call when Tim again

expressed reservations about making the investment:



66
     Tr. 45-46, 51 (Tim).
67
     Tr. 174 (Klein).
68
     Tr. 41, 60 (Tim).
69
     Tr. 41-42 (Tim).


                                           11
           Q.   Do you have any particular recollection of any specific time that
           Mr. Klein told you that he would buy back your initial investment if
           something were to go wrong?

           A.     I do. One specific day, before we made our initial investment
           into Bleachers, I was driving down the access road of Spring Creek
           Ranch, down from Mr. Klein’s construction site. And I was speaking
           to Mr. Klein. And I told him that, you know, I was really nervous about
           this. And once again, he said, “Tim, don’t worry about this. This is a
           no-brainer. It’s a once-in-a-lifetime opportunity. Invest your money.
           I will personally guarantee that you will not lose money, and I will buy
           back your stock if anything is to happen.”70

Renee did not hear Klein say that he would guarantee their investment, but she

confirmed that Tim told her about the guarantee at the time.71

           I.    The Glicks Make Their First Investment in Bleachers

           On April 10, 2015, Klein sent an e-mail to Tim offering to sell an option to

purchase 1% of the outstanding shares of “Kf bleachers stock.”72 After seeing

Klein’s email, Tim asked whether there was a “cliff note or ‘for dummies’ version

of this document” because he and Renee “don’t ready [sic] many of these types of

documents or any for that matter.”73 Klein offered to speak to the Glicks and walk

them through the agreement.74




70
     Tr. 42-43 (Tim).
71
     Tr. 146 (Renee); see also Tr. 43 (Tim).
72
     JX010; JX096 at 38-40 (Klein Dep.).
73
     JX010.
74
     Id.


                                               12
           The next day, Klein sent Tim a chart displaying Bleachers’ capitalization as

of April 1, 2015.75 On April 13 and 14, Klein sent Tim e-mails suggesting that

Morris Offit, whom Klein represented as a successful and savvy investor, was

interested in investing and helping develop Bleachers.76

           On April 14, 2015, Tim and Renee received a Purchase and Sale Agreement

(the “First Purchase Agreement”). It provided that KF Pecksland would sell 688.184

shares of Class A Common Stock of Bleachers to the Glicks for $250,000.77 Klein

testified that he asked for $250,000 because he was not looking “to do hand-holding”

for a lower investment.78

           The Glicks signed the First Purchase Agreement the same day they received

it.79 In a cover email to which the executed document was attached, Tim said to

Klein: “Thank you Sam, I greatly appreciate it.”80 Tim read the agreement before

signing it but testified that he “didn’t understand” it.81 Renee did not read the

agreement.82 Later that day, Klein sent Tim an email stating that he had “assigned



75
     JX011.
76
     Tr. 66-67 (Tim); JX014-15.
77
     JX012.
78
     Tr. 196-97 (Klein).
79
     JX016.
80
     Id.
81
     Tr. 45 (Tim).
82
     Tr. 145-46 (Renee).


                                            13
my right in the stock to you and renee.”83 The Glicks wire transferred $250,000 to

KF Pecksland three days later, on April 17.84

           In deciding to invest in Bleachers, the Glicks took the information Klein

provided them to heart and conducted limited research: they did not consult with an

attorney, did not receive financial statements or ask for information regarding the

valuation of Bleachers, and did not seek advice from their personal financial advisor

at Morgan Stanley.85 Tim briefly discussed the investment with his father, a retired

commodities trader, and “might have” done internet research on Bleachers, but

otherwise took Klein at his word.86

           J.    Klein and the Glicks Discuss the Joint Venture and Making a
                 Second Investment in Bleachers

           On April 21, 2015, Klein sent an e-mail to update Tim on Bleachers’ efforts

to enter the Division III college sports market, stating that “[I] thought I had a

productive day . . . 400 schools!!”87 Tim responded that “[t]hats great!!!”88

           Throughout April and early May, Klein continued to tell Tim about

opportunities Bleachers had in Australia, saying that Australia was a natural market


83
     JX013; see also JX019.
84
     Tr. 44, 93 (Tim).
85
     Tr. 72-76, 81-83 (Tim).
86
     Tr. 76-79 (Tim).
87
     JX023.
88
     Id.


                                            14
for Bleachers because Australia is “a sports-crazy nation,” that “nobody was doing

this” in Australia, that it was a “wonderful market without competition,” and that he

and Bleachers were “going to Australia.”89

         On May 3, 2015, after visiting a potential office space for their joint venture,

Tim went with Klein to Greenwich.90 Klein arranged the trip so that Tim could

examine the site of a potential demolition project for Morris Offit, whom Klein

portrayed as a good friend and previously identified as a potential investor in

Bleachers.91 During the trip, Tim visited a lot Offit was purchasing next to his home

with an old house on it that Offit wanted to demolish.92

         On May 4, 2015, Klein took Tim out to dinner in Greenwich in a Ferrari.93

Klein told Tim while driving in the car that the Glicks’ initial investment in

Bleachers had doubled in value.94 Tim was excited, explaining: “how many times

in your life can you double your money, $250,000, in two, two and a half weeks.”95




89
     Tr. 51 (Tim), 66 (Tim), 174 (Klein), 209 (Klein).
90
     JX024.
91
     Tr. 47, 66 (Tim); Tr. 161 (Klein).
92
     Tr. 47 (Tim); Tr. 200-201 (Klein).
93
     Tr. 48 (Tim); Ans. at ¶ 19 (Dkt. #10); JX096 at 112-13 (Klein Dep.).
94
     Tr. 48 (Tim).
95
     Tr. 48 (Tim).


                                              15
Klein also talked about other investors and told Tim that Offit “was going to invest

$150 million into Bleachers.”96 Tim thought he had “gotten on the rocket.”97

         On May 5, 2015, while standing in Klein’s kitchen in Greenwich, Klein told

Tim that a relative of his had to sell his Bleachers shares to make a down payment

on a house.98 Klein offered to sell the shares to Tim, again “as a friend,” telling him:

“‘Tim, here’s another opportunity if you want it. I’m offering it to you. Otherwise,

I would buy it, buy the stocks.’”99 The amount of the investment was $183,000.

Klein told Tim that he “needed to give him an answer immediately.” 100 Klein

reiterated that Offit was planning to invest $150 million, telling Tim that the Glicks

would have to invest “immediately, prior to Offit investing his $150 million, because

if Offit invested his $150 million first” then Tim would be unable to purchase at the

current valuation.101

         Tim thought he would be purchasing Bleachers shares from Klein’s relative,

but he ended up purchasing an interest in KF Pecksland from Klein himself.102




96
     Tr. 48 (Tim); see also Tr. 66-67, 90-91 (Tim).
97
     Tr. 48 (Tim).
98
     Tr. 49 (Tim).
99
     Tr. 49 (Tim).
100
      Tr. 49-50 (Tim); see also Tr. 270-71 (Klein).
101
      Tr. 50-51 (Tim).
102
      Tr. 49-50 (Tim); JX036.


                                              16
Klein’s reference to a relative buying a house was a fabrication. As Klein admitted

in his deposition, the money went to Klein, who “had bills to pay.”103

         On May 6, 2015, Tim’s last day in Greenwich, Klein forwarded Tim an e-mail

stating that Offit wanted Klein to “send Bleachers material” to a banker at Goldman

Sachs and to a man with a daughter at the “Hill School in Princeton” who “loves the

idea of Bleachers.”104

         On May 9, 2015, after learning that she and Tim were getting another chance

to invest in Bleachers and that they already had doubled their initial investment,

Renee sent a message to Klein, saying “[y]ou are too kind! Thank you!!!!!! Thanks

for returning my husband also.”105 The next day, Klein texted Renee: “Happy

mommies day Renee, your man is a good man.”106 In truth, Klein harbored doubts

about Tim at this point in time.107

         K.     The Glicks Make a Second Investment

         Klein imposed a May 13 deadline for the Glicks to make their second

investment,108 telling them it “was imperative” that the deadline be met or they



103
      JX096 at 121 (Klein Dep.).
104
      JX025.
105
      Tr. 129 (Renee); JX008 Glicks600.
106
      JX008 Glicks600.
107
      JX096 at 83-84 (Klein Dep.).
108
      Tr. 54 (Tim).


                                          17
“could be messing something up for him and for Bleachers.”109 The Glicks “were

liquidating the rest of everything [they] owned” to meet the deadline but were

running into problems with their broker.110 Realizing they would not make the

deadline, Renee texted Klein in a panic at 2:45 p.m. on May 13:

            It’s Renee……
            I’m freaking out. Tim is freaking out. We……are freaking out.

            …..if only there were a few more hours in the day…..and….we didn’t
            have the time-difference of 2 hrs. We’ll be lucky if neither of us puke
            tonight….or sleep.111

Klein replied that he would call the Glicks, stating that “[i]t’s quite serious . and I’m

stunned at what occurred.”112 Renee continued to text with Klein, noting how they

had requested the money but that since it was “diversified” and “nearly all of our

stock” it was taking additional time to transfer.113

            At night on May 13, Klein called Tim and Renee, who spoke to Klein together

on a speakerphone. Renee recalled that Klein started “berating” and “scolding” the

Glicks, saying that the “wire transfer not going through was a really big deal” and

“very serious.” 114 Tim similarly recalled that Klein yelled at the Glicks for several


109
      Tr. 133 (Renee).
110
      Tr. 133 (Renee).
111
      JX008 Glicks601.
112
      Id.
113
      Id. Glicks602.
114
      Tr. 134 (Renee).


                                              18
minutes about how they “screwed everything up” before he said that he would be

able to buy them an extra day.115

         At some point during the call, Renee asked Klein whether or not the Glicks

should still transfer the $183,000 to Klein, or if it should be rerouted back to them.116

Klein immediately changed his tone. He suddenly started stressing how the Glicks

would “make millions of dollars” and that they “were going to need a financial

planner” to help them manage their new-found wealth.117 He reiterated that Offit

was “scheduled to invest $150 million” in Bleachers and said that he was “going to

help take Bleachers public on the stock exchange.”118

         After the call, Klein texted the Glicks the name of Quincy Cotton, whom Klein

represented to be a financial planner and estate attorney who “was going to set up

[the Glicks’] future estate and money safety stuff.”119 Renee asked if Cotton would

work with them “even though we aren’t ‘high net worth individuals’ YET?”120 Klein

replied “you are and she will.”121




115
      Tr. 55-56 (Tim).
116
      Tr. 134-35 (Renee).
117
      Tr. 56-57 (Tim); accord Tr. 134-135 (Renee).
118
      Tr. 57 (Tim); accord Tr. 135 (Renee).
119
      Tr. 135-36 (Renee); accord JX008 Glicks602-04.
120
      JX008 Glicks603.
121
      Id. Glicks604.


                                              19
            On May 14, 2015, before reviewing any documents for the transaction, the

Glicks wired $183,000 to Klein, whom Tim still considered a “very good friend.”122

Klein then sent Tim an e-mail with the subject line “183k for conversion to stock

which will be issued in both renee and timothy glick names.”123

            L.    Continued Discussions Regarding Bleachers Before the Glicks Sign
                  the Second Purchase Agreement

            In May 2015, Klein updated the Glicks on Bleachers’ attempted entry into

Australia, reiterating that its opportunities were “vast” and “huge.”124 On May 20,

2015, Klein sent Tim an e-mail implying that Bleachers had signed several schools

in Australia: “We are going! Got 6 schools to start.”125 Tim replied “So cool!”126

            On May 31, 2015, Klein sent Tim another e-mail stating that he just got off

Skype “with [the] aussies” and had “3 schools now with 2000 students per school

minimum and will have 3 others this week.”127 Tim replied “Nice work rain




122
      Tr. 57-58 (Tim).
123
      JX026.
124
      See JX028; Tr. 192, 208-10, 263 (Klein).
125
      JX028.
126
      Id.
127
      Id.


                                             20
maker.”128 Klein responded that it was “funny you [Tim] know more than Ceo

haha.”129

         Klein’s representations in the e-mails that Bleachers had signed up multiple

schools in Australia were false.130        Bleachers ultimately signed up only one

Australian school (Methodist Ladies’ College), and only for a beta test.131 Klein

blamed Richard Stokes, his contact at the ABSA, for providing him with inaccurate

information that he had conveyed to Tim.132 As of May 2015, Bleachers did not

even have the technological capability to provide its service in Australia.133

         On May 26, 2015, Klein sent an e-mail to Tim reflecting the “economics” of

the Glicks’ total investment but, instead of reflecting a direct purchase of shares in

Bleachers, it depicted that the Glicks would receive “ownership of KF Pecksland

Equivalent to [a] New Share amount.”134 Tim responded that the “numbers seem to

make sense to me… at least the amount Renee and I have to put in and the purchase



128
      JX032.
129
      JX033.
130
      JX096 at 137, 140-41 (Klein Dep.).
131
      Id. at 135-41.
132
   Id. at 136-37. As of May 2015, Bleachers had not even entered an agreement with
ABSA. See JX041; JX005 at BL176 (reflecting that ABSA contract was not signed until
July 2015).
  JX096 at 138-40 (Klein Dep.) (explaining problems with “latency of the signal” in
133

Australia).
134
      JX029.


                                           21
price.”135 Klein replied that “its correct…I’ll have [my attorney] lipari issue the

shares.”136 Klein’s attorney, Joseph Lipari, was a shareholder and a board member

of Bleachers at the time.137

            On June 1, 2015, Klein sent Tim several documents, namely a Purchase and

Sale Agreement (the “Second Purchase Agreement”), an Amended and Restated

Limited Liability Company Agreement of KF Pecksland LLC, and an

Assignment.138 The Assignment reflects that Klein assigned to the Glicks a 15.731%

interest in KF Pecksland in exchange for $433,000, i.e., the total amount that the

Glicks had invested with him in two installments.139          The Second Purchase

Agreement recites that Klein was the 100% owner of KF Pecksland.140 The same

day they received the documents, the Glicks signed and returned them to Klein.141

            According to Klein, the documents for the first round of the Glicks’

investment were incorrect and needed to be restructured to reflect that the Glicks

were purchasing an interest in KF Pecksland, the only asset of which was Bleachers




135
      JX030.
136
      Id.
137
      JX011; JX095 at 20 (Mommsen Dep.).
138
      JX036.
139
      Id. Glicks200.
140
      Id. Glicks209.
141
      JX036.


                                            22
stock, and not a direct interest in Bleachers.142 There were no negotiations or

discussions concerning the Second Purchase Agreement.143

         On the evening of June 1, 2015, Tim texted Klein to inquire about the status

of Offit’s investment in Bleachers: “Renee was wondering if offit closed. I didn’t

think that was happening for another week or two.”144 Klein replied “[n]ot yet” and

that he would let Tim “know the same day it happens.”145 Offit ultimately invested

only $650,000 in Bleachers—a small fraction of what Klein had represented he

would invest.146

         M.     The Relationship Between the Glicks and Klein Collapses

         On June 3, 2015, Renee texted Klein:

         Hey there!
         So, I was just talking to Tim and……he was all stressed out. But I
         wanted to make sure that you knew that the money you have of ours is
         everyyyyyyything we had……plus some. I just wanted to make that
         clear…. :-). (No pressure). LOL!147

Renee testified that the text was prompted by the fact that Klein had defaulted on

payments he owed Tim for constructing his Jackson residence and that Klein had all



142
      Tr. 201-02 (Klein).
143
      Tr. 204 (Klein); Tr. 46, 72-73 (Tim).
144
      JX033 KFP423.
145
      Id. KFP424.
146
      Tr. 59 (Tim); JX096 at 128 (Klein Dep.); JX095 at 64 (Mommsen Dep.).
147
      JX008 Glicks604.


                                              23
of the Glicks’ “personal money.”148 Renee’s text prompted Klein to call Tim and

yell at him because he thought that it was “extremely inappropriate” for Renee to

reach out to him.149

         In mid-2015, Klein and Tim formed an entity for their joint venture, which

they named Bond Realty Group.150 In early June 2015, Klein and Tim signed an

office lease for Bond Realty Group, and explored potential projects in the Jackson

area.151

         In August 2015, Tim’s relationship with Klein ruptured after Tim billed Klein

$80,000 for a deposit for stone to be used to build Klein’s Jackson residence.152 At

the time, Klein had stopped making payments on the house and was $880,000 behind

in his payments, and Tim did not have funds to purchase the materials.153 When he

spoke to Klein about the matter, Klein threatened to sue him “with his high-priced

New York lawyers.”154

         On August 27, 2015, Klein’s lawyer sent two letters to Tim. One letter set

forth certain requirements Klein was demanding as a condition to permit Tim to


148
      Tr. 137 (Renee).
149
      Tr. 137 (Renee).
150
      PTO § II.13; Tr. 186 (Klein).
151
      PTO § II.13.
152
      Tr. 61-62 (Tim).
153
      Tr. 62 (Tim).
154
      Tr. 63 (Tim).


                                           24
complete the construction of his home.155 The other letter formally terminated their

real estate joint venture.156 Believing he could not defend himself because Klein

“had all [his] money,” Tim signed and returned both letters to Klein’s lawyer on

August 28.157

          The evening before, on August 27, 2015, Tim texted Klein and asked him if

he had “a timeline on when my bleachers stock would be sold.”158 Klein replied that

the Glicks’ stock “would be purchased at the – next event.”159 Later, on December

23, Klein told Tim during a phone conversation that he would buy out the Glicks’

interests by the end of January 2016, at which point he also would make Tim whole

on the construction payments for his Jackson residence.160

         N.     Additional Transactions Involving KF Pecksland

         At various times between October 2015 and April 2016, Klein sold interests

in KF Pecksland to four other investors for approximately $1.2 million.161 In March




155
      JX051 KFP595-96.
156
      Id. KFP597-98.
157
      Tr. 63-64 (Tim); JX051 KFP594.
158
      JX050; Tr. 64 (Tim).
159
      Tr. 65 (Tim).
160
      Tr. 65 (Tim).
161
      JX001; Tr. 178, 278 (Klein).


                                          25
2017, some of these investors sued Klein for fraud in connection with his sale of

interests in KF Pecksland to them.162

         In 2014 and 2015, Klein undertook a series of transactions that culminated in

obligating KF Pecksland to pay $6 million to Payton Lane Nursing Home, Inc.

(“Payton Lane”), an entity Klein owned, in exchange for a mortgage on the home

Tim was building for Klein in Jackson.163 The mortgage was “junior and subordinate

to” Klein’s construction loan in favor of Bank of Jackson Hole.164 Klein claimed at

trial that he was working to unwind this transaction because KF Pecksland could not

afford to pay the promissory note.165

         O.       Tim Stops Working on Klein’s Jackson Residence and Bleachers
                  Shuts Down

         On April 4, 2016, Dynamic sent Sleeping Indian a notice that it was

terminating their contract and stopping construction on Klein’s Jackson residence.166

Since the summer of 2016, the Glicks and Klein have been engaged in litigation in

Wyoming relating to construction of the Jackson residence and in Connecticut




162
      Tr. 279-80 (Klein).
163
      JX300-05.
  JX305 ¶¶ 1-2, 4. The mortgage made reference to a “Secured Promissory Note” that
164

was executed at the same time but was not included in the record. Id. ¶ 4.
165
      Tr. 221-22 (Klein).
166
      JX069; Tr. 218 (Klein).


                                           26
relating to cash payments Klein made to Tim.167 As of February 2017, Bleachers

ceased operations.168 Its stock is worthless.

II.      PROCEDURAL POSTURE
         On April 28, 2016, the Glicks filed an action against Bleachers and KF

Pecksland to inspect books and records.169 KF Pecksland offered to produce certain

documents and represented that certain categories of documents did not exist,

including a “statement regarding the status of the business and financial condition

of KF Pecksland” and a “current balance sheet for the company, [and] any recently

filed federal, state, and local income tax returns.”170

         On August 5, 2016, the Glicks filed their complaint in this action against KF

Pecksland, Bleachers, and Klein, asserting three claims.171 Count I asserts a claim

for breach of the First Purchase Agreement against all defendants for failing to

deliver $250,000 worth of Bleachers stock to the Glicks.172 Count II asserts a claim

for breach of fiduciary duty against Klein in connection with his management of KF

Pecksland.173 Count III asserts a claim for fraudulent inducement against Klein and


167
      PTO § II.22; Tr. 218-19 (Klein).
168
      PTO § II.3; Tr. 220 (Klein); JX095 at 5-6 (Mommsen Dep.).
169
      Compl. (Dkt. 1).
170
      JX081 ¶ 10.
171
      Compl.
172
      Id. ¶¶ 37-45.
173
      Id. ¶¶ 46-51.


                                            27
KF Pecksland.174 On April 19, 2017, the parties stipulated to dismiss Bleachers from

the action without prejudice.175

          On April 21, 2017, KF Pecksland and Klein filed a motion in limine seeking

to exclude certain documents and testimony.176 The Court denied the motion in

limine, but permitted the parties to assert any evidentiary objections in their post-

trial briefs, with the understanding that any objections not presented in the post-trial

briefs would be waived.177 Evidentiary objections that were asserted in Klein’s post-

trial brief are resolved in a separate order filed with this memorandum opinion.

          Trial was held on April 26, 2017. During the post-trial argument, the Glicks

abandoned Count I of their complaint because the relief they sought—the issuance

of $250,000 worth of Bleachers shares—was pointless given that Bleachers was

defunct and its shares worthless.178

III.      ANALYSIS

          This case is a classic “he said-she said” dispute where issues of credibility are

paramount. Thus, before analyzing the claims, I address the credibility of the

witnesses who testified at trial. In reaching my conclusions about credibility, I


174
      Id. ¶¶ 52-58.
175
      Stipulation and Order Dismissing Def. (Dkt. 58).
176
      Defs.’ Motion in limine (Dkt. 59).
177
      Tr. 4-6.
178
      Post-Trial Tr. 50-51.


                                              28
accord particular weight to the consistency of the witnesses’ testimony with the

written record and their prior statements, and to my observations of their demeanor

as they testified. As a general matter, both of the Glicks were highly credible but

Klein was not at all credible.

         Throughout the case, but particularly during his cross examination, Klein was

evasive and would claim faulty recollection or delay answering until he was

confronted with a document or prior statement. For instance, in response to a simple

question about whether he had signed documents under oath without reading them,

Klein sought to evade the question before being confronted with his deposition

testimony where he admitted doing so.179 Similarly, in response to a question about

whether he had ever stolen money from a business partner, Klein denied doing so,

and then responded that “[y]ou’re going to point me to something that shows that I

did steal money from a business partner. So I'm just waiting.”180

         Klein admitted in his trial testimony that he had been sanctioned by then-Vice

Chancellor Strine in a previous case. To my astonishment, however, he denied ever

seeing the transcript of the hearing in which he was sanctioned and at one point




179
      Tr. 225-26 (Klein).
180
      Tr. 237-38 (Klein).


                                           29
denied knowing what the sanction was for, saying he “thought [it was] for not

showing up.”181

         Klein flip-flopped in his testimony about misusing the proceeds from his

construction loan account with the Bank of Jackson Hole. In his deposition, Klein

falsely denied that KF Pecksland ever received cash from Dynamic.182 At trial, he

admitted he directed that money be transferred from Dynamic to KF Pecksland each

month beginning in February 2015.183 Klein also denied at trial ever “misapply[ing]

proceeds from bank loans before,” but had admitted doing so in deposition testimony

from the same action in front of then-Vice Chancellor Strine.184

         In contrast to Klein, the Glicks were forthcoming in their testimony at trial,

and their demeanor on the stand suggested that they were answering honestly. Tim



181
   Tr. 239, 241-42 (Klein). For context, the transcript was from a hearing in FHC Danbury
LLC v. LJA (Danbury), LLC, C.A. No. 2855-VCS (July 20, 2007), in which then-Vice
Chancellor Strine imposed sanctions on Klein after finding that Klein “stole” $178,000
from the account of a business owned 50/50 by Klein and another person “in clear violation
of” the Court’s status quo order. JX201 at 20, 27. Klein did not attend the hearing, but the
Court directed that his counsel, a partner at Richards, Layton & Finger, advise Klein about
the hearing. JX201 at 32. In the order accompanying this decision, I sustain Klein’s
objection to the introduction of the transcript as extrinsic evidence of character under Rule
404, and I do not consider it for that purpose in this decision.
  Tr. 230 (Klein) (“Question: Did KF Pecksland ever receive cash from Dynamic Custom
182

Homes? . . . Answer: No.”); see also JX096 at 72 (Klein Dep.).
183
      Tr. 229, 232-34 (Klein).
184
    Pls.’ Post-Trial Opening Br. Ex. A at 194-201 (Klein admitting that he had filed an
affidavit with a bank requesting $300,000 to purchase furniture and fixtures for a hotel, but
that the money instead was directed to one of his companies “probably because we were
due money” and “money is a fungible commodity.”).


                                             30
acknowledged his wrongdoing with respect to inflating the draws on the construction

loan account185 and was sincere in his retelling of each of his interactions with Klein

and how he discussed many of those events with Renee in real time. Although

Renee’s personal knowledge of the relevant events was more limited than Tim’s, she

testified clearly as to what she observed, did not observe, and did not adequately

recall.186

           The Glicks’ version of events also better comported with the written record,

whereas many of Klein’s statements were inconsistent with documentary evidence,

his deposition testimony, or both. For example, although Klein denied at his

deposition pressuring the Glicks187 or setting a hard May 13, 2015 deadline for them

to make the $183,000 investment,188 Klein was forced to admit at trial that he did set

such a deadline,189 and text messages190 between the parties show that Klein




185
   JX100 at 129-31 (Tim Dep.). Although Tim’s role in this scheme is troubling, there is
no evidence to suggest he personally profited from it. In reality, it caused him great harm.
186
      See, e.g., Tr. 139-42, 145-46 (Renee).
187
      JX096 at 111 (Klein Dep.).
188
   Id. at 110-11, 120 (Klein Dep.) (“[I] told them that they didn’t have to do it. I told Tim
he didn’t have to do it. If they didn’t wire and it was problematic, we don’t need to do this,
but I said it is a credibility issue to me if you are not going to do it, so just let me know one
way or the other.”).
189
      Tr. 270-271 (Klein).
190
   JX008 Glicks601-602 (Klein texting that “[i]t’s quite serious . and I’m stunned at what
occurred. [JP] Morgan never wired” and that “I’m having a credibility issue. in the worst
way we can’t have this go south”).


                                               31
definitely pressured the Glicks. This supports the Glicks’ testimony that Klein told

them, among other things, that they were “putting Bleachers in great danger” by

failing to meet the deadline.191 Similarly, as noted above, Klein testified during

discovery that KF Pecksland never received cash from Dynamic, only to admit at

trial that this was false after being confronted with emails from the bank

documenting the transfers to KF Pecksland.

         In sum, in the instances discussed above and many others, Klein’s evasive and

inconsistent responses gave me the distinct sense that there was little chance of

getting a straight answer from him and that he was willing to say whatever was

convenient at the moment without regard for the truth. Tim and Renee, on the other

hand, were both very credible witnesses.

         A.     The Fraudulent Inducement Claim

         The Glicks’ primary claim is that Klein fraudulently induced them to invest

$433,000 in Bleachers by making certain false and fraudulent statements. In briefing

the issue of fraud, both parties focused on Wyoming law, which I will apply.192


191
      Tr. 55-59 (Tim); accord 134-35 (Renee).
192
    Pls.’ Post-Trial Opening Br. 40; Defs.’ Post-Trial Answering Br. 48. Where a choice
of law provision does not govern, Delaware courts generally follow the “most significant
relationship” approach of the Restatement (Second) of Conflict of Laws when assessing
tort claims. Gloucester Hldg. Corp. v. U.S. Tape and Sticky Prods., LLC, 832 A.2d 116,
124 (Del. Ch. 2003). Here, Wyoming has the most significant relationship to the events
because (1) the relationship between the parties was centered there, (2) both parties have
residences there, (3) some of the challenged representations were made there, and (4) the
injury to the Glicks occurred there. See Restatement (Second) of Conflict of Laws § 145(2).


                                            32
         Under Wyoming law, three elements must be established by clear and

convincing evidence to prove a claim of fraudulent inducement:

         A plaintiff alleging fraudulent inducement carries the burden of
         showing by clear and convincing evidence that 1) the defendant made
         a false representation intending to induce action by the plaintiff; 2) the
         plaintiff reasonably believed the representation to be true; and 3) the
         plaintiff suffered damages in relying on the false representation.193

Clear and convincing evidence requires a showing of “the kind of proof which would

persuade a trier of fact that the truth of the contention is highly probable.”194

         To satisfy the first element of a fraudulent inducement claim, a plaintiff must

provide sufficient evidence that the defendant made a false factual statement195

relating to a material fact196 with either “knowledge of its falsity,” or “aware[ness]

that he did not have a basis for making the statement” to induce action.197 To satisfy

the second element, a plaintiff must prove that its belief in, and reliance on, the

defendant’s representation was reasonable under the facts presented.198 To satisfy




  Claman v. Popp, 279 P.3d 1003, 1016 (Wyo. 2012) (citing Bitker v. First Nat’l Bank in
193

Evanston, 98 P.3d 853, 856 (Wyo. 2004)).
194
      Alexander v. Meduna, 47 P.4d 206, 216 (Wyo. 2012) (citation omitted).
195
   Sundown, Inc. v. Pearson Real Estate Co., Inc., 8 P.3d 324, 331 (Wyo. 2000) (holding
that “any false representation must relate to a matter of fact.”).
196
   Universal Drilling Co., LLC v. R & R Rig Serv., LLC, 271 P.3d 987, 998 (Wyo. 2012)
(“[T]he injured party must show that the false representation pertained to a material fact.”).
197
      Excel Const., Inc. v. HKM Eng’g, Inc., 228 P.3d 40, 48-49 (Wyo. 2010).
198
      Dewey v. Wentland, 38 P.3d 402, 413 (Wyo. 2002).


                                             33
the third element, a plaintiff must show that its reliance on the misrepresentation was

the cause of the harm.

         The Glicks contend that Klein made essentially seven false or fraudulent

statements to induce their investment in Bleachers:

         1. That Bleachers was “white hot”;

         2. That Bleachers had a huge opportunity in the Australian market;

         3. That Bleachers had a huge opportunity to provide services to
            Division III schools;

         4. That Klein was so sure that the investment in Bleachers would be
            successful that he would personally guarantee the investment and
            repurchase the Glicks’ shares if Bleachers was not successful;

         5. That Bleachers did not need the money, and that Klein was
            permitting the Glicks to participate in Bleachers as a friend;

         6. That the value of Bleachers had doubled between the Glicks’ first
            investment in Bleachers and their second, follow-on investment; and

         7. That a very sophisticated investor, Morris Offit, was going to invest
            $150 million in Bleachers.199

The first three statements fail to satisfy the first element of a fraudulent inducement

claim because they do not constitute false statements of fact. Rather, the assertions

that Bleachers was “white hot” or had “huge opportunities” in Australia or in the




199
      Pls.’ Post-Trial Reply Br. 1.


                                           34
Division III college market amount to expressions of intention, hope, or opinion

about future matters that are not actionable under Wyoming law.200

      The fourth and fifth statements go together. The sixth and seventh statements

occurred after the Glicks made their first investment of $250,000, and thus are

relevant only to their decision to make the second investment of $183,000. I discuss

each of these statements below.

             1.     The Personal Guarantee
      The Glicks contend that Klein represented to Tim that: he was so confident

about Bleachers’ prospects that he would personally guarantee them that they would

not lose money, he would repurchase their shares if anything went wrong, and he

was offering the investment essentially as a “favor” to his friends so that Tim would

have “skin in the game” to participate in a joint venture with Klein.               Klein

vehemently denies making any such statements, although he admits to telling Tim




200
    See Bushnell v. Elkins, 245 P. 304, 308 (Wyo. 1926) (fraud case could not stand where
representations complained of “were merely opinions, or expressions of hope, or
expectation that the business of the corporation would be successful”); Sundown, 8 P.3d at
331 (“opinions [] are not actionable under the law”); Farmers’ Lumber Co. v. Luikart, 256
P. 84, 86 (Wyo. 1927) (quoting First Nat’l Bank v. Swan, 23 P. 743, 750 (Wyo. 1890)) (a
representation “‘which relates to the future, or which depends upon contingencies which
may or may not happen, furnishes no foundation for a claim of fraud or deceit’”). These
statements also resemble “puffing” that should be viewed as opinion and “discounted as
such by the buyer” due to “broad, vague, and commendatory language.” W. Page Keeton
et al., Prosser and Keeton on the Law of Torts § 109, at 756–57 (5th ed.1984).


                                           35
that he needed to have “skin in the game” for the real estate venture that never

materialized.201 The issue boils down to one of credibility and the parties’ conduct.

         I find it highly probable that Klein made the personal guarantee

representations to Tim as Tim testified.202 Tim was a very credible witness and I

credit his specific testimony on this issue, which is corroborated by Renee’s

testimony that Tim told her about the personal guarantee at the time. Tim’s

testimony is further corroborated by the fact that when he invoked the guarantee in

August 2015, Klein did not take issue with Tim’s request to be bought out, which

one would expect if Klein had never promised to do so. To the contrary, consistent

with having made the representation, Klein said that the Glicks’ shares “would be

purchased at the – at the next event.”203 A few months later, in December 2015,

Klein again did not challenge the notion that he had a responsibility to repurchase

the Glicks’ shares, but instead told Tim that he would buy out the Glicks shortly

after the year-end.204 Klein was not a credible witness and I do not credit his denial

of the personal guarantee.

         The personal guarantee representation was clearly material to the Glicks and

induced their investment because it was made to assuage their stated reservations


201
      Tr. 185 (Klein).
202
      See supra Section I.H.
203
      Tr. 65 (Tim); JX050.
204
      Tr. 65-66 (Tim).


                                          36
and nervousness about investing most of their life savings in Bleachers. Both of the

Glicks testified credibly about how important the guarantee was to their decision to

invest with Klein.205

         Although the general rule under Wyoming law “is that fraud ordinarily cannot

be founded upon a representation which is promissory in nature,” there is an

exception that applies when a person makes such a representation with no intention

of performing the promise:

         This general rule, however, is subject to an exception to the effect that
         if the representation, although promissory in nature, is made with no
         intention of performing it or with a present intention not to perform, it
         may then serve as a foundation for an action in fraud; one of the
         justifications for the exception being that there does exist a
         misrepresentation of a present fact, that is, the intention of the
         promissor.206

Consistent with this doctrine, Klein made no argument in his post-trial brief that the

personal guarantee could not form the basis of a claim for fraudulent inducement

because of its promissory nature.

         I also find it highly probable that Klein never intended to perform on the

guarantee. This is borne out by his contemporaneous and subsequent conduct. By

the time he made the personal guarantee representations to Tim, Klein had decided

that he did not trust Tim and wanted to work him out of his home construction


205
      JX099 at 52-53 (Renee Dep.); Tr. 127 (Renee); Tr. 89 (Tim).
206
      Johnson v. Soulis, 542 P.2d 867, 872 (Wyo. 1975).


                                             37
project.207 Yet during this same period, Klein directed Tim to inflate the draws on

the construction loan, which enriched Klein and gave him leverage over Tim. It is

inconceivable in my view that Klein ever had any intention to honor an oral

guarantee to buy back the Glicks’ investment in Bleachers when, at the time he made

the promise, Klein was leading Tim on about undertaking a real estate joint venture

that he had no apparent intention of pursuing208 and was putting Tim in a financial

straightjacket on his home construction project.

         Klein’s subsequent conduct, which may be considered under Wyoming

law,209 further supports this conclusion. Specifically, after Tim asked to be bought

out in the latter part of 2015, Klein had several opportunities to return the Glicks’

investment with relative ease, without using his own money and despite the

illiquidity of the KF Pecksland shares, since he sold shares of KF Pecksland to four

other investors for $1.2 million from October 2015 to April 2016. The obvious

reason Klein did not utilize any of those opportunities to arrange a purchase of the

Glicks’ shares is because he never had any intention of buying them back.



207
      JX096 at 83-84 (Klein Dep.).
208
   I discredit Klein’s trial testimony that his interest in the real estate joint venture was
sincere at this point (see Tr. 183-85 (Klein)) given his admission in his deposition that he
did not trust Tim by early 2015 (see JX096 at 83-84 (Klein Dep.)) and given Klein’s overall
lack of credibility.
209
   See Positive Progressions, LLC v. Landerman 360 P.3d 1006, 1015-16, 1018 (Wyo.
2015) (considering subsequent conduct as evidence of intention not to perform).


                                             38
         For the reasons explained above, I find that the Glicks have established by

clear and convincing evidence that Klein intentionally made a false representation

when he promised to repurchase the Glicks’ shares in order to induce the Glicks to

invest in Bleachers. Thus, the Glicks have satisfied the first element of a claim for

fraudulent inducement under Wyoming law.

         With respect to the second element of the claim, the almost “too good to be

true” nature of the personal guarantee initially gave me pause about the

reasonableness of the Glicks’ belief in Klein’s representation. One naturally would

be skeptical that a financial investment could have no downside risk—other than the

risk of Klein reneging on his word.            But the circumstances under which the

representation was made firmly convince me otherwise.

         As discussed above, Klein expressed great bullishness on Bleachers’

prospects, touting that it was “white hot,” had huge opportunities in Australia and in

the Division III college market,210 and repeatedly telling Tim how confident he was

that it would make money.211 He also spent a lot of time with Tim, and to a lesser

extent with Renee, talking about an array of personal and business matters to gain


210
      Tr. 173-174, 263 (Klein); Tr. 45-46, 66-67 (Tim).
211
    Tr. 72 (Tim) (“And he told me that we were going to make a lot of money. ‘Don’t worry
about it.’ He was so certain of it that he personally guaranteed it.”); Tr. 89 (Tim) (discussing
how Klein had told Tim a “number of times that he -- he was so sure of Bleachers, that we
were going to make money, and a lot of money, that he -- he would personally guarantee
it.”); Tr. 90 (Tim) (“Mr. Klein told me that he would personally guarantee the investment.
He told us that we were going to make millions of dollars. I trusted him.”).


                                              39
the Glicks’ confidence. Against this backdrop, Klein pitched selling them a piece of

Bleachers as something he was doing “as a favor” out of friendship so that they could

have “skin in the game” and participate in a promising real estate joint venture with

him.212 Tim and Renee both credibly testified that they trusted Klein, that the

guarantee was important to their decision to invest, and that they were appreciative

of what he was doing for them.213

         Adding credence to the fact that the promise was done out of friendship, and

to help Tim raise money for their venture, is the fact that Klein continued to express

his desire to help Tim out by arranging for Tim to work with Offit just as the Glicks

were being asked to sign the First Purchase Agreement on April 14, 2015. Starting

at 6:45 a.m. that morning, Klein sent Tim several e-mails suggesting that Offit would

hire Tim for the demolition and construction of a new home. Klein’s first e-mail

reported that “[Offit] will pay you a supervisory fee of 15k plus travel (youll [sic]

stay at my home).”214 Six minutes later, Klein stated “funny, [Offit] asked if you

could do a design build,” and provided information about the bids Offit had received.

Tim replied that he could not “see why we couldn’t beat that.”215 At 9:01 a.m., just


212
   See Tr. 39 (Tim) (discussions about starting a joint venture began “late 2014 and then
really kind of February, March, April of 2015, we really -- we spoke quite often about real
estate development and what we might be able to do together as a team in Jackson”).
213
      Tr. 39-40, 43-44, 57-58, 89 (Tim); Tr. 127 (Renee); JX099 at 30-31, 37 (Renee Dep.).
214
      JX014.
215
      JX014 (emphasis added).


                                             40
fifteen minutes after sending the Glicks the First Purchase Agreement,216 Klein sent

Tim yet another e-mail, explaining that the job would be lucrative and suggesting

that Tim already had the job: “[Offit] would take a blended deal at 16% and at

10,000 at 450 sqft that’s 720k fee. . . either way its [sic] your job . . i cant take a cent

as hes [sic] a partner.”217 And, four minutes later, at 9:05 a.m., Klein continued to

tout Bleachers’ prospects by forwarding Tim an email from Offit saying that the

chairman of the Gilman School board was “intrigued with Bleachers.”218

         The Glicks were an easy mark for Klein’s pitch. Although Tim had achieved

a degree of success as a home builder, he and Renee were not sophisticated investors,

and Klein knew it. The emails and text messages the Glicks exchanged with Klein

displayed an obvious naiveté about financial matters.219 In other words, the personal

guarantee was offered to the Glicks out of ostensible friendship by someone who

portrayed himself as extremely wealthy and had the resources to make such a


216
   JX012 (email from Klein to Tim at 8:47 a.m. on April 14, 2015, forwarding copy of
First Purchase Agreement for the Glicks to sign).
217
      JX014.
218
      JX015.
219
   See JX010 (asking if there was a “cliff note or ‘for dummies’ version of this document
[warrant agreement]”); JX023 (Tim asking Klein whether “ESPN [would] be considered
your competition”); JX030 (in response to Second Purchase Agreement, Tim noted how
the “numbers seem to make sense to me… at least the amount Renee and I have to put in
and the purchase price.”); JX008 Glicks599-601 (discussing how the Glicks trust Klein
“unconditionally” and will “be family with you for the next 55 years”); Tr. 16-17 (Tim)
and Tr. 185, 261 (Klein) (discussing how Klein walked Tim through hours of construction
financing and discussed how to improve Tim’s business model).


                                            41
representation credible. The sale of shares and guarantee also were offered out of

an expressed interest in cultivating a larger relationship with Tim in order to make

possible a real estate venture that could be mutually beneficial, and so did not appear

to be an act of mere charity. Given this context, I find that the Glicks have met their

burden to prove by clear and convincing evidence that their belief in Klein’s

representation that he would personally guarantee their investment in Bleachers was

reasonable.

         Wyoming law bars recovery if the complaining party “blindly relies upon a

representation, the falsity of which would be obvious to him upon a cursory

examination or investigation.”220 It is unclear, however, what evidence the Glicks

could have uncovered to show that Klein was unwilling to repurchase their shares.

Other than invoking language from the First Purchase Agreement, discussed below,

Klein points to none. In short, there was no “available evidence of a defect” to put

the Glicks on notice that Klein’s statements about the personal guarantee were

false,221 and nothing in the record suggests that “investigations would have easily

disclosed the true situation.”222 Indeed, the only evidence of Klein’s true intentions


220
      Dewey, 38 P.3d at 413.
221
   Claman, 279 P.3d at 1016-18 (finding reliance to be unreasonable where plaintiff who
sued for subsidence-causing defects of a house had the opportunity to view the property,
the defects were readily visible, and where defendant truthfully disclosed to plaintiff in
property condition statement that house was in subsidence area).
222
      Farmers’, 256 P. at 86.


                                           42
was in Klein’s control, and his willingness to make misrepresentations is clearly

established.

         Klein’s main defense is that the Glicks could not have reasonably relied on a

representation that he would repurchase their investment because the purchase

agreements they signed “purport to fully express the parties’ accord [and] nothing in

them provides for a repurchase.”223 Klein focuses in particular on a representation

in the First Purchase Agreement stating that the purchaser could afford “a complete

loss” of the value of the purchased shares and is “able to bear the economic risk” of

holding such purchased shares “for an indefinite period.”224

         The record reflects, however, that Klein portrayed the purchase agreements

he sent the Glicks, which were generic in nature, to be a mere “formality.”225 This



223
      Defs.’ Post-Trial Ans. Br. 60.
224
    Id. (quoting JX016 § (B)(3)(d)). Both of the purchase agreements contained generic
integration clauses but did not contain an express disclaimer from the purchasers of reliance
on representations made before signing. See JX016 § (E)(2); JX036 Glicks211 § (E)(2).
225
    Tr. 46, 86 (Tim) (testimony that Klein repeatedly referred to agreements as a
“formality”); cf. JX010 (sending e-mail “warrant offer” to the Glicks, and stating that “this
may be the shortest form . they usually run 12 plus pages . Lemme walk you thru it and see
if we can simplify further . I’m a big fan of less complicated.”); JX012 (e-mail from Klein
enclosing the First Purchase Agreement in which the only text in the body was “you and
renee should sign page 4 and return by pdf…KEEP THE ORIGINAL FOR YOUR
RECORDS….” and which failed to include Exhibits A and B referred to in the First
Purchase Agreement); JX030 (e-mail on May 26, before the Glicks entered into Second
Purchase Agreement, where in response to Glicks statement that “numbers seem to make
sense” Klein responded “its correct…i’ll have [my attorney] lipari issue the shares”);
JX036 (e-mail enclosing the Second Purchase Agreement reflecting that Klein was
forwarding to Tim “to cut down on legal expense”).


                                             43
is confirmed by the lack of any negotiation over their terms and the slipshod manner

in which the purchase agreements were prepared. For example, Klein testified that

the First Purchase Agreement was inaccurate, which led to it being replaced by the

Second Purchase Agreement.226 And, reflective of its lack of importance, the key

representation in the First Purchase Agreement on which Klein relies—that the

purchaser could afford the risk of loss and hold the shares indefinitely—was omitted

from the Second Purchase Agreement.

       In circumstances similar to this case, the Supreme Court of Wyoming in recent

years has disregarded the express terms of a contract to protect against fraud. In

2015, for example, in Positive Progressions, LLC v. Landerman, a plaintiff proved

at trial that she had been fraudulently induced to sign a contract where she “had

reason to and did rely on the representations of” a party who held himself out as an

“ethical and responsible businessman.”227 While “especially conscious of parties’

freedom to contract,” the Supreme Court of Wyoming nevertheless declined to bar

her claim based on the written agreement, opting to adopt the law of a sister state in

order to protect against fraudulent conduct:

       We are of the same opinion as the Supreme Court of Idaho:


226
   Tr. 201-02 (Klein). Further, many documents purported to be prepared and attached to
the First Purchase Agreement were not. See JX016.
227
   360 P.3d at 1018. The plaintiff in Positive Progressions did not read the final agreement
she signed at all.


                                            44
                 While normally the terms of a written contract will control, Idaho
                 law firmly allows that “[f]raud in the inducement is always
                 admissible to show that the representations by one party were a
                 material part of the bargain.”               “[A]greements and
                 communications prior to or contemporaneous with the adoption
                 of a writing are admissible in evidence to establish fraud.” Fraud
                 vitiates the specific terms of the agreement and can provide a
                 basis for demonstrating that the parties agreed to something apart
                 from or in addition to the written documents.228

Just last year, in Rogers v. White, the Supreme Court of Wyoming similarly held that

“[w]hen one party uses fraudulent or intentional misrepresentations or nondisclosure

to induce the other party into a contract, an ‘as is’ clause or disclaimer does not bar

the induced party from recovery.”229 Klein did not identify any contrary Wyoming

authority suggesting that a generic integration or disclaimer clause would prohibit

recovery for fraud.

          Here, similar to Positive Progressions, the Glicks had reason to and did rely

on the representations of someone who held himself out as a friend doing them a

favor but, unbeknownst to them, intentionally deceived them into giving him their

life savings based on a promise to repurchase their shares that he never intended to

keep. In my opinion, Wyoming law would not bar a fraudulent inducement claim

under these circumstances based on generic representations in an agreement the

parties viewed as a formality. As the Rogers court explained, “‘[a] perpetrator of


228
      Id. at 1019 (citations omitted).
229
      366 P.3d 1264, 1271 (Wyo. 2016) (citations omitted).


                                             45
fraud cannot close the lips of his innocent victim by getting him blindly to agree in

advance not to complain against it.’”230

         Finally, the Glicks have proven that they “suffered damages in relying on the

false representation” Klein made to them.231 As a direct result of Klein’s refusal to

honor the guarantee, the Glicks lost a total of $433,000 and are entitled to

consequential damages for that amount.232

                2.     The Offit and “Doubled Value” Representations
         The Glicks contend that Klein made two additional representations that

fraudulently induced them to make the second investment of $183,000: (1) that a

very sophisticated investor, Morris Offit, was going to invest $150 million in

Bleachers imminently; and (2) that the Glicks’ Bleachers stock had doubled in value

in the few weeks since they made their first investment. It is not necessary to parse

the record to decide whether the Glicks met their burden to demonstrate that Klein

made these representations, which indisputably would have been false.              Even

assuming for the sake of argument Klein did, the Glicks have failed to show by clear




230
      366 P.3d at 1271 (quoting Snyder v. Lovercheck, 992 P.2d 1079, 1086 (Wyo. 1999)).
231
      Claman, 279 P.3d at 1016 (citing Bitker, 98 P.3d at 856).
232
    Wyoming law recognizes that consequential damages are an appropriate remedy for
fraudulent inducement. See Jurkovich v. Tomlinson, 905 P.2d 409, 412 (Wyo. 1995)
(discussing how compensatory damages appropriate remedy for fraudulent inducement and
denying rescissionary damages); Alexander, 47 P.3d at 217 (awarding compensatory
damages in fraudulent inducement case).


                                              46
and convincing evidence that they reasonably relied on these representations and

thus cannot sustain their fraudulent inducement claim based on them.

       As noted above, under the law of fraudulent inducement in Wyoming, “one

cannot recover if he blindly relies upon a representation, the falsity of which would

be obvious to him upon a cursory examination or investigation.”233 Here, in the face

of factual assertions about a specific sum Offit was going to invest in Bleachers

imminently, and about a dramatic increase in the value of their initial investment in

Bleachers in a short period of time, the Glicks did not attempt to conduct even the

most cursory form of investigation.

       Unlike the situation with the personal guarantee, there were obvious ways the

Glicks easily could have investigated these particular representations. For instance,

concerning Offit’s putatively imminent $150 million investment, the Glicks could

have asked Klein to provide a copy of a document reflecting the commitment or Tim

could have spoken to Offit himself to confirm it. Tim visited Offit’s property in


233
   Dewey, 38 P.3d at 413; see also White v. Ogburn, 528 P.2d 1167, 1171 (Wyo. 1974)
(“We do not say that plaintiffs could not rely upon representations made to them by the
defendants, but they could not blind themselves to observe the readily available facts and
place reliance upon such alleged misrepresentations without making a diligent inquiry of
these facts.”); Schaffer v. Standard Timber Co., 331 P.2d 611, 615 (Wyo. 1958) (“persons
now complaining to have been misled were obligated to use the ordinary means of
information available to them . . . under the circumstances.”); Farmers’, 256 P. at 86
(quoting First Nat’l Bank, 23 P. at 750 (“A party . . . cannot, when the opportunity is before
him, and there is nothing in the situation of the parties to prevent investigation, decline to
prosecute a reasonably diligent inquiry, refuse to exercise his own judgment, and then be
heard to complain [of fraud].”).


                                             47
Greenwich in early May and had spoken to Offit on the phone about the demolition

project.234 Tim had access to Offit and was in a position to make the inquiry, but he

never tried.235

         As to the doubling of the value of the Glicks’ initial investment, Tim could

have asked for some documentation reflecting the valuation of the Bleachers shares,

such as a financial statement or evidence of recent sales at a higher valuation. At a

minimum, Tim could have asked Klein to explain what had happened during the two

and a half weeks since the Glicks made their initial investment that caused it to

double in value in such a short period of time.

         Had the Glicks made any attempt to kick the tires about these representations,

it is likely that they would have become suspicious about their veracity. But given

their failure to make any effort to investigate the truth of the doubling and Offit

investment representations, I cannot find that the Glicks have established by clear

and convincing evidence under Wyoming law that their reliance on these

representations was reasonable.




234
      Tr. 47, 91-92 (Tim); Tr. 200-201 (Klein).
235
   Tr. 92 (Tim). Tim testified vaguely that “Klein always was very particular on how [he]
spoke to Mr. Offit,” but he did not say that he had been instructed not to do so. Id.


                                              48
         B.     The Negligent Misrepresentation and Constructive Fraud Claims

         Shortly before and after trial, the Glicks sought to introduce two additional

claims that were not pled in their complaint, for negligent misrepresentation and

constructive fraud.236 The parties disagree over whether these claims were tried by

implied consent of the parties and thus may treated as if they had been raised in the

pleadings under Court of Chancery Rule 15(b). I do not reach this issue and need

not analyze these claims for two reasons.

         First, because the Glicks have proven their entitlement to an award of damages

for the full amount they invested with Klein under their claim for fraudulent

inducement, they would not be entitled to any further recovery under either theory.237

         Second, with one exception, the Glicks have not identified any representation

or concealment that could serve as an additional basis for recovery under either

theory. The exception is the admittedly false representation Klein made to Tim in

emails on May 20 and 31, 2015 that Bleachers had entered into contracts with

multiple schools in Australia.238 On this score, Klein blames Richard Stokes of the

ABSA for sending bad information to him.239 Klein could be liable for negligent


236
   See Pls.’ Pre-Trial Br. 29-30 (asserting equitable fraud claim); Pls.’ Post-Trial Opening
Br. 46-49 (asserting constructive fraud and negligent misrepresentation claim).
237
    See Brandin v. Gottlieb, 2000 WL 1005954, at *1 (Del. Ch. July 13, 2000) (declining
to reach breach of fiduciary duties where party prevailed on contractual claims).
238
      JX028 (May 20, 2015 e-mail); JX032 (May 31, 2015 e-mail).
239
      Tr. 264-267 (Klein) (quoting JX096 at 136-138 (Klein Dep.)).


                                             49
misrepresentation if he failed to exercise reasonable care before forwarding this

information to Tim and if the Glicks relied on it.240 The Glicks, however, already

had wired the funds for their second and final investment on May 14, before Tim

received the May 20 and 31 emails from Klein, and thus would not be able to

establish that they justifiably relied on these representations.

         C.    The Breach of Fiduciary Duty Claim

         In Count II of their complaint, the Glicks assert a claim for breach of fiduciary

duty against Klein as the manager of KF Pecksland. The manager of a Delaware

limited liability company owes the traditional fiduciary duties of loyalty and care to

its members unless the LLC agreement provides otherwise.241 The KF Pecksland

LLC Agreement does not modify or eliminate the manager’s fiduciary duties.242

Thus, Klein owed a fiduciary duty to the Glicks once they became members of KF

Pecksland. Defendants do not contend otherwise.




240
   See Hulse v. First Am. Title Co. of Crook Cty., 33 P.3d 122, 138 (Wyo. 2001) (citation
omitted) (“One who, in the course of his business, profession or employment, or in any
other transaction in which he has a pecuniary interest, supplies false information for the
guidance of others in their business transactions, is subject to liability for pecuniary loss
caused to them by their justifiable reliance upon the information, if he fails to exercise
reasonable care or competence in obtaining or communicating the information.”).
241
   Auriga Capital Corp. v. Gatz Props., 40 A.3d 839, 856 (Del. Ch. 2012), aff’d, 59 A.3d
1206 (Del. 2012); see also 6 Del. C. § 18-1101.
242
      JX036 Glicks202-05.


                                             50
         The relief the Glicks seek for their fiduciary duty claim is an award of money

damages.243 Thus, to sustain their claim under Count II, they have the burden to

prove, by a preponderance of the evidence, not only that Klein breached a fiduciary

duty owed to them, but that they suffered damages as a result of the breach.244 An

award of “[d]amages cannot be speculative or uncertain . . . but must be at least based

on a reasonable estimate.”245

         The Glicks contend that Klein breached his fiduciary duties in four respects.

First, they assert that Klein failed to cause KF Pecksland to maintain appropriate

books and records, citing Klein’s admission that KF Pecksland has no financial

statements, balance sheets, profit and loss statements, meeting minutes, or

resolutions.246 Klein’s failure to maintain such basic corporate records is egregious

and suggestive of gross negligence that would sustain a breach of the duty of care,




243
      PTO § IV.A.3.
244
   See Hampshire Grp., Ltd. v. Kuttner, 2010 WL 2739995, at *50 (Del. Ch. July 12, 2010)
(discussing need for causation and sufficiently quantifiable harm for damages in breach of
fiduciary duty case).
245
   Cincinnati Bell Cellular Sys. Co. v. Ameritech Mobile Phone Serv. of Cincinnati, Inc.,
1996 WL 506906, at *20 (Del. Ch. Sept. 3, 1996), aff’d, 692 A.2d 411 (Del. 1997)
(quotation and citation omitted) (declining to award of damages in suit alleging
mismanagement).
246
   JX081 ¶ 10 (Answer to Books and Records Compl.). Klein also admitted in his answer
that KF Pecksland had no tax returns, but he testified at trial they had been filed “a few
weeks ago.” Tr. 282-83 (Klein)


                                           51
and perhaps bad faith.247 The Glicks, however, put forward no evidence to quantify

how Klein’s alleged mismanagement harmed them apart from seeking the return of

the $433,000 they paid for interests in KF Pecksland as a result of Klein’s fraudulent

conduct. More broadly, the Glicks failed to proffer any expert or lay evidence on

the issue of damages they suffered directly—as opposed to harm the LLC suffered—

as a result of any of Klein’s alleged breaches of fiduciary duty.

         Second, the Glicks contend that Klein breached his fiduciary duties by

admittedly using KF Pecksland’s funds as his “personal checking account.”248 KF

Pecksland received millions of dollars from the scheme Klein orchestrated to inflate

the draws on the construction loan for his Jackson residence, which Klein took for

himself.249 Once again, however, the record is devoid of evidence showing how the

Glicks personally suffered damages as members of KF Pecksland as a result of this

scheme as opposed to harm that the LLC may have suffered.

         Third, the Glicks assert that Klein usurped a corporate opportunity by selling

his personal interests in KF Pecksland to certain individuals instead of selling to

them Bleachers shares held by KF Pecksland, which would have resulted in KF

Pecksland receiving the proceeds of such sales. Apart from failing to prove they


247
   The KF Pecksland LLC Agreement does not exculpate its managers for breaches of the
duty of care. See JX036 Glicks202-05.
248
      Tr. 228-231 (Klein).
249
      JX066; Tr. 229 (Klein).


                                           52
suffered damages personally as a result of this conduct, the Glicks failed to establish

that an opportunity was available to KF Pecksland. I have my suspicions about what

happened to these individuals, but the fact of the matter is that there is no evidence

in the record about whether they were interested in acquiring Bleachers stock or an

interest in KF Pecksland.

         Finally, the Glicks assert that Klein breached his fiduciary duties by obligating

KF Pecksland to pay $6 million to Payton Lane, another of Klein’s entities, via a

promissory note exchanged for a subordinated mortgage on Klein’s Jackson

residence. This was a plainly self-interested transaction, which has all the indicia of

being unfair to KF Pecksland. Apparently recognizing as much, Klein testified that

the transaction is being unwound.250 Whether or not that is true cannot be discerned

from the record, but what is evident is that the Glicks submitted no evidence

quantifying the harm this transaction caused them.

         In sum, the Glicks’ fiduciary duty claim raises many troubling issues

concerning Klein’s conduct as a fiduciary of KF Pecksland. The evidence suggests

that Klein could be liable for harm caused to the LLC by using its accounts for

personal purposes, diverting corporate opportunities to himself, and unfairly

encumbering KF Pecksland with a $6 million promissory note. But the Glicks failed




250
      Tr. 222 (Klein).


                                            53
to submit evidence to establish that they were harmed directly by Klein’s alleged

breaches of fiduciary duties, and they did not seek to assert a derivative claim on

behalf of KF Pecksland. It is understandable why the Glicks did not litigate each of

these issues to the ground given the amount at stake in this case, but the bottom line

result is that the Glicks failed to submit sufficient proof to establish a right to

damages under Count II of their complaint.

         D.      Attorney’s Fees

         The Glicks devoted just one sentence in their post-trial briefs to explain the

basis for their request for attorney’s fees, which they say is “premised on Klein’s

egregious misconduct, throughout the proceedings.”251 The request is denied.

         Under the “American Rule,” courts “do not award attorneys’ fees to a

prevailing party absent some special circumstance.”252 The “American Rule would

be eviscerated if every decision holding defendants liable for fraud or the like also

awarded attorney’s fees.”253 The “quite narrow exception” to the American rule

instead “is applied in only the most egregious instances of fraud or overreaching.”254




251
      Pls.’ Post-Trial Reply Br. 21.
252
   See Arbitrium (Cayman Is.) Handels AG v. Johnston, 705 A.2d 225, 231 (Del. Ch.
1997); aff’d, 720 A.2d 542 (Del. 1998).
253
      Barrows v. Bowen, 1994 WL 514868, at *2 (Del. Ch. Sept. 7, 1994) (Allen, C.).
254
      Arbitrium, 705 A.2d at 231.


                                             54
      To be sure, Klein should be held to account for the fraudulent conduct for

which this decision finds him liable. The Glicks, however, failed to prove many of

the grounds for their fraud claim and did not prevail on their fiduciary duty claim.

In short, this litigation was hard fought, hotly disputed, and involved some truly

disturbing conduct, but it did not rise to the level of such egregiousness so as to

warrant deviation from the American Rule. Accordingly, the Glicks’ request for an

award of attorneys’ fees is denied.

IV.   CONCLUSION
      For the reasons explained above, the Glicks are entitled to judgment in their

favor on Count III in the amount of $433,000, plus pre- and post-judgment interest,

and their costs as the prevailing party on the core issue in this case.255 Count I is

dismissed as moot, and judgment shall be entered in Klein’s favor on Count II. The

parties are directed to submit a form of final judgment within five business days of

the date of this opinion.

      IT IS SO ORDERED.




255
   See FGC Holdings Ltd. v. Teltronics, Inc., 2007 WL 241384, at *17 (Del. Ch. Jan. 22,
2007) (“For purposes of Rule 54(d), the ‘prevailing party’ is the party who successfully
prevails on the merits of the main issue.”).


                                          55
