Dengrong Zhou v. Long Deng and Mark Fang (iFresh, Inc., Nominal Defendant) ( 2022 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
DENGRONG ZHOU, )
)
Plaintiff/Counterclaim )
Defendant, )
)
v. ) C.A. No. 2021-0026-JRS
)
LONG DENG and MARK FANG, )
)
Defendants/Counterclaim )
and Third Party Claim )
Plaintiffs, )
)
and )
)
iFRESH, INC., a Delaware corporation, )
)
Nominal Defendant, )
)
v. )
)
QIANG OU, KAIRUI TONG, HAO )
HUANG, HUBEI RONGENTANG WINE )
CO., LTD., HUBEI RONGENTANG )
HERBAL WINE CO., ZHANG FEI, )
LIU MENG, JIUXIANG BLUE SKY )
TECHNOLOGY (BEIJING) CO, LTD., )
and HK XU DING CO., LIMITED, )
)
Third Party Defendants. )
MEMORANDUM OPINION
Date Submitted: March 17, 2022
Date Decided: April 6, 2022
Peter B. Ladig, Esquire and Sarah T. Andrade, Esquire of Bayard, P.A., Wilmington,
Delaware and Stephen M. Plotnick, Esquire, Alexander G. Malyshev, Esquire and
Matthew D. Dunn, Esquire of Carter Ledyard & Milburn LLP, New York,
New York, Attorneys for Plaintiff Dengrong Zhou.
John G. Harris, Esquire of Berger Harris LLP, Wilmington, Delaware and
Angus F. Ni, Esquire and Times Wang, Esquire of AFN Law, PLLC, Seattle,
Washington, Attorneys for Defendants/Counterclaim and Third Party Plaintiffs
Long Deng and Mark Fang.
SLIGHTS, Vice Chancellor
Plaintiff, Dengrong Zhou, a stockholder of iFresh, Inc. (“iFresh”), brings this
action under 8 Del. C. § 225 (“Section 225”) against Defendants, Long Deng and
Mark Fang, to obtain a declaration that a written consent executed by a majority of
iFresh’s stockholders, including Zhou (the “Consent”), validly removed Defendants
from iFresh’s board of directors (the “Board”) and elected Qiang Ou and
Jiandong Xu in their stead. In response, Defendants have filed verified
counterclaims against Zhou in which they seek a declaration that the Consent was
invalid because Zhou and his allies obtained their iFresh shares through fraud, aiding
and abetting breaches of fiduciary duty and breach of contract.
After a two-day trial, and after carefully considering the evidence and
arguments of counsel, I am persuaded that Defendants were properly removed from
iFresh’s Board and Ou and Xu were properly appointed to take their place. A final
judgment to that effect will be entered for Plaintiff.
I. BACKGROUND
Many of the facts relevant to this dispute were stipulated by the parties.1
Otherwise, the facts detailed below are drawn from the competent evidence
presented at trial.
1
Citations in the form of “PTO __” refer to the Joint Pre-Trial Stipulation and Order
(D.I. 186). Citations in the form of “JX __” refer to joint exhibits in the trial record.
Citations in the form of “Tr. __ ([Last Name])” refer to the trial testimony of the identified
1
A. The Parties
iFresh is a Delaware corporation with its principal place of business in
New York, New York.2 It was previously listed on the NASDAQ exchange but was
delisted on November 23, 2021, during the pendency of this litigation.3
Plaintiff, Dengrong Zhou, is a record stockholder of iFresh owning 1,031,679
(2.844%) shares of common stock.4 His iFresh shares were voted in the Consent.5
Defendant, Long Deng, is the CEO of iFresh and was Chairman of the Board.6
Deng holds 7,475,704 (20.609%) shares of common stock.7 Defendant, Mark Fang,
witness. And citations in the form “[Last Name] Dep. __” refer to the deposition testimony
of the identified witness as lodged with the Court.
2
PTO ¶ 16.
3
PTO ¶¶ 16, 40–43. iFresh was initially listed on NASDAQ in February 2017.
JX 90 at 37. According to iFresh’s 2019 Form 10-K, by 2019, iFresh was in default on its
Credit Facility with Key Bank, which “raise[d] substantial doubt about the Company’s
ability to continue as a going concern.” JX 25 at 25. To address the default, iFresh entered
into a forbearance agreement with Key Bank in October 2019. JX 35 at 6. Soon after, as
iFresh stock was trading at ⁓$1 per share, NASDAQ warned iFresh that it was not in
compliance with NASDAQ’s listing requirements and threatened delisting. JX 41; JX 47;
PTO ¶ 37 (“iFresh has received notifications from the NASDAQ Listing Qualifications
Staff stating that the Company was not in compliance with NASDAQ Rules . . . .”). Deng
sought the initial investment from Zhou on behalf of iFresh, as detailed below, in the midst
of this turbulence. Tr. 54:22–55:11 (Zhou).
4
PTO ¶ 18.
5
PTO ¶ 11.
6
PTO ¶ 19.
7
Id.
2
was also a member of iFresh’s Board and holds 6,000 (0.017%) shares of its common
stock.8
B. The Consent
On January 12, 2021, Zhou and six other iFresh stockholders, collectively
holding 52.29% of the issued and outstanding shares of iFresh voting stock
(the “Control Group”), purported to remove Deng and Fang from iFresh’s Board and
elect Qiang Ou and Jiandong Xu in their stead via the Consent.9 As discussed below,
the members of the Control Group obtained their iFresh stock through various
transactions, each of which are challenged by Defendants.
In January 2019, HK Xu Ding Co. Ltd. (“HK XD”) entered into a purchase
agreement with Deng to acquire 8,294,989 shares of iFresh stock for $7,050,741.10
HK XD held 22.87% of iFresh voting stock when the Consent was signed.11
8
PTO ¶ 20.
9
PTO ¶¶ 32–35.
10
PTO ¶ 37(f) (“Mr. Long Deng CEO and major shareholders of the Company sold an
aggregate of 8,294,989 restricted shares to HK XD, representing 51% of the total issued
and outstanding shares of the Company as of December 31, 2018.”); HK Xu Ding Co.,
Ltd.’s Mem. in Supp. of its Mot. to Dismiss Count II (D.I. 146) Ex. 1 (Order of Supreme
Court of the State of New York County of New York) (“Long Deng[] sold 8,294,989 shares
of iFresh, Inc., a Delaware Corporation to HK Xu Ding Co. Limited, a Hong Kong
Corporation for a total price of $7,050,741.00.”).
11
PTO ¶ 32(a).
3
In March of 2020, iFresh entered into a purchase agreement with Zhou and
Qiang Ou (the “Zhou and Ou Agreement”). Under the Zhou and Ou Agreement,
iFresh sold Zhou 1,031,679 iFresh shares and sold Ou 751,488 iFresh shares,
resulting in Zhou owning 2.84% and Ou owning 2.07% of iFresh’s voting stock
when the Consent was signed.12
On March 26, 2020, iFresh entered into a purchase agreement with
Kairui Tong and Hao Huang (the “RET Wine Agreement”).13 Under that agreement,
iFresh received Tong and Huang’s 100% interest in two herbal wine companies,
Hubei Rongentang Wine Co., Ltd. and Hubei Rongentang Herbal Wine Co., Ltd.
(collectively, “RET Wine”), in exchange for 3,852,372 shares of iFresh’s common
stock and 1,000 shares of the Company’s Series B Convertible Preferred Stock.14
Tong obtained 2,311,423 of the total shares and Huang obtained 1,540,949 shares,
amounting to 6.37% and 4.25% voting interests in iFresh, respectively.15
On August 6, 2020, iFresh entered into a purchase agreement with Fei Zhang
and Meng Liu (the “Jiuxiang Agreement”). Under that agreement, Zhang and Liu
sold iFresh their 100% equity interest in Jiuxiang Blue Sky Technology
12
PTO ¶¶ 32(b), 32(c), 55.
13
PTO ¶ 61.
14
Id.
15
PTO ¶ 32(d), 32(e).
4
(Beijing) Co., Ltd. (“Jiuxiang”) for 5,036,298 shares of iFresh common stock
(4,532,668 shares to Zhang and 503,630 shares to Liu) and 1,000 shares of Series C
convertible preferred stock.16
As permitted by iFresh’s bylaws,17 having acquired their iFresh shares as just
described, the Control Group executed the Consent purporting to remove Deng and
Fang as directors on January 12, 2021.18 It was delivered that same day to iFresh’s
registered office and principal place of business.19 Defendants do not dispute that
the Consent was proper as to form or that it was delivered in accordance with the
iFresh bylaws and Delaware law.20
C. Procedural History
Upon delivery of the Consent, Zhou immediately filed this Section 225 action
seeking a declaration that the Consent was valid.21 Defendants responded by filing
16
PTO ¶¶ 32(f), 32(g), 65.
17
PTO ¶¶ 29–31 (citing bylaws and stipulating that “iFresh directors may be removed by
a vote of stockholders under iFresh’s By-Laws”).
18
PTO ¶¶ 33–34.
19
PTO ¶ 35.
20
Neither Defendants’ pre-trial briefs nor their post-trial briefs advanced an argument that
the Consent was invalid as a matter of form, as violative of the iFresh bylaws, or as
violative of the Delaware General Corporation Law. Any such arguments, therefore, would
properly be deemed waived. See Oxbow Carbon & Mins. Hldgs., Inc. v. Crestview-Oxbow
Acq., LLC, 202 A.3d 482, 502 (Del. 2019).
21
D.I. 1, 3.
5
an Answer, Affirmative Defenses, Verified Counterclaim and Third-Party
Complaint on February 26, 2021.22 Third-Party Defendants moved to dismiss that
pleading as to them and, after full briefing on the motion, without leave of Court,
Defendants (as Third-Party Plaintiffs) filed an Amended Third-Party Complaint just
days before oral argument.23 The Court deferred ruling on that motion but ultimately
dismissed the Amended Third-Party Complaint for failure to state viable claims on
January 21, 2022.24
A few weeks before trial, Defendants sprang another new pleading, this time
bringing a motion to file an amended counterclaim (the “Amended
Counterclaim”).25 The Amended Counterclaim substantially expanded the factual
predicate of existing claims and advanced entirely new claims under Section 225 in
support of a declaration that the Consent was invalid because the stock purchases in
22
D.I. 35.
23
D.I. 83, 125.
24
D.I. 190. The principal bases for the Court’s dismissal of the third-party claims were
that Deng and Fang sought to bring in personam claims against individuals who did not
wish to participate in this in rem proceeding and did not assert a right to corporate office,
and otherwise sought impermissibly to expand the scope of this summary litigation.
See D.I. 193 (the Court’s oral ruling on the motion to dismiss the Amended Third-Party
Complaint).
25
D.I. 173.
6
which members of the Control Group acquired their iFresh stock were invalid.26
The Court granted the motion to amend subject to certain conditions.27
The Court held a two-day trial on January 24 and 25, 2022.28 After post-trial
briefs, closing arguments and Defendants’ unsolicited supplemental submission, the
matter was deemed submitted on March 17, 2022.29
II. ANALYSIS
As noted, Zhou initiated this action seeking a declaration under Section 225
that the Consent was valid. Given the apparent agreement that the Consent was valid
as a matter of iFresh’s constitutive documents and as a matter of law, the parties
focused at trial and in the post-trial briefing on Defendants’ Amended Counterclaim.
Put simply, Defendants contend that the Court should invalidate the Consent because
the shares that were voted in the Consent were products of aiding and abetting
breaches of fiduciary duty, breach of contract or fraud. For the reasons explained
below, Defendants have failed to carry their burden to prove any of these bases to
26
See D.I. 173 ¶¶ 140–73. The amended pleading also asserted third-party claims, which,
as noted, were dismissed.
27
D.I. 194. Specifically, the Court required Defendants to provide certain additional
discovery related to the many new factual allegations set forth in their amended pleading
by a date certain in advance of trial. Id.28
D.I 196–97.
29
D.I. 198–99, 203–04.
7
invalidate the Consent. Before addressing the claims seriatim, however, it is useful
first to set the table by laying out the purpose and scope of Section 225.
A. Purpose and Scope of Section 225
“The purpose of Section 225 is to provide a quick method for review of the
corporate election process to prevent a Delaware corporation from being
immobilized by controversies about whether a given officer or director is properly
holding office.”30 Because a Section 225 proceeding is summary in nature, and
narrow in purpose,31 the scope of the proceeding is “limited to determining those
issues that pertain to the validity of actions to elect or remove a director or officer.”32
In other words, for a claim to be adjudicated in a 225 proceeding, the adjudication
must be necessary to “help the court decide the proper composition of the
corporation’s board or management team.”33
30
Box v. Box, 697 A.2d 395, 398 (Del. 1997).
31
See Kahn Bros. & Co. Profit Sharing Plan & Tr. v. Fischbach Corp., 1988 WL 122517,
at *5 (Del. Ch. Nov. 15, 1988) (“An action under Section 225 is, it is true, a special statutory
action that is, in some respects, narrow.”).
32
Genger v. TR Invs., LLC, 26 A.3d 180, 199 (Del. 2011).
33
Id.; see also Adlerstein v. Wertheimer, 2002 WL 205684, at *7 (Del. Ch. Jan. 25, 2002)
(“[A] Section 225 proceeding is limited to those issues that must necessarily be considered
in order to resolve a disputed corporate election process.”); Genger, 26 A.3d at 199(holding that Section 225 envisions “an in rem proceeding, where the ‘defendants’ are
before the court . . . as respondents being invited to litigate their claims to the res (here, the
disputed corporate office)”).
8
When addressing a claim to corporate office under Section 225, the Court may
consider whether the claim is tainted by fraud, deceit or breach of contract.34 But
that determination may be made “only for the purpose of determining the
corporation’s de jure directors and officers,” not for the purpose of assessing in
personam liability for actionable wrongdoing.35 Any issues that stray from
Section 225’s narrow scope are collateral and will not be considered.36 Specifically,
the court “cannot go further and actually rescind a transaction procured through such
unlawful behavior or award money damages to those harmed by that behavior.”37
That plenary relief “can only be obtained in a plenary action in a court that has in
personam jurisdiction over any necessary or indispensable parties.”38
Here, Defendants assert that Zhou and others have engaged in wrongdoing.
The Court will consider Defendants’ evidence of wrongdoing, but only to the extent
relevant to the narrow question to be adjudicated––is the Consent valid?
34
Brown v. Kellar, 2018 WL 6721263, at *6–7 (Del. Ch. Dec. 21, 2018) (quoting Genger,
26 A.3d at 200).
35
Genger, 26 A.3d at 200.
36
Brown, 2018 WL 6721263, at *6.
37
Agranoff v. Miller, 1999 WL 219650, at *17 (Del. Ch. Apr. 12, 1999); see also Marks v.
Menoutis, 1992 WL 22248, at *5 (Del. Ch. Feb. 3, 1992) (“The Court cannot directly order
a transaction to be rescinded in a § 225 proceeding.”).
38
Genger, 26 A.3d at 200.
9
B. The Consent Was Proper in Form and Function
To reiterate, the parties do not appear to dispute that the Consent was proper
in form and function, and for good reason.39 The Consent adhered to both Delaware
law and iFresh’s bylaws.40 As indicated by iFresh’s shareholders list,41 Zhou,
Qiang Ou, Kairui Tong, Hao Huang, Zhang Fei, Liu Meng, and HK XD
(the members of the Control Group) were record holders of 52.29% of iFresh’s
outstanding shares on January 12, 2021.42 Delaware law is “well established” that
“the person with an enforceable legal right to vote its stock is the registered owner
of such stock.”43 As the holders of a majority of iFresh’s issued and outstanding
stock, the Control Group could remove Deng and Fang and elect Ou and Xu to take
39
See PTO ¶¶ 29–36.
40
Under Delaware law, “[s]tockholders may, unless the certificate of incorporation
otherwise provides, act by written consent to elect directors.” 8 Del. C. § 211(b);
see PTO ¶¶ 29–31; JX 4 at 3 (Amended & Restated Bylaws of iFresh Inc., Article II,
Section 6); see also id. at 4 (Article III, Section 12) (allowing the removal of directors by
a vote of stockholders).
41
See JX 134; 8 Del. C. § 219(c) (“The stock ledger shall be the only evidence as to who
are the stockholders entitled by this section to examine the list required by this section or
to vote in person or by proxy at any meeting of stockholders.”).
42
See PTO ¶¶ 32–33; JX 146 (Defendants’ Objections and Verified Responses to Plaintiff’s
First Request for Admission) at Response Nos. 1–7.
43
Len v. Fuller, 1997 WL 305833, at *3 (Del. Ch. May 30, 1997); see also Testa v. Jarvis,
1994 WL 30517, at *6 (Del. Ch. Jan. 12, 1994) (“Delaware corporations may rely almost
exclusively on the stock ledger to determine the record holders eligible to vote in an
election . . . . Where the company’s ledgers show record ownership, no other evidence of
shareholder status is necessary.”).
10
their place on the Board via written consent.44 They did so when they delivered the
Consent to iFresh’s registered office and principal place of business.45 Thus, Zhou’s
request for declaratory relief under Section 225 is prima facie valid.46
With Zhou’s prima facie case proven, I begin my analysis of the
Counterclaims mindful that, in Delaware, a stockholder’s right to vote in all respects,
including in the election of the corporation’s directors, is “sacrosanct.”47 In the face
of a valid stockholder consent reflecting the votes of the majority of iFresh’s stock,
44
PTO ¶¶ 33, 35; JX 133A (Resolutions Adopted by Written Consent of Stockholder).
45
PTO ¶¶ 33, 35; JX 133–133B (Written Consent with email and letter).
46
See Pogue v. Hybrid Energy, Inc., 2016 WL 4154253, at *1 (Del. Ch. Aug. 5, 2016)
(holding that “inclusion on the stock ledger states a prima facie, but rebuttable, case that a
plaintiff is a statutory stockholder of record”); id. at *3 (“In a typical case, the stock ledger
controls record-stockholder status, and a stockholder may point to the stock ledger to show,
prima facie, that she is in fact a holder of record.”); Kerbawy v. McDonnell,
2015 WL 4929198, at *13 (Del. Ch. Aug. 18, 2015) (“[T]he parties do not dispute the
validity of the Consents on any technical grounds. I therefore conclude that the Consents
are presumptively valid . . . .”).
47
EMAK Worldwide, Inc. v. Kurz, 50 A.3d 429, 433 (Del. 2012); see also San Antonio
Fire & Police Pension Fund v. Bradbury, 2010 WL 4273171, at *7 (Del. Ch. Oct. 28,
2010) (“Stockholders exercise their authority over corporate affairs by way of ballots.
Accordingly, the right to vote on certain matters—most importantly the election of
directors—is a fundamental power reserved to the stockholders.”); In re MONY Gp., Inc.
S’holder Litig., 853 A.2d 661, 673 (Del. Ch. 2004) (“The shareholder franchise occupies a
special place in Delaware corporation law . . . .”); MM Cos., Inc. v. Liquid Audio, Inc.,
813 A.2d 1118, 1126 (Del. 2003) (“The stockholders’ power is the right to vote on specific
matters, in particular, in an election of directors.”).
11
Defendants face a real challenge to justify a declaration that the apparent will of the
stockholders should be overturned.48
C. Defendants Did Not Prove the Stockholder Consent Was Invalid
As noted, to rebut Zhou’s prima facie case, Defendants maintain that the Court
should invalidate the Consent because members of the Control Group wrongfully
obtained their shares.49 Specifically, Defendants argue: (1) Zhou aided and abetted
iFresh’s CFO, Amy Xue, in her breach of fiduciary duty as she supported his scheme
to acquire control of iFresh; (2) HK XD did not pay for all of the shares it purchased
and therefore breached the contract whereby it acquired the shares; and (3) Zhou and
48
Cf. Blasius Indus., Inc. v. Atlas Corp., 564 A.2d 651, 659 n.2 (Del. Ch. 1988) (“Delaware
courts have long exercised a most sensitive and protective regard for the free and effective
exercise of voting rights. This concern suffuses our law, manifesting itself in various
settings.”); Paramount Commc’ns v. QVC Network, 637 A.2d 34, 42 (Del. 1994) (“Because
of the overriding importance of voting rights, this Court and the Court of Chancery have
consistently acted to protect stockholders from unwarranted interference with such
rights.”); Giuricich v. Emtrol Corp., 449 A.2d 232, 239 (Del. 1982) (finding that “careful
judicial scrutiny will be given a situation in which the right to vote for the election of
successor directors has been effectively frustrated”); Kerbawy, 2015 WL 4929198, at *13
(“In a case like this one, where a majority of stockholders have executed written consents
removing the Board and the Board asks this Court to set aside the consents on equitable
grounds, that burden is a heavy one. This is particularly true in light of the importance
Delaware law places on protecting the stockholder franchise, which has been characterized
as the ideological underpinning upon which the legitimacy of the directors[’] managerial
power rests.”) (internal quotation marks omitted).
49
As I observed at the close of trial, Defendants’ claims in this regard were extremely
difficult to follow, both as a matter of law and in the evidence presented at trial.
Tr. 339:13–343:1 (Court). That, unfortunately, has remained the case throughout my post-
trial deliberations.
12
the other stockholders fraudulently obtained their shares. Defendants bore the
burden of proof on each these Counterclaims.50
Before turning to the merits, it is necessary to address Zhou’s contention that
many of the arguments Defendants posited in post-trial briefing should be deemed
waived since Defendants did not preserve the arguments in their pleadings or in the
pretrial order.51 “The doctrine of waiver operates to ensure fairness by requiring that
notice be given to the adverse party.”52 Arguments that are not raised until pre-trial
briefing or after may be deemed waived by the Court.53 By that time, the opposing
50
See, e.g., Kerbawy, 2015 WL 4929198, at *13 (“Regardless of the theory under which
the removal or election of a director is challenged, ‘the burden of proving that a director’s
removal or election is invalid rests with the party challenging its validity.’”)
(quoting Unanue v. Unanue, 2004 WL 5383942, at *10 (Del. Ch. Nov. 9, 2004)); id.(“[T]he parties do not dispute the validity of the Consents on any technical grounds.
I therefore conclude that the Consents are presumptively valid . . . .”).
51
See Pls.’ Post-Trial Answering Br. (“PAB”) (D.I. 203) at 15–21.
52
Lavin v. W. Corp., 2017 WL 6728702, at *12 n.91 (Ch. Dec. 29, 2017); see also
PharmAthene v. SIGA Techs., Inc., 2001 WL 6392906, at *2 (Del. Ch. Dec. 16, 2011)
(“The general rule . . . that a party waives any argument it fails properly to raise shows
deference to fundamental fairness and the common sense notion that, to defend a claim or
oppose a defense, the adverse party deserves sufficient notice of the claim or defense in the
first instance.”).
53
ABC Woodlands L.L.C. v. Schreppler, 2012 WL 3711085, at *3 (Del. Ch. Aug. 15, 2012)
(“When an argument is first raised in a pretrial brief after the parties already have shaped
their trial plans, it is simply too late and deemed waived.”).
13
party has already shaped his trial plans, and it is simply too late and unfair to expect
him meaningfully to confront the arguments so close to (or after) trial.54
Against better judgment, the Court has indulged Defendants’ past attempts to
inject untimely new claims into this case. Contrary to Chancery Rule 15(aaa),
Defendants filed an amended third-party complaint after full briefing on the motion
to dismiss their initial third-party complaint was submitted.55 Then, on the eve of
trial, the Court allowed Defendants, over strong objection, to file an Amended
Counterclaim in which they nearly doubled their factual allegations and added new
substantive claims.56 After trial, Defendants’ arguments shifted yet again.
Arguments that were not previewed in the Amended Counterclaim, pretrial order or
pretrial briefs made their debut in Defendants’ post-trial briefs.
Defendants’ ever-changing claims and theories of liability conjure images of
the arcade game “whack-o-mole,” where every time Zhou bops an argument or
theory advanced by Defendants on the head, Defendants suddenly appear
54
See id.; In re PNB Hldg. Co. S’holders Litig., 2006 WL 2403999, at *18 (Del. Ch.
Aug. 18, 2006) (refusing to consider untimely arguments).
55
Ct. Ch. R. 15(aaa) (“Notwithstanding subsection (a) of this Rule, a party that wishes to
respond to a motion to dismiss under Rules 12(b)(6) or 23.1 by amending its pleading must
file an amended complaint, or a motion to amend in conformity with this Rule, no later
than the time such party’s answering brief in response to either of the foregoing motions is
due to be filed.”).
56
Defs.’ Verified First Am. Countercl. and Second Am. Third-Party Compl.
(“Am. Countercl.”) (D.I. 173).
14
somewhere else on the board with a new one. For the sake of clarity, given the
number of waived arguments, I have determined it makes most sense to take them
as they come while addressing each of the Amended Counterclaims’ proffered bases
to invalidate the Consent. I have paused to address waiver at this point only to
emphasize how frequently it has occurred.
1. Breach of Fiduciary Duty
Defendants seek to invalidate the Consent by arguing Zhou aided and abetted
Amy Xue, iFresh’s CFO, in the breach of her fiduciary duties to iFresh.57 Defendants
contend that Xue owed fiduciary duties to iFresh and breached those duties “at the
direction, and for the benefit of her true boss, Zhou.”58 According to Defendants,
Xue’s breach of fiduciary duty facilitated the Control Group’s acquisition of
shares.59 As such, Defendants assert that the votes obtained by Zhou should be
invalidated.
The breach of fiduciary duty and aiding and abetting arguments were not
introduced as grounds to invalidate the Consent until after trial in Defendants’ post-
57
Defs./Countercl. Pls.’ Post-Trial Br. (“DOB”) (D.I. 199) at 19–23.
58
Id. at 20.
59
Id. at 20–23.
15
trial brief.60 That is “too late to argue a new claim.”61 Defendants’ pretrial brief
mentions Amy Xue’s involvement in this case in its recitation of the background
facts.62 But neither the Amended Counterclaim, the pretrial order nor the pretrial
briefing provided Zhou with any indication that a breach of fiduciary duty or aiding
and abetting claim was on the table for trial. Indeed, the phrases “aiding and
abetting” and “fiduciary duty” do not appear a single time in the Amended
Counterclaim, the pretrial order or the pretrial briefs.63 Consequently, Zhou had no
reason to suspect that this claim would be advanced at trial (or after) and no reason
or ability to be prepared to address it.64 The argument is deemed waived.
60
Id. at 19–21.
61
Cancan Dev., LLC v. Manno, 2015 WL 3400789, at *22 (Del. Ch. May 27, 2015);
see also Snow Phipps Gp., LLC v. KCAKE Acq., Inc., 2021 WL 1714202, at *44 (Del. Ch.
Apr. 30, 2021) (“When an argument is first raised in a pre-trial brief after the parties
already have shaped their trial plans, it is simply too late and deemed waived.”)
(emphasis added) (quoting ABC Woodlands, 2012 WL 3711085, at *3).
62
See Defs.’ Pre-Trial Br. (D.I. 175) at 1–47. Of course, raising a claim for the first time
in a pre-trial brief, even if fully presented, is also too late. Snow Phipps Gp., LLC, 2021
WL 1714202, at *44.
63
See generally Am. Countercl. (D.I. 173); Pretrial Stipulation and Order (D.I. 186);
Defs./Countercl. and Third-Party Claim Pls.’ Trial Br. (D.I. 175).
64
See ABC Woodlands, 2012 WL 3711085, at *3 (concluding that the plaintiff’s argument
was waived because “merely alluding [to a claim] in [the] recitation of the background
facts” was not sufficient to put the opposing party on notice); In re PNB Hldg.,
2006 WL 2403999, at *18 (deeming claims waived that were only generally addressed in
the pretrial process and then raised at trial).
16
2. Breach of Contract
Defendants seek to invalidate the votes cast by HK XD on grounds of breach
of contract.65 HK XD purchased its iFresh stock from Deng but only paid $5 million
of the roughly $7 million purchase price for the shares.66 After HK XD did not pay
the full amount owed, Deng sued HK XD for breach of contract in New York,67
where he prevailed and obtained a money judgment for the remaining amount owed
by HK XD—approximately $2 million.68 Defendants argue that HK XD’s votes
should be invalidated because HK XD breached the contract by which it acquired
the shares that were voted.69
In response, Zhou argues that “Deng has already elected his remedies with
respect to the HK XD transaction by suing for breach of contract in New York and
65
DOB at 25.
66
See PTO ¶¶ 76, 79(b); see also HK Xu Ding Co., Ltd.’s Mem. in Supp. of its Mot. to
Dismiss Count II (D.I. 146) Ex. 1 (Order of Supreme Court of the State of New York
County of New York (“Long Deng[] sold 8,294,989 shares of iFresh, Inc., a Delaware
Corporation to HK Xu Ding Co. Limited, a Hong Kong Corporation for a total price of
$7,050,741.00. At the closing of said deal, HK Xu Ding Co., Ltd. paid only $5,000,000.00,
and the rest remains unpaid. Based upon same, the Court entered a judgment in the amount
of $2,050.741.00, plus statutory interest . . . .”).
67
See JX 51 (Complaint filed in New York state court).
68
DOB at 25.
69
Id.17
obtaining a money judgment.”70 According to Zhou, because Deng affirmatively
sought and was awarded money damages, he is now foreclosed from pursuing
rescission of the HK XD/Deng transaction.71
The Court may invalidate a corporate election that is tainted by a breach of
contract.72 But for a breach of contract to be relevant in a Section 225 case, it must
affect the validity of the vote or consent at issue.73 In their effort to counter this
proposition, Defendants point to a single sentence, taken out of context, from this
Court’s Zohar decision to argue that any breach of contract with respect to the
acquisition of shares can serve as a basis to disregard an effort to vote those shares:
“[A] party cannot exercise voting rights that it obtains from another in breach of
contract.”74
70
PAB at 22–23.
71
Id. at 22.
72
See Agranoff, 1999 WL 219650, at *18 (“In a § 225 action . . . , this court can determine
that a person does not hold corporate office because he obtained the office through fraud
or breach of contract.”); Genger, 26 A.3d at 200 (“[I]n a Section 225 action, a plaintiff may
claim that a director-respondent does not validly hold corporate office because that director
obtained the office through fraud, deceit, or breach of contract.”).
73
See Crown EMAK P’rs, LLC v. Kurz, 992 A.2d 377, 392 (Del. 2010) (invalidating votes
because the transfer of voting and economic rights violated a transfer restriction in a
restricted stock grant agreement); Zohar II 2005-1, Ltd. v. FSAR Hldgs., Inc.,
2017 WL 5956877, at *22 (Del. Ch. Nov. 30, 2017) (same).
74
DOB at 25 (quoting Zohar II, 2017 WL 5956877, at *22).
18
Defendants stretch Zohar too far. In Zohar, the voting and transfer rights of
the shares at issue were the precise subject of the contractual provision that was
breached.75 That breach gave rise to a rescission remedy that rendered the contract
“invalid and ineffective.”76 Thus, assessing the contractual breach was vital to
determine the validity of the vote for purposes of Section 225. But Zohar does not
stand for the proposition that any showing of a breach of contract provides a basis
to set aside a stockholder vote in a Section 225 action. In this case, any breach of
contract resulting from a failure to pay has already been addressed and the remedy
for the breach was an award of money damages.77 There was no rescission of the
contract; it remains valid and enforceable.78 There is, therefore, no basis to declare
that a breach of contract has negated HK XD’s right to vote its shares.
75
Zohar II, 2017 WL 5956877 at *22 (“Our Supreme Court held in Crown EMAK Partners,
LLC v. Kurz that a party cannot exercise voting rights that it obtains from another in breach
of contract. That is precisely what has occurred here. . . . Under Section 7.8(a)(i), the
Zohar Funds may not ‘sell, transfer, exchange or otherwise dispose of, or pledge, mortgage,
hypothecate or otherwise encumber . . . , any part of the Collateral, except as expressly
permitted by the Indentures.’ . . . Because the shares are Collateral, and because voting
rights are a ‘part of’ those shares, any transfer . . . of those voting rights . . . violated
Section 7.8(a)(i) of the Indentures.”) (cleaned up).
76
Id. at *23, *39.
77
See JX 51 at 9.
78
Under New York law, which governs the contract at issue, “the equitable remedy
[of rescission] is to be invoked only when there is lacking complete and adequate remedy
at law and where the status quo may be substantially restored.” Rudman v. Cowles
Commc’ns, Inc., 280 N.E.2d 867, 874 (N.Y. 1972); see also Romanoff v. Romanoff,
51 N.Y.S.3d 36, 39 (App. Div. 2017) (“The remedy of rescission is unavailable [where]
19
3. Fraud
In certain circumstances, proven fraud can also be a basis to set aside a
stockholder vote in a Section 225 action.79 Throughout this litigation, Defendants
have made a variety of arguments seeking to invalidate the Consent based on fraud.
I admit that, given the ever-shifting nature of the claims, the lack of useful direction
at trial, and the complicated factual background of the case, it has been difficult to
identify precisely the misrepresentations (or omissions) at issue. As best I can
discern, it appears the various fraud claims can roughly be organized by the three
purchase agreements whereby certain members of the Control Group acquired their
iFresh shares—the Zhou and Ou Agreement, the RET Wine Agreement and the
Jiuxiang Agreement.80
The parties agree that all three purchase agreements are governed by
New York law because of the choice of law provisions in the contracts.81 Delaware
money damages are available and will make plaintiff whole.”); D.I. 146, Ex. 2 (HK Share
Purchase Agreement) § 8.9 (New York choice of law provision).
79
E.g., Kahn Bros. & Co., 1988 WL 122517, at *5; Genger, 26 A.3d at 200.
80
JX 85 (“Zhou and Ou Purchase Agreement”); JX 88 (“RET Wine Agreement”); JX 111
(“Jiuxiang Agreement”).
81
See Zhou and Ou Agreement § 4(b); RET Wine Agreement § 9.7; Jiuxiang Agreement
§ 9.7; Defs.’/Countercl. Pls.’ Post-Trial Reply Br. (D.I. 204) at 1 n.1 (“New York law
governs Defendants’ claims relating to the purchase agreements, including fraud claims.”);
Pls.’ Post-Trial Br. (D.I. 198) at 8 (“All three transactions are governed by New York
law.”).
20
courts generally respect parties’ choice of law and, having been given no reason
not to, I analyze the fraud claims under New York law.82 To prevail on a claim of
fraud, the plaintiff must prove by clear and convincing evidence a material
misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance,
justifiable reliance by the plaintiff, and damages.83 “The clear and convincing
evidence standard requires the party bearing the burden of proof to ‘adduce evidence
that makes it highly probable that what he or she claims is what actually
happened.’”84
Defendants have failed to prove fraud by clear and convincing evidence, such
that the Consent should be set aside. For the sake of thoroughness, I address
Defendants’ arguments on their terms. Before doing so, however, it is important to
82
ABRY P’rs V, L.P. v. F&W Acq. LLC, 891 A.2d 1032, 1046 (Del. Ch. 2006) (“The courts
of Delaware are bound to respect the chosen law of contracting parties, so long as that law
has a material relationship to the transaction.”). As noted above, iFresh’s principal place
of business is New York, which surely places New York in a “material relationship” with
the transactions at issue in this case.
83
Ross v. Louise Wise Servs., Inc., 868 N.E.2d 189, 195 (N.Y. 2007) (stating the elements
of common law fraud); Gaidon v. Guardian Life Ins. Co. of Am., 725 N.E.2d 598, 607
(N.Y. 1999) (“The elements of fraud are narrowly defined, requiring proof by clear and
convincing evidence . . . .”). As for the standard of proof, New York and Delaware law
may differ. See Project Boat Hldgs. v. Bass Pro Gp., LLC, 2019 WL 2295684, at *23
(Del. Ch. June 4, 2019) (noting “[t]here is some uncertainty in our law as to whether a
plaintiff asserting fraud must prove the claim by clear and convincing evidence or whether
a preponderance of the evidence will suffice”) (collecting cases).
84
Currie v. McTague, 921 N.Y.S.2d 364, 366 (App. Div. 2011) (quoting Krol v. Eckman,
681 N.Y.S.2d 885, 887 (App. Div. 1998)).
21
confront what appears to be a fundamental flaw in the assumption underlying each
of Defendants’ fraud theories––that a party seeking to buy a company’s stock has a
common law duty (as opposed to a statutory duty) to disclose when doing so that he
ultimately intends to take control of the company. That is not the law of Delaware
and, as best I can discern, it is not the law of New York either.85 With this in mind,
I address the alleged fraud with respect to each of the agreements at issue in turn.
a. The Zhou and Ou Purchase Agreement
Defendants argue that Zhou fraudulently induced iFresh to enter into the Zhou
and Ou Purchase Agreement. Recognizing their burden to prove “a knowing
misrepresentation of a material present fact,”86 Defendants claim the trial evidence
establishes that Section 3(c) of the agreement, the “Securities Law Compliance”
provision, was materially false in three respects.87
85
See, e.g., Bachmann v. Ontell, 1984 WL 21204, at *1 (Del. Ch. Nov. 7, 1984) (holding
that preventing an attempt to take control of a company for the purpose of liquidating it is
not an affirmative defense in a Section 225 proceeding). The Court requested that the
parties, particularly Defendants, provide any nuance or law to the contrary, should it exist.
Tr. 340:18–24 (The Court). Defendants failed to do so. Instead, they argued for the first
time in their post-trial reply brief that Zhou’s failure to disclose his intent to take control
of iFresh somehow caused iFresh (and Deng) to forego a “control premium.”
Defs./Countercl. Pls.’ Post-Trial Reply Br. (“DRB”) (D.I. 204) at 24–25. Setting aside that
the argument comes far too late, it also assumes, wrongly, that Defendants proved Zhou
controlled the other stockholders who comprised the Control Group at the time they
acquired their iFresh shares, or how these separate transactions would implicate a control
premium.
86
Louie’s Seafood Rest., LLC v. Brown, 157 N.Y.S.3d 509, 512 (App. Div. 2021).
87
Zhou and Ou Purchase Agreement § 3(c).
22
First, Defendants contend that Ou misrepresented that he was buying his
shares for his “own account for investment, not as a nominee or agent.”88 According
to Defendants, Ou was a straw buyer acting under the control of his boss, Zhou.89
As support, Defendants point to testimony where Zhou refers to all of the shares
transferred in the deal, including Ou’s portion, as “his shares.” 90 They also argue
that Ou’s investment was not for his “own account” because Ou purchased his shares
with a loan he received from a party related to Zhou.91 According to Defendants,
88
Id.
89
Am. Countercl. ¶ 39. Defendants rely on a piece of Ou’s deposition to establish that Ou
considered Zhou his boss. See Ou Dep. 76:3–6 (“Q. Who did you hear this from?
A. My boss. Q. You mean Zhou Dengrong? A. That’s right.”). But Ou also testified that
he did not view Zhou as his “boss” at XT Energy, which is the company at issue. Ou Dep.
54:19–21. He also explained that his father-in-law referred to Zhou as “boss,” so he did as
well out of respect. Ou Dep. 55:8–13.
90
Tr. 56:1–56:11 (Zhou) (“A. I was originally told that the share [price for the private
placement] would be 68 cents per share. Later on, the price was changed to $1.35.
Q. Would that give you more or less shares than you initially thought? A. I would get less
shares. Using 68 cents as the price, I would have gotten 3,670,000 shares.”).
91
According to an iFresh 13D filed after the fact, “[t]he source of funds for Mr. Zhou’s
purchase was an interest free loan from Mr. Bin Zhou in the amount of $1,446,413, payable
on demand. The loan was made pursuant to an oral agreement between Mr. Zhou and
Mr. Bin Zhou. The source of funds for Mr. Ou’s purchase was an interest free loan from
Mr. Bin Zhou in the amount of $1,010,000, payable on demand, and an interest free loan
from Ms. Yun Kang in the amount of $43,587, payable on demand, for an aggregate
purchase price of $1,053,587. The loans were made pursuant to oral agreements between
Mr. Ou and Mr. Bin Zhou and Ms. Yun Kang, respectively. Mr. Bin Zhou is the nephew
of Mr. Zhou.” JX 114. Among other things, this disclosure reveals that, contrary to
Defendants’ feigned ignorance, the company itself was well aware of the source of funds
Ou used to acquire iFresh shares.
23
the source of Ou’s funds was concealed from iFresh “in order to position Qiang Ou
as an ostensibly independent and unrelated party.”92
Setting aside materiality, to prove that a misrepresentation occurred,
Defendants must convince the Court by clear and convincing evidence that Ou did
not invest on his own account but rather as an “agent or nominee” of Zhou.93 They
have not done so. Zhou testified that Deng expressed to him that iFresh needed a
$2.5 million investment to avoid being delisted from NASDAQ and the initial plan
was for Zhou to be the sole investor.94 Ou was brought in as an investor because
Zhou did not have enough US dollars to meet iFresh’s needs.95 Accordingly, Ou
entered into the Purchase Agreement as Zhou’s co-investor.96 Still, Ou testified
repeatedly and credibly that he was the controller of his shares, not Zhou.97
92
Am. Countercl. ¶¶ 142–43.
93
See Gaidon, 725 N.E.2d at 607 (requiring each element of fraud to be proven by clear
and convincing evidence).
94
Tr. 54:12–55:11 (Zhou) (explaining that Deng asked him to “save iFresh” because Deng
“needed to raise $2.5 million in order to comply with the SEC rules so that it wouldn’t get
delisted”).
95
Tr. 54:12–16 (Zhou) (“Q. Was the investment $2.5 million? A. Yes. Actually, the
investment was $2.5 million, but I only had over – a little over a million dollars. That’s
why, later on, another investor, Ou Qiang, was brought in.”).
96
See Zhou and Ou Purchase Agreement at 7 (Zhou signing as “Investor” and Ou signing
as “Co-Investor”).
97
Ou Dep. 121:5–123:7 (testifying that he was not under the control of any person or entity
with respect to the exercise of his rights as an iFresh shareholder).
24
As for the source of Ou’s funds, the fact the shares were purchased with
borrowed money does not mean Ou’s investment was not for his own account. And
Defendants have not explained how or where the Purchase Agreement expressly
requires Ou to disclose that the funds used to acquire the shares were sourced
through a loan. In any event, as mentioned, that loan was later disclosed in a public
filing.98
Second, Ou represented in Section 3(c) that he was an “accredited investor, as
such term is defined in Rule 501 of Regulation D, promulgated under the Securities
Act.”99 Defendants claim Ou was not an accredited investor, rendering this
representation materially false.100
The Securities Act defines an “Accredited Investor” as any natural person
whose individual net worth, or joint net worth with that person’s spouse, at the time
of his purchase exceeds $1,000,000.101 To prove Ou did not meet this definition,
Defendants rely entirely upon Ou’s testimony that his individual net worth was less
98
JX 114 at Item 3 (Schedule 13D disclosing the source of funds for Mr. Ou’s purchase
was an interest free loan from Mr. Bin Zhou in the amount of $1,010,000, payable on
demand).
99
Zhou and Ou Purchase Agreement § 3(c).
100
DOB at 17.
101
17 C.F.R. 230.501(a)(5).
25
than $500,000.102 But, according to the “Accredited Investor” definition, net worth
includes the net worth of one’s spouse, and the only relevant evidence regarding
Ou’s spouse’s financial condition comes from Zhou, who testified credibly and
without challenge that Ou’s “wife’s family was very rich.”103 Here again,
Defendants were obliged to prove a knowing misrepresentation by clear and
convincing evidence. Given the failure to address the “Accredited Investor”
definition in full, Defendants failed to meet their burden.
Third, Defendants argue that Zhou misrepresented that he was “not subject to
the ‘Bad Actor’ disqualification, as such term is defined in Rule 506 of
Regulation D, promulgated under the Securities Act.”104 Defendants did not raise
their “Bad Actor” argument until their opening post-trial brief.105 The argument was
not previewed in the Amended Counterclaim, the pretrial order or Defendants’
pretrial brief. It is deemed waived.
It also fails on the merits. According to Defendants, Zhou was a “Bad Actor”
because he owned over 20% of the outstanding iFresh shares even though he had a
102
Ou Dep. 33:24–34:5.
103
Zhou Dep. 29:4–5.
104
DOB at 6; Zhou and Ou Purchase Agreement § 3(c).
105
See DOB at 6.
26
qualifying criminal conviction within the past 10 years.106 Even if Zhou satisfied the
20% ownership requirement,107 Zhou did not need to disclose his conviction in
China because, according to unrebutted evidence of which the Court may take
judicial notice, the “Bad Actor” definition is not triggered by convictions entered in
a foreign court.108
Defendants point to Zhou’s legal troubles in China not just to argue that Zhou
meets the definition of “Bad Actor” as used in the Zhou and Ou Purchase Agreement,
106
17 CFR § 230.506(d)(1)(i) (defining “Bad Actor”).
107
Zhou disputes this proposition. See PAB at 19–20. According to Zhou, he attempted
to buy HK XD for $3.5 million, which would have put him over the 20% ownership
requirement. Tr. 38:6–39:9 (Zhou). But the deal never finalized because, according to
Zhou, Deng had already sold the shares to another buyer. Tr. 42:6–14 (Zhou). The parties
are in separate litigation surrounding this dispute. Id. The ownership dispute is also
relevant to Defendants’ claim, made perfunctorily in their post-trial answering brief, that
Zhou failed to file a Form 13D regarding his ownership of more than 20% of iFresh.
Besides Zhou’s steadfast contention that he did not own 20% of the outstanding shares of
iFresh, he also points out that a Form 13D was filed when the “government records were
updated in Hong Kong” to reflect that Zhou never owned HK XD, and that “it is []
incredible for Defendants to claim they were somehow in the ‘dark’ about [Zhou’s] belief
as to his ownership stake when he was investing in March of 2020” because “it was
Deng . . . who brokered the sale.” PAB at 18. Zhou’s argument is persuasive and
supported by the credible evidence presented at trial.
108
See DRE 201(b)(2) (“The court may judicially notice a fact that is not subject to
reasonable dispute because it can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.”); PAB at 18–19 (quoting SEC Compliance and
Disclosure Interpretations, Interpretive Answer to Question 260.20)
(“Question: Is disqualification under Rule 506(d) triggered by actions taken in
jurisdictions other than the United States, such as convictions, court orders, or injunctions
in a foreign court, or regulatory orders issued by foreign regulatory authorities?
Answer: No.”) (emphasis in original).
27
such that Zhou’s failure to disclose his legal troubles amounted to contractual fraud,
but also to argue that Zhou engaged in extra-contractual fraud.109 On January 16,
2020, Deng sent Zhou an article about a “Xiangtian [] share scam that went
on 8 years,” to which Zhou replied that Jiuxiang “[h]as not the slightest connection
with Xiangtian” and that legal due diligence would confirm Jiuxiang was an
“independent legal person.”110 He also said the report was comprised of
“[i]ntentionally made up rumors.”111 Zhou testified at trial that he disclosed to Deng
that he was “suspected to be involved” in a “multilevel marketing case.”112
Defendants argue these representations were false and misleading because Zhou was
indisputably investigated, detained and sentenced for criminal activity in China in
connection with Xiangtian and a multi-level “pyramid” scheme.113 The argument is
not persuasive.
109
Defendants also point to extra-contractual statements Zhou made to unrelated parties,
such as investors discovered after the stock sale, as supporting a claim for fraud.
See DOB at 7–11. This argument fails. Defendants could not have relied on statements
they did not know about. Nor do Zhou’s statements to unrelated parties have anything to
do with his or his supposed allies’ acquisition of iFresh shares.
110
JX 46B at 21–22.
111
Id. at 22.
112
Tr. 61:23–62:1 (Zhou). Deng testified that Zhou did not disclose his prior conviction
to him at any time. Tr. 304:4–6 (Deng).
113
See PTO ¶¶ 45–48; Tr. 230:4–7 (Zhou) (“Q. So the people below you took his money
in the pyramid scheme, correct, not you? A. Correct. Well, I didn’t take the money. They
have a team leader. Their team leader took the money.”); JX 6A at 18 (“On January 16,
28
As a preliminary matter, it is difficult to see how Zhou’s omissions or
misleading statements, which were not the subject of any specific representations in
the Zhou and Ou Purchase Agreements, factually could support a fraud claim where
the contract contains a rather broad integration clause and Defendants made no
attempt to prove why they would have agreed to that clause if they, in fact, had
secured “prior agreements, . . . understandings [or] communications” not reflected
in the contract.114 Even accepting Defendants’ argument that the integration clause
was not specific enough to disclaim reliance, the fraud claim still fails.115 The
inquiry is whether Defendants have proven by clear and convincing evidence that
Zhou defrauded them in a manner that would justify a declaration that his attempt to
2016, Zhou Dengrong was sentenced . . . for the crime of organizing and leading pyramid
selling activities.”).
114
See Zhou and Ou Purchase Agreement § 4(e) (“Entire Agreement. This Agreement
constitutes and contains the entire agreement among Company and the Investor and
supersede[s] any and all prior agreements, negotiations, correspondence, understandings
and communications among the parties, whether written or oral, respecting the subject
matter hereof.”).
115
DRB at 10–11; Zhou and Ou Purchase Agreement at § 4(e). To be sure, there is support
in Delaware and New York law that a general integration clause will not bar a fraud
claim. See Basis Yield Alpha Fund (Master) v. Goldman Sachs Gp., Inc., 980 N.Y.S.2d
21, 28 (App. Div. 2014) (“[O]nly where a written contract contains a specific disclaimer
of responsibility for extraneous representations, that is, a provision that the parties are not
bound by or relying upon representations or omissions as to the specific matter, is a plaintiff
precluded from later claiming fraud on the ground of a prior misrepresentation as to the
specific matter.”); Kronenberg v. Katz, 872 A.2d 568, 592 (Del. Ch. 2004) (“[M]any
learned authorities state that typical integration clauses do not operate to bar fraud claims
based on factual statements not made in the written agreement.”).
29
vote his iFresh shares was void. Defendants would need to point to something that
caused the transaction by which Zhou acquired his shares—the Zhou and Ou
Purchase Agreement—to be tainted by fraud to a degree that it is reasonable to
conclude the transaction would not have been consummated had the fraud been
detected pre-closing. Zhou’s supposed extra-contractual denial of his association
with the pyramid scheme, in my view, as a matter of persuasive evidence, does not
rise to that level, regardless of the specificity, or not, of the integration clause.
Additionally, Defendants could not have reasonably relied on Zhou’s
messages to Deng because Zhou’s conviction was a matter of public record.116
Defendants themselves appear to admit that this was disclosed in public records in
their Amended Counterclaim.117 Deng also testified at trial that he did not ask Zhou
about his conviction prior to his investment.118 Indeed, at Deng’s express direction,
116
The conviction was disclosed in domestic public filings and Chinese criminal records.
See JX 2 at Item 5.02 (disclosing Zhou as the subject of an investigation by the Chinese
government); JX 6 (Chinese Criminal Judgment); JX 17 at 24 (Xiangtian Form 10-K
explaining Zhou was involved in an alleged pyramid-style marketing campaign in 2013).
117
See Am. Countercl. ¶ 18 (“Dengrong Zhou’s involvement in pyramid stock schemes
was disclosed in various filings of Xiangtian (USA) Air Power Co., Ltd., inter alia,
Xiangtian (USA) Air Power Co., Ltd.’s 2018 10-K, which stated ‘Zhou Dengrong, the
former CEO, was involved in an alleged allegation of pyramid marketing campaign in
2013.’ Press coverage of the scheme stated Xiangtian Group ‘has been fined and
confiscated nearly 100 million yuan’ for the pyramid stock scheme.”).
118
Tr. 322:5–8 (Deng) (“Q. Mr. Deng, did you ever ask Mr. Zhou whether he was convicted
prior to taking his money in March of 2020? A. No.”).
30
no formal due diligence was performed on Zhou or Ou.119 Under New York law,
“where a party has the means, by the exercise of reasonable diligence, to ascertain
the truth or falsity of material representations, he or she cannot assert justifiable
reliance.”120 In any event, the credible evidence revealed that iFresh needed
investors and that it likely would have accepted Zhou’s investment regardless of his
criminal conviction in China.121
The same is true for the other supposed misrepresentations identified by
Defendants. As representatives of a publicly traded company, Defendants could
have readily determined whether Ou and Zhou met the requirements of Section 3(c)
by exercising reasonable due diligence.122 Again, iFresh performed no due diligence
119
JX 84 (“There is no official due diligence report of these two investors. . . . Mr. Deng
also mentioned the investors have donated $200k to Hubei province in China, the hardest-
hit area by Coronavirus. Mr. Deng said he has friends who know these two investors too
and have a good reference of these two investors.”).
120
Rudolph v. Turecek, 658 N.Y.S.2d 769, 771 (App. Div. 1997).
121
See JX 41 (Letter from NASDAQ notifying iFresh that it was not compliant with
Listing Rule 5550(b), which states that “For continued inclusion, the issuer shall maintain
either: (1) stockholders’ equity of $2.5 million; or (2) market value of listed securities of
$35 million; or (3) net income from continuing operations of $500,000 in the most recently
completed fiscal year or two of the last three most recently completed fiscal years.”);
see also Tr. 304:22–305:19 (Deng) (explaining that he was seeking investments to maintain
iFresh’s NASDAQ listing and he thought Zhou’s investment would be “much simpler”
than other options and would provide iFresh “a lot more money”).
122
Defendants argue that they may claim reliance on Zhou’s alleged misrepresentations
notwithstanding the lack of diligence and ready public disclosure of the information
because the misrepresentations were within Zhou’s “peculiar knowledge.” DRB at 11–15.
New York’s “peculiar knowledge” carveout to fraudulent misrepresentation is inapplicable
here. Defendants and iFresh are sophisticated parties who were represented by counsel
31
because Deng directed that diligence was not necessary.123 For his part, Fang
acknowledged that no inquiry was made regarding Ou’s source of funds.124 Then,
when the source of Ou’s funds was publicly disclosed in a 13D filing, Defendants
took no action to address the supposed issue.125 According to Fang, he expected
iFresh’s counsel, Loeb & Loeb, to review relevant public filings in the course of
their due diligence.126 Viewed together, the evidence does not support a finding that
when entering into each of the purchase agreements at issue. The peculiar-knowledge
exception has been rejected by courts when sophisticated parties could have negotiated
contractual protections for themselves. See, e.g., Psenicska v. Twentieth Century Fox Film
Corp., 409 F. App’x 368, 371 (2d Cir. 2009) (finding peculiar-knowledge exception does
not apply “where a party could have insisted that the written contract terms reflect any oral
undertaking on a deal-breaking issue”); RAA Mgmt., LLC v. Savage Sports Hldgs., Inc.,
45 A.3d 107, 115 (Del. 2021) (applying New York law and determining that the exception
was inapplicable where two sophisticated parties could have “insisted on contractual
protections for themselves.”).
123
JX 84.
124
Tr. 281:9–15 (Fang) (“Q. Now, the other part of the investment that you thought was
problematic was that Mr. Ou didn’t disclose where he got his funds. Correct? A. Correct.
Q. But, again, you never asked him, did you? A. No.”).
JX 114 at Item 3 (Schedule 13D disclosing the source of funds for Mr. Ou’s purchase
125
was an interest free loan from Mr. Bin Zhou in the amount of $1,010,000, payable on
demand); PTO ¶ 52 (“Bin Zhou is [Plaintiff] Dengrong Zhou’s nephew”).
126
Tr. 261:9–20 (Fang) (“Q. You did your own due diligence? A. Yes. Q. Did you rely
on due diligence by Loeb & Loeb? A. Yes. Q. And Loeb & Loeb is a major law firm;
correct? A. Yes. Q. And you had testified that you expected Loeb & Loeb to review public
filings; right? A. I don’t recall what I testified, but that seems reasonable, yeah.”);
Tr. 262:7–17 (Fang) (“Q. Okay. And, in fact, your pleading quotes several public filings,
including where you got the fact that Mr. Zhou was implicated in multi-level marketing;
correct? A. Yes. . . . Q. And that was the sort of document you would have expected
Loeb & Loeb to review as part of his due diligence; correct? A. Yes.”).
32
Defendants justifiably relied on any of the representations within Section 3(c) or the
alleged extra-contractual representations regarding Zhou’s criminal history.127
b. The Tong and Huang RET Wine Acquisition
Defendants also seek to invalidate the votes of shares acquired by Kairui Tong
and Hao Huang when they sold their interests in RET Wine to iFresh.128 In support
of this fraud claim, Defendants assert that Section 3.6 and Section 3.9 of the RET
127
Defendants argue that iFresh’s due diligence efforts are irrelevant as to reliance because
“express contractual representations are at issue” and their reliability, therefore, is
“absolute.” DRB at 5. Specifically, Defendants contend that “New York courts uniformly
require that, for a contractual warranty to be inapplicable, the sellers themselves must have
actively disclosed that their warranties were no longer true prior to the completion of the
transaction.” Id. at 6 (internal quotation marks omitted). Defendants muddle the
distinction between fraud reliance and breach of warranty reliance. In this regard, they cite
Merrill Lynch & Co. v. Allegheny Energy, Inc., 500 F.3d 171, 186 (2d Cir. 2007) and
Preferred Fragrance, Inc. v. Buchanan Ingersoll & Rooney PC, 2015 WL 6143612, at *3
(E.D.N.Y. Oct. 18, 2015), but both cases state the reliance rule specific to a breach of an
express warranty. The New York Court of Appeals has distinguished the reliance
requirement in an action for breach of warranty from the reliance requirement in an action
for fraud. See CBS, Inc. v. Ziff-Davis Pub. Co., 553 N.E.2d 997, 1000 (N.Y. 1990). In a
breach of warranty action, the critical question is whether the promisee believed that he
was purchasing the promisor’s promise as to the truth of the representation, regardless of
reasonable reliance. Id. In a fraud action, by contrast, the plaintiff must prove reasonable
reliance upon the truth of the representation and a change of position in reliance on that
belief. Id. Thus, to prove reasonable reliance upon an express contractual representation
for the purposes of fraud, the plaintiff must prove that he “believed [the representation] to
be true. If it appears that he knew the facts, or believed the statement to be false, or that he
was in fact so skeptical as to its truth that he reposed no confidence in it, it cannot be
regarded as a substantial cause of his conduct.” Ainger v. Mich. Gen. Corp., 476 F. Supp.
1209, 1224 (S.D.N.Y. 1979). Defendants failed to prove such reasonable reliance here.
And, in any event, Defendants’ reliance argument is ultimately inconsequential because it
hinges on the assumption that Zhou provided a false representation or warranty, which also
was not proven.
128
DOB at 23–24.
33
Wine Agreement reflect fraudulent misrepresentations by the sellers.129
In Section 3.6, Tong and Huang represented and warranted that they held “good and
valid title to Equity Interests [of RET Wine], free and clear of all Encumbrances.”130
And in Section 3.9, they represented that, “other than Sellers,” RET Wine was
“not Controlled by any Person” and that there were no undisclosed affiliates.131
In addition to this alleged contractual fraud, Defendants argue that extracontractual
statements made by Amy Xue to an iFresh Board member to the effect that
RET Wine’s financials were reliable because they were audited by Friedman LLP,
and that XT Energy had “sold [RET Wine] off,” were also false and misleading.132
Defendants’ only reference to Section 3.6 of the RET Wine Agreement in any
document before trial is a passing (and untimely) reference in the facts section of
their pretrial brief.133 Section 3.6 is not discussed in the Amended Counterclaim or
129
Id.130
RET Wine Agreement § 3.6(c).
131
RET Wine Agreement § 3.9.
132
JX 77 at 1.
133
D.I. 175 at 10 (“Section 3.6 of the purchase agreement stated that ‘Sellers,’ i.e. Tong
and Huang held ‘good and valid title to the Equity Interests [of RET Wine being sold], free
and clear of all Encumbrances.’”); id. at 11 (observing that “despite their representation
that their ownership of RET Wine’s equity was ‘free and clear of all encumbrances,’ neither
Tong nor Huang had paid [a] single dime to XT Energy for RET Wine”).
34
the pretrial order.134 The argument that Section 3.6 reflects a contractual fraudulent
misrepresentation was not articulated until the opening post-trial brief.135 The
argument is deemed waived.136
On the merits, Defendants have not shown by clear and convincing evidence
that Sections 3.6 and 3.9 were knowingly false. Defendants argue that Tong and
Huang did not own RET Wine’s equity interests free and clear of all encumbrances
because they had not made payments to XT Energy, RET Wine’s previous owner,
until after selling those equity interests to iFresh.137 Thus, according to Defendants,
when iFresh purchased RET Wine it was still controlled and encumbered by its
previous owner, XT Energy.138 And because Ou, XT Energy’s newly appointed
COO, supposedly reported to Zhou, “that meant that [Zhou] controlled RET Wine
as well.”139 Defendants also argue that RET Wine was controlled and encumbered
by XT Energy because XT Energy still possessed RET Wine’s corporate seals when
134
See generally PTO; Am. Countercl. In contrast, Section 3.9 is mentioned a handful of
times in the Amended Counterclaim. See Am. Countercl. ¶¶ 60–61, 153.
135
DOB at 23.
136
See Snow Phipps, 2021 WL 1714202, at *44.
137
DOB at 23–24.
138
Id.139
Id. at 24.
35
Tong and Huang sold RET Wine to iFresh.140 Each of these arguments fail, either
for want of requisite proof or want of a plausible theory.
Defendants did not prove that RET Wine was encumbered by XT Energy.
Defendants rely on an unauthenticated spreadsheet produced by Friedman LLP,
XT Energy’s auditor, to support their argument that Tong and Huang did not make
payments to XT Energy with respect to its interest in RET Wine until after they sold
the company to iFresh.141 Even if the spreadsheet supported the inference that Tong
and Huang had not yet made full payment to XT Energy, it does not establish by
clear and convincing evidence that the lack of payments meant RET Wine was
encumbered or that XT Energy maintained control over RET Wine such that a
disclosure to the contrary was materially false. In fact, public filings and
contemporaneous emails are consistent in stating that XT Energy sold off its interest
in RET Wine prior to the sale to iFresh.142
140
Id. at 23–24.
141
See JX 32.
142
See JX 55 (XT Energy 8-K dated December 20, 2018) (“On January 6th, 2020,
the company (90% owner of Rongentang Wine Company) and Mr. Chen, Dahuan (10% co-
owner of Rongentang Wine Company) jointly entered into an [sic] Sales Agreement with
Mr. Tong, Kairui and Mr. Huang, Hao (the Buyers / Tong – 60% and Huang [–] 40%) to
sell co-owned Rongentang Wine Company for 75 million yuan (RMB).”); see also JX 72
(March 15, 2020 email to all iFresh directors with 2019 Valuation Report attached
(JX 72A). The attached Valuation Report stated XT Energy entered into an investment
agreement obtaining “90% equity interest in both [RET Companies].”); JX 77 (March 18,
36
Nor did Defendants prove that Tong and Huang or RET Wine were controlled
by Zhou through his alleged control of XT Energy. Zhou credibly denied having
any control over XT Energy after 2014 when he sold his shares and stepped down
from management at the company, which is a separate entity from Xiangtian.143
He testified that public disclosures revealed that his brother was the CEO, and the
company had an independent board of directors.144 Zhou also had minimal
connection to Tong and Huang; he testified he had never met Huang and that he had
met Tong only once.145 Zhou also did not have any proven financial connection to
2020 email to all iFresh directors, including Defendants and iFresh counsel, stating,
“XT Energy sold [RET Wine] off on January 6, 2020 to two individuals.”).
143
Tr. 27:20–28:12 (Zhou) (“Q. Was there a point in time where you owned both
companies? A. Prior to 2014, I was a founder, but I have nothing to do with it since 2014.
Q. And what changed in 2014 with respect to XT Energy? A. I became a suspect of a
multilevel marketing case, and I withdrew from the company. Q. Was that publicly
disclosed by the company? A. Yes. It was public information. Q. Do you still own any
shares of XT Energy? A. No, I don’t. Q. Do you still have a role in running XT Energy?
A. I don’t.”); Tr. 27:12–19 (Zhou) (“Q. Now, this lawsuit mentions XT Energy multiple
times. Are you aware of this? A. No. Q. It also mentions Xiangtian. Are you aware of
this? A. Yes. Q. Are those the same company? A. They’re not.”); Tr. 113:20–114:2
(Zhou) (“XTEG is a separate independent company. It has an independent board. It has
their own shareholder meetings. I don’t know if they need to file the document in ten
days – I don’t know when they need to file the 10-K or 8-K. It’s not part of my job. I don’t
have the power to direct them to do anything.”).
144
Tr. 28:13–28:22 (Zhou) (“Q. But your family members, at least until 2021, were
involved in running XT Energy. Correct? A. My family – well, it was an independent
board of directors. Q. But your brother was the CEO. Correct? A. Correct. Q. Was that
publicly disclosed? A. Yes. It was in the public disclosure.”).
145
Tr. 67:23–68:10 (Zhou) (“Q. Do you have a longstanding relationship with either one
of them? A. No. Q. Have you ever met Hao Huang? A. I did not. Q. How about Kairui
Tong? A. I met with Kairui Tong once at a meeting before I came to the United States.
37
Tong and Huang’s RET Wine purchase. In this regard, he credibly testified that he
did not loan money to Tong and Huang to acquire RET Wine,146 which is supported
by Tong’s deposition in which he testified he purchased RET Wine with funds
secured in a loan from his family.147
XT Energy’s failure to turn over RET Wine’s corporate seals to Tong and
Huang, by itself, also does not establish that XT Energy maintained any control over
RET Wine. I do not doubt that the possession of corporate seals is important in
China and that only certain corporate officers have access to them; Zhou himself
testified as much.148 But Defendants injected the argument that possession of
corporate seals is powerful evidence of control too late, leaving Zhou with
inadequate time to conduct discovery on the issue.149 Moreover, Defendants
Q. Was that meeting about acquiring RET Wine? A. No, no. It was just another regular
meeting, general meeting.”).
146
Tr. 67:20–22 (Zhou) (“Q. Did you loan the money to acquire RET Wine to Kairui Tong
and Hao Huang? A. No.”).
147
Tong Dep. 48:19–23 (“Q. And where did you come up with the cash? A. From my dad,
from my mom. We have our family business. We have a big family business.”).
148
Tr. 97:20–98:8 (Zhou) (“Q. Let me ask you, Mr. Zhou, are corporate seals very
important in China? A. It is very important. Q. Would companies just randomly place
their corporate seals on documents without knowing what they’re planning? A. The
corporate seal was applied by the legal department. They register that. Q. And it’s a
company’s legal department and/or its senior management that holds onto the corporate
seal. Right? This is not something that’s just given away to random people to use.
A. Correct.”).
149
Defendants rely on a footnote from a New York case, cited for the first time in their
post-trial reply brief, in support of their corporate seal argument. See DRB at 3–4 (“As one
38
presented no expert opinion or other persuasive evidence at trial regarding the
importance and consequences of possessing a corporate seal as a matter of Chinese
law or practice. And counsel’s “testimony” regarding these points is no substitute
for competent evidence.150 Thus, the argument that Section 3.6 or 3.9 reflect
fraudulent misrepresentations by virtue of XT Energy’s alleged possession of the
RET Wine corporate seals is not supported by any competent, much less clear and
convincing, evidence.
Finally, Amy Xue’s email stating that “Rongentang’s numbers . . . were
audited by Friedman LLP” and that “XT Energy Group sold [] off” certain
subsidiaries cannot serve as the basis for a fraud claim for the simple reason that
they were not misrepresentations at all—Friedman did in fact audit the “numbers,”151
New York court observed, ‘mere possession of a corporate chop is considered adequate
proof of a person’s authority to bind the company. As such, that little stamp grants great
power.’”) (citing Special Situations Fund III QP, L.P. v. Deloitte Touche Tohmatsu CPA,
Ltd., 33 F. Supp. 3d 401, 417 n.6 (S.D.N.Y. 2014)) (alterations omitted). But the legal
effect of possession of the corporate seal in Special Situations was a finding supported by
evidence presented to the court in that case. Id. No such evidence was presented here.
150
Post-Trial Oral Arg. (D.I. 209) at 76:5–16 (“It’s been recognized in New York that the
mere possession of chops, or the seal in China, is adequate authority to bind a Chinese
company. These seals are of utmost importance to Chinese corporate governance. If you
have the seals in your hands, people treat you as the binding controller or principal of the
company. And the seals, as Mr. Zhou testified, are kept by the corporate secretary or its
legal department. And that’s from a case called Special Situations Fund III v. Deloitte
Touche Tohmatsu, 33 F. Supp. 3d 401. That’s cited in our reply brief.”).
151
JX 32; JX 55; Tr. 105:11–14, 106:4–107:1, 108:12–16 (Zhou) (referring to Friedman
LLP as “XT Energy’s auditors”).
39
and XT Energy Group did sell off the subsidiaries at issue.152 There was no proven
fraud.
While the failure to prove a false representation, alone, defeats the fraud claim
with respect to RET Wine, the failure to prove justifiable reliance also dooms the
effort to set aside the Consent on this ground. Defendants knew or readily could
have known all of the facts they now allege were concealed. XT Energy’s prior
ownership of RET Wine was fully disclosed to iFresh directly and through public
filings.153 Additionally, Defendants’ counsel at the time of the transaction, Loeb &
Loeb, conducted due diligence and were involved in the sales process.154 Prior to
the transaction, Deng, David Caruso (iFresh’s counsel at Loeb & Loeb),
David Cheng (XT Energy’s then COO), and Amy Xue were in communication
regarding the RET Wine deal through a WeChat group chat,155 further revealing
XT Energy’s connection with RET Wine. In fact, David Cheng explained that the
152
JX 55; JX 72; JX 77.
153
JX 55; JX 72–72B; JX 77.
154
Tr. 261:11–20 (Fang) (“Q. Did you rely on due diligence by Loeb & Loeb? A. Yes.
Q. And you had testified that you expected Loeb & Loeb to review public filings; right?
A. I don’t recall what I testified, but that seems reasonable, yeah.”). Loeb & Loeb later
withdrew from representation. Fang Dep. 31:13–22 (“Q. Yeah, I know. So your
understanding is that they withdrew because Mr. Deng made representations to them that
turned out not to be true? A. Yeah. You know that’s what they – that’s what they – I think
that was their position along with Delaware counsel.”).
155
JX 200 (WeChat communication regarding RET Wine transaction).
40
“Game Plan” was to “merge in [RET Wine] into [iFresh] immediately,” which
diminishes Defendants’ contention that XT Energy sought to maintain any control
over RET Wine.156 Having all this information at their disposal, iFresh represented
to NASDAQ that it was confident it had conducted proper due diligence on each of
the transactions, including the RET Wine transaction.157 Under these circumstances,
the evidence does not support a finding of justifiable reliance.
c. The Fei and Meng Jiuxiang Acquisition
Defendants make similar arguments in support of a fraudulent inducement
claim regarding iFresh’s acquisition of Jiuxiang. According to Defendants,
Sections 3.9 and 3.13 of the Jiuxiang Agreement were fraudulent
misrepresentations. Section 3.9 states that Jiuxiang is “not Controlled by any
Person” other than their “Sellers.”158 Defendants contend that “Jiuxiang was under
the ‘Control’ of Xiangtian,” which was “ultimately under [Zhou’s] ‘Control.’”159
156
Id.157
JX 169 at 4 (Correspondence to NASDAQ) (“The Company states senior management
conducted proper due diligence at the time the Subsidiaries were acquired and they are
confident the process was carried out in a manner that is consistent with legal and
accounting industry practice.”).
158
Jiuxiang Agreement § 3.9.
159
PAB at 3.
41
Defendants also assert that Section 3.13, which represents that Jiuxiang’s financial
statements are complete and accurate, was materially false when made.
These arguments were not fairly noticed by Defendants and are deemed
waived. Section 3.13 is not referenced in the Amended Counterclaim, the pretrial
order or Defendants’ pre-trial brief. It appears for the first time in Defendants’ post-
trial briefing.160 That is too late. Defendants mention the alleged misrepresentation
within Section 3.9 in their Amended Counterclaim, but Section 3.9 is not referenced
in their pretrial brief or opening post-trial brief.161 The argument relating to
Section 3.9 does not resurface until Defendants’ post-trial reply brief.162 Again, the
argument comes too late and is deemed waived.
Both arguments also fail on their merits. As for Section 3.13, Defendants have
not proven that the representation was false. Defendants claim that Zhou “tried to
pump up Jiuxiang’s sales by exhorting Xiangtian investors to buy on it,” which
“drove Jiuxiang’s revenues at Zhou’s instigation.”163 Even if true, which is difficult
to discern from the evidence, the best Defendants could say is that Jiuxiang benefited
160
DOB at 15–16.
161
See Am. Countercl. ¶¶ 88–89, 162. To clarify, Section 3.9 of the RET Wine Agreement
is mentioned in the pre-trial brief, as noted above, but not Section 3.9 of the Jiuxiang
Agreement.
162
DRB at 3.
163
DOB at 12.
42
from Zhou’s efforts to urge people he knew or had influence over to use the platform.
That is a far cry from proving by clear and convincing evidence that the company’s
financial statements were somehow inaccurate or not prepared in good faith;
the sales reflected in the financial statements actually occurred, even if at Zhou’s
urging. Moreover, Defendants made no real effort to prove the impact of Zhou’s
efforts to boost sales such that the Court could find that the representation was
materially false.
As for Section 3.9, the agreement defines “Affiliate” as “any other Person
directly or indirectly Controlling, Controlled by, or under common Control with
such Person.”164 “Control” is defined as “the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of such
Person.”165 Zhou testified that Xiangtian was his company.166 But the links
Defendants proffer between Xiangtian and Jiuxiang do not establish that Xiangtian
or Zhou were in control of Jiuxiang.
Defendants point to three facts that purportedly illustrate Zhou’s control over
Jiuxiang: (1) Zhou’s efforts to get Xiangtian investors to utilize Jiuxiang’s platform,
164
Jiuxiang Agreement § 1.1.
165
Jiuxiang Agreement § 1.7.
166
Tr. 29:19–21 (Zhou) (“Q. You still have a separate company called Xiangtian. Correct?
A. Yes.”).
43
(2) “at least one Xiangtian staffer also served as Jiuxiang’s senior management,” and
(3) Xiangtian paid for Jiuxiang’s audit by Friedman LLP prior to its acquisition by
iFresh.167 But Zhou allegedly “pumping up” sales does not establish that he or
Xiangtian controlled Jiuxiang, nor, as noted, did Defendants produce any financials
to illustrate the supposed impact of Zhou’s efforts on the Jiuxiang valuation.
Additionally, the fact that a “Xiangtian staffer” worked for both entities and that
Xiangtian paid for Jiuxiang’s audit does not establish that Xiangtian had sufficient
“power to direct or cause the direction of the management and policies” of
Jiuxiang.168 Moreover, Zhou credibly testified that Jiuxiang borrowed the money for
the audit from Xiangtian because Jiuxiang was short on US dollars.169 After
carefully considering the evidence, I am satisfied Defendants have not proven a
misrepresentation regarding the Jiuxiang Agreement.
And, here again, there appears to be a reliance problem. iFresh was informed
of the business relationship between Zhou, Jiuxiang, XT Energy and Xiangtian
before the acquisition in a due diligence report prepared by a Chinese law firm
167
DOB at 12 (internal quotes omitted).
168
See Jiuxiang Agreement § 1.7.
169
Tr. 181:11–16 (Zhou) (“Q. So Jiuxiang borrowed money from XT with your
authorization to pay for Friedman’s audit? A. I did not authorize. I didn’t have the power.
They approached me, asked for help. It’s accounting department contacting accounting
department from another company trying to borrow money.”).
44
retained by iFresh.170 The diligence report is consistent with Meng Liu’s statements
that Jiuxiang was not an affiliate of XT Energy but simply maintained a working
partnership with the company.171 The diligence report also references the Xiangtian
“pyramid scheme and scam,” which Defendants assert was concealed by Zhou.172
Fang testified that he did not read the due diligence report because it was written in
Chinese, and he did not recall whether it was ever translated.173 That is not behavior
reflective of reasonable reliance.
* * * * *
Zhou carried his prima facie burden to prove that the Consent reflected the
votes of a majority of the iFresh common stock issued and outstanding at the time,
and that the Consent otherwise complied with iFresh’s constitutive documents and
Delaware law. Defendants’ attempt to prove that the shares voted in the Consent
were obtained by breach of contract, fraud or other wrongdoing failed for want of
170
JX 102 (July 6, 2020, email to iFresh directors with due diligence report from iFresh’s
Chinese lawyers); JX 102AA at 23, 63 (Jiuxiang Due Diligence Report referencing that
Jiuxiang “is related to XT Energy to some extent,” and “Ms. Liu Meng of Jiuxiang Lantian
is familiar with Mr. Zhou.” The report also indicates a business relationship between
Jiuxiang and XT Energy.).
171
Liu Dep. 87:8–11 (“Jiuxiang Lantian and Xiangtian Energy have no affiliation,
relationship. It’s only work partnership.”).
172
JX 102AA at 19.
Tr. 292:5–22 (Fang) (“I definitely didn’t read [the report in JX 102A]. I didn’t read a
173
Chinese report.”).
45
adequate proof or failure properly to preserve and present the arguments.
Accordingly, my verdict is for Plaintiff.
III. CONCLUSION
For the foregoing reasons, judgment is entered for Plaintiff. The Court
declares that:
(1) The Consent is valid and effective, and the corporate action taken in the
Consent was effective upon delivery;
(2) Defendants, Deng and Fang, were validly removed as directors of iFresh;
and
(3) Qiang Ou and Jiandong Xu were validly elected as directors of iFresh.
The Counterclaims are dismissed in their entirety with prejudice. Plaintiff is
entitled to recoverable prevailing party costs and expenses under Chancery
Rule 54(d).174 There shall be no award of attorneys’ fees.175
IT IS SO ORDERED.
174
Plaintiff shall submit his bill of costs, on notice to defense counsel, by April 12, 2022,
along with a proposed form of order awarding the costs. Defendants shall submit any
objections to the bill of costs within five (5) days of receipt from Plaintiff’s counsel.
The Court’s judgment will be deemed final and appealable upon entry of the Order on the
bill of costs.
175
Plaintiff requested attorneys’ fees in his Complaint and in the pretrial order but did not
attempt to justify the request at trial or in post-trial briefing.
46