1

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

LEON A. MALCA,

Plaintiff,

v.

RAPPI, INC. and SEBASTIAN MEJIA,

Defendants.

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C.A. No. 2020-0152-MTZ

ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS FIRST 

AMENDED VERIFIED COMPLAINT 

WHEREAS, the Court having duly considered the allegations in Plaintiff 

Leon A. Malca’s First Amended Verified Complaint (the “Amended Complaint”) 

and Defendants Sebastian Mejia and Rappi, Inc.’s Motions to Dismiss the Amended 

Complaint (the “Motions”), as well as the briefs submitted in support thereof and in 

opposition thereto, it appears that:1 

A. Plaintiff Leon Malca is a known art collector and businessman. 

Defendant Sebastian Mejia is an executive officer and director of two Delaware 

corporations: (1) nonparty Grability, Inc. (“Grability”), and (2) Defendant Rappi, 

Inc. (“Rappi,” and together with Mejia, “Defendants”), which spun off from 

Grability in 2016. Grability originally launched as a grocery delivery mobile app, 

1 Citations in the form of “Am. Compl. —” refer to the Amended Complaint, available at 

Docket Item (“D.I.”) 40. Citations in the form of “Hr’g Tr.—” refer to the transcript of the 

December 3, 2020 argument on the Motions, available at D.I. 73.
2

and, through Rappi, has evolved into a platform for the delivery of “everything” for 

Latin American consumers.2 

B. Malca and Mejia met in 2010 and developed a close friendship. In 

2011, Mejia contemplated investing in Grability—at the time an emerging 

technology platform in Colombia that was majority owned and controlled—and 

using it to create a grocery delivery service. Without means of his own, Mejia sought 

Malca’s financial backing. Malca agreed and helped Mejia develop a business plan 

and finance the investment. 

C. The 2011 idea took shape in early 2013. Malca and Mejia negotiated 

the size of the equity stake and its price. Mejia emphasized “that Malca’s investment 

would finance the company’s software development and the initial operations of the 

company and was of critical importance.”3 Mejia explained Grability would 

eventually be incorporated in Delaware. On March 23, Mejia gave Malca a 

“Business Proposition” for the new company that reflected the terms of Malca’s 

investment, which I refer to as the “Investment Agreement.”

4

 They agreed that 

Malca would contribute $300,000 in two parts: (1) the first $150,000 as a loan from 

Malca to Mejia, so that Mejia could purchase his own Grability shares upon its 

2 Am. Compl. ¶ 3.

3

Id. ¶ 34.

4

Id. ¶ 42.
3

incorporation; and (2) the other $150,000 as Malca’s investment for his own 

Grability shares. Malca and Mejia agreed to register all the Grability shares in 

Mejia’s name, and that Mejia would hold Malca’s Grability shares “as Malca’s 

agent, nominee and/or fiduciary.”

5 Mejia told Malca, “My success will be yours and 

I assume this as a great responsibility and commitment to you.”6 

D. The parties performed under the Investment Agreement. Malca 

transferred $300,000 to Mejia. Mejia used Malca’s $150,000 loan to purchase 

22.5% of Grability’s shares for himself. Mejia then used the remaining $150,000 to 

purchase an additional 11.2% for Malca. 

E. As Grability grew, Mejia acknowledged the significance of Malca’s 

investment. Mejia routinely consulted with Malca about Grability’s business;

provided Malca with detailed reports about Grability’s progress and clients; and 

affirmed that he continued acting as Malca’s agent, nominee and/or fiduciary. The 

men also worked together to raise additional funding. As other investors supplied 

funding, Mejia and Malca’s Grability positions were diluted. Mejia kept Malca 

apprised of the dilutions and continued to acknowledge that he held Malca’s position 

for him. On December 7, 2015, Mejia acknowledged Malca’s equity in Grability as 

diluted to 8.95%. 

5

Id. ¶ 6; accord id. ¶¶ 11, 14, 49.

6

Id. ¶ 7.
4

F. In February of 2016, as Grability’s Executive Officer and Director, 

Mejia announced Grability was spun off and converted into Rappi

(the “Conversion”). Mejia told Grability’s shareholders: 

What does this mean for you? You are now a shareholder in Rappi Inc. 

Why? Grability Inc. was the majority shareholder in Rappi Colombia 

and Rappi Mexico. 

How much of Rappi Inc do you own? Grability Inc shareholders own 

86.8% of the combined Rappi Colombia and Rappi Mexico entities, 

which means that you will own a slightly lower percentage of Rappi 

Inc than what you now own in Grability Inc. . . . Your ownership in 

Grability Inc will be slightly diluted? Why? Rappi Colombia and 

Rappi Mexico were not wholly owned subsidiaries. Other (nonGrability) shareholders in those entities have agreed to roll-up their 

ownership in the Rappi entities into Grability Inc. Total dilution is 

6.9%. . . . 

What do you need to do? We are sending you paperwork to sign for 

Rappi Inc. . . . Please find attached the new fully-diluted cap tables for 

Rappi Inc.7

Malca alleges that through the Conversion, Grability shareholders became Rappi 

shareholders in what Mejia described to Malca as a “Roll-Up.”8 Malca alleges his 

Grability shares converted into proportionate Rappi shares in the Roll-Up, and that 

Mejia affirmed to Malca that he held a stake in Rappi.9 

7

Id. ¶ 53 (omissions in original) (emphasis omitted).

8

Id. ¶¶ 54–55.

9

Id. ¶ 55. Defendants dispute whether the Roll-Up occurred as alleged. Defendants 

contend the Grability shares did not simply convert into Rappi shares, but that some 

Grability stockholders had the option to capitalize Rappi and receive equity ownership in 

return. See D.I. 61 at 3–5; Hr’g Tr. 11–17. Malca has pled that the Roll-Up occurred and 

that Mejia acknowledged his ownership in Rappi. See Am. Compl. ¶¶ 53–56; Hr’g Tr. 37–
5

G. In April 2019, SoftBank Group Corp. (“SoftBank”) announced an 

investment of up to $1 billion in Rappi, including the purchase of $400 million in 

Rappi shares and the buyback of $600 million in shares from existing Rappi 

shareholders (the “SoftBank Tender”). Malca informed Rappi he wanted to 

participate in the SoftBank Tender, but Rappi evaded Malca’s requests. Even still, 

Rappi and Mejia continued to acknowledge that Malca held a stake in Rappi. 

H. In July, Mejia, allegedly acting on Rappi’s behalf, claimed Malca did 

not own any Rappi shares, beneficially or otherwise. Rappi did not renounce Mejia’s 

assertion. Sidelined, Malca was unable to participate in the SoftBank Tender, which 

closed in August. Malca claims the loss of this opportunity cost him $30 million. 

Malca also claims Mejia has taken Malca’s Rappi shares for himself, depriving 

Malca of the ability to sell or realize the future value of his shares.

I. There is no meaningful dispute about Malca’s ownership of Grability 

shares. Rather, the dispute is limited to whether and how the Grability shares 

afforded Malca the opportunity to hold Rappi shares through the Conversion and 

Roll-Up. Malca alleges that, as a Grability stockholder via the Investment 

Agreement, the Roll-Up automatically secured him equity in Rappi. Specifically,

43. I take Plaintiff’s factual allegations as true, as I must at this stage. Whether the 

Grability shares simply converted into Rappi shares, or whether Malca was wrongly 

deprived of the opportunity to acquire Rappi shares by virtue of his beneficial ownership 

of Grability shares, are questions of fact to be borne out in discovery.
6

Malca alleges he is entitled to 33.2%, or 600,256, of the Rappi shares that Mejia 

purports to own, adjusted upward for transfers or sales. 

J. Malca filed this action in March 2020.

10

 On July 7, he filed the 

Amended Complaint.

11

 Count I seeks a declaratory judgment that Malca owns at 

least 600,256 Rappi shares. Count II seeks a declaratory judgment that Mejia 

breached the Investment Agreement. Count III seeks a declaratory judgment that 

Mejia and Rappi committed conversion “by failing to keep accurate books and 

records, refusing to acknowledge Plaintiff Malca’s ownership interest, intentionally 

blocking Malca from using his shares in the SoftBank Tender, and continuing to 

intentionally block Malca from accessing his shares from when the SoftBank Tender 

closed up to today.”12 Count IV asserts that Mejia was unjustly enriched “[b]y 

keeping all of the Rappi shares acquired in the Rappi Conversion for himself.”13 

And Count V seeks a declaratory judgment that Mejia breached his fiduciary duties 

to Malca, both in his fiduciary role under the Investment Agreement and in his 

fiduciary role as an officer and director of Rappi. In addition to various declaratory 

judgments, Malca seeks a permanent injunction requiring Rappi and Mejia to 

register and/or issue shares in Malca’s (or his designee’s) name; to update Rappi’s 

10 See D.I. 1.

11 See generally Am. Compl.

12 Id. ¶ 91.

13 Id. ¶ 96.
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books and records to reflect Malca’s (or his designee’s) ownership interest and 

correct Mejia’s ownership stake accordingly; and preventing Mejia and Rappi from 

selling, transferring, or hypothecating Malca’s Rappi shares. Malca also requests 

that the Court impose a constructive trust on at least 600,256 Rappi shares that Mejia 

is holding out as his own. Finally, Malca seeks fees and costs.

K. Both Defendants moved to dismiss on August 31.14 The parties briefed 

the Motions,15 and I heard oral argument on December 3.16

L. The standard for dismissal pursuant to Rule 12(b)(6) for failure to state 

a claim upon which relief can be granted is well established.17 In considering the

Motions, I must accept as true all well-pled facts and inferences that can reasonably 

be drawn therefrom. “[D]ismissal is inappropriate unless the plaintiff would not be 

entitled to recover under any reasonably conceivable set of circumstances 

susceptible of proof.”18 A motion to dismiss will be granted only if “it appears with 

reasonable certainty that the plaintiff could not prevail on any set of facts that can 

be inferred from the pleading.”19 

14 See D.I. 46; D.I. 47.

15 See D.I. 46; D.I. 48; D.I. 53; D.I. 60; D.I. 61.

16 See generally Hr’g Tr.; D.I. 72.

17 See Feldman v. Cutaia, 2006 WL 920420, at *7 (Del. Ch. Apr. 5, 2006).

18 Savor, Inc. v. FMR Corp., 812 A.2d 894, 897 (Del. 2002) (internal quotation marks 

omitted) (quoting Kofron v. Amoco Chems. Corp., 441 A.2d 226, 227 (Del. 1982)).

19 Feldman, 2006 WL 920420, at *7.
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IT IS HEREBY ORDERED this 20th day of May, 2021, that:

1. The Motions are DENIED as to Count I. Malca has pled facts making 

it reasonably conceivable that he is entitled to a declaratory judgment that he owns 

at least 600,256 Rappi shares. 

a. Mejia argues this count should be dismissed as to him because 

the declaratory judgment is concerned with Malca’s shares “of Rappi,” so only Rappi 

is capable of providing relief. But as alleged, Mejia is presently and wrongfully

holding Malca’s Rappi shares for himself, and a declaratory judgment against Mejia 

would affect if and how he may continue to possess those shares. 

b. Both Defendants contend Count I is duplicative of Plaintiff’s

breach of contract and conversion claims. It is not. Count I does not invoke any 

breach of contract and may stand even if Mejia’s actions did not explicitly breach 

the Investment Agreement. Count I focuses on Malca’s Grability equity as 

converted through the Roll-Up. Thus, Count I turns on the Conversion and RollUp’s mechanics, through which Malca alleges his Grability shares were 

automatically converted into Rappi shares. 

c. Defendants also contend Count I must be dismissed because it 

attempts to adjudicate past conduct. Count I seeks a declaratory judgment as to 

present ownership, based on the Investment Agreement and Roll-Up. Plaintiff seeks 

a declaration that he has title to the shares now and going forward. This Court 
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frequently issues declaratory judgments as to present and future ownership based on 

past conduct or agreement.

20

 

2. The Motions are DENIED as to Count II. Malca has stated a claim for 

breach of contract. To state a viable breach of contract claim, a plaintiff must allege 

a (1) a contractual obligation; (2) a breach of that obligation by the defendant; and 

(3) a resulting damage to the plaintiff.21 In order to adequately allege the first 

element of the claim, there must exist a valid contract. Under Delaware law, a valid 

contract exists where “(1) the parties intended that the contract would bind them, (2) 

the terms of the contract are sufficiently definite, and (3) the parties exchange legal 

consideration.”22 

a. Mejia contends Malca has failed to adequately allege the 

existence of an enforceable contract because the Investment Agreement lacked 

essential terms. In particular, he contends it lacks essential terms with respect to

(1) the $150,000 loan, such as the loan’s duration, interest rate, payment method, 

and security; (2) when the purchase of Malca’s shares should occur and any 

20 See, e.g., McAllister v. Kallop, 1995 WL 462210, at *20 (Del. Ch. July 28, 1995) 

(assessing the plaintiff’s entitlement to a declaratory judgment that the defendant owned 

certain shares of company stock); see also Lynch v. Gonzalez, 2020 WL 4381604, at *39 

(Del. Ch. July 31, 2020) (granting a declaratory judgment as to company ownership); Bata 

v. Hill, 139 A.2d 159 (Del. Ch. 1958) (granting a declaratory judgment as to ownership of 

certain shares of corporate stock).

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

22 Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1158 (Del. 2010).
10

restrictions on those purchases; (3) who would be entitled to receive distribution of 

those shares; and (4) what rights, if any, Malca might hold for Mejia’s later-acquired 

Grability shares if Mejia had to contribute additional funds to secure those shares. 

b. “What [contract] terms are material [or essential] is determined 

on a case-by-case basis, depending on the subject matter of the agreement and on 

the contemporaneous evidence of what terms the parties considered essential.”

23

The issue of “materiality” in the breach of contract context raises “predominantly a 

question of fact.”24 Therefore, at this stage, Malca need only allege “a rough 

skeleton of definite obligations” to “escort this claim past [Mejia’s] motion.”25

c. “[I]t is reasonably conceivable that [Malca] could prove, based 

on the facts alleged in the Complaint, the [Investment Agremment] contained all 

material and essential terms. . . .”26 This is all that is required to survive Mejia’s 

23 Eagle Force Hldgs., LLC v. Campbell, 187 A.3d 1209, 1230 (Del. 2018); see Leeds v. 

First Allied Conn. Corp., 521 A.2d 1095, 1097 (Del. Ch. 1986) (“[O]ur task is to determine 

the factual setting in which the document that is here claimed to constitute a contract was 

negotiated and executed and to decide the factual question whether a reasonable negotiator 

in the position of one asserting the existence of a contract would have concluded, in that 

setting, that the agreement reached constituted agreement on all of the terms that the parties 

themselves regarded as essential and thus that that agreement concluded the negotiations 

and formed a contract.”).

24 Matthew v. Laudamiel, 2012 WL 2580572, at *10 (Del. Ch. June 29, 2012) (quoting

Branson v. Exide Elecs. Corp., 645 A.2d 568 (Del. 1994) (TABLE)).

25 BAE Sys. Info. & Elec. Sys. Integration, Inc. v. Lockheed Martin Corp., 2009 WL 

264088, at *5 (Del. Ch. Feb. 3, 2009).

26 Pharmathene, Inc. v. SIGA Techs., Inc., 2008 WL 151855, at *13 (Del. Ch. 

Jan. 16, 2008).
11

Motion. Malca’s Complaint pleads the “essential terms for th[e] agreement, which 

were quite simple: Malca gave Mejia $150,000 in exchange for an 11.2% stake in 

Grability, and Mejia held those shares for Malca’s benefit.”27 The essential terms at 

the time of contracting were those that established the terms of Malca’s investment:

the amount of his contribution, the amount of shares received, and that Mejia would 

purchase and hold those shares for Malca’s benefit.

d. The additional terms Mejia conjures up are not essential to the 

Investment Agreement as pled. For example, Malca is not seeking to enforce the 

loan itself, so more detailed loan terms are not essential. As for the terms of Malca’s 

investment, at the time of contracting and the initial investment, Grability had not 

been incorporated, and nothing suggests the parties thought rights pertinent to 

potential future corporate acquisitions, changes of control, or spinoffs were essential. 

To declare such terms essential at the pleading stage would undermine and eviscerate 

many legitimate contracts that bear simple terms, and would impose on contracting 

parties the burden of carrying a crystal ball at the start-up stage of business 

development. Whether Mejia’s suggested additional terms are essential is a question 

of fact to be fleshed out in discovery.28 

27 D.I. 53 at 14.

28 See, e.g., Matthew, 2012 WL 2580572, at *10; see also Pharmathene, Inc., 2008 WL 

151855, at *14 (“[Defendant]’s argument is too conclusory to be convincing. [Defendant] 

did not cite any legal authority for its contention the [agreement] lacks certain material or 

essential terms . . . . . Hence, the issue is primarily one of fact. At this early stage in the 
12

e. Mejia next attacks Count II on the basis that the terms Plaintiff

did allege are not sufficiently definite to form the basis of an enforceable contract. 

“This is mostly, if not entirely, a question of law.”29 Essential terms are “sufficiently 

definite and certain to be enforceable” “if they provide a basis for determining the 

existence of a breach and for giving an appropriate remedy.”

30 Mejia contends the 

Investment Agreement’s terms offer no way to determine whether there are any 

limitations on what Mejia could do with Plaintiff’s Grability shares; whether and 

how Mejia was required to re-register the shares in Plaintiff’s name; what Mejia 

could do with Plaintiff’s shares; and whether Plaintiff would obtain interest in shares 

of another company (such as Rappi).31 

proceeding, however, the facts remain to be developed. Moreover, [Defendant] has failed 

to cite anything in the Complaint and its related documents that would enable me to 

conclude [Plaintiff] could not conceivably show from the facts alleged that the [agreement] 

addresses all the material and essential terms . . . . It certainly is open to question whether 

the terms mentioned in the [agreement] constitute all of the material and essential terms 

. . . , but resolution of that issue must await further development of the record.” (emphasis 

in original)).

29 Eagle Force Hldgs., 187 A.3d at 1232.

30 Id. (explaining that if a court can understand what obligations parties hold “based upon 

the agreement’s terms, and applying proper rules of construction and principles of equity,” 

the contract’s terms are sufficiently definite).

31 D.I. 46 at 20.
13

f. The Investment Agreement’s terms are not vague or subject to 

more than one meaning.32 As long as the Court can “ascertain what the parties have 

agreed to do” in light of the terms alleged, a contract’s terms are not so vague as to 

make it unenforceable.33 The terms as alleged “manifest a mutual assent between 

the parties as to the essential terms, including what was to be transferred under the 

agreement, how, and to whom.”34 

g. At this stage, Plaintiff has sufficiently pled terms establishing he 

and Mejia agreed Plaintiff owns certain Grability shares. As alleged, Plaintiff agreed 

to transfer $150,000 to Mejia, and Mejia agreed to use that money to purchase the 

shares and hold them in his name for Plaintiff, the beneficial owner. That Mejia 

abided by these terms from 2013 until 2019 “further supports this conclusion” that 

the parties knew to what they were agreeing and understood the contract sufficiently 

to perform.35 It is reasonably conceivable that Plaintiff’s rights in the Grability 

shares under the Investment Agreement would include any right as a Grability 

32 See, e.g., Alta Berkeley VI C.V. v. Omneon, Inc., 41 A.3d 381, 385–86 (Del. 2012) (“To 

be ambiguous, a disputed contract term must be fairly or reasonably susceptible to more 

than one meaning.”).

33 Eagle Force Hldgs., 187 A.3d at 1232.

34 Black Horse Cap., LP v. Xstelos Hldgs., Inc., 2014 WL 5025926, at *10, *12 (Del. Ch. 

Sept. 30, 2014) (agreeing with the defendant’s argument as stated and holding that the 

plaintiff failed to plead facts demonstrating the parties formed a contract).

35 Pharmathene, Inc., 2008 WL 151855, at *14 (concluding that “[t]he parties’ conduct, as 

alleged in the Complaint,” supported the findings that the plaintiff had pled the subject 

agreement included all material and essential terms).
14

stockholder to purchase or otherwise obtain Rappi shares, which in turn would afford 

the attendant right to cash out those Rappi shares in the Softbank Tender. That the 

Investment Agreement did not foresee the specific events that unfolded in the future 

does not render its terms vague. 

h. Finally, Mejia contends Plaintiff failed to state a viable claim for 

breach of contract because he has failed to allege Mejia breached any provision of 

the Investment Agreement. The Investment Agreement required Mejia to hold 

Grability shares for Malca’s benefit, and action counter to that obligation constitutes

breach. As alleged, it is reasonably conceivable that Mejia breached the Investment 

Agreement by declaring the Rappi shares derived from Malca’s Grability shares 

were not Malca’s. Whether a breach actually occurred is ultimately a question of

fact.36 

3. The Motions are DENIED as to Count III. “Generally speaking, any 

distinct act of dominion wrongfully exerted over the property of another, in denial 

36 See, e.g., State v. Cahill, 443 A.2d 497, 500 (Del. 1982) (“The simplest contract case 

makes our point regarding this view of factual issues. If a defendant refuses to convey a 

chattel pursuant to a contract, and the plaintiff claims the chattel is unique and subject to 

specific performance, the factual issue of the breach is precisely the same in equity as it 

would be in a damage action at law.”); Matthew v. Laudamiel, 2014 WL 5499989, at *2 

(Del. Ch. Oct. 30, 2014) (suggesting that breach is an issue of fact); Saienni v. G & C Cap. 

Gp., Inc., 1997 WL 363919, at *3 (Del. Super. May 1, 1997) (explaining that where facts 

are disputed, “the issue of whether a material breach of a contract has occurred is ordinarily 

a question of fact”).
15

of his right, or inconsistent with it, is a conversion.”37 A plaintiff states a viable 

claim for conversion where he alleges (1) he had a property interest in equipment or 

other property; (2) he had a right to possession of the property; and (3) the property 

was converted, in that the defendants wrongfully possess or disposed of the property

as if it were their own.

38

 “[C]onversion may be alleged either in the proper general 

terms or by setting out specific facts that clearly establish it.”39 But “[b]efore 

bringing an action for conversion, a plaintiff must demonstrate that it made a demand 

that the property be returned and the defendant refused the demand. This 

requirement is excused, however, when the alleged wrongful act amounts to a denial 

of the rights of the real owner.”

40

a. “A stockholder’s shares are converted by any act of control or 

dominion without the stockholder’s authority or consent, and in disregard, violation, 

37 Drug, Inc. v. Hunt, 168 A. 87, 93 (Del. 1933).

38 E.g., Israel Disc. Bank of N.Y. v. First State Depository Co., 2013 WL 2326875, at *19 

(Del. Ch. May 29, 2013).

39 Drug, Inc., 168 A. at 94; see also In re Happy Child World, Inc., 2020 WL 5793156, at 

*11 (Del. Ch. Sept. 29, 2020) (“As for conversion, that claim rests on any distinct act of 

dominion wrongfully exerted over the property of another, in denial of the plaintiff’s right, 

or inconsistent with it. In order to state a claim for conversion, the plaintiff must generally 

allege that the defendant violated an independent legal duty.” (alterations, footnotes, and 

internal quotation marks omitted) (quoting Drug, Inc., 168 A. at 93, and also quoting 

Kuroda v. SPJS Hldgs., L.L.C., 971 A.2d 872, 889 (Del. Ch. 2009))).

40 Triton Constr. Co. v. E. Shore Elec. Servs., Inc., 2009 WL 1387115, at *24 (Del. Ch. 

May 18, 2009) (footnote omitted), aff’d, 988 A.2d 938 (Del. 2010); accord Drug, Inc., 

168 A. at 94.
16

or denial of his rights as a stockholder of the company.”41 “An action for conversion 

lies whenever an individual or entity interferes with a stockholder’s right to shares 

of stock, which represent a property interest in the company.”42 Thus, “[a]

corporation itself may interfere with the rights of the stockholder by simply denying 

them, and thus become liable for conversion.”

43

 Here, Malca has stated a viable 

conversion claim against Mejia and Rappi, as they allegedly denied his rightful 

ownership of 600,256 Rappi shares.

b. Though Defendants raise the argument that “[u]nder Delaware 

law, a plaintiff bringing a claim based entirely upon a breach of the terms of a 

contract generally must sue in contract, and not in tort,”

44 there is room for an 

alternative tort claim here. Malca’s conversion claim against Mejia does not arise 

solely from a breach of contract;45 the Investment Agreement may prove to lack 

material terms, or its Grability-centric terms may not have been breached. There is 

room for a nonduplicative, alternative tort claim that Mejia took Malca’s Rappi 

41 Arnold v. Soc’y For Sav. Bancorp, Inc., 678 A.2d 533, 536 (Del. 1996) (alterations and 

internal quotation marks omitted) (quoting Drug, Inc., 168 A. at 93–94).

42 Triton Constr. Co., 2009 WL 1387115, at *24 n.150 (citing and discussing Drug, Inc., 

168 A. at 93).

43 Drug, Inc., 168 A. at 93.

44 West v. Access Control Related Enters., LLC, 2019 WL 2385863, at *4 (Del. Super. Ct. 

June 5, 2019) (quoting Data Mgmt. Internationale, Inc. v. Saraga, 2007 WL 2142848, at 

*1 (Del. Super. Ct. July 25, 2007)).

45 Kuroda, 971 A.2d at 889 (internal quotation marks omitted) (quoting Data Mgmt. 

Internationale, Inc. v. Saraga, 2007 WL 2142848, at *3 (Del. Super. July 25, 2007)).
17

shares. And as to Rappi, Plaintiff did not bring any potentially overlapping breach 

of contract claim.46 Thus, the existence of a breach of contract claim against Mejia 

does not foreclose Count III against the Defendants.

c. Malca adequately pleads each element of conversion against 

Mejia and Rappi. Throughout his complaint, Malca alleges (1) his property interest 

as beneficial owner in the Rappi shares as a consequence of the Roll-Up (or his 

interest in the opportunity to acquire Rappi shares as a result of his Grability equity 

ownership); (2) his right to possess, tender, or otherwise control those Rappi shares; 

and (3) Mejia’s conversion by claiming Malca’s shares as his own and denying

Malca the benefit of his rightful ownership. As alleged, Mejia took Plaintiff’s shares 

as Rappi’s agent or at least leveraged his role as a Rappi officer and directors in 

denying Malca’s ownership. 

d. Admittedly, Malca’s conversion allegations against Rappi are 

more sparse. Paragraph 57 of the Amended Complaint alleges “Rappi suddenly 

declared that Malca owned no Rappi shares,” but “Rappi had repeatedly represented 

to Malca that his status as a shareholder of Rappi was secure.”47 Paragraph 58 

identifies Mejia as Rappi’s alleged agent in this misdeed, alleging that “because 

46 Rappi was not a party to the Investment Agreement, so Malca would not be able to 

recover from Rappi under a breach of contract theory.

47 Am. Compl. ¶ 57 (emphasis added).
18

Mejia is an Executive Officer and Director of Rappi and claimed Malca’s shares as 

his own, Rappi and Mejia had no trouble effectuating the false claim that Malca 

owns no shares in Rappi.”48 Plaintiff contends both “Rappi and Mejia excluded 

Malca from the SoftBank Tender.”49 Plaintiff has therefore alleged that Rappi, 

through Mejia and otherwise, withheld shares from Plaintiff by misrepresenting their 

rightful ownership in Rappi’s books and records, and by blocking Malca from 

tendering those shares in the Softbank Tender. Therefore, Plaintiff has stated a claim 

that Rappi, through Mejia, and Mejia, individually, “wrongfully possessed or 

disposed of such [shares] as if [they] were [Mejia’s] own.”50 Count III therefore 

proceeds against both Mejia and Rappi.

4. The Motions are DENIED as to Count IV. “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.”51 In order to state a claim for unjust enrichment, a plaintiff must 

sufficiently allege: “(1) an enrichment, (2) an impoverishment, (3) a relation 

48 Id. ¶ 58.

49 Id.

50 Israel Disc. Bank of N.Y., 2013 WL 2326875, at *19.

51 E.g., Boulden v. Albiorix, Inc., 2013 WL 396254, at *14 (Del. Ch. Jan. 31, 2013) (internal 

quotation marks omitted) (quoting MetCap Sec. LLC v. Pearl Senior Care, Inc., 2007 WL 

1498989, at *5 (Del. Ch. May 16, 2007)).
19

between the enrichment and impoverishment, (4) the absence of justification, and 

(5) the absence of a remedy provided by law.”52 

a. Mejia moves to dismiss this claim as duplicative in light of 

Malca’s breach of contract claim. But Plaintiff has explicitly stated he only intends 

to pursue this claim if Defendants succeed in disarming the Investment Agreement.53

Such an alternative unjust enrichment claim need not be supported by an 

independent factual basis.54 

b. Malca has sufficiently pled unjust enrichment. The Complaint 

alleges Mejia held some Grability shares for himself and some for Plaintiff, but used 

all of these Grability shares to obtain the corresponding Rappi shares. Plaintiff

52 E.g., BAE Sys. Info. & Elec. Sys. Integration, Inc., 2009 WL 264088, at *7–8 (quoting 

Jackson Nat’l Life Ins. Co. v. Kennedy, 741 A.2d 377, 393–94 (Del. Ch. 1999)).

53 See Boulden, 2013 WL 396254, at *14 (“As is typical, [Plaintiff] has pleaded this claim 

in the alternative. In some circumstances, alternative pleading allows a party to seek 

recovery under theories of contract or quasi-contract. This is generally so, however, only 

when there is doubt surrounding the enforceability or the existence of the contract. Courts 

generally dismiss claims for quantum meruit on the pleadings when it is clear from the face 

of the complaint that there exists an express contract that controls. Where, as here, doubt 

exists surrounding the existence of a contract, the Court will allow [Plaintiff] to seek 

recovery under this theory provided the requisite elements are adequately pleaded.” 

(footnote omitted) (quoting Albert v. Alex. Brown Mgmt. Servs., Inc., 2005 WL 2130607, 

at *8 (Del. Ch. Aug. 26, 2005))).

54 See, e.g., id. (concluding the plaintiff properly based an alternative claim for unjust 

enrichment upon the same factual basis as a claim for breach of contract where there was 

doubt about the existence or enforceability of the contract).
20

contends 33.2% of Mejia’s Rappi shares belong to him.

55 Plaintiff alleges Mejia has 

been enriched by taking Plaintiff’s shares, and that Plaintiff has suffered an 

impoverishment from his lost shares. Plaintiff has also pled an absence of 

justification for Mejia’s exclusion of Plaintiff from the alleged Roll-Up into Rappi 

and the Softbank Tender.

5. The Motions are DENIED as to Count V. To state a claim for breach 

of fiduciary duty, a plaintiff must allege “(i) that a fiduciary duty exists; and (ii) that 

a fiduciary breached that duty.”56 “The core principle of a fiduciary duty is that one 

who controls property of another may not, without implied or express agreement, 

intentionally use that property in a way that benefits the holder of the control to the 

detriment of the property or its beneficial owner.”57 And “[t]he duties of care and 

loyalty flow from that ‘central aspect’ of the fiduciary relationship.”58 If a plaintiff 

reasonably alleges facts that suggest such an agency relationship is present and the 

alleged fiduciary acted contrary to that core principle, the plaintiff has successfully 

stated a claim upon which relief may be granted. 

55 Malca seeks relief with respect to “33.2% of the shares that Mejia currently owns in 

Rappi adjusted upward for any transfers or sales of shares in which Mejia may have 

participated prior to, in connection with, or after the Rappi Conversion.” Am. Compl. ¶ 61.

56 E.g., Heller v. Kiernan, 2002 WL 385545, at *3 (Del. Ch. Feb. 27, 2002).

57 Stewart v. Wilm. Tr. SP Servs., Inc., 112 A.3d 271, 297 (Del. Ch. 2015) (internal 

quotation marks omitted) (quoting In re USACafes, L.P. Litig., 600 A.2d 43, 48 (Del. Ch. 

1991)).

58 Id. (quoting USACafes, 600 A.2d at 48).
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a. Here, Plaintiff has alleged that Mejia owed Malca fiduciary 

duties through two sources: (1) as his nominee or agent under the Investment 

Agreement, and (2) as an officer and director of Rappi. Plaintiff has alleged facts 

making it reasonably conceivable that Mejia breached his duties in both capacities. 

b. It is reasonably conceivable that Mejia owed Plaintiff fiduciary 

duties as the holder of Plaintiff’s beneficially owned shares. Plaintiff specifically 

pleads that Mejia held shares as an agent or nominee for Plaintiff’s benefit, and that 

Mejia explicitly acknowledged that role.59 That agency relationship was created by 

the Investment Agreement.60 Though an arms-length contract alone may be 

insufficient to establish an agency relationship,61 the facts pled suggest that Malca 

and Mejia’s relationship was not forged in an arm’s-length commercial setting; 

rather, Malca has alleged that he and Mejia have a close personal relationship; Mejia 

was dependent on Malca’s funding; and that Malca was dependent on Mejia for the 

specific purpose of holding the stock for his benefit. These allegations are sufficient

59 See, e.g., Am. Compl. ¶ 49.

60 See id. ¶¶ 6–7.

61 See Forsythe v. ESC Fund Mgmt. Co. (U.S.), Inc., 2007 WL 2982247, at *10 (Del. Ch. 

Oct. 9, 2007) (“[A] straightforward, arm’s-length commercial relationship arising from 

contract does not give rise to fiduciary duties.”).
22

at this stage: “[t]he determination of whether an agency relationship exists is 

normally a question of fact.”62

c. As Malca’s agent, Mejia was constrained by several duties, 

including “a duty to carry out [Malca’s] instructions promptly and accurately,” a 

duty to “act in [Malca’s] best interests,” and a duty to “refrain from self-dealing.”

63

 

Specifically as a “nominee,” Mejia, “as [an] agent[] of the beneficial owner[], owe[d] 

a duty to take the necessary steps to afford the true owners the opportunity to realize 

the benefits of [a p]roposed [t]ransaction.”64 Mejia allegedly acknowledged these 

duties: at the time of the Investment Agreement, Mejia stated his success would be 

Malca’s, and he assumed this “as a great responsibility and commitment to 

[Malca].”65 Malca has pled a fiduciary relationship. 

d. Malca has also pled a breach of the duty of loyalty. Malca alleges 

Mejia “intentionally block[ed] Malca from using his shares in the SoftBank Tender”

to Plaintiff’s detriment.66 Plaintiff also alleges Mejia engaged in self-dealing at 

62 WaveDivision Hldgs., LLC v. Highland Cap. Mgmt., L.P., 49 A.3d 1168, 1177 (Del. 

2012) (quoting Fisher v. Townsends, Inc., 695 A.2d 53, 61 (Del. 1997)).

63 O’Malley v. Boris, 742 A.2d 845, 849 (Del. 1999) (“These obligations at times are 

described as fiduciary duties of good faith, fair dealing, and loyalty. They are comparable 

to the fiduciary duties of corporate directors, and are limited only by the scope of the 

agency.” (footnote omitted)).

64 Applebaum v. Avaya, Inc., 812 A.2d 880, 889 (Del. 2002) (citing O’Malley, 742 A.2d at 

849).

65 Am. Compl. ¶ 7.

66 Id. ¶ 101.
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Plaintiff’s expense by failing to acknowledge Plaintiff’s interest in Rappi, and

instead taking that interest as his own.

e. Plaintiff’s remaining allegations center on Mejia’s additional 

fiduciary role as a Rappi officer and director. Count V specifically alleges that “[b]y 

failing to keep accurate books and records, refusing to acknowledge Plaintiff 

Malca’s ownership interest in Defendant Rappi, and intentionally blocking Malca 

from using his shares in the SoftBank Tender, Defendant Mejia failed to fulfill his 

duties as an Executive Officer and Director of Rappi and personally enriched 

himself, all at Malca’s expense.”67 Plaintiff alleges classic self-dealing: Mejia 

leveraged his position as a Rappi fiduciary to reject a proper stockholder’s ownership 

on Rappi’s behalf in order to retain that equity for himself. Paragraph 58 alleges 

that Mejia rejected Malca’s ownership as a Rappi officer and director. Those 

positions afforded Mejia the ability to foreclose Malca’s participation in the 

Softbank Tender; prevent Malca’s rightful ownership from being documented in 

Rappi’s books and records; and ensure Mejia would keep record title to those shares. 

Accordingly, Plaintiff has alleged that Malca breached his fiduciary duties as an 

officer and director of Rappi.

6. Finally, Defendants’ Motions on the grounds that Counts II, III, IV, and 

V are untimely are DENIED. Defendants mischaracterize Malca’s claims. Malca 

67 Id.
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alleges breach occurred when Mejia declared the Rappi shares did not belong to 

Malca, not in any initial failure to register Grability shares at the time of the 

Investment Agreement. The wrong underlying Malca’s claims occurred in 2019, 

when Mejia first disavowed Plaintiff’s interest in Rappi. Thus, the three-year statute 

of limitations has not run. 

 /s/ Morgan T. Zurn 

Vice Chancellor Morgan T. Zurn