In re Priority Responsible Funding LLC

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN RE PRIORITY RESPONSIBLE ) Consolidated FUNDING LLC ) C.A. No. 2024-0651-NAC POST-TRIAL MEMORANDUM OPINION Date Submitted: June 5, 2025 Date Decided: March 10, 2026 Brian E. Farnan, Michael J. Farnan, FARNAN LLP, Wilmington, DE; Dion G.

Rassias, THE BEASLEY FIRM LLC, Philadelphia, PA; John J. Uustal, Cristina M.

Pierson, KELLEY | UUSTAL, PLC, Fort Lauderdale, FL; Attorneys for Plaintiffs Priority Pre-Settlement Funding, LLC and Brett K. Findler.

Geoffrey G. Grivner, Kody M. Sparks, BUCHANAN, INGERSOLL & ROONEY P.C., Wilmington, DE; Stuart P. Slotnick, BUCHANAN, INGERSOLL & ROONEY P.C., New York, NY; Attorneys for Gard Family Office, LLC, PRF Fund I, LP, PRF Fund II, LP, and GFO Asset Management LLC.

COOK, V.C.

This consolidated action concerns a Delaware limited liability company, Priority Responsible Funding, LLC (“PRF”), with two co-managing members, Priority Pre-Settlement Funding LLC (“PPSF”) and Gard Family Office, LLC (“GFO”). When functioning, PRF operated in the litigation finance space, most recently acting as an originator and servicer for funding opportunities. GFO seeks PRF’s dissolution and winding up, asserting the managing members are insurmountably deadlocked. PPSF alleges GFO (1) violated fiduciary duties owed to PRF and its members, (2) breached PRF’s operating agreement, and (3) tortiously interfered with the business of PPSF’s founder and controller, Brett Findler.

For the reasons explained below, the Court finds that PRF is deadlocked, essentially non-operative due to its managing members’ dysfunctional relationship, and unable to carry out its business purpose. Accordingly, the Court holds PRF should be wound-up and dissolved. The Court also concludes that PPSF has not shown by a preponderance of the post-trial evidence that GFO breached fiduciary duties, violated PRF’s operating agreement, or tortiously interfered with Brett’s business. 1 Instead, the evidence shows PRF’s operating agreement permitted the challenged actions, which were the product of repeated, informed consent between the parties. Therefore, the Court enters judgment in GFO’s favor on its dissolution and winding up claims and against PPSF and Brett on each of their claims.

I. FACTUAL BACKGROUND A. Brett Findler Forms PPSF and Meets Casey Gard Brett is an attorney who developed relationships with numerous personal injury lawyers over his 35 years of practice. 2 Through his practice, Brett recognized a growing need for litigation funding and believed he could leverage his preexisting relationships to launch a successful company in that market. 3 In mid-2018, Brett founded PPSF using his own funds and a limited investment from a third-party, Alfreda Vila Santander. 4 Initially, PPSF provided non-recourse litigation funding to lawyers for their clients’ medical care and other litigation expenses. 5 If a case resulted in a monetary award or settlement, PPSF profited by collecting the amount funded plus interest. 6 Around the time Brett founded PPSF, he met Casey Gard in connection with an unrelated real estate transaction. 7 Gard is GFO’s Managing Member. 8 Prior to

4 PTO ¶ 3; Tr. 19:5-20:17, 21:21-22:4.

15 PTO ¶ 17.

up business and GFO would provide capital at Gard’s discretion for fundings and expenses. 18 Soon thereafter, in late 2018, Gard began investing in PPSF’s fundings. 19 B. Findler and Gard Form PRF.

In early January 2019, Brett and Gard formed PRF, executing the entity’s Limited Liability Company Agreement (“PRF LLC Agreement”) on behalf of PPSF and GFO, with each of the members owning a 50% ownership interest in PRF. 20 Several provisions of the PRF LLC Agreement are relevant to this dispute.

Section 2.1(a) identifies GFO and PPSF as PRF’s “Managing Members.” 21 Per Section 2.1(a), “[m]anagement and control of [PRF] shall be vested exclusively in the Managing Members” and the “business and affairs of [PRF] shall be managed under the direction of the Managing Member.” 22 Further, the Managing Members “shall act by unanimous vote” unless specified otherwise in the PRF LLC Agreement or a “written action adopted by the Managing Members.” 23 Section 2.1(a) also empowers the Managing Members to “act through written consents” and bind PRF. 24

The unanimity requirement includes the removal and replacement of Managing Id. Members. PTO ¶ 11.

Section 3.5(b)(i) provides that “[w]hen one or more Members has contributed Operations Capital to the Company,” distributions shall be made “among the Members in proportions to the percentage of Operations Capital contributed by each Member . . . until the Operations Capital contributed has been returned[.]” Id. § 3.5(b)(i).

Members via distributions or other returns of capital pursuant to Section 3.5(b)(i)) distributed 50% to Gard and 50% to Priority. 36 Section 3.5(c) is a catch-all, providing that “[a]ny distributions not addressed by the other provisions of this Agreement shall be made among the Members in such proportion as the Managing Members shall determine[.]” 37 Beyond detailing PRF’s organization, management, and cash flow, the PRF LLC Agreement imposes various restrictions on the Members. 38 Section 5.2(a) reads: “while [PPSF] is a Member of [PRF], [PPSF] will not directly or indirectly engage or assist others in engaging in any business or enterprise . . . that is competitive with [PRF’s] business[.]” 39 Similarly, Section 5.2(b) states: while [PPSF] is a Member of [PRF] and for a period of two years after ceasing to be a Member for any reason, [PPSF] will not directly or indirectly . . . solicit, divert or take away . . . the business or patronage of any of the clients, customers or business partners of [PRF.] 40 In addition, Section 5.2(c) addresses “Confidentiality,” providing that each Member “shall not divulge, disclose, or communicate any Confidential Information . . . to any Person, except to the extent such disclosure is necessary to the business of the Company[.]” 41 Furthermore, Section 5.2(d) prohibits each Member from “mak[ing]

36Id. The parties primarily included Section 3.5(b)(ii)(C) to account for Santander’s investments in PPSF, which rolled over into PRF. See, e.g., Tr. 518:13-22, 603:23-604:16, 617:12-22, 695:8-697:12.

68:20-69:2.

They had been investors for many years in our previous hedge fund. It was a very successful investment for them . . . And that was who and what they were interested in investing in, a fund vehicle managed by Casey Gard.”).

by Gard and his management firm, GFO Asset Management LLC (“GFOAM”). 51 Gard, in turn, told Brett that he had been approached by his former investors and that he planned to start a new hedge fund to invest in litigation finance assets. 52 Therefore, Gard explained that he did not intend for GFO to make any further discretionary investments in PRF’s fundings. 53 Instead, Gard and Brett explored integrating PRF’s existing business into the anticipated new hedge fund, with PRF then serving in an origination and servicing (“O&S”) role. 54 They discussed a business model in which PRF would originate cases for Gard’s new hedge fund to bankroll, and service those cases for O&S fees. 55 The pair agreed that transitioning PRF to an O&S business could (1) drive profitability; 56 (2) eliminate capital risk; (3) avoid conflicts of interest; and (4) increase scale. 57 Brett noted that personal injury settlements amount to billions of dollars annually, and the industry rule of thumb was to fund up to ten percent of case values. 58 As such, the

51 See, e.g., Tr. 527:24-528:24 (noting GFOAM is wholly owned by Gard and his spouse).

52 See id. 529:10-530:14.

53 See id. 533:4-534.

54 See id. 529:10-533:3.

55 See id. 530:6-14, 532:2-533:20, 613:13-615:6.

56 See id. 530:15-532:1. Specifically, they discussed how PRF could earn tens of millions of dollars in revenues under a one-percent origination fee and one-percent annual servicing fee model, presuming the successful resolution of cases. See, e.g., id. 613:13-615:6. See also JX94 (noting the one-percent origination and one-percent annual servicing fee).

57 See, e.g., id. 532:2-18 (“if we have a[] company that is originating investments and recommending them to the fund for investment [and also] investing [its] own capital in those fundings, then . . . [PRF] could be looked at as . . . cherry-picking investments.”), 532:19- 533:20 (“[B]y [PRF] not providing capital any longer for the fundings, we eliminate the capital risk, or the risk of [PRF] losing [its] capital.”), 628:3-629:1.

58 See, e.g., id. 530:15-531:7.

pair anticipated that a hedge-fund-backed PRF could potentially obtain enough market share to generate hundreds of millions of dollars’ worth of funding originations. 59 Brett expressed excitement about the opportunity, and the two immediately began to implement the proposed transition. 60 D. Gard Forms Fund I, PRF Transfers its Contracts, and Brett Invests In October 2019, Gard formed PRF Fund I, LP (“Fund I”), 61 with PRF Fund I GP, LLC (“Fund I GP”) serving as Fund I’s general partner and GFO as Fund I’s “Initial Limited Partner.” 62 GFOAM would serve as Fund I’s investment manager. 63 Gard is Fund I GP’s sole member. 64 A few provisions of the Fund I LP Agreement are relevant here. Section 1.03 states that Fund I “was organized to serve as a private investment fund through which the assets of its Partners may be invested primarily in litigation finance fundings[.]” 65 To facilitate such investments, Section 2.02 provides for the admission of “Limited Partners.” 66 Section 6.01 details a “Management Fee” owed to GFOAM of

59 See, e.g., id. 531:8-532:15, 532:19-533:1.

60 See id. 534:18-535:19, 573:1-8.

61 See JX338 (“Fund I LP Agreement”) See also Tr. 670:22-671:8 (Gard testifying Fund I “is an evergreen structure,” meaning “it’s open-ended [] it will exist continually going forward.”).

62 Fund I LP Agreement; JX339 (“Fund I GP LLC Agreement”).

63 Section 3.01 of the Fund I LP Agreement provides that the “initial Investment Manager [of Fund I] shall be [GFOAM].” Fund I LP Agreement § 3.01.

64 Fund I GP LLC Agreement at 1, 5.

65 Fund I LP Agreement § 1.03.

66 Id. § 2.02.

“approximately 2.0% annually[] of each Limited Partner’s share of [Fund I’s] Net Asset Value[.]” 67 Section 9.05 provides for a “Performance Allocation” as follows: [Fund I GP] shall have reallocated by credit to its Capital Account and debit to each Limited Partner’s Capital Account at the close of each Fiscal Year . . . an amount equal to 20% of the net increase in Net Asset Value . . . attributable to each Limited Partner’s Capital Account for such Fiscal Year[.] 68 With Fund I’s governance structure in place, Brett and Gard began the next phase of their business reorganization. 69 Starting in October 2019, PRF assigned all its existing fundings to Fund I. 70 Brett signed the assignment contracts on PRF’s behalf, while Gard signed for Fund I. 71 Fund I paid PRF the then-current market value of the fundings. 72 After the assignments, Fund I (and later PRF Fund II, LP (“Fund II”, together with Fund I, “Funds”)) deployed all new fundings, not PRF. 73 While transitioning the business, Brett and his brother Lloyd 74 invested $425,000 and $1.8 million, respectively, in Fund I and became Fund I limited partners. 75 In connection with their investment, Brett and Lloyd each received a

67 Id. § 6.01.

68 Id. § 9.05.

69 See generally Tr. 573:1-8.

70 See JX326 (example of an assignment contract); JX407 (same).

71 E.g., JX326; JX407; JX408.

72 See,e.g., JX407; Tr. 628:3-629:1 (“Fund I purchased those fundings at 100 percent of current fair value[.]”), 751:18-752:8 (“PRF Fund I paid the then-current market value of those fundings[.]”).

73 See Tr. 473:8-474:4, 726:3-7.

74 At that point in time, Lloyd Findler was PRF’s General Counsel. E.g., id. 114:10-21.

75 JX94; JX95; JX99; JX116; JX120.

Fund I private placement memorandum and other investment documents, including a prospective investor questionnaire. 76 Brett and Lloyd—each an attorney— reviewed the documents and discussed their contents before finalizing their investments. 77 The investment documents described Fund I’s organizational structure, including Gard’s control over Fund I GP and GFOAM, which directed Fund I’s operations. 78 The documents also detailed GFOAM’s two percent annual management fee, Fund I GP’s twenty percent performance allocation, and PRF’s O&S fees. 79 As Fund I limited partners, the Findlers each received monthly statements, which contained line items for all performance allocations and management fees. 80 E. The Business After Fund I, the O&S Agreements, and Fund II After Fund I’s creation, Brett and Gard employed a shared-services model to effectuate their new business arrangement. 81 Under that model, PRF performed the intake for funding requests. 82 Brett conducted initial underwriting by reviewing the

76 JX94; JX95; JX99; JX116; JX120. While completing that questionnaire, in response to the question “Is the Subscriber an employee, officer or agent of, or in any way affiliated with the General Partner or [Fund I]?,” Brett checked “Yes” and wrote: “Employee of an affiliate in [PRF.]” JX116 at 20.

77 See Tr. 379:18-380:8, 477:8-478:6.

78 See, e.g., JX94; JX95; Tr. 488:8-491:20 (“I knew that Casey was managing the funds . . . I knew that there were management fees that were deducted on the monthly statements for actual management of the fund.”).

79 E.g., JX94; JX95. PRF’s O&S fees were payable if and when Fund I received payment equal to the funding amount after the underlying case resolved. JX94; JX95.

80 JX549-578; see Tr. 478:9-479:15, 490:8-17.

81 See, e.g., Tr. 687:4-688:9.

82 See id. 690:5-691:13.

request and intake information before deciding whether to approve a funding. 83 If Brett approved, he passed the case to Gard who made the final decision on whether to provide funding. 84 After Gard agreed to a funding opportunity, PRF memorialized the funding arrangement in a contract. 85 PRF employees tracked case developments on a recordkeeping system, Mighty. 86 Brett, Gard, Lloyd, and other employees attended weekly meetings to discuss Mighty reports concerning borrower payoffs. 87 Throughout this entire process the participants regularly shared confidential information concerning the cases receiving funding and each entities’ bookkeeping. 88 In January 2022, with the enterprise functioning as described, Fund I and PRF executed an Administration and Service Agreement to memorialize PRF’s

83 See id. 64:4-65:5.

84 See id. 726:8-20.

85 See id. 65:6-67:4. Specifically, PRF employees would insert case-specific information into template contracts and send them to Gard, who ensured they reflected the proper capital provider before negotiating the applicable fee arrangement. See id. 482:11-483:8; JX392 (“Prieto Dep. I”) 31:1-18,43:19-44:8. The enterprise stored many of its template funding contracts on Mighty. See Prieto Dep I 41:2-11. Brett, Gard, and Lloyd decided when to update templates, including with respect to O&S fees. See Prieto Dep. I 31:1-32:5, 41:12-41:18. Once executed, contracts would circulate back to PRF, which would arrange for the wiring of funds.

See id. 43:19-47:21.

86 Tr.66:6-67:4, 68:6-13. Such developments included the name of the funding provider, interest due, O&S fees due to PRF, and payoffs dates and amounts. See Prieto Dep. I 54:14- 60:11. Brett and GFOAM both had access to Mighty. JX401 (“Prieto Dep. II”) 24:10-25:14.

87 See, e.g., Tr. 226:10-19 (“[W]e had numerous meetings every week wherein we addressed the amount of fundings coming in, the closed cases, the recovery of principal, and the recovery of interest.”), 423:7-424:4. Additionally, PRF employees regularly communicated with the Funds’ bookkeeper regarding fundings and payoffs. Prieto Dep. I 195:19-199:4.

88 See, e.g., Tr. 423:2-424:18 (“Everything was commingled.”); Dkt. 99 (“6/5/25 Post-Trial OA Tr.”) 43:7-44:12 (“they were so commingled . . . . They were all in the same physical space using the same computer program. GFO used the same computer program as [PPSF], the same physical space, same computers.”). entitlement to O&S fees (“Fund I O&S Agreement”). 89 The Fund I O&S Agreement “appl[ied] to all fundings to date as well as future fundings” and would “remain in effect until . . . either party provides the other with thirty [] days written notice to terminate.” 90 The agreement states Fund I: provid[es] Non-Recourse and Recourse Funding to various [] [] entities [and] . . . desires [PRF] to perform all the administrative responsibilities associated with these fundings, including but not limited to tracking and vetting of funded investment, accounting of returns, etc. 91 In exchange for those services, Fund I would “pay [PRF] an Origination Fee equal to One Percent . . . [and] a Servicing Fee equal to One Percent [] annually . . . of the ‘Fundings[.]’” 92 Consistent with prior agreements, the payments would “occur upon total satisfaction of each funded draw under any existing agreement.” 93

89 JX155 (“Fund I O&S Fee Agreement”).

90 Id. Id. Id. Id.

A few months later, Gard formed a second limited partnership, Fund II, 94 to capitalize further on the enterprise’s successful fundraising efforts. 95 As with Fund I, Gard formed PRF Fund II GP, LLC (“Fund II GP”, together with Fund I GP, “Fund GPs”) to serve as Fund II’s general partner 96 and GFOAM would act as Fund II’s investment manager. 97 Gard signed the Fund II GP operating agreement as Fund II GP’s sole member. 98 The Fund II LP Agreement identified Gard as the “Initial Limited Partner.” 99 Fund II and PRF also entered into an Administration and Service Agreement (“Fund II O&A Agreement” together with Fund I O&S Agreement, “O&S Agreements”) to provide PRF O&S fees related to Fund II’s fundings. 100 These agreements are materially identical to the mirror agreements concerning Fund I, except that they pertain to Fund II.

94 See JX350 (“Fund II LP Agreement”); JX349 (“Fund II GP LLC Agreement”). From that point on, investor materials began including information for Fund II in addition to Fund I.

E.g., JX187; JX196; JX208; JX235. Fund II arose in connection with the enterprise’s conversion of Fund I from a 3(c)(1) fund to a 3 (c)(7) fund. See Tr. 711:1-713:11. As a 3(c)(1), Fund I initially could solicit accredited with net assets of approximately $1.5 million, but was “limited to a hundred investors.” Id. 711:19-712:6. By converting to a 3(c)(7) fund, Fund I could “have an unlimited number of investors,” but participating accredited investors needed around “5 million [in] invested assets.” Id. 712:12-24. Gard and Szep contemporaneously formed Fund II as a 3(c)(1) fund to capture prior investors in Fund I that did not meet the heightened qualification requirements. See id. 713:1-11.

95 As fundings grew, select PRF employees switched over to GFOAM, including Paul Szep, who became a full-time employee of PRF in February 2022 and transitioned to GFOAM around April 2023. See Tr. 686:23-688:21.

96 Fund II LP Agreement; Fund II GP LLC Agreement.

97 Fund II LP Agreement § 3.01(a).

98 Fund II GP LLC Agreement.

99 Fund II LP Agreement.

100 JX351. Brent signed for PRF, and Gard signed for Fund II. See id. In connection with the business, PRF and the Findlers also provided input concerning the materials disseminated to actual and prospective Fund investors. 101 For example, Brett helped PRF employees prepare marketing decks which were updated monthly using information from Mighty and Gard. 102 PRF employees also made due diligence questionnaires for prospective investors. 103 Over time, these investor materials began to feature Fund-specific (rather than PRF) branding as the Funds’ track record developed and became further removed from PPSF and PRF’s original, pre-assignment fundings. 104 Additionally, Brett and Casey both met with prospective investors to discuss the enterprise’s structure and operations. 105 Notably, one prospective investor’s notes from meetings in early 2023 describe Brett as receiving a salary and being a Fund I investor, but do not mention Brett receiving any portion of management fees or performance allocations. 106

101 See generally Prieto Dep. I 113:2-117:10, 123:10-124:2.

102 See id. 113:2-114:4, 123:10-136:9. The decks identified the enterprise’s structure, including: the Funds as the funding vehicles; GFOAM as investment manager; Gard as manager of his various entities; PRF as the “Primary Originator, Underwriter and Servicer”; several key employes; and the various management, performance, and O&S fees. See, e.g., JX196 (example of once such marketing deck).

103 E.g., JX201 (example of one such diligence questionnaire).As with the marketing decks, these questionnaires described the enterprise structure and fees. Id. See Tr. 737:23-744:2; Compare JX196 (emphasizing PRF), with JX208 (emphasizing the Funds).

105 See JX595 41:4-42:10, 44:25-46:10; JX359; JX365.

106 JX359; JX365; see JX595 41:4-43:11, 45:13-47:24.

F. As Fundings Expand, Brett Requests Multiple Salary Increases By the end of 2022, PRF had started originating cases in California and Texas, and begun originating post-settlement and mass tort fundings. 107 PRF had generated seven-figure gross O&S fees. 108 And Gard’s efforts caused the Funds and their limited partners’ capital to grow considerably. 109 Although risks remained due to the nature of non-recourse funding, the venture appeared to be on the right track. 110 During this period, Brett and Gard maintained their close friendship. 111 Recognizing the enterprise’s success, Brett asked Gard for multiple increases in his PRF salary, in part to help Brett purchase a Miami Beach condo. 112 Gard eventually agreed to a $750,000 salary. 113 Yet, that was insufficient for Brett to purchase the condo. 114 Wanting to avoid a mortgage, Brett turned to Gard who suggested a “financing/monetization event” so Brett could “purchase the residence.” 115 Gard proposed investing additional capital into Fund I on Brett’s behalf to provide Brett a 10 year income stream. 116 Brett would then sell Gard his

107 See Tr. 60:6-10, 117:14-17.

108 JX189 at 4.

109 See, e.g., id. at 5.

110 See, e.g., Tr. 125:23-128:13.

111 See id. 291:15-292:1, 576:5-577:4.

112 See, e.g., id. 148:17-150:1; JX464.

113 See JX219 (Brett writing his “present $750k annual salary [] went into effect June and October 2022.”); Tr. 335:7-9 (pointing out that $750,000 was the most Brett ever earned).

114 See JX467; JX 468.

115 JX467; see Tr. 543:23-546:3.

116 JX467; see Tr. 543:23-546:3.

fifty percent stake in PRF and take a reduced salary. 117 Brett balked at the proposal, stating he could not “mentally accept a reduction in Salary.” 118 Instead, Brett and Gard agreed to a $1.85 million bridge loan, memorialized in a January 30, 2023 Pledge Agreement. 119 The Pledge Agreement provides that “to induce [GFO] to loan the $1.85 million to [Brett], [PPSF] is hereby granting [GFO] a pledge of a portion of its . . . Membership Interests” in PRF. 120 In the Pledge Agreement, Brett acknowledged that he has no interest in “any current or future fund management related entities established or operated by [GFO], Casey Gard or any of their respective affiliates, and . . . has [no] objection with respect to same.” 121 G. PRF’s Underwriting and Financial Position Deteriorates By late 2023, PRF’s originations started to plateau. 122 Previously funded cases began to resolve, with several resulting in trial losses or settling for significantly less than conservative case value, leading to charge-offs and negative funding growth. 123 PRF was losing money, as its O&S business depended on the number of successful

117 JX467; see Tr. 543:23-546:3.

118 JX467; see Tr. 273:18-278:13.

119 JX193. Gard signed the Pledge Agreement for GFO, while Brett signed individually as “Borrower,” and as President of PPSF. Id. Id. Id. § 2(i). Brett testified that he “read [] and [] understood the terms” of the Pledge Agreement and the representation and warranty in Section 2(i) was “true when [he] signed it[.]” Tr. 285:20-286:11, 362:2-366:4. But see id. 366:19-21 (“As it relates to the specifics – I didn’t read it as closely as perhaps I should have.”). Brett attempted to reconcile Section 2(i)’s text with his claim that he is entitled to money from the Funds by insisting at trial that he “didn’t believe [the Pledge Agreement] had any ongoing effect . . . once it was paid back” or that it altered his rights under the PRF LLC Agreement. Tr. 366:2-368:21.

122 See, e.g., id. 657:7-23.

123 See id. 656:7-23; JX238.

case resolutions. 124 PRF’s significant marketing budget began raising eyebrows at GFO, which bankrolled expenses. 125 It became clear that for PRF to become profitable, it needed to increase the number of originations, and originate cases with a greater likelihood of resolving favorably. 126 To tackle these concerns, GFO enhanced its scrutiny of PRF’s underwriting. 127 That scrutiny revealed that PRF had not determined conservative case value for hundreds of intakes. 128 PRF’s underwriting flaws also included insufficient vetting and due diligence. 129 Amidst this backdrop Brett requested another salary increase, from $750,000 to $1 million. 130 Gard demurred pending improvement in PRF’s performance, noting PRF’s lack of profitability. 131 Brett countered by detailing his O&S responsibilities and purported success. 132 Brett also pointed out that Gard previously touted the Funds’ success. 133 The two reached an impasse and Brett became “disillusioned.” 134

124 See JX238; Tr. 153:6-16, 533:4-10.

125 See Tr.708:12-710:23; JX289; JX371.

126 See, e.g., JX219; JX247 (Gard writing there is “a path towards profitability if [Brett] w[as] able to generate growth in the case originations and case payoffs.”).

127 Tr. 729:18-731:24.

128 See, e.g., id. 292:7-294:2.

129 See, e.g., Prieto Dep. I 284:2-287:5.

130 JX219.

131 Id. Id. Id.(“GFO owns both of the Funds which have produced near 20% Returns for the Investors. To that extent, anyone invested in the Fund, inclusive of you [sic] has done extremely well.”).

134 Tr. 150:6-151:10.

Matters grew worse in early 2024, when PRF and GFOAM employees had a series of meetings to discuss PRF’s operating budget and underwriting in an effort to make the company profitable. 135 The meetings became contentious and less productive over time, as Brett took issue with critiques of his underwriting and downplayed negative data. 136 Brett engaged in disruptive behavior during the meetings to express his displeasure. 137 Meanwhile, Brett continued to demand a salary increase to $1 million, again pointing out how much the Funds’ investors were profiting. 138 Brett threatened that he would have to “re-evaluate [his] situation moving forward” if Gard would not agree to his request. 139 When Gard maintained his position, 140 Brett responded that his “[p]assion and desire moving forward is not the same.” 141 Brett then proposed a “mutually agreeable pathway” for “[v]aluation” of his PRF ownership interest. 142 Gard suggested the two meet socially “to get this resolved.” 143 Brett declined. 144 Instead, Brett gave Gard an ultimatum: agree to the salary increase or Brett would

135 See id. 396:17-400:1, 730:12-731:24, 756:3-760:13.

136 See, e.g., Tr. 396:19-400:1, 500:8-552:20; Prieto Dep. I 284:2-285:23.

137 See Tr. 550:13-551:7; Prieto Dep. I 285:12-23, 287:7-289:24.

138 JX469.

139 Id. Id. Id. Id.; see JX470.

143 JX252.

144 Id. (“don’t know what more needs to be discussed”).

“initiate the process for Valuation of PRF.” 145 Notably, none of the salary request communications indicate that Brett made his request because Gard refused to agree to PRF distributions. 146 In May 2024, with PRF’s performance still sputtering, Gard told Brett he could “no longer support a compensation draw for [him] at [PRF],” citing poor underwriting performance, misuse of the company credit card, and Brett’s conversations with a PRF employee concerning Gard’s management. 147 Brett threatened to sue and “expose [Gard’s] character and misdoings[.]” 148 Brett also informed Gard that he would be limiting his work at PRF going forward. 149 At this point, the parties discussed amending the PRF LLC Agreement for the first time. 150 GFO, in consultation with Gard, proposed amending the PRF LLC Agreement to reflect PRF’s transition to purely an O&S business for the Funds. 151 Brett rejected the proposed amendment. 152

145 Id.Gard again expressed willingness to consider the salary request, provided PRF’s performance improved. Id. At the same time, Brett told Prieto that Gard was running the business into the ground, and she should look for a new job or retire. See Tr. 386:19-389:8.

146 See id. 326:16-337:8, 339:3-341:1; JX464 (Brett requesting an increased salary without mentioning distributions); JX468 (same); JX469 (same).

147 JX473.

148 Id. See id. JX259. The push to amend the PRF LLC Agreement was driven, in part, by GFO’s new counsel. See Tr. 604:18-605:5.

151 See JX259 (largely gutting the provisions in Section 3.5(b)). See also Tr. 610:13-611:1 (“it . . . eliminated the need for the original distributions formulas . . . given that the company had transitioned to a purely originating, underwriting, and servicing company[.]”).

152 Tr. 613:7-9.

H. The Business Today and This Action.

Since Brett and Gard’s fallout in 2024, PRF has been largely inoperative. 153 In July 2024, the Funds gave PRF notice that they were terminating the O&S Agreements. 154 PRF has not performed O&S functions, 155 or taken any fundings. 156 GFO no longer pays PRF’s operating expenses and canceled Brett’s company credit card. 157 Brett has not been in PRF’s office for over a year, and has not responded to PRF employees or potential-client inquiries. 158 Having internalized PRF’s responsibilities, the Funds, GFO, Fund GPs, and GFOAM continue to operate. For his part, Gard has, since starting the Funds, generated millions of dollars in “performance fee[s]” through the enterprise’s operation. 159 On June 14, 2024, GFO filed an action in this Court for PRF’s dissolution, winding-up, and appointment of a liquidation trustee. 160 Brett and PPSF countersued, alleging (1) GFO breached the PRF LLC Agreement; (2) GFO breached fiduciary duties owed to PPSF and PRF; (3) GFO and GFOAM tortiously interfered

153 See, e.g., 449:3-450:6 (“it was becoming impossible to work in that kind of environment[.]”); Prieto Dep. I 259:19-260:14, 265:1-12.

154 JX287.

155 .

See Prieto Dep. I 258:8-18, 261:12-15, 265:4-12 (“now that we’re not originating and servicing the funds.”).

156 See, e.g., Tr. 170:15-172:14 (“no new cases were being approved.”). See, e.g., Prieto Dep. I 257:19-258:22.

157 See, e.g., Tr. 161:5-14, 552:21-553:10; JX473.

158 See, e.g., Prieto Dep. I 257:19-258:22, 347:17-348:23; Prieto Dep. II 32:7-33:16.

159 Tr. 629:2-630:3.

160 See Dkt. 1.

with Brent’s business relationships; and (4) a constructive trust should be imposed. 161 The Court consolidated the cases and bifurcated the liability and damages phases. 162 On March 4-6, 2025, the Court held trial on the liability phase. 163 In June 2025, the Court heard post-trial oral argument. 164 II. LEGAL ANALYSIS The Court begins by evaluating Brett and PPSF’s claims against GFO, GFOAM and the Funds. After resolving those claims the Court considers GFO’s petition for PRF’s statutory dissolution and winding up.

A. Brett and PPSF Have Not Proven Their Amorphous Claims by a Preponderance of the Evidence Brett and PPSF’s advance claims for (1) breach of fiduciary duty against GFO; (2) breach of the PRF LLC Agreement against GFO; (3) tortious interference against GFO and GFOAM; and (4) constructive trust against GFO, GFOAM, and the Funds. 165 Their post-trial briefing, however, omits much of that organizational structure and instead advances a mishmash of arguments, preceded by no statement of facts. 166 For post-trial briefing in particular, this is decidedly unhelpful. This sort of “pizza thrown at [the] wall” is “time-consuming to clean up” and makes placing

161 See Dkt. 17.

162 See Dkt. 15.

163 See generally Tr.

164 See 6/5/25 Post-Trial OA Tr.; Dkt 98 (“6/10/25 Post-Trial OA Tr.”).

165 See Dkt. 17.

166 See generally Dkt. 91 (“Brett Opening Br.”).

Brett and PPSF’s assertions in a neat analytical framework unnecessarily difficult. 167 Nevertheless, the Court parses Brett and PPRF’s arguments the best it can, starting with the fiduciary duty claims.

1. PPSF Did Not Prove GFO Breached Fiduciary Duties by a Preponderance of the Evidence PPSF claims GFO breached fiduciary duties it owed to PRF as one of PRF’s two managing members. Specifically, PPSF asserts GFO violated a duty to disclose relevant information concerning the enterprise and wrongfully usurped PRF’s assets, opportunities, and relationships. 168 A breach of fiduciary duty claim “has only two formal elements: (i) the existence of a fiduciary duty that the defendant owes to the plaintiff and (ii) a breach of that duty.” 169 Generally, a plaintiff bringing a breach of fiduciary duty claim must prove both elements by a preponderance of evidence. 170 By default, “limited liability company managers owe fiduciary duties akin to those owed by directors of a corporation.” 171 Although Delaware law permits LLCs to eliminate or modify fiduciary duties in their governing agreements, 172 the PRF LLC Agreement does not do so. 173 Thus, default fiduciary duties apply “as an

167 Auriga Cap. Corp. v. Gatz Props., 40 A.3d 839, 882 n.184 (Del. Ch.), judgment entered sub nom. Auriga Cap. Corp. v. Gatz Props., LLC (Del. Ch. 2012), aff’d, 59 A.3d 1206 (Del. 2012).

168 See Brett Opening Br.at 4-28.

169Metro Storage Int’l LLC v. Harron, 275 A.3d 810, 840-841, 859 (Del. Ch. 2022), judgment entered sub nom. In re Metro Storage Int’l LLC v. Harron, 2022 WL 2473354 (Del. Ch. July 5, 2022).

170 Id. at 841, 859.

171 Mehra v. Teller, 2021 WL 300352, at *28 (Del. Ch. Jan. 29, 2021) (citing 6 Del. C. § 18- 1104).

172 See id. (citing 6 Del. C. § 18-1101(e)).

173 See generally PRF LLC Agreement.

equitable gap-filler.” 174 Those duties are the duty of loyalty and the duty of care. 175 As explained below, the preponderance of the trial evidence does not support PPSF’s fiduciary duty claim.

PPSF primarily argues GFO breached its fiduciary duty by usurping opportunities from PRF. 176 The corporate opportunity doctrine recognizes that a “fiduciary agrees to place the interests of the [entity] before his or her own in appropriate circumstances.” 177 Under the doctrine, directors and officers “must avoid advantaging themselves at the corporation’s expense [and] cannot compete with the corporation or divert corporate opportunities from it without its consent.” 178 Thus, a corporate officer or director may not take a business opportunity for his own if: (1) the corporation is financially able to exploit the opportunity; (2) the opportunity is within the corporation’s line of business; (3) the corporation has an interest or expectancy in the opportunity; and (4) by taking the opportunity . . . the corporate fiduciary will [] be placed in a position inimitable to his duties to the corporation. 179

174 Feeley v. NHAOCG, LLC, 62 A.3d 649, 662-63 (Del. Ch. 2012). Still, “principles of contract preempt fiduciary principles where the parties to a LLC have made their intentions to do so plain, and the Company may not saddle Defendants with common law fiduciary duties if doing so would contradict the plain language of the relevant LLC agreement.” Largo Legacy Grp., LLC v. Charles, 2021 WL 2692426, at *12-13 (Del. Ch. June 30, 2021) (cleaned up).

175 United Food and Commercial Workers Union and Participating Food Industry Employers Tri-State Pension Fund v. Zuckerberg, 262 A.3d 1034, 1049 (Del. 2021).

176 See Brett Opening Br. at 13-20.

177 Broz v. Cellular Information Systems, Inc., 673 A.2d 148, 154 (Del. 1996).

178 Enhabit, Inc. v. Nautic Partners IX, L.P., 2024 WL 4929729, at *1 (Del. Ch. Dec. 2, 2024) (emphasis added).

179 Broz, 673 A.2d at 155.

Those factors, however, are only “guidelines to be considered” in the fact-intensive analysis and “[n]o one factor is dispositive.” 180 Notably, “[d]isclosure to and informed approval by the [entity] may insulate a director from liability where the corporate opportunity doctrine otherwise applies.” 181 PPSF did not address any of the Broz factors post-trial. Instead, PPSF advances a smattering of arguments which, boiled down, challenge PRF’s transition to an O&S company, which PPSF characterizes as GFO usurping PRF’s fundings to Gard’s benefit. 182 A preponderance of the evidence does not support PPSF’s usurpation of opportunities claim.

The weight of trial evidence shows Brett repeatedly acknowledged and assented in writing to PRF’s transformation into an O&S company. 183 Brett signed

180 SDF Funding LLC v. Fry, 2022 WL 1511594, at *15-16 (Del. Ch. May 13, 2022); see Metro Storage, 275 A.3d at 852.

181 Thorpe v. CERBCO, Inc., 676 A.2d 436, 442 n.7 (Del. 1996); see Grove v. Brown, 2013 WL 4041495, at *8 & n.83 (Del. Ch. Aug. 8, 2013) (“may satisfy th[eir] burden by formally presenting the opportunity to the [entity] . . . and confirming the [entity’s] disinterest.”).

182 See Brett Opening Br. at 13-20 (“Gard systematically embarked on a calculated strategy to push Plaintiffs out of the way so that he could retain all the funding business for his own personal benefit.”).

183 Brett’s knowledge is imputed to PPSF, a limited liability company wholly owned by Brett who is the company’s sole and managing member. See, e.g., B.A.S.S. Group, LLC v. Costal Supply Co., Inc., 2009 WL 1743730, at *6 (Del. Ch. June 19, 2009) (“the knowledge of an officer, director, or manager of a business entity generally is imputed to the entity.”).

Therefore, PPSF had knowledge of information disclosed to Brett. In re American Intern.

Group, Inc., Consol. Derivative Litigation, 976 A.2d 872, 887 n.40 (Del. Ch. June 17, 2009) (“The general rule is well established that a corporation is charged with constructive knowledge of all material facts of which its officer or agent receives notice or acquires knowledge . . . even though the officer or agent does not communicate the knowledge to the corporation.”). Although PPSF and Brett do not meaningfully raise the PRF LLC Agreement’s notice provision, it is in accord insofar as it directs notice for PPSF to Brett. PRF LLC Agreement § 5.5. the agreements whereby PRF voluntarily 184 assigned its fundings to the Funds as part of the business transformation. 185 Additionally, Brett signed the O&S Agreements on PRF’s behalf. 186 PRF’s business transformation was also consistent with Brett and Gard’s conversations from the outset of their business relationship. 187 The PRF LLC Agreement seemingly anticipated that change in that its terms only bind PPSF to non-compete and non-solicitation covenants. 188 As part of that transformation the parties shared confidential information as necessary to promote

184 PRF’s voluntary participation is obviously significant because one would generally expect that an entity’s consent to and participation in a challenged activity should defeat a usurpation of opportunity claim. See Enhabit 2024 WL 4929729, at *1 (holding a fiduciary “cannot compete with the corporation or divert corporate opportunities from it without its consent.”) (emphasis added); Triton Const. Co., Inc. v. Eastern Shore Elec. Services, Inc., 2009 WL 1387115, at *11-14 (Del. Ch. May. 18, 2009).

185 E.g.,JX326; JX407. Brett also acknowledged the business transition and his lack of interest in the Funds in the Pledge Agreement. See JX193 § 2(i). Additionally, Brett received extensive disclosures concerning the Funds’ management and fee structure in connection with his investment in Fund I. See JX94; JX116. See also JX219 (recognizing “GFO owns the Funds[.]”); Tr. 379:18-380:8 (Brett testifying he reviewed those documents before finalizing his investments in Fund I). Further, as a Fund I limited partner, Brett received regular updates disclosing fees and performance allocations. See JX549-578.

186 JX155; JX351. The O&S Agreements specify that the Funds, not PRF, “is in the business of providing Non-Recourse and Recourse Fundings[.]” JX155; JX351.

187 Brett testified that he and Gard discussed the possibility of using a hedge fund to raise third-party capital to fund expansion from the beginning of their business relationship. Tr.

37:20-39:10, 42:23-43:8. Gard educated Brett on hedge funds, including how they operate and generate fees, as well as standard 20% performance allocation arrangements. See JX 15; Tr. 34:24-35:21, 318:10-318:20. Brett described the compensation arrangement as “like an 80/20 rule.” Tr. 35:14-21. Brett’s reference at trial to “80/20” as opposed to a more common phrase like “two and twenty” was a bit discordant at first, but it seemed ultimately consistent with Brett’s focus on the performance allocation at trial.

188 PRF LLC Agreement §§ 5.2(a)-(b). See also Mehra, 2021 WL 300352, at *28 (holding parties to an LLC agreement can waive or modify applicable fiduciary duties); Genworth Financial, Inc. v. AIG Specialty Insurance Company, 2025 WL 688987, at *9, n.124 (Del. Super. Feb. 21, 2025) (endorsing the meaningful variation canon (citing City of Lewis v. Nepa, 212 A.3d 270, 279, n.37 (Del. 2019))). the enterprise’s success. 189 Moreover, Brett helped prepare materials for prospective investors that detailed the enterprise’s revised structure. 190 That Brett contemplated the challenged business transformation, signed numerous documents detailing PRF’s shift to an O&S company, and helped facilitate restructuring the enterprise, severely undercuts PPSF’s usurpation of opportunities claim. 191 In response to this myriad of evidence indicating his voluntary participation in PRF’s transition, Brett argues he did not fully understand the documents he signed and Gard “ma[de] misleading statements and withh[e]ld[] key information.” 192 That argument largely mirrors PPSF’s purported duty of disclosure claim. 193 Specifically,

189 See, e.g., Tr. 64:4-68:20, 423:2-424:18; 6/5/25 Post-Trial OA Tr. 43:7-44:12.PPSF argues “it is essentially black-letter law that a fiduciary’s ‘misuse of confidential information is inherently a breach of fiduciary duty.’” Brett Opening Br. at 17 (quoting Metro Storage, 275 A.3d at 858). That legal truism does not save PPSF’s fiduciary duty claim. For one, the case PPSF cites for that proposition occurred in a factually distinct context – where a fiduciary of a publicly traded company stole confidential information and “jump[ed] ship,” while the plaintiff entity went bankrupt. Metro Storage, 275 A.3d at 822-23. Moreover, PPSF must show GFO misused PRF’s confidential information to prove its claim. For the reasons discussed below, the Court concludes the use of PRF’s information to further the voluntarily transition to an O&S model is not misuse. See Sorrento Therapeutics, Inc. v. Mack, 2023 WL 5670689, at *24-25 & n.213 (Del. Ch. Sept. 1, 2023) (“The duty of loyalty also includes a duty to refrain from improperly using confidential information to advance the fiduciary’s own personal interests, rather than those of the corporation.” (emphasis added)).

190 See, e.g., 196; Tr. 113:2-114:4, 123:10-136:9.

191 See Renco Group, Inc. v. MacAndrews AMG Holdings LLC, 2015 WL 394011, at *9 (Del. Ch. Jan 29, 2015) (holding a defendant did not wrongfully interfere with a corporation’s business relationships where, as part of a “sophisticated business arrangement,” the defendants acted in a way “contemplated” by his agreement with the company).

192 Brett Opening Br. at 14-18.

193 It is not clear that PPSF’s attempt to assert a standalone disclosure claim jives with the case law and, in any event, is a poor fit here for a host of reasons. As already discussed, disclosures can play a significant role in analyzing a usurpation claim. See Grove, 2013 WL 4041495, at *8, n. 83 (“The Delaware Supreme Court has recognized a ‘safe harbor’ for a director to pursue a corporate opportunity without breach of his fiduciary duty where the officer presents and opportunity to the board of directors and the corporation decides not to

PPSF asserts that GFO failed to disclose that (1) it used PRF as an “incubator” or “proof of concept” before starting the Funds, (2) after transitioning the business, PRF’s only revenue would be O&S fees, and (3) Gard structured the enterprise to provide himself a profit. 194 Whether better understood as a purported form of disclosure claim or a response to the evidence that undermines the usurpation of opportunity claim, the weight of trial evidence does not support PPSF’s information- based argument.

As discussed above, the evidence shows GFO did not withhold information concerning Gard’s desire to start a hedge fund, PRF’s post-transition business, and pursue the opportunity.” (citing Broz, 673 A.2d at 156)). Consistent with the rest of its arguments, however, PPSF’s standalone duty of disclosure claim is difficult to follow. For starters, the duty arises situationally, such that its scope and requirements depend on context. Stroud v. Grace, 606 A.2d 75, 85 (Del. 1992); see In re Mindbody, Inc., Stockholder Litigation, 332 A.3d 349, 386 (Del. 2024) (“The duty of disclosure is not an independent duty by the application in a specific context of the [] fiduciary duties of care, good faith, and loyalty.” (cleaned up) (emphasis added)). The majority of the caselaw PPSF cites concerns a significantly different context—namely, in which fiduciaries seek stockholder action. See Brett Opening Br. at 4-13 (citing Mindbody, 332 A.3d at 387; Cygnus Opportunity Fund, LLC v. Washington Prime Grp., LLC, 302 A.3d 430, 451 (Del. Ch. 2023); City of Sarasota Firefighters’ Pension Fund v. Inovalon Holdings, Inc., 319 A.3d 271, 292 (Del. 2024); Firefighters’ Pension Sys. of City of Kansas City v. Found. Bldg. Materials, Inc., 318 A.3d 1105, 1154 (Del. Ch. 2024)). There are well-established principles that govern that type of “recurring scenario[,]” which is not the scenario here. In addition, PPSF relied heavily on the decision in Mills Acquisition Co. v. Macmillan, Inc. during post-trial oral argument. 559 A.2d 1261 (Del. 1989). Yet, Mills Acquisition is also quite distinguishable. Mills Acquisition considered “a fraud upon the board” theory in connection with a broader fiduciary duty analysis when deciding whether to issue a preliminary injunction. Id. at 1265-78, 1283. The court held two directors’ failure to disclose a “telephonic tip” that a third-party bidder was increasing its offer “was misleading and deceptive.” Id. at 1282-84. That is all very different from this case, in which the weight of trial evidence shows Brett participated in PRF’s O&S business for years without complaint after Gard informed him of the key terms of PRF’s business transformation in conversations and numerous documents that Brett read and signed.

194 Brett Opening Br. at 4-13; Dkt. 94 (“Brett Reply Br.”) at 5-14.

the enterprise’s structure and fees. 195 Although those documents do not explicitly mention Gard’s alleged use of PRF as an “incubator fund,” 196 the trial testimony shows Brett and Gard discussed the possibility of eventually using a hedge fund to fuel the enterprise’s expansion from the outset. 197 Gard disclosed his alleged plan to incorporate a hedge fund in PRF’s business. That Brett knew or had access to the material information GFO allegedly withheld defeats PPSF’s information-based claim. 198 PPFS suggests that Gard had a fiduciary duty to affirmatively disclose the at- issue information and that including the relevant information in the various documents Brett signed, read, and created was insufficient. 199 That suggestion— which requires ignoring evidence pointing to extensive contemporaneous oral communications between Brett and Gard about the business transformation—is unconvincing. The case on which PPSF relies for that proposition occurred in a vastly

195 Indeed, the trial testimony showed that when Gard’s prior investors inquired about a potential new hedge fund, he disclosed the opportunity to Brett soon thereafter. See, e.g., Tr.

529:10-530:14.

196 See Tr. 684:1-685:5, 689:19-690:4, 727:3-18, 739:16-740:4. In making its “incubator” argument, PPSF relies almost exclusively on Paul Szep’s testimony. See Brett Opening Br. at 7-9. Yet, Szep did not become involved with the enterprise until 2021, after the supposed incubation period ended. See Tr. 685:6-687:3. Thus, it is not clear that Szep has firsthand knowledge of Gard’s initial intentions concerning PRF. Regardless, the weight of trial evidence does not show that GFO made any material non-disclosure concerning this point.

197 Id. 37:20-39:10, 42:23-43:8, 530:6-14. See also JX15.Those plans are consistent with Brett and Gard’s use of PRF’s initial fundings as a “proof of concept” to develop a small-scale track record to evaluate whether the business was viable and to attract third-party investors in the eventual hedge fund. See Tr. 684:1-686:19; JX95.

198 See Presidio, 251 A.3d at 289.

199 See Brett Reply Br. at 19-22 (citing McNeil v. Bennett, 792 A.2d 190, 211-12 (Del. Ch. 2001), aff’d in part, rev’d in part on other grounds, McNeil v. NcNeil, 798 A.2d 503 (Del. 2002)). different context, where a trust fiduciary took active steps to prevent a trust beneficiary from learning the true nature of the trust documents. 200 Conversely here, there is no evidence Gard did anything to obfuscate Brett’s understanding of the myriad documents he read, signed, and helped create.

Similarly, Brett’s testimony that he did not understand the at-issue documents because he is not financially experienced is not credible. 201 Brett is managing partner at a law firm and a business owner with decades of experience. Even if relevant here—which is debatable—Brett’s attempt at trial to cloak himself in the aura of a financial rube lacks credibility. Additionally, documentary evidence often contradicted Brett’s testimony. 202 Thus, the Court does not credit PPSF’s argument that Brett lacked knowledge of the information presented in the numerous relevant documents discussed. Thus, the general rule that a party has notice of the terms of a document that the party read and signed controls. 203

200 See McNeil, 792 A.2d at 211-13 (“The evidence is clear that all the Siblings misunderstood the Family Trusts. The Lois Trustees contributed to this. Most egregiously, however, the Lois Trustees-through Brodhead-provided the Other Siblings with a letter that gave them an accurate portrayal of the terms of the Family Trusts, but excluded Henry from this communication. Brodhead’s act was blatantly partial and improper.”).

201 E.g., Tr. 142:8-19, 248:6-11 (“there’s financial information in there that . . . I don’t have the capacity to understand.”). See also Johnson v. Wagner, 2003 WL 1870365, at *4 (Del. Ch. 2003) (“[A] trial court may determine the weight and credibility to be accorded any witness, and is responsible for resolving conflicts in the evidence.”).

202 For example, Brett testified he had “no knowledge” about any payment that PRF received in exchange for assigning its existing fundings to the Funds, even though Brett executed the assignment contracts on PRF’s behalf. Tr. 267:10-20; see, e.g., JX407.

203 See ETC Northeast Field Services, LLC v. Muse, 2024 WL 2797337, at *6 (Del. Ch. May 31, 2024) (“Where a party has assented to clear contractual terms, that party is on notice of those terms.” (citing Restatement (Second) of Contracts § 157 cmt. b (1981) (“Generally, one who assents to a writing is presumed to know its contents and cannot escape being bound by its terms . . . his assent is deemed to cover unknown as well as known terms.”))). If anything,

Further dispelling PPSF’s claim, the weight of trial evidence shows PRF’s business transformation was not a one-sided transaction to Gard’s advantage. Rather, PRF benefited by receiving current market value for fundings assigned to the Funds 204 and by the establishment of an overall enterprise that was able (1) to access third-party investment capital that was only available to Gard, 205 (2) mitigate its capital risk, 206 and (3) use investment capital to finance an expansion that resulted in PRF booking millions in O&S fees. 207 Thus, the evidence does not support a finding GFO wrongfully “use[d] [its] position of trust and confidence to further [Gard’s] private interest” to PRF’s detriment as PPSF suggests. 208 Instead, PRF was “actively engaged in the process” of undertaking the very actions it now challenges. 209 Accordingly, the Court concludes PPRF has not proven by a preponderance of the the Court’s impression of the trial evidence was that Brett was told and knew of all these things but was simply cavalier in his business dealings. So long as he had ongoing access to an ample salary and expense account and the potential for a significant payday on the O&S arrangement, Brett was satisfied to play the big-shot at legal conferences, with no expectation whatsoever that he would receive distributions out of the hedge fund management fees or performance allocation. Instead, things went off the rails when Gard declined Brett’s request for another salary increase. Brett got mad. He saw the hedge fund business doing well and thought he should also benefit via a salary bump, despite the underwriting problems that compelled GFO to question Brett’s performance.

204 See,e.g., JX407; Tr. 628:3-629:1 (“Fund I purchased those fundings at 100 percent of current fair value[.]”), 751:18-752:8 (“PRF Fund I paid the then-current market value of those fundings[.]”).

205 See Tr. 527:5-528:9 (“[T]hey were interested in investing in, a fund vehicle managed by Casey Gard.”).

206 See id. 532:19-533:20, 628:3-629:1 (“[T]hat purchase and sale transaction eliminated capital risk for us at [PRF].”)

207 See, e.g., JX189 at 4.

208 Largo Legacy, 2021 WL 2692426, at *12-18; see Brett Opening Br. at 13-20.

209 Broz, 673 A.2d at 156.

evidence that GFO breached its fiduciary duties by usurping PRF’s corporate opportunities or withholding material information.

2. PPSF Did Not Prove GFO Breached the PRF LLC Agreement PPSF claims GFO breached multiple provisions of the PRF LLC Agreement. 210 To prevail on a breach of contract claim, the plaintiff must prove “1) a contractual obligation; 2) a breach of that obligation by the defendant; and 3) a resulting damage” by a preponderance of the evidence. 211 Under Delaware’s objective theory of contract, the Court “give[s] effect to the plain-meaning of the contract’s [unambiguous] terms and provisions.” 212 The Court “read[s] a contract as a whole and . . . give[s] each provision and term effect, so as not to render any part of the contract mere surplusage.” 213 As with its fiduciary duty claim, PPSF’s briefing on its breach of contract claim advances a hodgepodge of unstructured arguments. In a series of one-line assertions in its brief, PPSF again challenges the restructuring of PRF’s business, which it

210 See Brett Opening Br. at 28-34.

211 H-M Wexford LLC v. Encorp, Inc., 832 A.2d 129, 140 (Del. Ch. 2003).

212Terrell v. Kiromic Biopharma, Inc., 338 A.3d 1272, 1276 (Del. 2025) (“a contract’s construction should be that which would be understood by an objective, reasonable third party.”). That principle is especially important in the LLC context, given that limited liability companies “are creatures of contract[.]” R & R Cap., LLC v. Buck & Doe Run Valley Farms, LLC, 2008 WL 3846318, at *4 (Del. Ch. Aug. 19, 2008); see id. at *6 (“The LLC Act provides members with ‘the broadest possible discretion in drafting their [LLC] agreements’ and assures that ‘once [members] exercise their contractual freedom in their [LLC] agreement, the [members] have a great deal of certainty that their [LLC] agreement will be enforced in accordance with its terms.’” (quoting Elf Atochem N. Am., Inc. v. Jaffari, 727 A.2d 286, 291 (Del. 1999))).

213 In re Dissolution of T & S Hardwoods KD, LLC, 2023 WL 334674, at *9 (Del. Ch. Jan. 20, 2023) (internal quotes omitted). claims was done to benefit Gard, who also allegedly disparaged PPSF and Brett.

Unfortunately, PPSF’s briefing on these points neither analyzes the limited contractual text it references nor cites any trial evidence. 214 As such, PPSF’s arguments are insufficient to carry its post-trial burden. It is axiomatic that after trial a plaintiff must support its claim with actual evidence, not conclusory assertions. 215 This alone suggests rejecting PPSF’s breach of contract claim.

The trial evidence confirms that suggestion. Recognizing the text’s primacy in any breach claim, the Court attempts to map PPSF’s sparse arguments onto the PRF LLC Agreement’s text. Framed in that way, the weight of trial evidence shows PPSF has not carried its burden of proving GFO breached the PRF LLC Agreement.

Because the Court concludes PPSF has not proven a breach of the PRF LLC Agreement, it need not address the parties’ arguments concerning whether there was a valid amendment to the operating agreement.

a. GFO Did Not Breach the PRF LLC Agreement by Not Making Distributions to PPSF and Brett PPSF argues GFO breached the PRF LLC Agreement by not making any distributions to Brett despite Gard profiting “somewhere north of [$]20 million . . . in

214 SeeBrett Opening Br. at 28-34. PPSF instead devotes the bulk of its argument to attempting to refute GFO’s contention that the parties implicitly modified the PRF LLC Agreement. Id. But that emphasis is misplaced because the Court need not reach oral modification to resolve PPSF’s breach of contract claim.

215 E.g., OptimisCorp v. Waite, 2015 WL 5147038, at *70, n.568 (Del. Ch. Aug. 26, 2015) (“Because this is a post-trial opinion, Plaintiffs must prove what they allege and they supplied no evidence to support such speculation.”); In re Oracle Corporation Derivative Litigation, 2023 WL 3408772, at *19 (Del. Ch. May 12, 2023) (“[M]ore than mere allegation is required post-trial.”). direct violation of the express 50/50 distribution provision in the PRF [LLC] Agreement.” 216 PPSF’s argument requires examining Section 3.5 of the PRF LLC Agreement.

Before doing so, it is worth noting that PPSF equates performance allocations and management fees that Gard obtained via the Fund GPs and GFOAM with “distributions” under the PRF LLC Agreement. But those are plainly not distributions by PRF. Section 3.5 of the PRF LLC Agreement governs distributions, which involve the transfer of “cash or property from [PRF] to the Members[.]” 217 Payments of Fund GPs’ performance allocations and GFOAM’s management fees were not payments by PRF. 218 And no evidence suggests PRF paid the performance allocations or management fees; indeed, the investment documents Brett received and helped create show the opposite. 219 The analysis could stop here. But even if the Court were to ignore that, PPSF’s breach claim still fails because the plain terms of the PRF LLC Agreement show no distribution obligation was triggered.

PPSF asserts entitlement to distributions associated with loans originated by, or transferred to, the Funds. PPSF and Brett do not argue Sections 3.5(b)(ii)(A)-(B)

216 Brett Opening Br. at 28 (internal quotes omitted).

217 PRF LLC Agreement § 3.5(a) (emphasis added).

218 See In re Aearo Technologies LLC, 346 A.3d 584, 596, *10 n.77 (Del. 2025) (“Delaware [] [] respect[s] the distinction of separate legal entities.”).

219 E.g., JX94; JX196. That the allocations and fees came out of the Funds’ limited partner investments and went to entirely different entities from PRF would be consistent with Gard’s pre-transition discussions with Brett concerning how hedge funds operate and make money.

See, e.g., Tr. 34:24-35:21. apply. 220 That leaves Sections 3.5(b)(ii)(C) 221 and 3.5(c) 222 as possible textual-bases for PPSF’s distribution claim. Both provisions pertain only to distributions related to an “Investment.” 223 Section 3.2 defines “Investment” as “each Non-Recourse Funding, Recourse Loan, or other investment to be made by the Company[.]” 224 PRF is the “Company.” 225 Accordingly, Sections 3.5(b)(ii)(C) and 3.5(c) only cover distributions for loans made by PRF. Yet, during the period when PRF allegedly failed to make required distributions, the Funds, not PRF, were the source of all fundings. 226 Thus, PRF was not required to make any distributions under Sections 3.5(b)(ii)(C) and 3.5(c) during the at issue period. The PRF LLC Agreement’s text therefore compels rejecting PPSF’s distribution-based breach claim.

PPSF would have the Court essentially ignore Section 3.5(b)(ii)(C)’s reference to “Investment” and focus instead on the provision’s reference to “third party” financed fundings. 227 But the provision’s express tie to the defined term “Investment”

220 See 6/5/25 Post-Trial OA Tr. 20:8-21:8.

221 See id. § 3.5(b)(ii)(C) (“Distributions related to any Investment as to which the capital for such investment is sourced entirely from a third party . . . shall be . . . distributed 50% to Gard and 50% to [PPSF].”).

222 See id. § 3.5(c) (“Any distributions not addressed by the other provisions of this Agreement shall be made among the Members in such proportion as the Managing Members shall determine when the Managing Members approve a related Investment, or as the Managing Members shall otherwise determine.”).

223 See id. §§ 3.5(b)-(c).

224 Id. § 3.2 (emphasis added).

225 Id. at Preamble.

226 See Tr. 473:8-474:4, 726:3-7.PPSF recognized this fact during post-trial oral argument.

See 6/5/25 Post-Trial OA Tr. 24:2-26:11 (“[T]he mechanics of the money come through Fund I and Fund II.”).

227 See id. § 3.5(b)(ii)(C).

of course cannot be ignored. And, even so, the circumstances surrounding that section’s inclusion again compel rejecting PPSF’s argument. The weight of trial evidence shows that the parties included Section 3.5(b)(ii)(C) to address Santander’s investment in PPSF, which rolled over into PRF. 228 Santander invested before PRF transitioned from funding cases directly to the O&S model described above. That context clarifies229 that Section 3.5(b)(ii)(C) was not intended to broaden Section 3.5’s reach beyond “Investments” made by PRF. Thus, once the parties transitioned PRF’s business and assigned its existing fundings to Fund I, Section 3.5 became largely irrelevant.

This is not a situation in which GFO obtained distributions from PRF that PPSF did not, or in which a PRF distribution violated the allocation required by Section 3.5. Instead, the record shows that GFO and PPSF never unanimously agreed to cause PRF to make any “distributions.” The record also shows that PPSF and Brett knew about the at-issue performance allocations, management fees, and profits, but did not raise the alleged distribution issue until after the parties’ falling out.

At base, PPSF’s argument asks the Court to (1) redefine the meaning of “distribution” to include payments by entities other than PRF; (2) broaden the term “Investment” by overlooking key qualifying language; (3) disregard corporate

228 See Tr. 518:13-22, 603:23-604:17, 617:12-22, 695:8-697:11.

229 See Chicago Bridge & Iron Company N.V. v. Westinghouse Electric Company LLC, 166 A.3d 912, 926-27 (Del. 2017) (holding a contract should be “read in full and situated in the commercial context between the parties. . . [because] [t]he basic business relationship between the parties must be understood to give sensible life to any contract.”). separateness; and (4) ignore Section 3.5’s plain text as well as its drafting history.

PPSF’s arguments cannot be squared with the record or fundamental principles of Delaware corporate and contract law. PPSF’s distribution-based breach of contract claim fails.

b. PRF’s Business Transition Did Not Breach the PRF LLC Agreement PPSF argues that PRF’s transition to an O&S model breached the PRF LLC Agreement. 230 Namely, PPSF challenges the transfer of fundings and diversion of profits from PRF to the Funds, which allegedly breached Sections 5.3 and 2.1(a) by modifying PRF’s business purpose without a writing signed by all the Members. 231 Again, neither the PRF LLC Agreement’s text nor the weight of post-trial facts support PPSF’s position.

Under the PRF LLC Agreement’s plain terms, the parties did not need a signed writing to transition PRF’s business to an O&S model. True, Section 5.3 states the agreement “may only be amended by a written instrument signed by all of the Members.” 232 Yet, Section 1.3 specifies that PRF’s business purpose is “to engage in any lawful business permitted under the Act.” 233 The operating agreement describes PRF’s “initial plan” of issuing recourse and non-recourse litigation fundings only as an “example, and not by way of limitation,” of lawful business activities PRF may

230 Brett Opening Br. at 19, 28-29.

231 See id.; Brett Reply Br. at 18-19, 28-29.

232 PRF LLC Agreement § 5.3.

233 Id. § 1.3 (emphasis added).

undertake. 234 Because O&S services are undoubtedly “lawful business permitted under the Act,” PRF did not need a “written instrument signed by all of the Members” to engage in that line of business. 235 PPSF also asserts GFO breached Section 2.1(a) by altering PRF’s business without written consent. 236 Section 2.1(a) states in relevant part: [PRF] shall be managed under the direction of the Managing Members. . . . Gard and [PPSF]. . . . The Managing Members shall act by unanimous vote . . . unless and except only as may be specified otherwise in this Agreement or may be specified in a written action adopted by the Managing Members. . . . [T]he Managing Members may act through written consents.” 237 Again, PPSF advances a conclusory argument, citing no specific trial evidence. 238 But even if PPSF had fleshed out its position, the weight of trial evidence does not support a finding that GFO breached Section 2.1(a).

As previously detailed, Brett and Gard, who wholly own and control PPSF and GFO respectively, voluntarily agreed to shift PRF’s business as part of an eyes-wide- open transaction supported by a sound business rationale. To effectuate that transition, the parties signed numerous writings, including (1) multiple contracts in which PRF, through Brett, agreed to assign its fundings to the Funds and (2) the O&S Agreements in which PRF, through Brett, endorsed the O&S model. 239 PPSF does

234 Id. (emphasis added).

235 Id. §§ 1.3, 5.3.

236 Brett Opening Br. at 19, 28-29.

237 PRF LLC Agreement § 2.1(a).

238 In re Oracle, 2023 WL 3408772, at *19 (“more than mere allegation is required post-trial.”).

239 E.g., Fund I O&S Fee Agreement; JX326; JX351; JX407.

not address whether these documents constitute “written action[s] adopted by the Managing Members” or “written consents” under Section 2.1(a). Under the circumstances, one could conclude that the documents were sufficient, given that the assignment contracts and O&S Agreements are writings pertaining to PRF signed by the controller of each Managing Member. Of course, if that is the case, then PPSF’s breach claim fails as GFO did not act contrary to Section 2.1(a)’s text. 240 But even if the contracts discussed do not qualify as writings contemplated by Section 2.1(a), Brett’s longstanding, voluntary participation in PRF’s O&S business bars PPSF’s Section 2.1(a) claim. 241 A party can forgo a contractual right by “remain[ing] inactive for a considerable period of time, [] [] recogniz[ing] the validity of the complained of act or [] act[ing] in a manner inconsistent with the subsequent repudiation” thus “lead[ing] the other party to believe the act has been approved.” 242 That doctrine, known as “acquiescence,” considers “defendant’s knowledge of and reliance on the plaintiff’s behavior (or lack thereof), and why the plaintiff must be adjudged complicit in the very breach for which [it] seeks damages.” 243 Thus,

240 See PJT Holdings, LLC v. Costanzo, 339 A.3d 1231, 1250 (Del. Ch. 2025) (noting a party breaches a contract when it “violate[s] a contractual provision[.]”).

241 The record is vanishingly sparse concerning what PPSF itself did after assigning its fundings to PRF. Instead, as is frankly the case throughout the relevant time, the trial evidence, to the extent it concerns Plaintiffs, focuses on Brett’s knowledge and what he did or did not do. Of course, PPSF “is charged with constructive knowledge of all material facts of which its officer or agent [Brett] receive[d] notice of acquire[d] knowledge . . . even though the officer or agent d[id] not communicate the knowledge to [PPSF].” In re American Intern., 976 A.2d at 887 n.40.

242 Julin v. Julin, 787 A.2d 82, 84 (Del. 2001).

243 Lehman Brothers Holdings Inc. v. Spanish Broadcasting System, Inc., 2014 WL 718430, at *9 (Del. Ch. Feb. 25, 2014), aff’d, 105 A.3d 989 (Del. 2014). acquiescence bars a breach of contract claim where the plaintiff knew its rights and “had the ability to challenge the breach at the time of the alleged wrongdoing,” yet remained silent, causing the defendant to alter its position. 244 Under that standard, the acquiescence doctrine bars PPSF’s Section 2.1(a) breach claim. As a signatory to the PRF LLC Agreement, PPSF had knowledge of its rights under Section 2.1(a). 245 Similarly, PPSF’s sole member Brett signed the assignment contracts and O&S Agreements on PRF’s behalf. 246 Yet, neither PPSF nor Brett raised the alleged breach of Section 2.1(a) at the time. Beyond remaining silent, Brett actively helped facilitate the transition to a shared-services model in which PRF would originate and service cases for the Funds. As described above, that included (1) creating written materials to attract Fund investors, (2) participating in weekly meetings to discuss fundings, and (3) helping originate fundings for the Funds over the course of years. 247 In all that time, Brett never raised Section 2.1(a) until his falling out with Gard. At bottom, Brett’s knowing participation in PRF’s business transformation suggests he either approved the shift or acquiesced to the change.

Either way, PPSF has not carried its burden in proving GFO breached Section 2.1(a),

244 Fotta v. Morgan, 2016 WL 775032, at *9 (Del. Ch. Feb. 29, 2016) (citing Klaassen v. Allegro Development Corp., 106 A.3d 1035, 1047 (Del. 2014)).

245 See PRF LLC Agreement; Sammons v. Andersen, 968 A.2d 492 (Table) at *4 (Del. 2009) (“It is well settled in Delaware that a person is bound by the details of a document he signed even if he failed to inform himself of the details.”).

246 Fund I O&S Fee Agreement; JX155; JX326; JX351; JX407. Brett’s knowledge of the details of the enterprise’s reorganization is further evidenced by his review of Fund I investment documents detailing the O&S fees for PRF, performance allocations for Fund I GP, and management fees for GFOAM. See JX94; JX116; JX573; JX578.

247 See Tr. 113:2-114:4, 123:10-136:9, 226:10-19; JX189 at 4; JX196.

especially given the contractual language discussed above and PPSF’s non- engagement with the foregoing facts in post-trial briefing.

c. PPSF Has Not Proven that GFO Misused Confidential Information or Disparaged PRF or Brett PPSF also summarily argues that GFO breached the PRF LLC Agreement by misusing PRF’s confidential information for Gard’s own agenda and disparaging PRF and Brett. 248 The Court is not persuaded by PPSF’s disparagement claim. 249 Section 5.2(d) prohibits PRF’s members from making an “oral or written statement . . . that disparages . . . [PRF], or its . . . members.” 250 Delaware courts have described disparaging remarks as those that “‘speak of in a slighting or disrespectful way; belittle’ . . . [or] a ‘derogatory comparison of one thing with another[.]’” 251 PPSF cites minimal evidence in support of its Section 5.2(d) claim and, critically, does not identify any specific allegedly disparaging remark. 252 The evidence PPSF does reference lacks any obviously disparaging remarks; instead they simply report the fact that the Funds, GFO, and GFOAM are no longer working with

248 See Brett Opening Br. at 28.

249That PPSF advances a disparagement claim at all is a bit surprising given that prelitigation Brett threatened to sue and “expose [Gard’s] character and misdoings. JX473.

250 PRF LLC Agreement § 5.2(d).

251 E.g., Virtual Business Enterprises, LLC v. Maryland Cas. Co., 2010 WL 1427409, at *6 (Del. Super. Apr. 9, 2010) (citations omitted).

252 See Brett Reply Br. at 30-31 (citing JX237; JX292; JX310). In similar contexts, for example a defamation claim, PPSF’s failure to identify a specific wrongful statement alone would compel rejecting its claim. See McHahon v. McHahon, 340 A.3d 543 (Table) at *3 n.18 (Del. 2025) (noting “a plaintiff must plead, as an element of a defamation claim, that the defendant made a specific defamatory statement.” (internal quotes omitted)).

PRF and cite disappointing underwriting as the justification. 253 PPSF fails to explain how these routine statements updating stakeholders describe PRF in an actionably disrespectful or derogatory way or otherwise qualify as actionable disparaging remarks in these circumstances. 254 If anything, the weight of evidence shows PRF’s underwriting performance had serious flaws that justified GFO’s termination of the O&S relationship. 255 Given PPSF’s sparse treatment of the issue, the Court concludes PPSF has not proven a disparaging statement sufficient to sustain its breach claim by a preponderance of the evidence.

PPSF’s confidential-information breach claim is similarly unsupported by the facts. Section 5.2(c) provides that each Member “shall not . . . divulge, disclose, or communicate any Confidential Information . . . to any Person, except to the extent such disclosure is necessary to the business of [PRF].” 256 After PRF’s business transition, Brett participated in the shared-services model in which staff shared

253 See JX237 (“[W]e were pleased to add a seasoned trial attorney with significant experience in the personal injury and mass tort arenas as Head of Underwriting. We believe this should help improve our overall underwriting.”); JX292 (“We have recently concluded that the improvement needed from the underwriting team . . . has not materialized after our continued evaluation of the underwriting outcomes. As a result, we sent a notice of termination to [PRF].”); JX 310 (“[PRF] has been terminated as of July 11, 2024[.]”).

254 It is worth noting that Gard attempted to resolve PRF’s underwriting issues numerous times before terminating the O&S arrangement and informing stakeholders of the development. This would seem to cut against any intent to belittle or slight PRF. See Tr.

151:23-154:10, 396:17-400:1, 729:18-731:24. JX247; Prieto Dep. I 284:2-287:5.

255 See, e.g., Prieto Dep. I 284:2-287:5; Tr. 292:7-294:2, 729:18-731:24. See also Orthopedic Associates of Southern Delaware, P.A. v. Pfaff, 2017 WL 6570028, at *8 (Del. Super. Dec. 22, 2017) (“Black’s Law Dictionary defines disparagement as a ‘false and injurious statement that discredits or detracts from the reputation of another’s character, property, product, or business.’” (quoting Black’s Law Dictionary 215 (3d ed. 1996)); Virtual Business Enterprises, LLC v. Maryland Cas. Co., 2010 WL 1427409, at *6 (Del. Super. Apr. 9, 2010) (similar).

256 PRF LLC Agreement § 5.2(c).

information from PRF’s intake records. 257 That included exchanging information regarding new funding matters as well as lawyers’ and potential clients’ identities. 258 The parties seemingly had to exchange this information to implement the post- transition business model successfully, with PRF originating fundings and passing them along to Gard and his entities for approval. 259 Thus, the weight of evidence suggests the information PPSF claims was improperly disclosed was “necessary to the business of [PRF]” and thus, if anything, fits within Section 5.2(c)’s express carve- out. 260 PPSF does not meaningfully engage with Section 5.2(c)’s text or explain why sharing the information described was not necessary to PRF’s business. Therefore, the Court concludes that PPSF failed to show by a preponderance of evidence that GFO breached Section 5.2(c).

Accordingly, the Court concludes each of PPSF’s breach of contract arguments is unsupported by the PRF LLC Agreement’s text and the weight of trial evidence.

At bottom, PPSF mounts various challenges to the same underlying conduct—PRF’s transition from a funding provider to an O&S servicer for the Funds. As repeatedly described, PPSF and Brett agreed to that transition with full knowledge of the relevant facts and helped further the enterprise’s restructuring for years without raising any breach claim. Faced with those facts, PPSF relies on a series of conclusory

257 See, e.g., Tr. 64:4-68:19, 687:18-688:9; Prieto Dep. I 54:14-60:11, 195:19-199:4; Prieto Dep.

II 24:10-25:14.

258 Id. See id. 64:4-65:21. As discussed, PPFS and Brett has good reason to agree to shift PRF’s business.

260 PRF LLC Agreement § 5.2(c).

arguments without addressing the contractual language or citing significant trial evidence. That is insufficient to carry PPSF’s post-trial burden. Thus, PPSF’s breach of contract claim fails.

3. Brett Has Not Shown by a Preponderance of the Evidence that GFO and GFOAM Interfered with His Business Relationships Brett alleges GFO and GFOAM tortiously interfered with his business relationships by disparaging his abilities and undermining his relationships in communications with lawyers and customers as well as improperly poaching valuable business relationships. 261 A plaintiff asserting a tortious interference claim must prove (1) a reasonable probability of a business relationship, (2) defendant’s intentional interference with that opportunity, (3) proximate causation, and (4) damages. 262 Rather than engage with any of these elements, 263 Brett lumps his tortious interference analysis together with PPSF’s breach of fiduciary duty and misuse of confidential information arguments. 264 For the reasons already discussed, the weight of trial evidence supports neither argument.

Even if Brett discussed the tortious interference elements, his claim would still fail. To prevail on such a claim, the Plaintiff must “identify a specific party who was

261 See Brett Opening Br. at 4 n.2; Brett Reply Br. at 29-31.

262 Kuroda v. SPJS Holdings, L.L.C., 971 A.2d 872, 886-87 (Del. Ch. 2009).

263 Brett also does not address the fact that GFO is a party to the PRF LLC Agreement. See PRF LLC Agreement Among other things, it seems notable that Sections 5.2(a) and 5.2(b) of the operating agreement set forth non-compete and non-solicitation provisions, but by their express terms the provisions impose obligations only on PPSF, not GFO. Id. §§ 5.2(a)-(b).

264 Brett Opening Br. at 4, n.2. Again, Brett’s conclusory arguments do not carry his post- trial burden. See, e.g., Arwood v. AW Site Servs., LLC, 2022 WL 705841, at *37 (Del. Ch. Mar.

9, 2022). prepared to enter into a business relationship but was dissuaded from doing so by the defendants and cannot rely on generalized allegations of harm.” 265 Although the plaintiff “need not name specific parties,” it must point to a specific business opportunity with which the allegedly wrongful conduct interfered. 266 Here, Brett’s collective briefing does not identify any specific transaction with which GFO or GFOAM interfered. 267 Instead, Brett challenges the alleged “self-dealing and usurping proprietary assets, opportunities, and relationships” generally. 268 That is insufficient to sustain a tortious interference with business relationship claim. 269 Additionally, Brett has not proven any supposed interference was “wrongful” 270 given his participation in (1) transferring fundings from PRF, (2) originating fundings for the Funds, and (3) sharing information between the enterprise’s entities. 271 Thus, the Court finds Brett has not proven his tortious interference claim by a preponderance of the post-trial evidence.

265 Agilent Technologies, Inc. v. Kirkland, 2009 WL 119865, at *7 (Del. Ch. Jan. 20, 2009) (internal quotes omitted).

266 You Map, Inc. v. Snap Inc., 2021 WL 106498, at *8-9 (D. Del. Jan 12, 2021) (citing Agilent, 2009 WL 119865, at *7).

267 See generally Brett Opening Br.; Brett Reply Br.

268 Brett Opening Br. at 4 n.2.

269 See Agilent, 2009 WL 119865, at *7.

270 Id. at *8 (“An alleged interference in a prospective business relationship is only actionable if it is wrongful.” (citing Restatement (Second) of Torts § 767 cmt. c.)).

271 See, e.g., JX326; JX407; Tr. 64:4-68:19, 423:2-424:18; 6/5/25 Post-Trial OA Tr. 43:7-44:12.

4. PPSF’s Constructive Trust Claim Fails In Count IV, PPSF brings a standalone claim for constructive trust. 272 But a constructive trust is a “remed[y],” not a “cause[] of action, and [] do[es] not provide an independent basis for recovery.” 273 Although PPSF cites several cases where courts imposed a constructive trust as a remedy, it cites none where a plaintiff’s request for a constructive trust provided a standalone claim. 274 For example, PPSF relies heavily on this Court’s 2024 decision in Enhabit, Inc. v. Nautic Partners IX, L.P. 275 Yet, the Enhabit decision imposed a constructive trust as a remedy to facilitate the plaintiff’s recovery, “[b]ecause [plaintiff] [] prevailed on its fiduciary duty and aiding and abetting claims.” 276 Because Brett and PPSF’s fiduciary duty, breach of contract, and tortious interference claims fail, they are not entitled to a constructive trust remedy.

Thus, the Court rejects Count IV.

B. The Trial Evidence Shows PRF Should Be Dissolved and Wound-Up Having resolved Brett and PPSF’s claims, the Court turns to GFO’s petition for PRF’s statutory dissolution and winding up, as well as its request for the

272 Dkt. 17.

273 VGS, Inc. v. Castiel, 2003 WL 723285, at *6 (Del. Ch. Feb. 28, 2003).

274 See Brett Opening Br. at 20-23 (citing Rende v. Rende, 2023 WL 2180572, at *14 (Del. Ch. Feb. 23, 2023); Prospect St. Energy, LLC v. Bhargava, 2016 WL 446202, at *8 (Del. Super. Jan. 27, 2016); Teachers’ Ret. Sys. of Louisiana v. Aidinoff, 900 A.2d 654, 658 (Del. Ch. 2006)).

PPSF’s reliance on cases like Rende is misplaced. True, the Rende court noted that “it is [] well established that any profit made through [a] breach of trust may be disgorged through the device of constructive trust.” Rende, 2023 WL 2180572, at *14. But the court also held that imposing a constructive trust requires proving an underlying breach of fiduciary duties and “a non-speculative basis on which to quantify damages.” Id. at *14-15.

275 2024 WL 4929729 (Del. Ch. Dec. 2, 2024); Brett Reply Br. at 31-35.

276 Enhabit, 2024 WL 4929729, at *14.

appointment of a liquidation trustee. For the following reasons, the Court grants GFO’s petition.

GFO seeks PRF’s statutory dissolution. 277 This Court, “[o]n application by [] [] a member or manager . . . may decree dissolution of a limited liability company whenever it is not reasonably practicable to carry on the business in conformity with a limited liability company agreement.” 278 Delaware law does not provide an exact blueprint for determining whether it is “not reasonably practicable” for an LLC to continue. 279 Notably, an LLC’s business purpose need not be “completely frustrated” to meet this standard. 280 Instead, the Court considers if (1) the members’ vote is deadlocked, (2) the operating agreement gives no means of resolving the deadlock, and (3) the company’s financial condition shows there is effectively no business to operate. 281 None of these factors is dispositive or necessary for the Court to order dissolution. 282 Relevantly, “dissolution is warranted where the LLC’s management has become so dysfunctional . . . that it is no longer practicable to operate the business[.]” 283 This Court has ordered dissolution where the petitioner

277 See Dkt. 1.

278 6 Del. C. § 18-802.

279 See, e.g., Seokoh, Inc. v. Lard-PT, LLC, 2021 WL 1197593, at *8 (Del. Ch. Mar. 30, 2021).

280 Fisk Ventures, LLC v. Segal, 2009 WL 73957, at *4 (Del. Ch. Jan. 13, 2009), aff’d, 984 A.2d 124 (Del. 2009).

281 See, e.g., id. See, e.g., Seokoh, 2021 WL 1197593, at *8.

283 Id. (internal quotations omitted).

“demonstrated an indisputable deadlock between the two 50% members of the LLC.” 284 GFO asserts (1) PPSF and GFO are deadlocked, (2) the PRF LLC Agreement does not provide any means to resolve that deadlock, and (3) there is effectively no PRF business to operate. 285 Based on the weight of trial evidence, the Court agrees. 286 The evidence shows PPSF and GFO are deadlocked. Since Brett and Gard’s falling out, PPSF and GFO have stopped communicating. GFO has stopped funding PRF’s operations, and GFO and the Funds have cancelled all their contracts with PRF. 287 Brett and PPSF do not dispute that a deadlock exists. 288 Instead, Brett argues the deadlock was “manufactured” by GFO and Gard as part of their “bad-faith conduct” to usurp PRF’s business. 289 But that argument relies on the validity of Brett and PPSF’s affirmative claims, which the Court has already rejected. Thus, the Court concludes GFO and PPSF are deadlocked with regards to PRF’s management.

284 In re Dissolution of T & S Hardwoods, 2023 WL 334674, at *7 (citing Haley v. Talcott, 864 A.2d 86, 88-89 (Del. Ch. Dec. 16, 2004)).

285 Dkt. 92 at 58-65.

286 Brett and PPSF’s opposition to PRF’s dissolution is somewhat surprising given that Brett repeatedly pushed Gard for a process by which his PRF interest would be valued and sold during his 2024 fallout with Gard. See e.g., JX252.

287 See Tr. 553:8-10; JX310.

288 Brett Reply Br. at 42-46.

289 Id. at 43-45 (citing Vila v. BVWebTies LLC, 2010 WL 3866098, at *7 (Del. Ch. Oct. 1, 2010); Millien v. Popescu, 2014 WL 656651, *2, n .17 (Del. Ch. Feb. 19, 2014); Mehra, 2021 WL 300352, at *18).

The PRF LLC Agreement provides no means of resolving that deadlock. The PRF LLC Agreement gives PRF’s Managing Members, PPSF and GFO, the exclusive power to manage PRF’s business affairs. 290 The PPSF and GFO can only act via unanimous consent. 291 The agreement contains no provision detailing what happens if the two 50% Managing Members are deadlocked, as is the case here. 292 Finally, the evidence shows PRF has been largely inoperative and financially unstable since Brett and Gard’s falling out in 2024. Since then, Brett has not (1) been in PRF’s offices, (2) replied to PRF employee communication attempts, or (3) responded to attorney funding requests. 293 During the same period, (1) the Funds terminated the O&S agreements, 294 (2) PRF ceased its O&S functions, 295 and (3) Gard exercised his discretion to stop funding PRF’s operating expenses. 296 No party disputes that Gard and GFO are permitted to cease funding PRF’s operating expenses and that, without such funding, PRF operations are unviable. Moreover, according to Lloyd, Brett and Gard’s personal conflict has made working at PRF “impossible.” 297

290 PRF LLC Agreement § 2.1(a).

291 Id. See generally id. See, e.g., Prieto Dep. I 259:19-260:14, 261:1-9; Prieto Dep. II 32:7-33:16; JX473 (Brett writing to Gard that he “will be limiting [his] daily/evening work for PRF[.]”); JX292 (noting the termination of PRF’s underwriting functions).

294 E.g., JX310.

295 See, e.g., Prieto Dep. I 257:19-258:22.

296 See, e.g., Tr. 553:8-10.

297 Tr. 449:6-450:6; see id. 396:19-400:1.

Based on these facts, the Court holds that carrying on PRF’s business is not reasonably practicable, and dissolution is warranted.

Having found dissolution proper, the Court must determine whether to wind up PRF and appoint a liquidation trustee. Section 18-803(a) of the Delaware Limited Liability Company Act provides that “the Court of Chancery, upon cause shown, may wind up the limited liability company’s affairs upon application of any member or manager . . . and in connection therewith, may appoint a liquidating trustee.” 298 Because “winding up logically follows dissolution in an entity’s life cycle,” the winding up analysis largely overlaps with the dissolution considerations discussed above. 299 Appointing a trustee to oversee liquidation is warranted when the petitioner demonstrates “the inability of members to agree how to wind up the company.” 300 Brett and PPSF did not address GFO’s request for winding up or appointment of a liquidation trustee in post-trial briefing or argument. Therefore, the Court concludes for the reasons discussed that GFO has shown good cause for winding up PRF and appointment of a liquidation trustee.

III. CONCLUSION For the foregoing reasons, judgment will be entered in favor of GFO, GFOAM, and the Funds and against PPSF and Brett consistent with this decision. The parties are instructed to meet and confer and, within ten business days, submit a proposed

298 6 Del. C. § 18-803(a).

299 Spellman v. Katz, 2009 WL 418302, at *4 (Del. Ch. Feb. 6, 2009).

300 In re Coral Gables Luxury Holdings, 2025 WL 1356027, at *5 (Del. Ch. May 9, 2025) (citations omitted). form of implementing order identifying a Delaware attorney to serve as liquidating trustee for PRF or setting forth a process for the selection of a liquidating trustee.