IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

GREAT HILL EQUITY PARTNERS IV, 

LP, GREAT HILL INVESTORS LLC, 

FREMONT HOLDCO, INC., and

BLUESNAP, INC. (F/K/A PLIMUS),

Plaintiffs,

)

)

)

)

)

)

v.

)

)

)

C.A. No. 7906-VCG

SIG GROWTH EQUITY FUND I, 

LLLP, SIG GROWTH EQUITY 

MANAGEMENT, LLC, AMIR 

GOLDMAN, JONATHAN KLAHR, 

HAGAI TAL, TOMER HERZOG, 

DANIEL KLEINBERG, IRIT SEGAL 

ITSHAYEK, DONORS CAPITAL 

FUND, INC., and KIDS CONNECT 

CHARITABLE FUND,

Defendants.

)

)

)

)

)

)

)

)

)

)

)

MEMORANDUM OPINION

Date Submitted: November 15, 2019

Date Decided: February 27, 2020

Rudolf Koch, Robert L. Burns, and Megan E. O’Connor, of RICHARDS, LAYTON 

& FINGER, P.A., Wilmington, Delaware; OF COUNSEL: Adam Slutsky, of 

GOODWIN PROCTER LLP, Boston, Massachusetts, Attorneys for Plaintiffs Great 

Hill Equity Partners IV, LP, Great Hill Investors LLC, Fremont Holdco, Inc., and 

BlueSnap, Inc. (f/k/a Plimus).

William B. Chandler III, Ian R. Liston, and Jessica A. Hartwell, of WILSON 

SONSINI GOODRICH & ROSATI, P.C., Wilmington, Delaware; OF COUNSEL: 

Mark A. Kirsch, Scott A. Edelman, Aric H. Wu, Laura K. O’Boyle, and Peter Wade,

of GIBSON, DUNN & CRUTCHER LLP, New York, New York, Attorneys for

Defendants SIG Growth Equity Fund I, LLLP, SIG Growth Equity Management, 
LLC, Amir Goldman, Jonathan Klahr, Donors Capital Fund, Inc., and Kids Connect 

Charitable Fund.

Lewis H. Lazarus of MORRIS JAMES LLP, Wilmington, Delaware; OF COUNSEL: 

Peter N. Flocos and Joanna A. Diakos, of K&L GATES LLP, New York, New York, 

Attorneys for Defendants Tomer Herzog and Daniel Kleinberg.

David S. Eagle and Sean M. Brennecke, of KLEHR HARRISON HARVEY 

BRANZBURG LLP, Wilmington, Delaware; OF COUNSEL: Michael K. Coran, 

William T. Hill, Monica Clarke Platt, and Gregory R. Sellers, of KLEHR 

HARRISON HARVEY BRANZBURG LLP, Philadelphia, Pennsylvania, Attorneys 

for Defendants Hagai Tal and Irit Segal Itshayek.

GLASSCOCK, Vice Chancellor
1

This matter arises from the purchase and sale of a company, now BlueSnap,

Inc., formerly, and referred to in this Memorandum Opinion as, Plimus. This has 

been a large litigation; generous in the scope of its allegations of fraud and 

contractual breach; broad in its cast of Defendants; deep in its damages claims; 

extensive in its discovery and preparation; and lengthy in its trial presentation and 

briefing. The latter resulted in a liability Memorandum Opinion (“Great Hill I”) in 

which I rejected the bulk of the Plaintiffs’ claims, but found liability for a few 

breaches of contractual representations and for two instances fraudulent 

misrepresentation, the latter on the part of Defendant Hagai Tal. Both breach of 

contract and fraud number among their elements resulting damages; this 

Memorandum Opinion deals with that element of the Plaintiffs’ case. The 

Plaintiffs—who bear the burden to demonstrate damages—were content with the 

presentation they had made at trial, primarily relying on an expert report and 

testimony made in light of the aforementioned generously-proportioned allegations, 

rather than the greatly circumscribed liability I found in Great Hill I.

Accordingly, I address damages below. The result I reach, as a function of 

the scope of the litigation, is not large; it is constrained by the record created, and is 

cabined by the law of damages as I understand it. This Memorandum Opinion also 

addresses the Plaintiffs’ claim against stockholders of Plimus for unjust enrichment, 

which I find to be unfounded. My rationale follows.
2

I. GREAT HILL I1

This action concerns the acquisition of a California corporation, Plimus, by a 

private equity firm, Great Hill.2 Plimus facilitated transactions between small online 

retailers and consumers by operating as a “reseller.”3 Plimus’s business depended 

on relationships with payment processors, PayPal being a well-known example.4 

Plimus, which had relationships with both the retailers, on one side, and the payment 

processors, on the other, offered a service that permitted the payment processors to 

deal with a single reseller rather than contracting with the large number of small 

retailers.5 Plimus would constructively “acquire” the product from the retailer and 

receive payment for that retailer from a payment processor.

6

 The payment 

processors had contractual relationships with the credit card companies and their 

banks.7 The arrangement allowed the service or product to be delivered directly to 

the credit card holder/purchaser from the online merchant.8

 

1

Interested readers can refer to Great Hill I, the post-trial memorandum opinion concerning 

liability: Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 2018 WL 6311829 

(Del. Ch. Dec. 3, 2018).

2 Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 2018 WL 6311829, at 

*1–2 (Del. Ch. Dec. 3, 2018). I refer to Plaintiffs Great Hill Equity Partners IV, LP, and Great 

Hill Investors LLC collectively as “Great Hill.”

3

Id. at *1. Such small online retailers are known as “long tail” vendors. Id.

4

Id.

5

Id.

6

Id.

7

Id.

8

Id.
3

This system works as long as the online retailer delivers a satisfactory product 

or service—if not, the credit card companies are responsible to their card holders for 

cancellation of the debt incurred for fraudulent or misrepresented products known 

as “chargebacks.”9 Where chargebacks occur, the banks and credit card companies 

impose contractual “fines” on the payment processors.10 As the ultimate source of 

the fines are the retailers, and the payment processors serve the retailers through 

facilitators/resellers like Plimus, chargebacks harmed the relationship between 

Plimus and its payment processors.11 “In other words, if the reseller handles 

transactions from retailers whose business practices engender excessive 

chargebacks, the contractual relationship between the reseller and the payment 

processor will be strained or ruptured.”12 Plimus’s business could not survive 

without such relationships.

Great Hill bought Plimus in 2011 (the “Merger”), valuing Plimus based on 

due diligence, management projections, and representations and warranties made in 

the Merger agreement (the “Merger Agreement”).

13

 Post-Merger, Plimus

underperformed Great Hill’s expectations and Great Hill sued the principals and 

 

9

Id.

10 Id.

11 Id.

12 Id.

13 Id.
4

stockholders of Plimus, alleging breaches of the contractual representations and 

warranties, and fraud and fraudulent inducement related to the sale.14 

In November and December of 2017 I held a ten-day trial with live testimony 

from thirteen witnesses.15 The parties submitted over two thousand exhibits and 

lodged fifty-eight depositions.16 I released Great Hill I, a post-trial Memorandum 

Opinion on December 3, 2018.17 The matter was bifurcated, so Great Hill I

concerned only the liability of the Defendants—matters of damages were not 

considered. This Memorandum Opinion considers the damages flowing from the 

liability proven by the Plaintiffs at trial by a preponderance of the evidence.18 This 

section offers a (regrettably) lengthy summary of Great Hill I, as necessary to an 

understanding of my decision here. I then assign damages.

A. The Parties

Defendant Hagai Tal was Plimus’s CEO at the time of the Merger, a position 

he held since 2008.19 Tal was the only Defendant found liable for fraud or fraudulent 

inducement in Great Hill I and I necessarily consider the damages owed by him apart 

from the other Defendants.20

 

14 Id.

15 Id.

16 Id.

17 Memorandum Opinion, D.I. 644.

18 Great Hill, 2018 WL 6311829, at *1.

19 Id. at *3, *22.

20 Id. at *45.
5

The other liable Defendants, along with Tal, were termed the 

“Indemnification Defendants” in Great Hill I. The Indemnification Defendants were

termed as such because indemnification claims were brought against them under the 

Merger Agreement—the Indemnification Defendants include all pre-Merger

stockholders of Plimus.21 In addition to Tal, the Indemnification Defendants are: Irit 

Segal Itshayek, Plimus’s then-Vice President of Financial Strategy and Payment 

Solutions,22 Tomer Herzog and Daniel Kleinberg, Plimus’s founders (the 

“Founders”),

23 SIG Growth Equity Fund I, LLLP (“SIG Fund”), a private equity 

fund and a large stockholder in Plimus at the time of the Merger,

24 SIG Growth 

Equity Management, LLC (“SGE”), SIG Fund’s manager,25 and Kids Connect 

Charitable Fund and Donors Capital Fund, Inc. (together, the “Charity Defendants”), 

two donees of Plimus preferred shares.26

Apart from Tal and the Indemnification Defendants are two additional 

Defendants: Amir Goldman and Jonathan Klahr. Goldman and Klahr were 

 

21 Id. at *46.

22 Id. at *6.

23 Id. at *2.

24 Id.

25 Id.

26 Id. at *27. The Charity Defendants’ shares were donated by SGE. Id.
6

managing directors at SGE during the relevant time period.27 Goldman and Klahr 

were absolved of liability in Great Hill I.

28

The Plaintiffs, Great Hill and its affiliates, purchased Plimus in a transaction 

that closed on September 29, 2011.29 Plaintiff BlueSnap, Inc. is the same entity as 

Plimus, which was renamed after the transaction closed.30 I refer to the entity here 

pre and post-closing as Plimus for simplicity’s sake.

I discuss each of the Plaintiffs’ claims and my findings on liability below, 

offering that background information sufficient to comprehension of the claims and 

my subsequent findings and resulting damages. Unfortunately, I find the nature of 

the damages analysis offered by the Plaintiffs requires that minimum background to 

nonetheless be rather extensive.

B. Fraud and Fraudulent Inducement Claims

The Plaintiffs brought fraud and fraudulent inducement claims against 

Goldman, Klahr, Tal, and Itshayek (together, the “Fraud Defendants”) highlighting 

“four major interrelated components” of the alleged fraud.

31

 I noted that the 

elements of fraud and fraudulent inducement are:

(1) a false representation, usually one of fact, made by the defendant; 

(2) the defendant’s knowledge or belief that the representation was 

 

27 Id. at *2, *3.

28 Id. at *31–45. Another defined group of Defendants, discussed below, is the “Fraud 

Defendants,” which is: Tal, Itshayek, Goldman, and Klahr. Id. at *31.

29 Id. at *6.

30 Id. at *28.

31 Id. at *31.
7

false, or was made with reckless indifference to the truth; (3) an intent 

to induce the plaintiff to act or to refrain from acting; (4) the plaintiff’s 

action or inaction taken in justifiable reliance upon the representation; 

and (5) damage to the plaintiff as a result of such reliance.32

I also noted that “[a] false representation is not only an overt misrepresentation—

that is, a lie—but can also be a deliberate concealment of material facts, or silence 

in the face of a duty to speak.”

33

 Furthermore, in contrast with breaches of the 

Merger Agreement (which are discussed in Section I.C. infra), “in the case of fraud 

or misrepresentation” the Merger Agreement does not limit remedies.34 

1. Fraud Claim for the Paymentech Termination

The first fraud claim alleged misrepresentations and omissions against the 

Fraud Defendants in connection with the termination of the business relationship 

between Plimus and a payment processor, Paymentech.35

In late 2010 and early 2011, both Paymentech and Plimus soured on their 

business relationship.36 Tal and Itshayek determined that Plimus needed to end its 

relationship with Paymentech towards the end of 2010 after Paymentech informed 

Plimus it would stop processing Plimus’s transactions outside the United States, 

 

32 Id. at *32 (citing E.I. DuPont de Nemours & Co. v. Fla. Evergreen Foliage, 744 A.2d 457, 461–

62 (Del. 1999); Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1074 (Del. 1983); Trascent 

Mgmt. Consulting, LLC v. Bouri, 2018 WL 4293359, at *12 (Del. Ch. Sept. 10, 2018)).

33 Id. (citing Stephenson, 462 A.2d at 1074).

34 Id. at *48–50.

35 Id. at *33.

36 Id. at *7.
8

Canada, and the European Union.37 This included areas “in which Plimus did 

significant business.”38 Paymentech, on the other hand, had repeatedly informed 

Plimus that Plimus was failing to comply with various credit card association rules.39

Paymentech, not Plimus, ultimately decided to unilaterally terminate the 

business relationship via letters to Plimus on February 4, February 14, March 1, and 

March 3, 2011 (the “Paymentech Termination Letters”).40 Great Hill never received 

the Paymentech Termination Letters.41 The Plaintiffs levied two separate fraud 

allegations in connection with Paymentech’s termination of the business 

relationship: (1) because the Paymentech Termination Letters were responsive to 

due diligence requests, the failure to disclose them to Great Hill constituted a 

“deliberate concealment of material facts” sufficient to support a finding of fraud 

and (2) a legal disclosure describing the termination as “mutual” was a fraudulent 

misrepresentation.42 I discuss each allegation, and my findings, in turn.

a. The Fraud Defendants Did Not Knowingly Conceal the 

Paymentech Termination Letters from Great Hill

While I found that Great Hill never received the Paymentech Termination 

Letters, I also found that Goldman and Klahr did not knowingly conceal the 

 

37 Id.

38 Id.

39 Id.

40 Id. at *33.

41 Id.

42 Id.
9

Paymentech Termination Letters because they directed Plimus’s legal counsel, 

Perkins Coie LLP (“Perkins Coie”), to release them into a due diligence data room 

in early May 2011 and “expressed an understanding that the Paymentech 

Termination had been resolved and was ordinary course.”43 Thus, Goldman and 

Klahr “subsequently believed that the letters had been released to the data room” and 

“had no knowledge of the omission of the letters, nor were they recklessly indifferent 

to the omission” because they “had no responsibility regarding the data room or 

responding to diligence requests.”44 I likewise found that Itshayek believed the 

Paymentech Termination Letters were in the data room.45 Finally, I found that Tal 

believed that the Paymentech Termination Letters were in the data room, as 

corroborated by his assent (to Perkins Coie) to their release to the data room and his 

offer of physical copies of the letters to PricewaterhouseCoopers LLP (“PwC”) in 

June 2011 when PwC was conducting on-site due diligence of Plimus on Great Hill’s 

behalf.

46

 Because “none of the Fraud Defendants intentionally concealed [the 

Paymentech Termination Letters],” I concluded that no finding of fraud could be 

based on failure to provide the Paymentech Termination Letters to Great Hill.47

 

43 Id.

44 Id.

45 Id.

46 Id.

47 Id.
10

b. The False Representation on the Paymentech Termination 

Was Not Material

As part of the sale process Perkins Coie drafted a disclosure schedule, which 

included a disclosure of Paymentech’s termination of Plimus.48 The disclosure 

schedule was eventually presented to Great Hill, and read, in pertinent part:

[Plimus] and Paymentech . . . entered into an exclusive . . . Agreement 

. . . . [which] was scheduled to be renewed in September 2011. 

However, in early 2011, [Plimus] decided that it did not want to 

continue working with [Paymentech] under the then negotiated terms . 

. . . [Plimus] then attempted to negotiate modified terms . . . . However, 

[Paymentech] refused . . . . In February and March 2011, [Paymentech] 

encountered issues related to the Royal Bank of India . . . . 

[Paymentech] asked Plimus to make specific changes to the Company’s 

platform . . . . Since [Plimus] did not feel this would in its best interests, 

[Plimus] and [Paymentech] instead mutually agreed to terminate the 

agreement . . . . As of May 13, 2011, [Paymentech] continues to hold a 

reserve of approximately $500,000 to cover future potential refunds and 

chargebacks . . . .49

I found that this disclosure was false and that Tal, Goldman, and Klahr knew it was 

false because all three knew it was Paymentech who had ended the relationship while 

the disclosure described the ending as “mutual.”

50

 I also found that Tal, Goldman, 

and Klahr intended Great Hill to rely on the false disclosure in order to facilitate the 

 

48 Id. at *11.

49 Id. This disclosure was eventually removed and did not appear in the disclosure schedule that 

accompanied the Initial Merger Agreement. Id.

50 Id. at *34. As to Itshayek, I found that “[w]hile Itshayek also knew Paymentech had taken the 

first step in terminating the relationship, the Plaintiffs do not allege that she helped draft, review 

or even that she saw the disclosure that Tal prepared. As a result, Itshayek did not have the 

requisite knowledge that the disclosure was false to support a fraud claim against her.” Id.
11

sale process, Merger Agreement, and closing of the Merger.

51

 However, I found that 

Great Hill did not justifiably rely on the disclosure because Great Hill had an 

“accurate understanding [as to the Paymentech termination] as of the time of the 

transaction,” and thus the misrepresentation and not material.52 Therefore, I found 

that the Fraud Defendants’ misrepresentation regarding Paymentech could not

support liability for fraud.53

2. Fraud Claim for Plimus’s History of Violations and Risk 

Monitoring Systems

The Plaintiffs next fraud claim concerned the quality of Plimus’s business and 

alleged that the Fraud Defendants hid a long history of violations and fabricated 

Plimus’s risk-monitoring prowess.54

a. The Fraud Defendants Did Not Make Any False 

Representations on Plimus’s Risk Monitoring Systems

The Plaintiffs claimed that the Fraud Defendants falsely represented that 

Plimus had “robust” and “proactive” risk monitoring systems because certain “mass 

vendor terminations” in 2010 and 2011 were initiated by Plimus’s payment 

processors and not from Plimus’s own internal risk monitoring.55 The Fraud 

Defendants denied making those representations and retorted that they represented 

 

51 Id. at *35.

52 Id. at *36.

53 Id.

54 Id.

55 Id. at *37.
12

only that “Plimus monitors the performance of sellers and cleanse[s] sellers with 

negative perception, consistent issues with buyers or high chargeback issues”—

insisting this representation was accurate.56 Plimus’s written policy on risk review—

disclosed to Great Hill—stated that Plimus reviewed vendors for violations of 

Plimus’s terms of use and for copyright infringement, and that Plimus will react to 

alerts from processors “based on the [processor’s] requirements.”57 The Plaintiffs’ 

fraud allegations regarding risk monitoring centered on two instances of vendor 

terminations, one in 2010 and one in 2011.

i. 2010 Vendor Terminations

Plimus responded to a due diligence request from Great Hill requesting more 

information about $250,000 in fines that Plimus paid for an excessive chargeback 

monitoring program in 2010 due to an increase in chargebacks related to Plimus’s

 

56 Id. (internal quotation marks omitted). “The credit card associations had excessive chargeback 

monitoring programs for merchants designed to incentivize these merchants to reduce their 

chargebacks. Generally, merchants entered the programs when their chargeback ratio exceeded a 

certain threshold for a number of consecutive months. After that point, the merchant would be 

charged a fine per chargeback (on top of already paying the amount of the chargeback and a fee), 

and the amount of the fine per chargeback would increase the longer the merchant remained in the 

program. Once the chargeback ratio fell below the threshold, the merchant would generally be 

removed from the excessive chargeback program. The key metric was the chargeback ratio, which 

was generally calculated by dividing the number of chargebacks in a month by the total number of 

transactions in the same month. Visa and MasterCard calculated the chargeback ratio slightly

differently; MasterCard used the previous month’s transaction volume to calculate the chargeback 

ratio. Visa and MasterCard would place merchants in excessive chargeback monitoring programs 

if the merchant’s chargeback ratio for United States transactions exceeded one percent for two 

consecutive months.” Id. at *13 (internal citations and quotation marks omitted).

57 Id. at *37.
13

“poker chip vendors.”58 After Great Hill followed up on these responses, Plimus 

indicated that eight hundred vendors, consisting of “[p]arty poker chip vendors, 

underperforming utility software vendors, and certain online services with high rate 

[sic] of dissatisfaction” were terminated in the first quarter of 2010.59 The vendors 

had been terminated for issues with excessive customer disputes, chargeback 

activity, and business models that were not attractive to Plimus’s payment 

processors.60

Regarding these vendors, Plimus had received notices from Paymentech that 

Plimus as a whole was exceeding its chargeback ratio ceiling—no individualized 

notices specific to each Plimus vendor exceeding the ceiling were sent to Plimus.61 

Plimus then identified and terminated certain vendors with high chargebacks to 

reduce the Plimus-wide chargeback ratio although in the record there was no 

indication that prior to their termination these vendors violated Plimus’s terms of 

use.62 The Plaintiffs claimed that Plimus’s diligence disclosure that “[Plimus]

became aware of these issues upon reviewing each vendors’ chargeback history” 

was a false representation because it “conveyed the impression that Plimus’s own 

internal procedures led to this review, which in fact arose based on communication 

 

58 Id. at *15.

59 Id. at *16.

60 Id.

61 Id. at *37.

62 Id.
14

from the processor.”63 However, because nothing about the disclosure to Great Hill 

“suggest[ed] that the review was independent of communications with Paymentech, 

and the disclosure is not otherwise inconsistent with Plimus’s disclosed written 

policies,” I found that the Fraud Defendants did not make false written 

representations in the disclosure regarding the vendor terminations.

64

ii. 2011 Vendor Terminations

In March and April 2011, Plimus added new vendors, several of whom were 

known as “biz opp” vendors involved in “get rich quick” schemes—by May 2011 

the “biz opp” vendors were producing high chargebacks.65 PayPal, which was 

processing most of Plimus’s United States transactions at this time, raised concern

about these vendors and told Plimus it should terminate one vendor in particular, 

GoClickCash.66 Plimus immediately terminated GoClickCash, and after an internal 

review terminated sixteen additional vendors.67

The Plaintiffs alleged that Itshayek falsely told Great Hill that the termination 

of the sixteen vendors was the result of Plimus’s risk monitoring systems.68 

However, I found that this statement was not false because Itshayek “testified 

 

63 Id.

64 Id. Because the Plaintiffs’ allegations of fraud against Goldman and Klahr in connection with 

risk monitoring stemmed only from written communications, I found that the Plaintiffs had failed 

to show fraud against Goldman and Klahr for risk monitoring representations. Id.

65 Id. at *15. 

66 Id. 

67 Id.

68 Id. at *37.
15

credibly” that she told Great Hill that the 2011 termination started with a PayPal 

notice on GoClickCash and that Plimus then identified sixteen similar vendors and 

terminated them as well.69 I noted that while Plimus “may have felt that the sixteen 

similar vendors would cause problems with PayPal in light of PayPal’s initial notice, 

it was still Plimus who identified the sixteen problematic vendors, and Plimus who 

decided to terminate the additional vendors based on the assessment of the risk 

imposed on Plimus.”

70

 Itshayek’s description of the termination was consistent with 

Great Hill’s account and matched Plimus’s written policy, thus, there was no false 

representation regarding the termination of the “biz opp” vendors.71

iii. Alleged Descriptions of Plimus’s Risk Monitoring as 

“Robust” or “Proactive”

Finally, I found that even if the Plaintiffs could show that Tal and Itshayek

mischaracterized Plimus’s risk monitoring systems and policies as “robust” or 

“proactive,” as Great Hill alleged, Great Hill did not prove fraud because it could 

not justifiably rely on these alleged misrepresentations.72 The reasons for this were 

threefold. First, PwC’s due diligence report stated that Plimus should be more 

“proactive” in dealing with chargebacks and detailed how vendors were enrolled as 

Plimus clients.73 Such enrollment was “self-service” and PwC noted that Plimus 

 

69 Id.

70 Id.

71 Id.

72 Id. at *38.

73 Id.
16

“delay[ed] the majority of the seller underwriting until the point at which the seller 

is most likely to begin processing.”74 Second, Great Hill’s own due diligence, 

confirmed through the testimony of a Great Hill employee, disclosed the limited 

extent to which Plimus could be said to have “robust” or “proactive” risk monitoring 

systems because vendors could onboard themselves and avoid scrutiny for months.75 

Finally, Great Hill was aware that Plimus “engaged in sporadic large-scale purges 

of vendors” as opposed to “continuous small scale terminations” that would have 

been “consistent with proactive risk monitoring.”76 Therefore, based on Great Hill’s 

own diligence findings, the Plaintiffs could not have justifiably relied upon alleged 

representations that Plimus’s risk monitoring was “robust” or “proactive.”

b. The Plaintiffs Did Not Show Justifiable Reliance on False 

Representations Made About Plimus’s History of Violations

In terms of a history of violations, Paymentech fined Plimus on many 

occasions—almost all of the fines related to excessive chargebacks.77 Furthermore, 

Plimus exceeded permitted chargeback ratios for PayPal Pro (discussed in detail in 

Section I.B.4. infra) and was apprised before closing that PayPal would levy a fine 

related to GoClickCash.

78

 When Plimus exceeded chargeback ratios, entered into 

 

74 Id. The implications of this were that “Plimus’s onboarding process allowed vendors—

including illegitimate vendors—to potentially transact business through Plimus for months before 

discovery.” Id. at *41.

75 Id. at *38.

76 Id.

77 Id. at *36.

78 Id.
17

excessive chargeback programs, or otherwise violated card network rules and 

regulations the applicable payment processor (such as Paymentech or PayPal) would 

email Plimus.79 The emails “at least contained a description of the problem, and 

sometimes included language copied and pasted from a notice the processor received 

from the card networks.”80 The Plaintiffs noted that the emails were responsive to 

diligence requests—the Plaintiffs received a response that no such communications 

existed and these emails were not provided to Great Hill.81 Furthermore, Plimus 

reported to Great Hill only $250,000 in fines for 2010, however, they did not report 

fines Plimus paid in 2010 for MasterCard excessive chargebacks.82 The Plaintiffs 

alleged that these actions were fraudulent.83

I termed the fines and communications on violations as “Plimus’s history of 

violations” and found that the lack of disclosure regarding Plimus’s history of 

violations constituted false representations.84 I found that Tal and Itshayek—but not 

Goldman and Klahr—had knowledge of such false representations and intended that 

Great Hill rely on them and consummate the transaction.

85

 However, I found that 

 

79 Id.

80 Id. In some cases, the emails included the whole notice. Id.

81 Id. at *36, *38. The responses from Plimus were in Plimus’s June 18, 2011 and June 25, 2011 

responses to a Great Hill diligence request. Id. at *38.

82 Id. at *38.

83 Id. at *36.

84 Id. at *38.

85 Id. at *38–39. I did note that Tal and Itshayek shared information such as Plimus’s processor 

statements and certain PayPal chargeback issues with Great Hill, “run[ning] counter to the 

Plaintiffs’ theory that Tal and Itshayek were trying to create an illusion of a company in good 
18

Great Hill did not justifiably rely on Tal and Itshayek’s false representations and 

omissions about Plimus’s history of violations and could not “have reasonably 

believed that Plimus was always a company in good standing with the card 

associations, based on Tal and Itshayek’s false representations and omissions.”86 

Furthermore, PwC’s diligence report and Great Hill’s own due diligence memo to 

its partners showed that Great Hill was aware that Plimus exceeded chargeback 

ratios throughout 2010 and in June 2011.87 Thus, communications to this effect 

“would simply have confirmed Great Hill’s understanding.”88 Finally, I turned to 

the non-disclosure of certain PayPal communications from 2011 and found that 

based on Great Hill’s actual knowledge of Plimus’s extensive history with 

chargebacks and a bargained-for indemnity for fines related to pre-closing 

chargeback issues, there was “no justifiable reliance on false representations about 

Plimus’s history of violations and compliance with card network rules.”89

 

standing.” Id. at *39. I found, however, that “despite Tal and Itshayek’s willingness to discuss 

chargebacks with Great Hill, they withheld the actual notices that underlined those chargeback 

issues, even when PwC sent a specific diligence request for such notices after its on-site visit. 

Furthermore, the representation that Plimus had no such notices was reiterated with each update 

to Plimus’s response to Great Hill’s due diligence request—responses that were reviewed or 

drafted, in pertinent part, by Tal and Itshayek. This belies innocent mistake.” Id.

86 Id. at *39.

87 Id.

88 Id. I also found that Great Hill did not demonstrate justifiable reliance on the “exact amount of 

fines paid in 2010, the affirmatively false representation that documents explaining the fines and 

violations did not exist, nor on Tal’s and Itshayek’s silence when the due diligence responses were 

updated [on June 25, 2011] without correcting the original false representations” because “[a]ny 

information provided to Great Hill in that regard would have been cumulative.” Id. 

89 Id. at *40. I discuss Plimus’s relationship with PayPal extensively in Section I.B.4. infra.
19

c. Miscellaneous Fraud Allegations

After finding that the Plaintiffs did not prove fraud in relation to Plimus’s

history of violations or risk monitoring systems I discussed several miscellaneous 

fraud allegations that did not fit into either of the four general categories of alleged 

fraud. These “violations of practices” were allegedly not disclosed and “reflected 

poor business quality or poor processor relationships.”90 I declined to find liability 

on each and discuss each in turn. 

The Plaintiffs alleged that Plimus engaged in mass refunds and volume 

shifting to avoid excessive chargebacks and that this practice should have been 

disclosed.91 Plimus would sometimes issue mass refunds to their vendor’s customers 

so that they would not ask for chargebacks; this practice was an effort to decrease 

the chargeback ratio.92 Volume shifting or “load balancing” was a practice whereby 

Plimus would manually reroute transactions through certain payment processors in 

an attempt to reduce the chargeback ratio—increasing the number of transactions 

increased the denominator in the chargeback ratio, reducing the chargeback ratio.93 

The evidence did not show that either practice violated card association rules at the 

time.94 Therefore Plimus was not required to disclose the practices as rule violations, 

 

90 Id.

91 Id.

92 Id. at *13.

93 Id. at *23.

94 Id. at *40.
20

and the Plaintiffs did not point to any affirmative misrepresentations in regard to 

mass refunds or volume shifting.95

The Plaintiffs complained about disclosures on IP infringement. I found that 

Plimus was often sent inquiries about IP infringement, and Great Hill was aware 

Plimus received such notifications on an ordinary basis and that they were common 

in the industry.96 I found that the Plaintiffs failed to demonstrate any 

misrepresentation with respect to IP infringement.97

The Plaintiffs also contended that the Fraud Defendants made representations 

about the growth of Plimus, the visibility of financial performance, and the quality 

of vendors.98 To the extent the statements were projections or expectations, I found 

there was no reliance and that the Plaintiffs had not made any claims that the 

projections were not made in good faith.99 Additionally, the Plaintiffs appeared to 

contend that Plimus concealed or misrepresented the fact that many of its vendors’ 

businesses were of questionable validity.100 I found, however, that Great Hill knew 

before the transaction that “the vast majority of Plimus’s vendors were ‘long tail’ 

vendors, and that there was frequent churn of these vendors.”101 Great Hill was well 

 

95 Id.

96 Id.

97 Id.

98 Id. at *41.

99 Id.

100 Id.

101 Id.
21

aware of Plimus’s business model which included the quality of the vendors, and 

thus could not establish justifiable reliance on any misrepresentations that may have 

been made regarding vendor quality.102

3. Fraud Claim for Dispute over Tal’s Earn Out Agreement with the 

Founders

I discussed a separate fraud allegation relating to an earn-out agreement Tal 

had with the Founders.103 The substance of the Plaintiffs’ allegation was that a 

dispute existed between Tal and the Founders and the substance of the dispute was 

not disclosed and that any partial disclosure of the dispute was materially 

misleading.104 The details of this allegation are not pertinent to determining the 

damages owed pursuant to the liability found in the Great Hill I, and it suffices to 

say that I did not find any liability for the fraud claims in connection with the dispute 

over the earn-out agreement.105

4. Fraud Claim for PayPal’s Notice of Violations and Threats to 

Terminate

The final fraud allegations involved Plimus’s relationship with PayPal.

106

 The 

allegations of fraud in connection with PayPal involved the failure to disclose and/or 

 

102 Id. Along with the three miscellaneous fraud allegations discussed above, I noted allegations 

surrounding a PayPal Business Risk Assessment and Mitigation (“BRAM”) violation in 

connection with GoClickCash. I discussed that allegation in greater depth in connection with the 

other PayPal fraud allegations, which are summarized infra Section I.B.4.

103 Id.

104 Id.

105 Id. at *41–42.

106 Id. at *43.
22

the active concealment of: PayPal’s notice of violations and fines; Plimus’s efforts 

to address chargebacks and other violations with PayPal; Plimus’s practice of 

reactive vendor termination; and PayPal’s threats to terminate its relationship with 

Plimus.107

I noted that I had already found that the Plaintiffs had not shown fraud as to 

notices of chargebacks, the practices of load balancing and mass refunds, and 

representations about business quality and risk management systems.108 I 

additionally found that there was no misrepresentation as to PayPal’s determination 

that Plimus would be assessed a Business Risk Assessment and Mitigation 

(“BRAM”) violation in connection with GoClickCash.

109

 A BRAM violation is 

considered a severe violation.110 PayPal notified Plimus of the BRAM violation in 

connection with GoClickCash on October 6, 2011.111 The Merger closed on 

September 29, 2011.112 Thus, the allegation of a BRAM violation was not disclosed 

to Great Hill pre-closing; it could not have been, because Tal and Itshayek (and the 

other Fraud Defendants) were unaware, pre-closing, that PayPal considered the 

GoClickCash violation to be a BRAM violation.113 Therefore, there could be no

 

107 Id.

108 Id.

109 Id.

110 Id. at *28.

111 Id.

112 Id. at *27.

113 Id. at *43.
23

fraud liability for failing to disclose that Plimus would be assessed a BRAM 

violation in connection with GoClickCash.114

After finding no fraud liability based on the above allegations in connection 

with PayPal, I moved onto the remaining allegations of fraud: the failure to disclose 

that PayPal was fining Plimus related to GoClickCash and the failure to disclose that 

PayPal was threatening to terminate its relationship with Plimus.115 

Plimus had three separate PayPal accounts: PayPal Wallet,

116 PayPal Israel,117

and PayPal Pro.118 At the end of the Paymentech relationship, PayPal Pro became 

Plimus’s top processor by volume and its only United States-based processor.

119

 On 

August 4, 2011 PayPal informed Plimus that Plimus had exceeded a one percent 

chargeback for MasterCard for July 2011, the second consecutive month, and a week 

later informed Plimus that if the chargeback ratio for MasterCard exceeded one 

percent for a third month, PayPal might issue a 30-day termination notice and end 

its relationship with Plimus.120 A Plimus employee wrote to Tal: “PayPal will issue 

 

114 Id.

115 Id.

116 PayPal Wallet was an alternative payment method, under which consumers entrusted PayPal 

with their financial information and PayPal then provided payment directly, so that the merchant 

never saw the consumer’s financial information. Id. at *22. PayPal Wallet stored consumer’s 

financial information, making transactions more convenient, and Plimus’s own PayPal Wallet 

account allowed it to accept payments from consumers’ PayPal Wallet accounts. Id.

117 Plimus’s PayPal Israel account was a PayPal Wallet account, but for international, primarily 

Israeli, transactions and was maintained separately from the PayPal Wallet account. Id.

118 Plimus’s PayPal Pro account was simply a payment processing account, largely 

indistinguishable from the service provided by Plimus’s other payment processors. Id.

119 Id.

120 Id.
24

a 30 day notice to potentially shut down Plimus’[s] ability to process on the [PayPal]

Pro account unless numbers improve.”121 On August 15, 2011 the same employee 

detailed to PayPal Plimus’s efforts to reduce chargebacks including by mass refunds 

and load balancing.122 PayPal continued to threaten termination and in mid-August 

2011 explained to Plimus that the chargeback ratio for August would be 

determinative.123 PayPal’s internal emails reflected calls with Plimus on August 19, 

August 26, and September 1 threatening termination.124 However, based on 

experience with other payment processors, neither Tal nor Itshayek believed a third 

month of excessive chargebacks would actually result in a thirty-day termination 

letter.125

Plimus’s MasterCard chargeback ratio for PayPal Pro once again exceeded 

one percent for August 2011.126 However, Plimus did not receive a thirty-day 

termination notice in September and PayPal did not notify Plimus of any further 

plans or threats to terminate any of Plimus’s PayPal accounts for the rest of the 

month.127 Plimus and PayPal communicated through the month, for instance in late 

 

121 Id.

122 Id. at *23.

123 Id.

124 Id.

125 Id. 

126 Id. 

127 Id. “Itshayek e-mailed PayPal on September 9, 2011 to memorialize a call PayPal had with 

Tal. In the e-mail, Itshayek summarized the events and chargeback ratios of the past few months, 

and ended by telling PayPal, ‘we would highly appreciate receiving one additional month to prove 

the actions taken by Plimus to reduce and control [the chargeback] ratio and general risk.’” Id.
25

September 2011 PayPal reviewed a list of Plimus vendors and recommended that 

certain vendor categories be “shut down if [Plimus] want[ed] to keep [their] 

relationship with [PayPal].”128 I found that at the Merger close Tal and Itshayek did 

not believe PayPal would terminate Plimus’s PayPal Pro account, and believed 

Plimus’s chargeback ratio for MasterCard would not exceed one percent for 

September.129 As of September 29, 2011 (the date of closing) an internal PayPal 

email reflected than an official decision on whether to terminate PayPal had not yet 

been reached.130

After a July 27, 2011 email from Itshayek where she wrote that Plimus did 

not expect the July PayPal Pro chargeback ratios for Visa or MasterCard for July to 

exceed one percent, Great Hill received no specific update on the Visa or MasterCard 

chargeback ratios before the Merger closed.

131

 Great Hill did not ask for updates on 

these specific ratios, but did track Plimus’s aggregate chargeback ratio, calculating 

it from Plimus’s materials that Great Hill had been provided with.132 However, Great 

Hill was aware that Plimus’s aggregate chargeback ratio in July continued to exceed 

one percent, and in August and September 2011 Great Hill paid close attention to 

 

128 Id.

129 Id.

130 Id.

131 Id. at *24. I discussed Visa chargebacks in more depth in Great Hill I, but the MasterCard 

chargeback ratio played a larger role in the PayPal saga because the chargeback ratio for Visa 

through PayPal Pro did not exceed one percent in July or August 2011. Id. at *22–23.

132 Id. at *24. Great Hill did not have the detail necessary to calculate the chargeback ratios by 

processor and region, which were the relevant chargeback ratios for PayPal Pro purposes. Id.
26

the transactions of new vendors.

133

 Tal and a Great Hill employee met in Israel in 

September 2011, and I found it was most likely that Tal disclosed that Plimus and 

PayPal were having some dispute, but did not disclose the extent of the issue or that 

it involved explicit threats of termination.134

An initial merger agreement was dated August 3, 2011 (the “Initial Merger 

Agreement”), but the Merger did not close until September 29, 2011.135 In the 

interim, Klahr and SGE’s in-house counsel organized a “bring down call” with 

Plimus management to determine if there had been any changes in the business that 

would require the disclosure schedule, which had accompanied the Initial Merger 

Agreement, to be amended.136 While Tal did not participate in the call, Tal and 

Itshayek identified three business issues responsive to the list of questions: (1) the 

potential fine related to GoClickCash, (2) PayPal’s termination threats, and (3) a 

recent request from PayPal for information on vendor Home Wealth Solutions, 

whose Visa chargeback ratio was 1.65%.137 Tal and Itshayek determined that 

Itshayek (who participated in the call) should only bring up the request for 

information on Home Wealth Solutions (which is what occurred)—they reasoned 

that they should not bring up the GoClickCash fine or the termination threats because 

 

133 Id.

134 Id.

135 Id. at *22.

136 Id. at *25.

137 Id. at *23, *25.
27

Plimus had not yet received formal notice from PayPal for either and Tal told 

Itshayek he would bring up both issues personally with Great Hill prior to closing.

138

On September 22, 2011 PayPal informed Itshayek that a $200,000 fine would 

be imposed for GoClickCash and Itshayek shared this information with Tal.139 Tal 

and Itshayek did not raise the PayPal Pro excessive chargebacks, the GoClickCash 

fine, or PayPal’s threats of termination to the Plimus Board of Directors—thus, 

Goldman, Klahr, Herzog, and Kleinberg were unaware that Plimus had threatened 

termination of Plimus’s PayPal account or of the GoClickCash fine or that Plimus 

recently exceeded a one percent chargeback ratio for several months.140 

Additionally, the supplemental disclosure to the Merger Agreement included a 

disclosure on Home Wealth Solutions but no disclosure of the GoClickCash fine or 

the threatened PayPal termination.141

The Merger closed on September 29, 2011.142 On October 6, 2011, PayPal 

told Plimus that the fine related to GoClickCash was a BRAM violation.143 While 

Plimus’s PayPal Pro chargeback ratio in September 2011 did not exceed one percent,

on October 7, 2011 PayPal sent Plimus a notice of termination, ending its 

 

138 Id. at *25.

139 Id.

140 Id.

141 Id.

142 Id. at *27.

143 Id. at *28.
28

relationship with Plimus.144 PayPal terminated all of Plimus’s PayPal accounts—

PayPal Pro, PayPal Wallet, and PayPal Israel—between November and December 

2011.145

I found that the non-disclosure of PayPal’s termination threats and the 

GoClickCash fine constituted false representations because they ran counter to 

representations of the Fraud Defendants that Plimus was in compliance with card 

network rules and that no suppliers had threatened termination.146 However, of the 

Fraud Defendants I found that only Tal knew of the false representations.147 

Goldman and Klahr were not informed of the issues and were not recklessly 

indifferent as evidenced by the scheduled “bring down” call.148 Moreover, while 

Itshayek knew of the issues, given Tal’s assurance he would bring up the 

GoClickCash fine and the termination threats to Great Hill personally, Itshayek had 

no reason to believe that the facts would be withheld from Great Hill.149 Tal intended 

Great Hill to rely on the false representations in order to induce Great Hill to proceed 

with the Merger because he recognized that Plimus’s problems with PayPal could 

have a negative effect on the Merger.

150

 

 

144 Id.

145 Id. at *29.

146 Id. at *43.

147 Id. at *44.

148 Id.

149 Id.

150 Id.
29

Finally, I found that Great Hill justifiably relied on Tal’s false 

representations.151 In contrast to Paymentech, where I found that certain immaterial 

details were not disclosed, I found that the possibility of losing a second major 

processor in a matter of few months to be material to a prospective buyer.152 In 

contrast to the situation with Paymentech, Plimus was not ambivalent to the PayPal 

relationship and the loss of PayPal would mean a major disruption to Plimus’s

business.153 The reliance was reasonable because Great Hill had completed due 

diligence before any PayPal termination threats and in the period between the Initial 

Merger Agreement and closing Great Hill could rely on Tal to raise issues that 

required attention and Plimus was contractually bound to disclose this 

information.154

My findings were sufficient to find liability against Tal for fraud/fraudulent 

inducement.155 In other words, with respect to the multiple allegations of fraud made 

by the Plaintiffs against multiple Defendants, I found for the Defendants; the only 

 

151 Id.

152 Id.

153 Id.

154 Id.

155 Id. at *45. Furthermore, I found the other Fraud Defendants not liable for aiding and abetting 

because they did not show reckless indifference to the PayPal termination threats, and found no 

civil conspiracy because I did not find aiding and abetting. Id. It is worth noting, perhaps, that 

Tal testified—I believe truthfully—that he did not believe that PayPal would act on its threats to 

terminate. See Id. at *23. Nonetheless, Tal was aware of the threats and fraudulently concealed 

them from Great Hill.
30

exception being the allegations against Tal with respect to PayPal (including the 

threat of PayPal to terminate and the GoClickCash fine).

C. Indemnification Claims

In addition to their fraud claims, the Plaintiffs alleged that four representations 

and warranties in the Merger Agreement (a contract) were breached. The claims 

were brought against the Indemnification Defendants, who were required to 

indemnify the purchasers for certain breaches of the Merger Agreement.

156

 

Indemnification claims were not brought against Goldman and Klahr because they 

were not stockholders of Plimus.157

The selling stockholders of Plimus, here the Indemnification Defendants, are 

known in the Merger Agreement as Effective Time Holders (“ETHs”).158 Section 

10.03 of the Merger Agreement provided a limitation on indemnification liability of 

ETHs for breaches of representations and warranties in the Merger Agreement up to 

the “Escrow Amount.”159 The Escrow Amount—$9.2 million—was funded by

withholding a pro rata share of each ETH’s Merger consideration, and was to be held 

for the “Escrow Period” (twelve months after closing) or until any prior claims were 

finally adjudicated.160 Breaches of representations and warranties were to be paid 

 

156 Id. at *46, *48.

157 Id. at *46.

158 Id.

159 Id. at *27.

160 Id.
31

from the escrow fund regardless of any fault on the part of an individual ETH and 

regardless of pre-contractual notice of the falsity of the representations on the part 

of Great Hill.161 In the case of a breach, the Plaintiffs can seek indemnification but 

their right to recover is limited to indemnification under the Merger Agreement from 

the Escrow Amount.162 In other words, restitution for breaches of representations 

and warranties is capped at $9.2 million.163

The Plaintiffs alleged breaches of the Merger Agreement representations and 

warranties on: (1) material liabilities or obligations, (2) compliance with contracts, 

(3) compliance with card system rules, and (4) relationships with suppliers. I found 

there was no breach of the representation on material liabilities and obligations,164

and found that a breach of the representations concerning compliance with 

contracts165 was duplicative of the representations concerning supplier relationships 

and compliance with card system rules, both of which I found were breached.

166

1. Representation on Compliance with Card System Rules

The Plaintiffs alleged a breach of Section 3.23 of the Merger Agreement, 

which contains the following representation:

The Company . . . is and has been in compliance with the bylaws and 

operating rules of any Card System(s), the Payment Card Industry 

 

161 Id. at *49.

162 Id. at *50.

163 Id. at *51.

164 In Section 3.09 of the Merger Agreement.

165 In Section 3.16 of the Merger Agreement.

166 Great Hill, 2018 WL 6311829, at *46–47.
32

Standard (including the Payment Card Industry Data Security 

Standard), the operating rules of the National Automated Clearing 

House Association, the applicable regulations of the credit card 

industry and its member banks regarding the collection, storage, 

processing, and disposal of credit card data, and any other industry or 

association rules applicable to the Company . . . in connection with their 

respective operations.

167

Specifically the Plaintiffs pointed to the numerous violation notices that Plimus 

received from Paymentech and PayPal as a breach of the representation that Plimus 

“is and has been in compliance with the bylaws and operating rules of any Card 

System(s).”168

The Indemnification Defendants conceded a breach of this representation with 

respect to three fines from PayPal for pre-closing transactions: excessive 

chargebacks in July, excessive chargebacks in August, and the fine related to 

GoClickCash.169 The Plaintiffs did not show any additional fines or violations with 

regard to PayPal.170 The Plaintiffs also identified Plimus’s failure to disclose 

violations with connection with Paymentech—I found that the Indemnification 

Defendants breached the representation with respect to Paymentech given, among 

other things, its excessive chargeback issues in 2011.171

 

167 JX 796, at 47–48.

168 JX 796, at 47.

169 Great Hill, 2018 WL 6311829, at *47.

170 Id.

171 Id.
33

2. Representation on Relationships with Suppliers

The Plaintiffs alleged that the Indemnification Defendants breached the 

representation in Section 3.26(b) of the Merger Agreement, which reads: 

There are no suppliers of products or services . . . that are material to 

[the Company’s] business with respect to which alternative sources of 

supply are not general available on comparable terms and conditions in 

the marketplace. No supplier of products or services to the Company . 

. . had notified the Company . . . that it intends to terminate its business 

relationship with the Company . . . .

172

The Plaintiffs pointed to the non-disclosure of the threatened PayPal termination as 

a notification of an intent to terminate a business relationship.173 Although a 

termination decision was not made prior to closing, I found that the language did not 

require a notice of termination, only notification of an intent to terminate.174 Because 

PayPal representatives expressed such an intent to terminate in emails and calls to 

Plimus in August and September 2011, I found the Section 3.26(b) of the Merger 

Agreement was breached.

175

D. Summary of Liability

In summary, out of four categories of fraud claims against the Fraud 

Defendants (Tal, Itshayek, Goldman, and Klahr), Great Hill I found that only Tal 

had liability for fraud/fraudulent inducement and only for PayPal’s threats to 

 

172 JX 796, at 68 (emphasis added).

173 Great Hill, 2018 WL 6311829, at *47.

174 Id.

175 Id.
34

terminate and the non-disclosure of the GoClickCash fine. I did not find fraud 

liability in connection with the Paymentech termination, Plimus’s history of 

violations and risk monitoring systems, or Tal’s earn out agreement with the 

Founders. Furthermore, out of four alleged breaches of the Merger Agreement, I 

found that the Indemnification Defendants had indemnification liability for two

representations: compliance with card system rules176 and relationships with 

suppliers.177 Tal’s fraud liability is uncapped while the breaches of the Merger 

Agreement entitled to the Plaintiffs to restitution from the Indemnification 

Defendants in an amount capped by the funds in escrow ($9.2 million).

E. Plimus’s Post-Merger Actions

Because the Plaintiffs’ calculation of damages is based in part on Plimus’s

actions post-Merger, before moving on to the proffered damages it is helpful to 

recount happenings at Plimus post-Merger.

After PayPal terminated its business relationship with Plimus, it placed Plimus 

on the MasterCard Alert to Control High-Risk Merchant (“MATCH”) list.178 Plimus 

 

176 In Section 3.23 of the Merger Agreement.

177 In Section 3.26(b) of the Merger Agreement.

178 Great Hill, 2018 WL 6311829, at *30. The MATCH list serves as a system to alert processors 

to problematic merchants, and when processors terminate merchants, they often place them on the 

list. Id. at *8. When, in turn, processors add merchants, MasterCard recommends that the 

processor check the MATCH list; if the merchant appears on the MATCH list that is a red flag that 

the merchant may present a high risk. Id. Processors generally conduct more detailed review of a 

merchant as a result of finding it on the list, however, appearing on the MATCH list does not 

preclude a merchant from being added by a processor. Id. 
35

entered into an agreement with a different payment processor, Merchant e-Solutions, 

and began processing transactions by November 13, 2011, but was terminated by 

Merchant e-Solutions on January 5, 2012.

179 Merchant e-Solutions similarly added

Plimus to the MATCH list under the reason code “Violation of MasterCard 

Standards.”180

Great Hill noted in an annual report for the year ending on December 31, 2011 

that “Plimus was the only portfolio company to experience decline in valuation, as 

the company removed a number of high-risk clients from its payments platform, 

resulting in a negative short-term impact.”181 Great Hill wrote that Plimus had been 

terminated by PayPal and Merchant e-Solutions “related to MasterCard violations 

by certain Plimus clients” and that Plimus took “several corrective actions, including 

the immediate removal of a number of high-risk customers (which account for 

approximately 10% of volume),” which meant that Plimus fell short of its processing 

volume expectations.182

A business summary of Plimus’s performance in the fourth quarter of 2011 

noted several corrective actions in the wake of the processor terminations.183 This 

included a January 2012 purge of approximately 500 vendors in “higher-risk 

 

179 Id. at *30.

180 Id.

181 Id.

182 Id.

183 Id.
36

merchant categories (auction/bid, forex software, media download, and virtual 

currency)”; Plimus also stopped accepting new merchants in these categories.184 

Great Hill also noted that Plimus changed its onboarding process, adding more 

review before new vendors could begin processing transactions.185 Great Hill wrote: 

“the impact of these events and the decision to remove the higher-risk customers 

resulted in a decline in processing volume in December [2011] versus expectations, 

and we anticipate lower volumes into 2012.”186 Summarizing Plimus’s business 

from the first quarter of 2012, Great Hill noted that Plimus’s “key processing 

relationships appear to be stabilized.”187

Tal was fired as CEO of Plimus in August 2012.188 Great Hill invested $20 

million in Plimus during 2012 and 2013 and Plimus received an additional $28 

million of funding in 2014, of which $15 million came from outside investor 

Parthenon Capital Partners.189 In 2014 Plimus largely abandoned the reseller model 

and instead began operating as a payment facilitator, a model processors and 

acquiring banks preferred because it mandated much greater transparency on the 

identity of Plimus’s vendors.190

 

184 Id.

185 Id.

186 Id.

187 Id.

188 Id.

189 Id. at *31.

190 Id.
37

II. GREAT HILL’S DAMAGES VALUATION

Great Hill has submitted that it has suffered damages as follows: $90,313,817 

(the difference between the $115 million purchase price and the value of Plimus as 

of the Merger date, as Great Hill now calculates it) plus $31,500,000 (additional 

investments Great Hill made in Plimus after the Merger) plus $212,259 (from preclosing fines).191

 Thus, the Plaintiffs’ total proffered damages are $122,026,076. 

The Plaintiffs derive their damages estimate from the Corrected Expert Report of 

Kevin F. Dages (the “Dages Report”).192 The Plaintiffs engaged Dages to “review 

the record evidence and opine on the damages incurred by Great Hill as a result of 

the alleged breaches by Defendants and resulting diminution in the fair value of 

Great Hill’s equity investment in Plimus.”193 Dages identified the harm to the 

Plaintiffs as stemming from the loss of Plimus’s key payment processors and the 

harm to Plimus’s business and reputation from the pre-Merger violations of credit 

card association rules.194

A. Difference in Merger Price vs. Estimated Value of Plimus

The bulk of the Dages Report focuses on calculating the “reduction in fair 

value of Plimus” attributable to the Defendants’ actions—approximately $90 million 

 

191 Pls.’ Opening Pre-Trial Br. on Damages, D.I. 650 (“Pls.’ Opening Br.”), at 36–37.

192 JX 1132.

193 Id. ¶ 6 (emphasis added). As discussed below, the Dages Report was submitted into evidence 

at the liability phase of this action and was not updated subsequent to Great Hill I.

194 Id. ¶ 7.
38

per the Dages Report. This represents the difference between the value of Plimus as 

represented ($115 million) and the value of Plimus that Great Hill actually purchased 

(calculated as $24,686,183).195

The Dages Report begins its estimate of Plimus’s “fair value” by selecting a 

valuation metric. The Dages Report notes that “Great Hill justified the $115 million 

acquisition price to its Investment Committee based on multiples of 2011 actual Q2 

run rate EBITDA and 2011 estimated Q4 and yearly EBITDA . . . .”196 Dages also 

opines that the record suggests that there was “no significant new information 

regarding Plimus’s prospects disclosed to Great Hill” between the development of 

Great Hill’s projections and the close of the Merger.

197

 Therefore, Dages deems it 

“appropriate” to estimate Great Hill’s damages by referring to the “same 

methodology” that Great Hill used in determining the price Great Hill paid to acquire 

Plimus.198 Dages ultimately uses the 2011 Q4 EBITDA multiple of 10.1x—the 

multiple upon which Dages states that Great Hill based its valuation.199 Thus, Dages 

 

195 Id. ¶ 59.

196 Id. ¶ 40. Dages notes that the estimates (of 2011 Q4 and yearly EBITDA) were based on Great 

Hill’s “Base Case Projections,” which reflected Great Hill’s adjustments to Plimus’s management 

projections; the Based Case Projections were adjusted “to be conservative and to reflect what 

[Great Hill] had learned during due diligence about vendor terminations (including those imposed 

by Plimus as well as through normal customer churn) and gains of new customer accounts . . . .” 

Id. ¶ 28.

197 Id. ¶ 42.

198 Id. ¶¶ 40, 42.

199 Id. ¶¶ 41, 57.
39

valuation of Plimus of $24,686,183 is 10.1 times Dages’s calculated 2011 Q4 

EBITDA.

Dages begins his calculation of 2011 Q4 EBITDA with Plimus’s actual 2011 

Q4 EBITDA. This contrasts with Great Hill’s projected 2011 Q4 EBITDA. Great 

Hill’s projected 2011 Q4 EBITDA for Plimus was $11,413,400 and Plimus’s actual 

2011 Q4 EBITDA was $5,075,307.200 $11,413,400 times 10.1 equals

$115,000,000—the Merger price. $5,075,307 times 10.1 equals $51,260,596.201 

However, the delta between these numbers—$63,739,404— is not Dages’s 

calculation of the difference between the fair value of Plimus and the Merger

price.202 Instead, Dages adjusts Plimus’s actual Q4 2011 EBITDA to reflect what 

he views as the full extent of the harm.

Dages’s adjustment to Plimus’s actual Q4 2011 EBITDA represents the 

elimination of revenues from “transactions attributable to the lost volume due to 

Plimus’s decision to terminate the relationship of customers with chargebacks in 

excess of levels allowed by the payment processors or other risk concerns.”

203

 The 

 

200 Id. at Ex. 4.

201 Id.

202 Id.

203 Id. ¶ 43. Dages identifies these terminations as “Plimus terminations” in contrast to “customer 

terminations” which Dages defines as “terminations made at the option of the customer due to 

Plimus’s loss of key payment processors.” Id. Dages calculates “customer terminations” to 

include those customers who terminated their relationship with Plimus (rather than being 

terminated by Plimus) however, these vendors (added to the Plimus terminations resulting in an 

amount coined “Tranche 3” in the Dages Report) are not ultimately included in the damages 

calculation. Id. ¶ 59. 
40

Plaintiffs explain that Dages made these adjustments to Plimus’s actual Q4 2011 

EBITDA because “the full effects of the fraud were not felt until 2012 and beyond . 

. . [t]hat is, the actual [Q4 2011] EBITDA results still included the benefit of profits 

from clients that were shortly were lost or terminated as the fallout from the fraud 

continued . . . .”

204

Dages obtained monthly financial sales volume data from January 2010 

through December 2012 from a database that collects data maintained in Plimus’s

“Huge Excel” files.205 The “Huge Excels” are a series of Excel workbooks which 

were used at that time to compile merchant information as part of Plimus’s business 

records.206 The Plaintiffs also produced to Dages a “list of clients that ceased doing

business with Plimus between the closing of the Merger and September 27, 2012” 

(the “Lost Client List”).207 Dages notes that the Lost Client List, on which he based 

the Dages Report, included, for those client accounts suspended by Plimus, “the date 

of suspension and the reason for suspension.”208

 

204 Pls.’ Opening Br., at 34. The Plaintiffs also note that Plimus suffered decreased revenue from 

“clients that greatly reduced the amount of business they were sending Plimus.” Id.

205 JX 1132, ¶ 44.

206 Trial Tr. 2679:4–2679:10 (LaPierre).

207 JX 1132, ¶ 45. There are three versions of the Lost Client List in the record: JX 1110, JX 1128, 

and JX 2077. The Plaintiffs note that had the Dages Report been based on the Lost Client List 

presented at trial (JX 2077) the ultimate damages number increases approximately $1.6 million. 

Pls.’ Opening Br., at 37 n.14. The Defendants objected to the Lost Client List (and “any purported 

expert opinions that rely on it”) via a motion in limine. Defs.’ Mot. In Limine to Exclude Pls.’ SoCalled “Lost Client List” and any Purported Expert Opinions that Rely on It, D.I. 518. Due to my 

findings below, I need not decide the motion.

208 JX 1132, ¶ 45.
41

Dages identifies two “tranches” of customers based on the Lost Client List 

and removes those customers’ corresponding revenue from actual Q4 2011 

EBITDA. The first tranche (“Tranche One”) is composed of 302 customers with a 

“Last Suspend Date” (meaning the last date the Lost Client List comments note a 

suspension) of January 12, 2012 and who all have the comment “SUSPEND: per 

Perach and Irit.”209 Dages surmises that these 302 customers are some of the 

approximately 500 customers terminated in the January 2012 purge.

210

 Because 

Tranche One “may not reflect all customers terminated by pre-Merger Plimus 

management in January 2012, and does not reflect any customers terminated after 

early January 2012,” Dages created a second tranche (“Tranche Two”).211 Tranche 

Two “adds to Tranche One the 1,557 remaining clients on the Lost Client List with 

a Last Suspend Date between the Merger close October 1, 2011 and June 30, 2012 

(i.e. before Mr. Tal’s firing in August 2012).”212 Dages notes that Tranche Two is 

cumulative, in that it includes Tranche One.

213

 In short, Dages backed out from 

Plimus’s actual Q4 2011 EBITDA the corresponding revenue from any client who 

was terminated by Plimus between a few days after the close of the Merger and June 

 

209 Id. ¶ 46. Dages notes that Irit is Irit Itshayek and Perach Raccah “was Plimus’s Chief Operating 

Officer” in 2011. Id.

210 Id.

211 Id.

212 Id. I note as discussed above, the actual date of the Merger close was September 29, 2011.

213 Id. Dages adjusted the Tranches in order to account for Plimus’s normal churn of customers so 

that he only removed the revenue that exceeded Plimus’s normal customer loss. Id. ¶¶ 48, 57.
42

30, 2012 (i.e. Tranche Two).

214

 Dages states that adjusting actual 2011 Q4 EBITDA

by backing out only these customers represents a “conservative estimate of the harm 

incurred by Great Hill.”215

Dages adjusted the actual Q4 2011 EBITDA to account for the loss of revenue 

of vendors in Tranche Two,

216 and calculates the adjusted amount as $2,450,013.217

 

This is a decrease from actual Q4 2011 EBITDA of $5,075,307.218 Thus, in Dages’s

estimate, once accounting for all clients terminated by Plimus from October 1, 2011

through June 30, 2012, Plimus’s 2011 Q4 EBITDA would have been $2,450,013.219 

Applying the 10.1x multiple, this results in a valuation of Plimus of $24,686,183.220 

The delta between $24,686,183 and $115,000,000 is $90,313,817. In Dages view,

the difference between what Great Hill paid for Plimus and what Plimus was actually 

worth (based on Q4 2011 EBITDA) was $90,313,817.221 

 

214 In deriving EBITDA from revenue, Dages “assume[s] that the operating expenses that Plimus 

would have incurred upon removing the lost customers is equal to the actual operating expenses 

incurred” because “the record evidence indicates that Plimus’s operating expenses were relatively 

fixed in the short-term (and Plimus did not benefit from reduced operating expenses as revenue 

declined in 2012).” Id. ¶ 49. I note that customers who were added after Q4 2011 are not backed 

out because there is no corresponding revenue in Q4 2011.

215 Id. ¶ 57.

216 As noted, Tranche Two is cumulative of Tranche One and Tranche Two.

217 JX 1132, Ex. 4.

218 Id. The adjustments drop the corresponding total volume from $246,559,738 to $199,348,943. 

Id.

219 Id.

220 Id.

221 Id. Dages performs several sensitivity analyses and confirms that they result in damages within 

the range of his primary damages analysis (which employs only multiples (based on Q4 and full 

year 2011 EBITDA) and Tranches). Id. ¶ 57.
43

B. Additional Investments and Fines

Dages notes that “in order to fund operations and rebuild the customer base to 

recover from the 2012 customer terminations,” Great Hill invested $31.5 million in 

additional equity between September 2012 and December 2014.222 Dages states that 

“to the extent that the Court determines that some or all of these investment amounts 

should be considered to be damages, they are incremental” to the approximately 

$90.3 million described above.223 Finally, Dages notes $612,258.74 in undisclosed 

pre-closing fines—the Dages Report was submitted before Great Hill I, and the 

Plaintiffs have submitted only $212,259 in pre-closing fines at this damages phase, 

consistent with the limited liability findings in that decision.

224

III. ANALYSIS

Great Hill seeks monetary damages. Resulting damages are an element of the

tort and contract claims,225 and Great Hill must prove its damages by a 

preponderance of the evidence.226 Below I discuss damages for the fraud and 

indemnification liability identified in Great Hill I.

 

222 Id. ¶ 58.

223 Id.

224 Id.; Pls.’ Opening Br., at 37, 50.

225 See York Lingings v. Roach, 1999 WL 608850, at *3 (Del. Ch. July 28, 1999) (listing damages 

as an element of fraud); see also VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 612 

(Del. 2003) (noting “resultant damage to the plaintiff” as an element of breach of contract).

226 Beard Research, Inc. v. Kates, 8 A.3d 573, 613 (Del. Ch. 2010), aff’d sub nom. ASDI, Inc. v. 

Beard Research, Inc., 11 A.3d 749 (Del. 2010).
44

As the analysis above makes clear, Dages’ damage analysis, on which Great 

Hill relies, made the assumption that Great Hill would prevail on its extensive

allegations of misrepresentation and fraud. As a weary perusal of the background 

section of this Memorandum Opinion should also demonstrate, the bulk of those 

wide-ranging allegation were unproved and cannot support damages. The Plaintiffs, 

however, were content, to rely on the factual evidence at trial together with the Dages 

Report and testimony to demonstrate damages.

227

 It falls to me, therefore, to 

determine what portion of the damages alleged are reasonably demonstrated to have 

 

227 At the post-trial damages Oral Argument the following exchange occurred with Tal’s counsel: 

“The Court: Before you begin, let me ask you what your understanding was -- and maybe mine 

was wrong -- but I had thought we were going to have additional evidentiary presentations after 

the trial on damages that would focus damages on the results of the post-trial opinion. Obviously, 

the parties agreed to a briefing schedule, and I assume everyone is content with the record as it is. 

But was that -- was your understanding that we were -- that the record was and is limited to what 

was presented at trial? Mr. Coran: Yes, Your Honor.” Post-Trial Damages Oral Argument, D.I. 

677, at 53:12–53:22. Plaintiffs’ counsel later remarked: “I think, starting first with Your Honor’s 

question about additional evidence, I think the plaintiffs didn’t think additional evidence was 

necessary, precisely because the Court found there was fraud regarding PayPal. There certainly 

was a variety or -- I shouldn’t even say that. There were several fraud claims presented at trial, 

but they all built to the PayPal fraud. The PayPal fraud was always the main issue. It’s also where 

we tracked the damages from. And when that was the fraud that was found, we thought we could 

move forward on that basis. If Your Honor thinks that more specific evidence or additional 

evidence would be helpful in quantifying that, plaintiffs are certainly willing to do that. But it was 

precisely because the fraud that was found here that we thought we could move forward with the 

expert report that we had. And I think on – there’s a number of reasons on that. Your Honor’s 

opinion in the liability opinion found, quote, ‘the possibility of losing a second major processor in 

a matter of [a] few months to be material to a prospective buyer.’ Right. ‘Furthermore, unlike with 

Paymentech, Plimus was not ambivalent to the PayPal relationship, and the loss of PayPal would 

mean a major disruption to Plimus’s business. And Tal knew that the grounds raised by PayPal -

excessive chargebacks - were an ongoing problem for Plimus.’ So, again, that’s sort of where we 

focus our damages analysis on, and that’s why we proceeded on this basis.” Id. at 103:1–104:8. 

At the end of the post-trial damages Oral Argument, I noted: “I appreciate the offer from Mr. Burns 

to supplement the record if I feel I need to, but I think there’s been an election here from both sides 

to rely on the record developed at trial. I’m going to do that going forward.” Id. at 114:20–114:24.
45

occurred as a result of the actions for which the Defendants are liable, based on this 

record.

A. Great Hill is Only Entitled to Damages Resulting from PayPal’s

Termination Threats and the PayPal and Paymentech Fines

As recounted in detail above, Tal was found liable for fraud in Great Hill I for 

the non-disclosure of the PayPal termination threats and the GoClickCash fine. The 

Indemnification Defendants were found to have indemnification obligations for the 

breach of the representation on compliance with card system rules in connection 

with the GoClickCash fine, the other PayPal fines, and the Paymentech fines; the 

Indemnification Defendants were also found to have indemnification obligations for 

the breach of the representation on relationships with suppliers in connection with 

the PayPal termination threats. Significant overlap exists between the tortious and 

extra-contractual conduct, falling into two buckets: PayPal termination threats and 

fines. I discuss each in turn.

1. Fines

a. PayPal Excessive Chargeback Fines for July and August 

2011

The Indemnification Defendants were found to have indemnification 

obligations for breaches of Section 3.23 of the Merger Agreement in connection with 
46

PayPal’s fines for excessive chargebacks in July and August of 2011.228 All of the 

Indemnification Defendants have conceded damages of $12,255.74 for these two 

fines.229 The Plaintiffs have not disputed the amount of such fines.230 Consequently, 

I find that the damages resulting from the fines assessed by PayPal for excessive 

chargebacks in July and August of 2011 are $12,255.74 to be paid from the escrow 

funds.

b. PayPal Fine for GoClickCash

The Indemnification Defendants were likewise found to have indemnification 

obligations for a breach of Section 3.23 of the Merger Agreement in connection with 

PayPal’s $200,000 fine related to GoClickCash.231 Tal was found liable for fraud 

for the non-disclosure of the same $200,000 fine.232 Tal concedes $200,000 in fraud 

damages for the GoClickCash fine.233

 

228 Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 2018 WL 6311829, at 

*47 (Del. Ch. Dec. 3, 2018).

229 Def. Hagai Tal’s Answering Br. on Damages, D.I. 653 (“Tal’s Answ. Br.”), at 53; Defs. Tomer 

Herzog and Daniel Kleinberg’s Answering Br. on Damages, D.I. 652 (“Founders’ Answ. Br.”), at 

5; Answering Damages Br. of the Charity Defs., the SIG Entity Defs., and Irit Segal Itshayek, D.I. 

654 (“Charity Defs., SIG Entity Defs., and Itshayek’s Answ. Br.”), at 9–10.

230 Pls.’ Reply Br. on Damages, D.I. 622 (“Pls.’ Reply Br.”), at 48 n.33. I note that the Plaintiffs 

allege $212,259 in pre-closing fine damages, which is a $3.26 difference from the sum of the 

$12,255.74 in chargeback fines conceded by the Indemnification Defendants and the $200,000 

GoClickCash fine—I consider the $3.26 difference immaterial and award the amount conceded by 

the Indemnification Defendants because it is not disputed by the Plaintiffs.

231 Great Hill, 2018 WL 6311829, at *47.

232 Id. at *43–45.

233 Tal’s Answ. Br., at 53.
47

The other Indemnification Defendants do not dispute the amount of the fine. 

They point out, however, that their obligations for payment are subject to a $500,000 

deductible amount under the Merger Agreement. Whether liability exceeds the 

deductible will turn, in part, on indemnification obligations for the Plaintiffs’ 

attorney fees,

234 an issue that I will address in a subsequent order (for reasons 

addressed infra). Therefore, I reserve decision, and will not address the deductible 

further in this Memorandum Opinion.

c. Paymentech Fines

Great Hill I also identified a breach of Section 3.23 of the Merger Agreement 

in connection with the non-disclosure of violations in connection with Paymentech, 

which the Indemnification Defendants are required to indemnify.

235

 However, I 

 

234 Section 10.03(a) of the Merger Agreement provides, in pertinent part: “(i) the Effective Time 

Holders will not have any obligation under Section 10.02(a)(i) (other than with respect to the Fully 

Indemnified Representations), unless and until the aggregate amount of all Losses for which the 

Effective Time Holders are obligated thereunder exceeds $500,000 (the “Deductible”), and then 

only for the amount of such Losses in excess of the Deductible, subject to the other terms of this 

Article 10 . . . .” JX 796, at 71. Section 10.02(a)(i) of the Merger Agreement concerns “Losses . 

. . as a result of, in connection with or relating to . . . any breach by the Company of any 

representation or warranty of the Company set forth herein, in any Disclosure Schedule or in the 

company Closing Certificate.” JX 796, at 69. “Losses” is defined as “any actual loss, liability, 

damage, obligation, cost, deficiency, Tax, penalty, fine or expense, where or not arising out of 

third party claims (including interest, penalties, reasonable legal fees and expenses, court costs and 

all amounts paid in investigation, defense or settlement of any of the foregoing) . . . .” JX 796, at 

69. All parties concede that the July and August 2011 chargeback fines are not subject to the 

deductible because they fall under Section 10.02(a)(iii). See Tal’s Answ. Br., at 53; Founders’ 

Answ. Br., at 5; Charity Defs., SIG Entity Defs., and Itshayek’s Answ. Br., at 9–10; Pls.’ Reply 

Br., at 48 n.33. Section 10.02(a)(iii) of the Merger Agreement covers “fines, penalties, or similar 

assessments imposed against the Company or any of its Subsidiaries for violating applicable credit 

card association policies, procedures, guidelines or rules with respect to excessive chargebacks or 

similar recurring payments . . . .” JX 796, at 69.

235 Great Hill, 2018 WL 6311829, at *47.
48

noted in Great Hill I that any fines related to the Paymentech violations were paid 

before closing and the Paymentech relationship ended before the bidding process 

was even complete, and remarked that “the Plaintiffs, will, perhaps, have difficulty 

showing any damages with respect to the Paymentech violations.”236 The Plaintiffs 

have given me no reason to deviate from this preconception; they have offered no 

damages tied to the non-disclosure of the pre-closing Paymentech fines—the 

Plaintiffs ask for damages for “pre-closing fines” in an amount equal to the PayPal 

July and August 2011 chargeback fines and the GoClickCash fine.237 Therefore, the 

Plaintiffs are awarded no damages in connection with the non-disclosure of the 

Paymentech fines.

d. Summary of Fine Liability

In summary, the Indemnification Defendants must pay damages of 

$12,255.74 for the July and August 2011 chargeback fines from PayPal. Tal must 

pay $200,000 in fraud damages for the PayPal GoClickCash fine. No damages are 

awarded in connection with the Paymentech fines. I reserve decision on whether the 

Indemnification Defendants may avoid indemnification for the $200,000 

GoClickCash fine under the deductible provision in the Merger Agreement.

 

236 Id.

237 Pls.’ Opening Br., at 37; see note 230, supra.
49

2. Non-Disclosure of PayPal’s Termination Threats

Other than fine-related damages, the only remaining damages to be considered

are those in connection with the failure to disclose PayPal’s termination threats. The 

liability for this non-disclosure stems from fraud—in the case of Tal—and 

indemnification for breach of contract238—in the case of the Indemnification 

Defendants. While the source of liability is different—tort vs. contract—the 

damages to the Plaintiffs arising from the liability are identical. Therefore, I consider 

together the conduct underlying the breach of contract and fraud connected to the

non-disclosure of PayPal’s termination threats.

The germane question is as follows: what harm did Great Hill suffer as a 

consequence of not being told of PayPal’s threats to terminate its relationship with 

Plimus, in light of PayPal’s actual termination, immediately post-Merger? Contract

law conceives of damages based on “the reasonable expectations of the parties ex 

ante.”239 Expectation damages are “measured by the amount of money that would 

put [Great Hill] in the same position as if [Plimus] had performed the contract” and 

“require[s] the [Indemnification Defendants] to compensate [Great Hill] for [Great 

Hill’s] reasonable expectation of the value of the breached contact, and, hence what 

 

238 Specifically Section 3.26(b) of the Merger Agreement; I found that this Section was breached 

because PayPal had communicated an “intent” to terminate its relationship. Great Hill, 2018 WL 

6311829, at *47.

239 Siga Techs., Inc. v. PharmAthene, Inc., 132 A.3d 1108, 1130 (Del. 2015) (quoting Duncan v. 

Theratx, Inc., 775 A.2d 1019, 1022 (Del. 2001)).
50

[Great Hill] lost.”

240

 As for fraud, “[t]he recipient of a fraudulent 

misrepresentation241 is entitled to recover as damages . . . the pecuniary loss to him 

of which the misrepresentation is a legal cause . . . .”242 Both contract and tort law

thus conceive of damages as the pecuniary consequences of the breach or tort. This 

requires an identification of the conduct for which a defendant is liable and an 

isolation of the harm occurring therefrom. Here, I must separate the non-disclosure 

of PayPal’s termination threats—and the harm occurring therefrom—from all other 

fraud and breach allegations. Only then can I turn to the quantum of damages. Those 

damages, in turn, must represent the difference between what the Plaintiffs 

expected—Plimus with PayPal as a processor—and what they got—Plimus sans

PayPal.

Great Hill I spoke to the consequences of the non-disclosure of PayPal’s 

termination threats in the context of the materiality of Tal’s fraud: “the possibility of 

losing a second major processor in a matter of few months [was] material to a 

prospective buyer . . . and the loss of PayPal would mean a major disruption to 

Plimus’s business.”

243 The repercussions were stark: the loss of the ability to use 

 

240 Id. (quoting Duncan v. Theratx, Inc., 775 A.2d 1019, 1022 (Del. 2001)).

241 The fraudulent misrepresentation here is the representation that “no suppliers had threatened 

termination even though PayPal had made several such threats throughout August and September 

2011.” Great Hill, 2018 WL 6311829, at *47.

242 Restatement (Second) of Torts § 549 (1977). “Delaware courts have cited the Restatement 

(Second) of Torts [§] 549 . . . with approval.” Envo, Inc. v. Walters, 2009 WL 5173807, at *7 n.37 

(Del. Ch. Dec. 30, 2009), aff’d, 2013 WL 1283533 (Del. Mar. 28, 2013).

243 Great Hill, 2018 WL 6311829, at *44.
51

PayPal as a payment processor. The loss of the PayPal relationship had 

consequences; I found that “[t]he loss of PayPal as a processor and the temporary 

loss of PayPal [W]allet as a payment method affected Plimus’s ability to do 

business” and “hurt Plimus’s reputation.”244

While this finding of fraud is significant, I also found against the Plaintiffs on 

the bulk of their fraud claims. Among other fraud claims, I found no liability for 

fraud allegations concerning Plimus’s risk monitoring system, Plimus’s history of 

violations, and Plimus’s vendor quality.

245

 Supporting this conclusion were findings

that Great Hill was aware: (1) that Plimus did not have proactive risk monitoring,246

(2) that Plimus had an “extensive history with chargebacks,”

247 (3) that “Plimus’s 

onboarding process allowed vendors—including illegitimate vendors—to 

potentially transact business through Plimus for months before discovery,”

248 and 

(4) “of Plimus’s business model, including the quality249 of vendors.”250 These were 

facts known to Great Hill, and presumably factored into the price it chose to pay for 

Plimus. This means that Great Hill is not entitled to damages because Plimus (1) 

did not have proactive risk monitoring, or (2) had a history of chargebacks, or (3) 

 

244 Id. at *30.

245 Id. at *36–40.

246Id. at *38. 

247 Id. at *40.

248 Id. at *41.

249 Or lack thereof.

250 Great Hill, 2018 WL 6311829, at *41.
52

had illegitimate vendors on its system.

251

 In other words, even though PayPal may 

have terminated the relationship because of certain characteristics of Plimus’s 

business—including a high level of chargebacks and illegitimate vendors—Great 

Hill is not entitled to receive damages for the consequences of these traits of Plimus’s 

business—other than those proximately caused by the PayPal termination itself—

because I found no liability for the allegations in connection with them.252

The implications of the above are that Great Hill is only entitled to damages 

consequent to the loss of the PayPal relationship which meant the inability to use 

PayPal’s services, and the resulting reputational damage. The underlying reasons as 

to why PayPal may have terminated the relationship—which could include 

chargebacks, lack of risk monitoring, and illegitimate vendors—are not a proper

basis for assessing damages generally for those conditions which, again, were known 

to Great Hill at the time of the Merger. The Plaintiffs sought liability for claims 

connected with these characteristics of Plimus’s business, and lost. They do not get 

a second bite at the damages apple; recovering damages, for instance, for the 

consequences of Plimus’s abundancy of illegitimate vendors, by squeezing that 

 

251 This list is illustrative, not comprehensive.

252 See Hajoca Corp. v. Sec. Tr. Co., 25 A.2d 378, 381 (Del. Super. 1942) (“The law does not hold 

one liable for all injuries that follow a breach of contract, but only for such injuries as are the direct, 

natural and proximate result of the breach.”); see also Cont’l Illinois Nat. Bank & Tr. Co. of 

Chicago v. Hunt Int’l Res. Corp., 1987 WL 55826, at *6 (Del. Ch. Feb. 27, 1987) (dismissing a 

fraud claim under Chancery Court Rule 9(b) where “the complaint [was] barren of particularized 

allegations as to how the alleged fraud proximately caused [the plaintiff] to suffer damages.”).
53

allegation under the rubric of PayPal’s termination. Therefore, other than finerelated damages, the Plaintiffs are entitled only to damages resulting proximately

from the loss of PayPal as a payment processing service.253 I now proceed to 

quantifying these damages.

B. The Plaintiffs’ Damages Calculation for the Non-Disclosure of the 

PayPal Termination Threats is Speculative

The burden is on Great Hill to demonstrate damages, which is an element of 

both breach of contract and fraud cases of action. Great Hill must prove the fact of

damages in connection with PayPal’s termination threats “with a reasonable degree 

of certainty”254 but the “quantum of proof required to establish the amount of damage 

is not as great as that required to establish the fact of damage.”

255

“Delaware does 

not require certainty in the award of damages where a wrong has been proven and 

injury established . . . [and] [r]esponsible estimates of damages that lack 

mathematical certainty are permissible so long as the court has a basis to make such 

a responsible estimate.’”

256

 In accordance with public policy, Delaware courts place 

the burden of uncertainty where it belongs; so long as a plaintiff provides a 

 

253 This includes the services provided by PayPal Wallet.

254 Medicalgorithmics S.A. v. AMI Monitoring, Inc., 2016 WL 4401038, at *26 (Del. Ch. Aug. 18, 

2016) (quoting Kronenberg v. Katz, 872 A.2d 568, 609 (Del. Ch. 2004)).

255 Total Care Physicians, P.A. v. O’Hara, 2003 WL 21733023, at *3 (Del. Super. July 10, 2003).

256 Medicalgorithmics, 2016 WL 4401038, at *26 (quoting Beard Research, Inc. v. Kates, 8 A.3d 

573, 613 (Del. Ch. 2010)). In the context of contractual damages, our Supreme Court has stated: 

“when a contract is breached, expectation damages can be established as long as the plaintiff can 

prove the fact of damages with reasonable certainty. The amount of damages can be an estimate.” 

Siga Techs., Inc. v. PharmAthene, Inc., 132 A.3d 1108, 1111 (Del. 2015).
54

reasonable method to calculate damages, the risk that such cannot be determined 

with mathematical certitude falls on the wrongdoer, not the wronged.257 

“Nevertheless, when acting as the fact finder, this Court may not set damages based 

on mere ‘speculation or conjecture’ where a plaintiff fails adequately to prove 

damages.”258 With these general principles in mind, I turn to the record here.

The Plaintiffs’ have presented the Dages Report as a basis to award 

contractual and fraud damages for the misrepresentations and omissions in 

connection with PayPal’s termination threats. The Plaintiffs’ damages expert, Kevin 

F. Dages, calculated the difference between the Merger price and the “fair value” of 

Plimus as the 10.1 EBITDA multiple times the sum of (1) the difference between 

Plimus’s actual Q4 2011 EBITDA and Plimus’s expected Q4 2011 EBITDA259 and 

(2) the portion of Plimus’s actual Q4 2011 EBITDA that is attributable to customers 

on the “Lost Client List” that Plimus terminated between October 1, 2011 and June 

30, 2012 (after accounting for expected churn).260 Along with this amount, the 

Plaintiffs contend that their damages from the loss of the PayPal relationship also 

includes the $31.5 million they invested in Plimus after the Merger.261 Plaintiffs thus 

throw everything in the hopper: all amounts by which Plimus missed Great Hill’s 

 

257 See In re Mobilactive Media, LLC, 2013 WL 297950, at *24 (Del. Ch. Jan. 25, 2013).

258 Id. (quoting Medek v. Medek, 2009 WL 2005365, at *12 n.78 (Del. Ch. July 1, 2009)).

259 As projected by Great Hill.

260 JX 1132, ¶ 59.

261 Id.
55

projections for Q4 2011 EBITDA, all revenue and volume from vendors terminated 

in the 9 month period after the Merger, and all amounts Great Hill invested in Plimus 

in the years after the Merger.

Due to Tal’s fraud, Great Hill reasonably expected it was buying Plimus with 

PayPal as one of its processors, it received Plimus without a PayPal relationship. 

The fundamental problem with the Plaintiffs’ damages estimate is that it offers the 

entirety (and more) of the deviation from Great Hill’s EBITDA estimate as damages,

but fails to link the harm from the non-disclosure of PayPal’s termination threats to 

the damages calculation, “mak[ing] it impossible to determine what amount of 

damages, if any, was caused by that wrong.”

262

Importantly, the Dages Report was completed before the trial and before I 

issued Great Hill I, when Plaintiffs’ allegations of fraud were so wide-ranging, the 

Plaintiffs themselves stated that they were too extensive to recount in full in their 

briefing.263 The fraud finding in Great Hill I, in contrast, was quite cabined; two 

allegations (one for a relatively minor sum certain) against one Defendant. Dages 

himself admitted that his “assignment was to calculate a damage number, and [he] 

 

262 OptimisCorp v. Waite, 2015 WL 5147038, at *81 (Del. Ch. Aug. 26, 2015), aff’d, 137 A.3d 

970 (Del. 2016).

263 Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 2018 WL 6311829, at 

*31 (Del. Ch. Dec. 3, 2018) (“While the Plaintiffs, unhelpfully, argue in briefing that the ‘fraud in 

this action was extensive, and cannot be recounted in full here,’ they ‘highlight [ ] four major 

interrelated components’ of the fraud.”).
56

did not attempt to parse that damage number across all the different overlapping 

components of the fraud.”264 Further questioning of Dages is insightful:

Q. You do not identify the amount of damages attributable to the 

loss of Paymentech; right?

A. I do not parse the aggregate damages among all the multiple 

components of the fraud, that’s correct.

Q. Okay. You do not opine on what portion of your damages figures 

were caused by the loss of the PayPal Pro account. Right?

A. Same answer.

Q. You don’t do that; right?

A. Sorry?

Q. You do not do that; correct?

A. Correct. I was just trying to save the court reporter. Same 

answer, yes.265

Thus, Dages himself testified that his calculations fail to break out damages from the 

wrongs Great Hill was able to establish at trial, which are a rather small subset of its 

allegations. Yet, even after I issued Great Hill I, the Plaintiffs have elected to stand 

on the Dages Report as their damages estimate of the Defendants’ liability.

The deficiencies of the Plaintiffs’ damages estimate are not limited to those 

represented by the forgoing flaw. Neither component that Dages deducts from the 

 

264 Trial Tr. 2779:10–2779:13 (Dages).

265 Id. at 2780:11–2780:24 (Dages).
57

Merger price to arrive at “fair value” has any mechanism for segregating out the 

decrease in Q4 2011 EBITDA attributable to the loss of PayPal.266 Thus, the 

Plaintiffs ask me to hold that all actual decrease in Q4 2011 EBITDA and all

customer terminations from October 2011–June 2012 are tied to the loss of PayPal’s 

payment processing services. Plaintiffs make these assertions notwithstanding the 

fact that the “Lost Client List” does not even identify which Plimus clients used 

PayPal, even though it appears that the Plaintiffs had access to this information.

267

 

What difference this may make is untold—by my count, of the 3,415 “Merchant 

IDs” on the Lost Client List, only seven have the word “PayPal” in their 

comments.268 Furthermore, 455 merchants who joined Plimus’s platform postclosing, and thereafter were terminated, are included in Tranche Two of the Dages 

Report, for which the Plaintiffs seek damages here.

269

 When asked about the 

inclusion of these terminated merchants in the damages calculation, Dages replied:

I think merchants that are joining post close that get terminated by the 

time the management team leaves or terminated in January are more 

evidence of the lack of controls and not sustainable customers that 

ought to have been in [the damages figure]. And had all this 

information be revealed to the buyers, and for some reason they had a 

gun to their head to still go to the table, they clearly would have peeled 

these out of any valuation piece.

270

 

266 This assumes that it is non-speculative to base the damages for the loss of the PayPal 

relationship on a multiple of Q4 2011 EBITDA. I do not reach the question of whether such a 

snapshot approach to damages is reliable here.

267 JX 2077; Trial Tr. 2698:10–2699:12 (LaPierre).

268 JX 2077.

269 Trial Tr. 2769:16–2772:2 (Dages).

270 Id. at 2771:16–2772:2 (Dages) (emphasis added).
58

Thus, Dages bases the inclusion of these 455 merchants in the damages calculation

to “lack of controls” and “not sustainable customers” that Great Hill “would have 

peeled . . . out of any valuation piece” “had all this information be[en] revealed to 

[Great Hill].”271 Yet, the Plaintiffs are not entitled to damages for customers who 

were terminated from Plimus solely due to lack of controls or unsustainability—a 

state of affairs of which, I found, the Plaintiffs were aware upon entering the 

Merger—only for damages for the loss of PayPal.

272

The Plaintiffs’ request for damages totaling the full amount of their 

investment in Plimus post-Merger suffers from the same deficiencies—nowhere do 

the Plaintiffs segregate what portion of this post-Merger investment—if any—was 

required because of the loss of PayPal.273 Furthermore, the Plaintiffs have not shown 

how the damages they request for reimbursement are not already encompassed in 

their “fair value” estimate. In other words, the Plaintiffs ask for damages that would 

compensate them for the difference between the Merger price and Plimus’s value,

then also ask for $31.5 million in additional damages. 

 

271 Id. at 2771:19–2771:24 (Dages).

272 See Section III.A.2. supra.

273 Compared to the portion, if any, of the post-Merger investment that would have been made 

regardless of whether PayPal terminated the relationship.
59

Plaintiffs’ rely on Cobalt Operating, LLC v. James Crystal Enterprises, 

LLC274 in support of the proposition that I may award damages in addition to the 

difference in value between what was paid for Plimus and Plimus’s actual value. In 

that case, this Court found that the defendant had falsely inflated a radio station’s 

EBITDA by billing clients for ads that did not run and the buyer had purchased the 

station based on its projected EBITDA.

275

 When the buyer discovered the fraud had 

occurred, it decided to grant free airtime credits to advertisers that were affected 

during the three month period after the sale while the fraud was still ongoing.276 In 

addition to damages linked to the sale price, the buyer sought reimbursement for the 

costs of the free airtime, which this Court granted, reasoning that the free airtime 

given out “used up commercial time that could have been used for a full-price 

commercial” and thus it “had a direct impact on [the buyer’s] bottom line.”277 In 

Cobalt, an identifiable difference existed between the value of the company and the 

merger price on one hand, and the additional damages incurred to compensate third 

parties on the other. For both, the fraud was the proximate cause. Here, in contrast, 

there is no specific identifiable harm existing outside the Merger that would not be 

compensated by awarding the Plaintiffs damages based on the “fair value” of 

 

274 2007 WL 2142926 (Del. Ch. July 20, 2007) aff’d, 945 A.2d 594 (Del. 2008).

275 Id. at *25, *27.

276 Id. at *30.

277 Id. at *31.
60

Plimus.278 The nexus between the tort and the other damages sought, evident in 

Cobalt, is lacking here.

In Siga Technologies, Inc. v. PharmAthene, Inc., our Supreme Court held that 

a “breaching party cannot avoid responsibility for making the other party whole 

simply by arguing that expectation damages . . . are speculative because they come 

from an uncertain world created by the wrongdoer.”279 This rationale applies equally 

to torts, and the United States Supreme Court has stated that “[w]here the tort itself 

is of such a nature as to preclude the ascertainment of the amount of damages with 

certainty, it would be a perversion of fundamental principles of justice to deny all 

relief to the injured person, and thereby relieve the wrongdoer from making any 

amend for his acts.”280 In this vein, where the uncertainty of the amount of damages 

is not the fault of the plaintiff and is the fault of the defendant, “to the extent the 

court has to resolve uncertainties, those uncertainties will be resolved in the 

plaintiffs’ favor.”

281 This makes sense as a matter of policy—a wrongdoer should 

 

278 Additionally, there was no substantial ongoing fraud post-Merger here as there was in Cobalt

because Tal informed Great Hill of the PayPal termination within days after the termination 

occurred (which was about two weeks after the Merger closed). Great Hill Equity Partners IV, 

LP v. SIG Growth Equity Fund I, LLLP, 2018 WL 6311829, at *29 (Del. Ch. Dec. 3, 2018).

279 132 A.3d 1108, 1111 (Del. 2015).

280 Vianix Delaware LLC v. Nuance Commc’ns, Inc., 2010 WL 3221898, at *7 (Del. Ch. Aug. 13, 

2010) (quoting Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563 (1931)).

281 Comrie v. Enterasys Networks, Inc., 837 A.2d 1, 19 (Del. Ch. 2003) (citing Duncan v. Theratx, 

Inc., 775 A.2d 1019, 1023 (Del. 2001)).
61

not be permitted to use a prohibition against award of uncertain damages as a shield, 

where that uncertainty is attributable to the wrongdoer himself.

Here, in contrast, it is the Plaintiffs who, having presented a substantial 

number of fraud claims and succeeded on a fraction of the total, have presented a 

damages analysis that, in the words of the Plaintiffs’ damages expert, “do[es] not 

allocate the damages total among all the various components and contributing 

factors of the fraud . . . .”282 Furthermore, the Lost Client List, created by the 

Plaintiffs and relied upon by Dages for his analysis, does not include any information

demonstrating the relationship of particular lost clients to the use of PayPal, even 

though the database from which it was drawn—which is controlled by the 

Plaintiffs—contains data showing what payment processor was used for any 

particular transaction.283 The uncertainty of damages here, if attributable to any 

party, is attributable to the Plaintiffs. They could have, but did not, provide a nonspeculative way to quantify damages from the loss of PayPal.284

I reiterate that “when acting as the fact finder, this Court may not set damages 

based on mere ‘speculation or conjecture’ where a plaintiff fails adequately to prove 

 

282 Trial Tr. 2781:4–2781:6 (Dages).

283 Id. at 2698:4–2699:12 (LaPierre); JX 2077.

284 Because I find that the Plaintiffs have failed to meet their burden with regard to the damages 

methodology, I do not reach the Defendants’ contentions that Plimus’s downturn was not as severe 

as suggested by Great Hill and that explanations exist for any downturn other than the allegations 

lodged by Great Hill. Indeed, Great Hill’s own annual report for 2011 noted that Plimus’s Q4 

2011 EBITDA “declined primarily due to 25 incremental hires necessary to support Plimus’[s] 

anticipated growth.” JX 922, at 3.
62

damages.”

285

 Any attempt I could make to assign damages caused by Plimus’s loss 

of PayPal as a payment processor would be mere speculation or conjecture because 

the Plaintiffs failed to tie any portion of their damages estimate to the loss of PayPal 

as a processing service provider. While I have found that the Plaintiffs suffered 

harm from the non-disclosure of PayPal’s termination threats,286 harm is in itself 

insufficient for a damages award if I have no basis to make a “responsible estimate” 

of damages.287 It would be, in my view, irresponsible to assign damages to the 

Plaintiffs for the tortious and extra-contractual non-disclosure of PayPal’s 

termination threats on the record before me. While I assume that the Plaintiffs 

suffered some pecuniary damage from Tal’s behavior, were I to assign an amount to 

that damage I would be only marginally more confident than if I randomly picked a 

number between $0 and $121,813,817. To grant damages on that dubious

foundation would run afoul of Delaware law. The Plaintiffs were “allowed to make 

[the] strategic choice to present one unified remedy theory. This choice, however, 

now prevents me from awarding damages for the parts of its case that it was able to 

prove as it has given me no way to separate the actual harm to [the Plaintiffs] from 

 

285 In re Mobilactive Media, LLC, 2013 WL 297950, at *24 (Del. Ch. Jan. 25, 2013) (quoting 

Medek v. Medek, 2009 WL 2005365, at *12 n.78 (Del. Ch. July 1, 2009)).

286 Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 2018 WL 6311829, at 

*30, *44 (Del. Ch. Dec. 3, 2018).

287 Medicalgorithmics S.A. v. AMI Monitoring, Inc., 2016 WL 4401038, at *26 (Del. Ch. Aug. 18, 

2016) (quoting Beard Research, Inc. v. Kates, 8 A.3d 573, 613 (Del. Ch. 2010)).
63

the consequences of allowed behavior by the [Defendants].”288 I consequently 

award no fraud or contract damages to the Plaintiffs in connection with the 

misrepresentations regarding PayPal’s termination threats.

C. Unjust Enrichment

The Plaintiffs allege unjust enrichment against SIG Fund, Tal, Herzog, 

Kleinberg, Itshayek, and the Charity Defendants. Unjust enrichment is “the unjust 

retention of a benefit to the loss of another, or the retention of money or property of 

another against the fundamental principles of justice or equity and good 

conscience.”289 The elements of unjust enrichment are: (1) an enrichment, (2) an 

impoverishment, (3) a relation between the enrichment and impoverishment, (4) the 

absence of justification, and (5) the absence of a remedy provided by law.290

I need only address the last element, which is manifestly not met. Sufficient 

funds are in escrow to make the Plaintiffs whole for the loss they have demonstrated, 

and there is no need for equity to act.291 I make no determination whether, if such 

were not the case here, unjust enrichment would apply.

 

288 CSH Theatres, L.L.C. v. Nederlander of San Francisco Assocs., 2018 WL 3646817, at *29 (Del. 

Ch. July 31, 2018), rev’d on other grounds sub nom. In re Shorenstein Hays-Nederlander Theatres 

LLC Appeals, 213 A.3d 39 (Del. 2019).

289 Nemec v. Shrader, 991 A.2d 1120, 1130 (Del. 2010) (quoting Fleer Corp. v. Topps Chewing 

Gum, Inc., 539 A.2d 1060, 1062 (Del. 1988)).

290 Id.

291 Tal has conceded that “any damages award against Tal must first be offset” by $478,508 and 

$678,605 of Merger proceeds placed in escrow and evidenced by promissory notes. Tal’s Answ. 

Br., at 53. Additionally, the Escrow Amount of $9.2 million is significantly more than the 
64

Because the Plaintiffs have failed to show an inadequate remedy at law, I deny

their unjust enrichment claim.

D. Fees and Costs

Finally, the Plaintiffs have sought indemnification, under the Merger 

Agreement, for fees and costs incurred in investigating Defendants’ fraud and 

contract breaches. The Founders have submitted that after I render this decision they 

will move for an award of their own attorneys’ fees and costs, also under the Merger 

Agreement.292 For efficiency’s sake, I hold the Plaintiffs’ claims for fees and costs 

in abeyance, and will consider them concurrently with any applications for fees and 

costs of any Defendants.293

IV. CONCLUSION

Tal is liable for $200,000 in fraud damages. The Indemnifications Defendants 

are liable for $12,255.47 in indemnification obligations payable from the escrow 

funds and split pro rata in accordance with the Merger Agreement, as well as for the 

$200,000 GoClickCash fine to the extent not barred by the deducible provision of 

the Merger Agreement. The Plaintiffs are entitled to prejudgment interest on these 

 

$212,255.47 of damages owed by the Indemnification Defendants (without consideration of 

amounts that may be excluded under the deductible).

292 Founders’ Answ. Br, at 15.

293 If any Defendant wishes to move for fees and/or costs under the Merger Agreement, they should 

do so within ten (10) business days from the issuance of this Memorandum Opinion.
65

sums. The parties should submit a form of order consistent with this Memorandum 

Opinion.