IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

DENGRONG ZHOU,

 Plaintiff/Counterclaim

 Defendant,

 v.

LONG DENG and MARK FANG,

 Defendants/Counterclaim

 and Third Party Claim

 Plaintiffs,

 and

iFRESH, INC., a Delaware corporation,

 Nominal Defendant, 

 v.

QIANG OU, KAIRUI TONG, HAO 

HUANG, HUBEI RONGENTANG WINE 

CO., LTD., HUBEI RONGENTANG 

HERBAL WINE CO., ZHANG FEI, 

LIU MENG, JIUXIANG BLUE SKY 

TECHNOLOGY (BEIJING) CO, LTD., 

and HK XU DING CO., LIMITED,

 Third Party Defendants.

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 C.A. No. 2021-0026-JRS

MEMORANDUM OPINION

Date Submitted: March 17, 2022

Date Decided: April 6, 2022
Peter B. Ladig, Esquire and Sarah T. Andrade, Esquire of Bayard, P.A., Wilmington, 

Delaware and Stephen M. Plotnick, Esquire, Alexander G. Malyshev, Esquire and 

Matthew D. Dunn, Esquire of Carter Ledyard & Milburn LLP, New York, 

New York, Attorneys for Plaintiff Dengrong Zhou.

John G. Harris, Esquire of Berger Harris LLP, Wilmington, Delaware and 

Angus F. Ni, Esquire and Times Wang, Esquire of AFN Law, PLLC, Seattle, 

Washington, Attorneys for Defendants/Counterclaim and Third Party Plaintiffs 

Long Deng and Mark Fang.

SLIGHTS, Vice Chancellor
1

Plaintiff, Dengrong Zhou, a stockholder of iFresh, Inc. (“iFresh”), brings this 

action under 8 Del. C. § 225 (“Section 225”) against Defendants, Long Deng and 

Mark Fang, to obtain a declaration that a written consent executed by a majority of 

iFresh’s stockholders, including Zhou (the “Consent”), validly removed Defendants 

from iFresh’s board of directors (the “Board”) and elected Qiang Ou and 

Jiandong Xu in their stead. In response, Defendants have filed verified 

counterclaims against Zhou in which they seek a declaration that the Consent was 

invalid because Zhou and his allies obtained their iFresh shares through fraud, aiding 

and abetting breaches of fiduciary duty and breach of contract. 

After a two-day trial, and after carefully considering the evidence and 

arguments of counsel, I am persuaded that Defendants were properly removed from 

iFresh’s Board and Ou and Xu were properly appointed to take their place. A final 

judgment to that effect will be entered for Plaintiff. 

I. BACKGROUND

Many of the facts relevant to this dispute were stipulated by the parties.1 

Otherwise, the facts detailed below are drawn from the competent evidence 

presented at trial. 

1 Citations in the form of “PTO __” refer to the Joint Pre-Trial Stipulation and Order 

(D.I. 186). Citations in the form of “JX __” refer to joint exhibits in the trial record.

Citations in the form of “Tr. __ ([Last Name])” refer to the trial testimony of the identified 
2

A. The Parties

iFresh is a Delaware corporation with its principal place of business in 

New York, New York.2It was previously listed on the NASDAQ exchange but was 

delisted on November 23, 2021, during the pendency of this litigation.3

Plaintiff, Dengrong Zhou, is a record stockholder of iFresh owning 1,031,679 

(2.844%) shares of common stock.4 His iFresh shares were voted in the Consent.5

Defendant, Long Deng, is the CEO of iFresh and was Chairman of the Board.6

Deng holds 7,475,704 (20.609%) shares of common stock.7 Defendant, Mark Fang, 

witness. And citations in the form “[Last Name] Dep. __” refer to the deposition testimony 

of the identified witness as lodged with the Court.

2 PTO ¶ 16.

3 PTO ¶¶ 16, 40–43. iFresh was initially listed on NASDAQ in February 2017. 

JX 90 at 37. According to iFresh’s 2019 Form 10-K, by 2019, iFresh was in default on its 

Credit Facility with Key Bank, which “raise[d] substantial doubt about the Company’s 

ability to continue as a going concern.” JX 25 at 25. To address the default, iFresh entered

into a forbearance agreement with Key Bank in October 2019. JX 35 at 6. Soon after, as 

iFresh stock was trading at ⁓$1 per share, NASDAQ warned iFresh that it was not in 

compliance with NASDAQ’s listing requirements and threatened delisting. JX 41; JX 47; 

PTO ¶ 37 (“iFresh has received notifications from the NASDAQ Listing Qualifications 

Staff stating that the Company was not in compliance with NASDAQ Rules . . . .”). Deng 

sought the initial investment from Zhou on behalf of iFresh, as detailed below, in the midst 

of this turbulence. Tr. 54:22–55:11 (Zhou).

4 PTO ¶ 18.

5 PTO ¶ 11. 

6 PTO ¶ 19.

7

Id.
3

was also a member of iFresh’s Board and holds 6,000 (0.017%) shares of its common 

stock.8

B. The Consent

On January 12, 2021, Zhou and six other iFresh stockholders, collectively 

holding 52.29% of the issued and outstanding shares of iFresh voting stock 

(the “Control Group”), purported to remove Deng and Fang from iFresh’s Board and 

elect Qiang Ou and Jiandong Xu in their stead via the Consent.9 As discussed below, 

the members of the Control Group obtained their iFresh stock through various 

transactions, each of which are challenged by Defendants.

In January 2019, HK Xu Ding Co. Ltd. (“HK XD”) entered into a purchase 

agreement with Deng to acquire 8,294,989 shares of iFresh stock for $7,050,741.10 

HK XD held 22.87% of iFresh voting stock when the Consent was signed.

11

8 PTO ¶ 20.

9 PTO ¶¶ 32–35.

10 PTO ¶ 37(f) (“Mr. Long Deng CEO and major shareholders of the Company sold an 

aggregate of 8,294,989 restricted shares to HK XD, representing 51% of the total issued 

and outstanding shares of the Company as of December 31, 2018.”); HK Xu Ding Co., 

Ltd.’s Mem. in Supp. of its Mot. to Dismiss Count II (D.I. 146) Ex. 1 (Order of Supreme 

Court of the State of New York County of New York) (“Long Deng[] sold 8,294,989 shares 

of iFresh, Inc., a Delaware Corporation to HK Xu Ding Co. Limited, a Hong Kong 

Corporation for a total price of $7,050,741.00.”).

11 PTO ¶ 32(a).
4

In March of 2020, iFresh entered into a purchase agreement with Zhou and 

Qiang Ou (the “Zhou and Ou Agreement”). Under the Zhou and Ou Agreement, 

iFresh sold Zhou 1,031,679 iFresh shares and sold Ou 751,488 iFresh shares, 

resulting in Zhou owning 2.84% and Ou owning 2.07% of iFresh’s voting stock

when the Consent was signed.

12

On March 26, 2020, iFresh entered into a purchase agreement with 

Kairui Tong and Hao Huang (the “RET Wine Agreement”).13 Under that agreement, 

iFresh received Tong and Huang’s 100% interest in two herbal wine companies, 

Hubei Rongentang Wine Co., Ltd. and Hubei Rongentang Herbal Wine Co., Ltd. 

(collectively, “RET Wine”), in exchange for 3,852,372 shares of iFresh’s common 

stock and 1,000 shares of the Company’s Series B Convertible Preferred Stock.14

Tong obtained 2,311,423 of the total shares and Huang obtained 1,540,949 shares, 

amounting to 6.37% and 4.25% voting interests in iFresh, respectively.15

On August 6, 2020, iFresh entered into a purchase agreement with Fei Zhang 

and Meng Liu (the “Jiuxiang Agreement”). Under that agreement, Zhang and Liu 

sold iFresh their 100% equity interest in Jiuxiang Blue Sky Technology 

12 PTO ¶¶ 32(b), 32(c), 55.

13 PTO ¶ 61.

14 Id.

15 PTO ¶ 32(d), 32(e).
5

(Beijing) Co., Ltd. (“Jiuxiang”) for 5,036,298 shares of iFresh common stock 

(4,532,668 shares to Zhang and 503,630 shares to Liu) and 1,000 shares of Series C 

convertible preferred stock.16

As permitted by iFresh’s bylaws,17 having acquired their iFresh shares as just 

described, the Control Group executed the Consent purporting to remove Deng and 

Fang as directors on January 12, 2021.18 It was delivered that same day to iFresh’s 

registered office and principal place of business.19 Defendants do not dispute that 

the Consent was proper as to form or that it was delivered in accordance with the 

iFresh bylaws and Delaware law.20

C. Procedural History

Upon delivery of the Consent, Zhou immediately filed this Section 225 action 

seeking a declaration that the Consent was valid.21 Defendants responded by filing

16 PTO ¶¶ 32(f), 32(g), 65.

17 PTO ¶¶ 29–31 (citing bylaws and stipulating that “iFresh directors may be removed by 

a vote of stockholders under iFresh’s By-Laws”). 

18 PTO ¶¶ 33–34.

19 PTO ¶ 35.

20 Neither Defendants’ pre-trial briefs nor their post-trial briefs advanced an argument that 

the Consent was invalid as a matter of form, as violative of the iFresh bylaws, or as 

violative of the Delaware General Corporation Law. Any such arguments, therefore, would 

properly be deemed waived. See Oxbow Carbon & Mins. Hldgs., Inc. v. Crestview-Oxbow 

Acq., LLC, 202 A.3d 482, 502 (Del. 2019).

21 D.I. 1, 3.
6

an Answer, Affirmative Defenses, Verified Counterclaim and Third-Party 

Complaint on February 26, 2021.22 Third-Party Defendants moved to dismiss that 

pleading as to them and, after full briefing on the motion, without leave of Court, 

Defendants (as Third-Party Plaintiffs) filed an Amended Third-Party Complaint just 

days before oral argument.

23

 The Court deferred ruling on that motion but ultimately 

dismissed the Amended Third-Party Complaint for failure to state viable claims on 

January 21, 2022.

24

 

A few weeks before trial, Defendants sprang another new pleading, this time 

bringing a motion to file an amended counterclaim (the “Amended 

Counterclaim”).

25 The Amended Counterclaim substantially expanded the factual 

predicate of existing claims and advanced entirely new claims under Section 225 in 

support of a declaration that the Consent was invalid because the stock purchases in 

22 D.I. 35.

23 D.I. 83, 125.

24 D.I. 190. The principal bases for the Court’s dismissal of the third-party claims were

that Deng and Fang sought to bring in personam claims against individuals who did not 

wish to participate in this in rem proceeding and did not assert a right to corporate office, 

and otherwise sought impermissibly to expand the scope of this summary litigation. 

See D.I. 193 (the Court’s oral ruling on the motion to dismiss the Amended Third-Party 

Complaint). 

25 D.I. 173.
7

which members of the Control Group acquired their iFresh stock were invalid.

26

The Court granted the motion to amend subject to certain conditions.27

The Court held a two-day trial on January 24 and 25, 2022.

28 After post-trial 

briefs, closing arguments and Defendants’ unsolicited supplemental submission, the 

matter was deemed submitted on March 17, 2022.29 

II. ANALYSIS

As noted, Zhou initiated this action seeking a declaration under Section 225 

that the Consent was valid. Given the apparent agreement that the Consent was valid 

as a matter of iFresh’s constitutive documents and as a matter of law, the parties 

focused at trial and in the post-trial briefing on Defendants’ Amended Counterclaim. 

Put simply, Defendants contend that the Court should invalidate the Consent because 

the shares that were voted in the Consent were products of aiding and abetting 

breaches of fiduciary duty, breach of contract or fraud. For the reasons explained 

below, Defendants have failed to carry their burden to prove any of these bases to 

26 See D.I. 173 ¶¶ 140–73. The amended pleading also asserted third-party claims, which, 

as noted, were dismissed. 

27 D.I. 194. Specifically, the Court required Defendants to provide certain additional 

discovery related to the many new factual allegations set forth in their amended pleading 

by a date certain in advance of trial. Id. 

28 D.I 196–97.

29 D.I. 198–99, 203–04.
8

invalidate the Consent. Before addressing the claims seriatim, however, it is useful 

first to set the table by laying out the purpose and scope of Section 225.

A. Purpose and Scope of Section 225

“The purpose of Section 225 is to provide a quick method for review of the 

corporate election process to prevent a Delaware corporation from being 

immobilized by controversies about whether a given officer or director is properly 

holding office.”30 Because a Section 225 proceeding is summary in nature, and 

narrow in purpose,31 the scope of the proceeding is “limited to determining those 

issues that pertain to the validity of actions to elect or remove a director or officer.”32

In other words, for a claim to be adjudicated in a 225 proceeding, the adjudication 

must be necessary to “help the court decide the proper composition of the 

corporation’s board or management team.”33

30 Box v. Box, 697 A.2d 395, 398 (Del. 1997).

31 See Kahn Bros. & Co. Profit Sharing Plan & Tr. v. Fischbach Corp., 1988 WL 122517, 

at *5 (Del. Ch. Nov. 15, 1988) (“An action under Section 225 is, it is true, a special statutory 

action that is, in some respects, narrow.”).

32 Genger v. TR Invs., LLC, 26 A.3d 180, 199 (Del. 2011).

33 Id.; see also Adlerstein v. Wertheimer, 2002 WL 205684, at *7 (Del. Ch. Jan. 25, 2002) 

(“[A] Section 225 proceeding is limited to those issues that must necessarily be considered 

in order to resolve a disputed corporate election process.”); Genger, 26 A.3d at 199 

(holding that Section 225 envisions “an in rem proceeding, where the ‘defendants’ are 

before the court . . . as respondents being invited to litigate their claims to the res (here, the 

disputed corporate office)”).
9

When addressing a claim to corporate office under Section 225, the Court may 

consider whether the claim is tainted by fraud, deceit or breach of contract.34 But 

that determination may be made “only for the purpose of determining the 

corporation’s de jure directors and officers,” not for the purpose of assessing in 

personam liability for actionable wrongdoing.35 Any issues that stray from 

Section 225’s narrow scope are collateral and will not be considered.36 Specifically, 

the court “cannot go further and actually rescind a transaction procured through such 

unlawful behavior or award money damages to those harmed by that behavior.”37

That plenary relief “can only be obtained in a plenary action in a court that has in 

personam jurisdiction over any necessary or indispensable parties.”

38

Here, Defendants assert that Zhou and others have engaged in wrongdoing. 

The Court will consider Defendants’ evidence of wrongdoing, but only to the extent 

relevant to the narrow question to be adjudicated––is the Consent valid?

34 Brown v. Kellar, 2018 WL 6721263, at *6–7 (Del. Ch. Dec. 21, 2018) (quoting Genger, 

26 A.3d at 200).

35 Genger, 26 A.3d at 200.

36 Brown, 2018 WL 6721263, at *6.

37 Agranoff v. Miller, 1999 WL 219650, at *17 (Del. Ch. Apr. 12, 1999); see also Marks v. 

Menoutis, 1992 WL 22248, at *5 (Del. Ch. Feb. 3, 1992) (“The Court cannot directly order 

a transaction to be rescinded in a § 225 proceeding.”).

38 Genger, 26 A.3d at 200.
10

B. The Consent Was Proper in Form and Function 

To reiterate, the parties do not appear to dispute that the Consent was proper 

in form and function, and for good reason.

39 The Consent adhered to both Delaware 

law and iFresh’s bylaws.40 As indicated by iFresh’s shareholders list,

41 Zhou, 

Qiang Ou, Kairui Tong, Hao Huang, Zhang Fei, Liu Meng, and HK XD 

(the members of the Control Group) were record holders of 52.29% of iFresh’s 

outstanding shares on January 12, 2021.42 Delaware law is “well established” that 

“the person with an enforceable legal right to vote its stock is the registered owner 

of such stock.”43 As the holders of a majority of iFresh’s issued and outstanding 

stock, the Control Group could remove Deng and Fang and elect Ou and Xu to take 

39 See PTO ¶¶ 29–36.

40 Under Delaware law, “[s]tockholders may, unless the certificate of incorporation 

otherwise provides, act by written consent to elect directors.” 8 Del. C. § 211(b); 

see PTO ¶¶ 29–31; JX 4 at 3 (Amended & Restated Bylaws of iFresh Inc., Article II, 

Section 6); see also id. at 4 (Article III, Section 12) (allowing the removal of directors by 

a vote of stockholders).

41 See JX 134; 8 Del. C. § 219(c) (“The stock ledger shall be the only evidence as to who 

are the stockholders entitled by this section to examine the list required by this section or 

to vote in person or by proxy at any meeting of stockholders.”).

42 See PTO ¶¶ 32–33; JX 146 (Defendants’ Objections and Verified Responses to Plaintiff’s 

First Request for Admission) at Response Nos. 1–7.

43 Len v. Fuller, 1997 WL 305833, at *3 (Del. Ch. May 30, 1997); see also Testa v. Jarvis, 

1994 WL 30517, at *6 (Del. Ch. Jan. 12, 1994) (“Delaware corporations may rely almost 

exclusively on the stock ledger to determine the record holders eligible to vote in an 

election . . . . Where the company’s ledgers show record ownership, no other evidence of 

shareholder status is necessary.”). 
11

their place on the Board via written consent.

44

 They did so when they delivered the 

Consent to iFresh’s registered office and principal place of business.45 Thus, Zhou’s 

request for declaratory relief under Section 225 is prima facie valid.46 

With Zhou’s prima facie case proven, I begin my analysis of the 

Counterclaims mindful that, in Delaware, a stockholder’s right to vote in all respects, 

including in the election of the corporation’s directors, is “sacrosanct.”47 In the face 

of a valid stockholder consent reflecting the votes of the majority of iFresh’s stock, 

44 PTO ¶¶ 33, 35; JX 133A (Resolutions Adopted by Written Consent of Stockholder).

45 PTO ¶¶ 33, 35; JX 133–133B (Written Consent with email and letter).

46 See Pogue v. Hybrid Energy, Inc., 2016 WL 4154253, at *1 (Del. Ch. Aug. 5, 2016) 

(holding that “inclusion on the stock ledger states a prima facie, but rebuttable, case that a 

plaintiff is a statutory stockholder of record”); id. at *3 (“In a typical case, the stock ledger 

controls record-stockholder status, and a stockholder may point to the stock ledger to show, 

prima facie, that she is in fact a holder of record.”); Kerbawy v. McDonnell, 

2015 WL 4929198, at *13 (Del. Ch. Aug. 18, 2015) (“[T]he parties do not dispute the 

validity of the Consents on any technical grounds. I therefore conclude that the Consents 

are presumptively valid . . . .”).

47 EMAK Worldwide, Inc. v. Kurz, 50 A.3d 429, 433 (Del. 2012); see also San Antonio 

Fire & Police Pension Fund v. Bradbury, 2010 WL 4273171, at *7 (Del. Ch. Oct. 28, 

2010) (“Stockholders exercise their authority over corporate affairs by way of ballots.

Accordingly, the right to vote on certain matters—most importantly the election of 

directors—is a fundamental power reserved to the stockholders.”); In re MONY Gp., Inc. 

S’holder Litig., 853 A.2d 661, 673 (Del. Ch. 2004) (“The shareholder franchise occupies a 

special place in Delaware corporation law . . . .”); MM Cos., Inc. v. Liquid Audio, Inc., 

813 A.2d 1118, 1126 (Del. 2003) (“The stockholders’ power is the right to vote on specific 

matters, in particular, in an election of directors.”).
12

Defendants face a real challenge to justify a declaration that the apparent will of the 

stockholders should be overturned.48

C. Defendants Did Not Prove the Stockholder Consent Was Invalid

As noted, to rebut Zhou’s prima facie case, Defendants maintain that the Court 

should invalidate the Consent because members of the Control Group wrongfully 

obtained their shares.49 Specifically, Defendants argue: (1) Zhou aided and abetted 

iFresh’s CFO, Amy Xue, in her breach of fiduciary duty as she supported his scheme 

to acquire control of iFresh; (2) HK XD did not pay for all of the shares it purchased 

and therefore breached the contract whereby it acquired the shares; and (3) Zhou and 

48 Cf. Blasius Indus., Inc. v. Atlas Corp., 564 A.2d 651, 659 n.2 (Del. Ch. 1988) (“Delaware 

courts have long exercised a most sensitive and protective regard for the free and effective 

exercise of voting rights. This concern suffuses our law, manifesting itself in various 

settings.”); Paramount Commc’ns v. QVC Network, 637 A.2d 34, 42 (Del. 1994) (“Because 

of the overriding importance of voting rights, this Court and the Court of Chancery have 

consistently acted to protect stockholders from unwarranted interference with such 

rights.”); Giuricich v. Emtrol Corp., 449 A.2d 232, 239 (Del. 1982) (finding that “careful 

judicial scrutiny will be given a situation in which the right to vote for the election of 

successor directors has been effectively frustrated”); Kerbawy, 2015 WL 4929198, at *13 

(“In a case like this one, where a majority of stockholders have executed written consents 

removing the Board and the Board asks this Court to set aside the consents on equitable 

grounds, that burden is a heavy one. This is particularly true in light of the importance 

Delaware law places on protecting the stockholder franchise, which has been characterized 

as the ideological underpinning upon which the legitimacy of the directors[’] managerial 

power rests.”) (internal quotation marks omitted).

49 As I observed at the close of trial, Defendants’ claims in this regard were extremely 

difficult to follow, both as a matter of law and in the evidence presented at trial. 

Tr. 339:13–343:1 (Court). That, unfortunately, has remained the case throughout my posttrial deliberations. 
13

the other stockholders fraudulently obtained their shares. Defendants bore the 

burden of proof on each these Counterclaims.

50

Before turning to the merits, it is necessary to address Zhou’s contention that 

many of the arguments Defendants posited in post-trial briefing should be deemed 

waived since Defendants did not preserve the arguments in their pleadings or in the 

pretrial order.

51 “The doctrine of waiver operates to ensure fairness by requiring that 

notice be given to the adverse party.”52 Arguments that are not raised until pre-trial 

briefing or after may be deemed waived by the Court.53 By that time, the opposing 

50 See, e.g., Kerbawy, 2015 WL 4929198, at *13 (“Regardless of the theory under which 

the removal or election of a director is challenged, ‘the burden of proving that a director’s 

removal or election is invalid rests with the party challenging its validity.’”) 

(quoting Unanue v. Unanue, 2004 WL 5383942, at *10 (Del. Ch. Nov. 9, 2004)); id.

(“[T]he parties do not dispute the validity of the Consents on any technical grounds. 

I therefore conclude that the Consents are presumptively valid . . . .”). 

51 See Pls.’ Post-Trial Answering Br. (“PAB”) (D.I. 203) at 15–21.

52 Lavin v. W. Corp., 2017 WL 6728702, at *12 n.91 (Ch. Dec. 29, 2017); see also

PharmAthene v. SIGA Techs., Inc., 2001 WL 6392906, at *2 (Del. Ch. Dec. 16, 2011) 

(“The general rule . . . that a party waives any argument it fails properly to raise shows 

deference to fundamental fairness and the common sense notion that, to defend a claim or 

oppose a defense, the adverse party deserves sufficient notice of the claim or defense in the 

first instance.”).

53 ABC Woodlands L.L.C. v. Schreppler, 2012 WL 3711085, at *3 (Del. Ch. Aug. 15, 2012) 

(“When an argument is first raised in a pretrial brief after the parties already have shaped 

their trial plans, it is simply too late and deemed waived.”).
14

party has already shaped his trial plans, and it is simply too late and unfair to expect 

him meaningfully to confront the arguments so close to (or after) trial.54

Against better judgment, the Court has indulged Defendants’ past attempts to 

inject untimely new claims into this case. Contrary to Chancery Rule 15(aaa), 

Defendants filed an amended third-party complaint after full briefing on the motion 

to dismiss their initial third-party complaint was submitted.55 Then, on the eve of 

trial, the Court allowed Defendants, over strong objection, to file an Amended 

Counterclaim in which they nearly doubled their factual allegations and added new 

substantive claims.

56 After trial, Defendants’ arguments shifted yet again. 

Arguments that were not previewed in the Amended Counterclaim, pretrial order or 

pretrial briefs made their debut in Defendants’ post-trial briefs. 

Defendants’ ever-changing claims and theories of liability conjure images of 

the arcade game “whack-o-mole,” where every time Zhou bops an argument or 

theory advanced by Defendants on the head, Defendants suddenly appear 

54 See id.; In re PNB Hldg. Co. S’holders Litig., 2006 WL 2403999, at *18 (Del. Ch. 

Aug. 18, 2006) (refusing to consider untimely arguments).

55 Ct. Ch. R. 15(aaa) (“Notwithstanding subsection (a) of this Rule, a party that wishes to 

respond to a motion to dismiss under Rules 12(b)(6) or 23.1 by amending its pleading must 

file an amended complaint, or a motion to amend in conformity with this Rule, no later 

than the time such party’s answering brief in response to either of the foregoing motions is 

due to be filed.”).

56 Defs.’ Verified First Am. Countercl. and Second Am. Third-Party Compl. 

(“Am. Countercl.”) (D.I. 173).
15

somewhere else on the board with a new one. For the sake of clarity, given the 

number of waived arguments, I have determined it makes most sense to take them 

as they come while addressing each of the Amended Counterclaims’ proffered bases 

to invalidate the Consent. I have paused to address waiver at this point only to 

emphasize how frequently it has occurred.

1. Breach of Fiduciary Duty

Defendants seek to invalidate the Consent by arguing Zhou aided and abetted 

Amy Xue, iFresh’s CFO, in the breach of her fiduciary duties to iFresh.57 Defendants 

contend that Xue owed fiduciary duties to iFresh and breached those duties “at the 

direction, and for the benefit of her true boss, Zhou.”58 According to Defendants, 

Xue’s breach of fiduciary duty facilitated the Control Group’s acquisition of 

shares.59 As such, Defendants assert that the votes obtained by Zhou should be 

invalidated.

The breach of fiduciary duty and aiding and abetting arguments were not 

introduced as grounds to invalidate the Consent until after trial in Defendants’ post57 Defs./Countercl. Pls.’ Post-Trial Br. (“DOB”) (D.I. 199) at 19–23.

58 Id. at 20.

59 Id. at 20–23.
16

trial brief.60 That is “too late to argue a new claim.”61 Defendants’ pretrial brief 

mentions Amy Xue’s involvement in this case in its recitation of the background 

facts.62 But neither the Amended Counterclaim, the pretrial order nor the pretrial 

briefing provided Zhou with any indication that a breach of fiduciary duty or aiding 

and abetting claim was on the table for trial. Indeed, the phrases “aiding and 

abetting” and “fiduciary duty” do not appear a single time in the Amended 

Counterclaim, the pretrial order or the pretrial briefs.

63

 Consequently, Zhou had no 

reason to suspect that this claim would be advanced at trial (or after) and no reason 

or ability to be prepared to address it.

64 The argument is deemed waived.

60 Id. at 19–21.

61 Cancan Dev., LLC v. Manno, 2015 WL 3400789, at *22 (Del. Ch. May 27, 2015); 

see also Snow Phipps Gp., LLC v. KCAKE Acq., Inc., 2021 WL 1714202, at *44 (Del. Ch. 

Apr. 30, 2021) (“When an argument is first raised in a pre-trial brief after the parties 

already have shaped their trial plans, it is simply too late and deemed waived.”) 

(emphasis added) (quoting ABC Woodlands, 2012 WL 3711085, at *3).

62 See Defs.’ Pre-Trial Br. (D.I. 175) at 1–47. Of course, raising a claim for the first time 

in a pre-trial brief, even if fully presented, is also too late. Snow Phipps Gp., LLC, 2021 

WL 1714202, at *44. 

63 See generally Am. Countercl. (D.I. 173); Pretrial Stipulation and Order (D.I. 186); 

Defs./Countercl. and Third-Party Claim Pls.’ Trial Br. (D.I. 175). 

64 See ABC Woodlands, 2012 WL 3711085, at *3 (concluding that the plaintiff’s argument 

was waived because “merely alluding [to a claim] in [the] recitation of the background 

facts” was not sufficient to put the opposing party on notice); In re PNB Hldg., 

2006 WL 2403999, at *18 (deeming claims waived that were only generally addressed in 

the pretrial process and then raised at trial).
17

2. Breach of Contract

Defendants seek to invalidate the votes cast by HK XD on grounds of breach 

of contract.

65

 HK XD purchased its iFresh stock from Deng but only paid $5 million 

of the roughly $7 million purchase price for the shares.66 After HK XD did not pay 

the full amount owed, Deng sued HK XD for breach of contract in New York,

67

where he prevailed and obtained a money judgment for the remaining amount owed 

by HK XD—approximately $2 million.68 Defendants argue that HK XD’s votes 

should be invalidated because HK XD breached the contract by which it acquired 

the shares that were voted.

69

In response, Zhou argues that “Deng has already elected his remedies with 

respect to the HK XD transaction by suing for breach of contract in New York and 

65 DOB at 25.

66 See PTO ¶¶ 76, 79(b); see also HK Xu Ding Co., Ltd.’s Mem. in Supp. of its Mot. to 

Dismiss Count II (D.I. 146) Ex. 1 (Order of Supreme Court of the State of New York 

County of New York (“Long Deng[] sold 8,294,989 shares of iFresh, Inc., a Delaware 

Corporation to HK Xu Ding Co. Limited, a Hong Kong Corporation for a total price of 

$7,050,741.00. At the closing of said deal, HK Xu Ding Co., Ltd. paid only $5,000,000.00, 

and the rest remains unpaid. Based upon same, the Court entered a judgment in the amount 

of $2,050.741.00, plus statutory interest . . . .”). 

67 See JX 51 (Complaint filed in New York state court).

68 DOB at 25.

69 Id.
18

obtaining a money judgment.”70 According to Zhou, because Deng affirmatively 

sought and was awarded money damages, he is now foreclosed from pursuing 

rescission of the HK XD/Deng transaction.

71

The Court may invalidate a corporate election that is tainted by a breach of 

contract.72 But for a breach of contract to be relevant in a Section 225 case, it must 

affect the validity of the vote or consent at issue.73 In their effort to counter this 

proposition, Defendants point to a single sentence, taken out of context, from this 

Court’s Zohar decision to argue that any breach of contract with respect to the 

acquisition of shares can serve as a basis to disregard an effort to vote those shares: 

“[A] party cannot exercise voting rights that it obtains from another in breach of 

contract.”74

70 PAB at 22–23.

71 Id. at 22.

72 See Agranoff, 1999 WL 219650, at *18 (“In a § 225 action . . . , this court can determine 

that a person does not hold corporate office because he obtained the office through fraud 

or breach of contract.”); Genger, 26 A.3d at 200 (“[I]n a Section 225 action, a plaintiff may 

claim that a director-respondent does not validly hold corporate office because that director 

obtained the office through fraud, deceit, or breach of contract.”). 

73 See Crown EMAK P’rs, LLC v. Kurz, 992 A.2d 377, 392 (Del. 2010) (invalidating votes 

because the transfer of voting and economic rights violated a transfer restriction in a 

restricted stock grant agreement); Zohar II 2005-1, Ltd. v. FSAR Hldgs., Inc., 

2017 WL 5956877, at *22 (Del. Ch. Nov. 30, 2017) (same).

74 DOB at 25 (quoting Zohar II, 2017 WL 5956877, at *22).
19

Defendants stretch Zohar too far. In Zohar, the voting and transfer rights of 

the shares at issue were the precise subject of the contractual provision that was 

breached.75 That breach gave rise to a rescission remedy that rendered the contract 

“invalid and ineffective.”

76

 Thus, assessing the contractual breach was vital to 

determine the validity of the vote for purposes of Section 225. But Zohar does not 

stand for the proposition that any showing of a breach of contract provides a basis 

to set aside a stockholder vote in a Section 225 action. In this case, any breach of 

contract resulting from a failure to pay has already been addressed and the remedy 

for the breach was an award of money damages.77 There was no rescission of the 

contract; it remains valid and enforceable.78 There is, therefore, no basis to declare 

that a breach of contract has negated HK XD’s right to vote its shares. 

75 Zohar II, 2017 WL 5956877 at *22 (“Our Supreme Court held in Crown EMAK Partners, 

LLC v. Kurz that a party cannot exercise voting rights that it obtains from another in breach 

of contract. That is precisely what has occurred here. . . . Under Section 7.8(a)(i), the 

Zohar Funds may not ‘sell, transfer, exchange or otherwise dispose of, or pledge, mortgage, 

hypothecate or otherwise encumber . . . , any part of the Collateral, except as expressly 

permitted by the Indentures.’ . . . Because the shares are Collateral, and because voting 

rights are a ‘part of’ those shares, any transfer . . . of those voting rights . . . violated 

Section 7.8(a)(i) of the Indentures.”) (cleaned up). 

76 Id. at *23, *39.

77 See JX 51 at 9.

78 Under New York law, which governs the contract at issue, “the equitable remedy 

[of rescission] is to be invoked only when there is lacking complete and adequate remedy 

at law and where the status quo may be substantially restored.” Rudman v. Cowles

Commc’ns, Inc., 280 N.E.2d 867, 874 (N.Y. 1972); see also Romanoff v. Romanoff, 

51 N.Y.S.3d 36, 39 (App. Div. 2017) (“The remedy of rescission is unavailable [where] 
20

3. Fraud

In certain circumstances, proven fraud can also be a basis to set aside a 

stockholder vote in a Section 225 action.79 Throughout this litigation, Defendants 

have made a variety of arguments seeking to invalidate the Consent based on fraud. 

I admit that, given the ever-shifting nature of the claims, the lack of useful direction 

at trial, and the complicated factual background of the case, it has been difficult to 

identify precisely the misrepresentations (or omissions) at issue. As best I can 

discern, it appears the various fraud claims can roughly be organized by the three 

purchase agreements whereby certain members of the Control Group acquired their 

iFresh shares—the Zhou and Ou Agreement, the RET Wine Agreement and the 

Jiuxiang Agreement.80

The parties agree that all three purchase agreements are governed by 

New York law because of the choice of law provisions in the contracts.

81 Delaware 

money damages are available and will make plaintiff whole.”); D.I. 146, Ex. 2 (HK Share 

Purchase Agreement) § 8.9 (New York choice of law provision).

79 E.g., Kahn Bros. & Co., 1988 WL 122517, at *5; Genger, 26 A.3d at 200.

80 JX 85 (“Zhou and Ou Purchase Agreement”); JX 88 (“RET Wine Agreement”); JX 111 

(“Jiuxiang Agreement”).

81 See Zhou and Ou Agreement § 4(b); RET Wine Agreement § 9.7; Jiuxiang Agreement

§ 9.7; Defs.’/Countercl. Pls.’ Post-Trial Reply Br. (D.I. 204) at 1 n.1 (“New York law 

governs Defendants’ claims relating to the purchase agreements, including fraud claims.”); 

Pls.’ Post-Trial Br. (D.I. 198) at 8 (“All three transactions are governed by New York 

law.”).
21

courts generally respect parties’ choice of law and, having been given no reason 

not to, I analyze the fraud claims under New York law.82 To prevail on a claim of 

fraud, the plaintiff must prove by clear and convincing evidence a material 

misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, 

justifiable reliance by the plaintiff, and damages.83 “The clear and convincing 

evidence standard requires the party bearing the burden of proof to ‘adduce evidence 

that makes it highly probable that what he or she claims is what actually 

happened.’”84

Defendants have failed to prove fraud by clear and convincing evidence, such 

that the Consent should be set aside. For the sake of thoroughness, I address 

Defendants’ arguments on their terms. Before doing so, however, it is important to 

82 ABRY P’rs V, L.P. v. F&W Acq. LLC, 891 A.2d 1032, 1046 (Del. Ch. 2006) (“The courts 

of Delaware are bound to respect the chosen law of contracting parties, so long as that law 

has a material relationship to the transaction.”). As noted above, iFresh’s principal place 

of business is New York, which surely places New York in a “material relationship” with 

the transactions at issue in this case. 

83 Ross v. Louise Wise Servs., Inc., 868 N.E.2d 189, 195 (N.Y. 2007) (stating the elements 

of common law fraud); Gaidon v. Guardian Life Ins. Co. of Am., 725 N.E.2d 598, 607 

(N.Y. 1999) (“The elements of fraud are narrowly defined, requiring proof by clear and 

convincing evidence . . . .”). As for the standard of proof, New York and Delaware law 

may differ. See Project Boat Hldgs. v. Bass Pro Gp., LLC, 2019 WL 2295684, at *23 

(Del. Ch. June 4, 2019) (noting “[t]here is some uncertainty in our law as to whether a 

plaintiff asserting fraud must prove the claim by clear and convincing evidence or whether 

a preponderance of the evidence will suffice”) (collecting cases). 

84 Currie v. McTague, 921 N.Y.S.2d 364, 366 (App. Div. 2011) (quoting Krol v. Eckman, 

681 N.Y.S.2d 885, 887 (App. Div. 1998)).
22

confront what appears to be a fundamental flaw in the assumption underlying each 

of Defendants’ fraud theories––that a party seeking to buy a company’s stock has a 

common law duty (as opposed to a statutory duty) to disclose when doing so that he 

ultimately intends to take control of the company. That is not the law of Delaware 

and, as best I can discern, it is not the law of New York either.85 With this in mind, 

I address the alleged fraud with respect to each of the agreements at issue in turn. 

a. The Zhou and Ou Purchase Agreement

Defendants argue that Zhou fraudulently induced iFresh to enter into the Zhou 

and Ou Purchase Agreement. Recognizing their burden to prove “a knowing 

misrepresentation of a material present fact,”

86 Defendants claim the trial evidence 

establishes that Section 3(c) of the agreement, the “Securities Law Compliance” 

provision, was materially false in three respects.

87

85 See, e.g., Bachmann v. Ontell, 1984 WL 21204, at *1 (Del. Ch. Nov. 7, 1984) (holding 

that preventing an attempt to take control of a company for the purpose of liquidating it is 

not an affirmative defense in a Section 225 proceeding). The Court requested that the 

parties, particularly Defendants, provide any nuance or law to the contrary, should it exist. 

Tr. 340:18–24 (The Court). Defendants failed to do so. Instead, they argued for the first 

time in their post-trial reply brief that Zhou’s failure to disclose his intent to take control 

of iFresh somehow caused iFresh (and Deng) to forego a “control premium.” 

Defs./Countercl. Pls.’ Post-Trial Reply Br. (“DRB”) (D.I. 204) at 24–25. Setting aside that 

the argument comes far too late, it also assumes, wrongly, that Defendants proved Zhou 

controlled the other stockholders who comprised the Control Group at the time they 

acquired their iFresh shares, or how these separate transactions would implicate a control 

premium.

86 Louie’s Seafood Rest., LLC v. Brown, 157 N.Y.S.3d 509, 512 (App. Div. 2021).

87 Zhou and Ou Purchase Agreement § 3(c).
23

First, Defendants contend that Ou misrepresented that he was buying his 

shares for his “own account for investment, not as a nominee or agent.”88 According 

to Defendants, Ou was a straw buyer acting under the control of his boss, Zhou.89 

As support, Defendants point to testimony where Zhou refers to all of the shares 

transferred in the deal, including Ou’s portion, as “his shares.”90 They also argue 

that Ou’s investment was not for his “own account” because Ou purchased his shares 

with a loan he received from a party related to Zhou.91 According to Defendants,

88 Id.

89 Am. Countercl. ¶ 39. Defendants rely on a piece of Ou’s deposition to establish that Ou 

considered Zhou his boss. See Ou Dep. 76:3–6 (“Q. Who did you hear this from?

A. My boss. Q. You mean Zhou Dengrong? A. That’s right.”). But Ou also testified that 

he did not view Zhou as his “boss” at XT Energy, which is the company at issue. Ou Dep. 

54:19–21. He also explained that his father-in-law referred to Zhou as “boss,” so he did as 

well out of respect. Ou Dep. 55:8–13.

90 Tr. 56:1–56:11 (Zhou) (“A. I was originally told that the share [price for the private 

placement] would be 68 cents per share. Later on, the price was changed to $1.35. 

Q. Would that give you more or less shares than you initially thought? A. I would get less 

shares. Using 68 cents as the price, I would have gotten 3,670,000 shares.”).

91 According to an iFresh 13D filed after the fact, “[t]he source of funds for Mr. Zhou’s

purchase was an interest free loan from Mr. Bin Zhou in the amount of $1,446,413, payable 

on demand. The loan was made pursuant to an oral agreement between Mr. Zhou and 

Mr. Bin Zhou. The source of funds for Mr. Ou’s purchase was an interest free loan from 

Mr. Bin Zhou in the amount of $1,010,000, payable on demand, and an interest free loan 

from Ms. Yun Kang in the amount of $43,587, payable on demand, for an aggregate 

purchase price of $1,053,587. The loans were made pursuant to oral agreements between 

Mr. Ou and Mr. Bin Zhou and Ms. Yun Kang, respectively. Mr. Bin Zhou is the nephew 

of Mr. Zhou.” JX 114. Among other things, this disclosure reveals that, contrary to 

Defendants’ feigned ignorance, the company itself was well aware of the source of funds

Ou used to acquire iFresh shares. 
24

the source of Ou’s funds was concealed from iFresh “in order to position Qiang Ou 

as an ostensibly independent and unrelated party.”

92

Setting aside materiality, to prove that a misrepresentation occurred, 

Defendants must convince the Court by clear and convincing evidence that Ou did 

not invest on his own account but rather as an “agent or nominee” of Zhou.

93 They 

have not done so. Zhou testified that Deng expressed to him that iFresh needed a 

$2.5 million investment to avoid being delisted from NASDAQ and the initial plan 

was for Zhou to be the sole investor.94 Ou was brought in as an investor because 

Zhou did not have enough US dollars to meet iFresh’s needs.95 Accordingly, Ou 

entered into the Purchase Agreement as Zhou’s co-investor.96 Still, Ou testified 

repeatedly and credibly that he was the controller of his shares, not Zhou.97

92 Am. Countercl. ¶¶ 142–43.

93 See Gaidon, 725 N.E.2d at 607 (requiring each element of fraud to be proven by clear 

and convincing evidence).

94 Tr. 54:12–55:11 (Zhou) (explaining that Deng asked him to “save iFresh” because Deng 

“needed to raise $2.5 million in order to comply with the SEC rules so that it wouldn’t get 

delisted”).

95 Tr. 54:12–16 (Zhou) (“Q. Was the investment $2.5 million? A. Yes. Actually, the 

investment was $2.5 million, but I only had over – a little over a million dollars. That’s 

why, later on, another investor, Ou Qiang, was brought in.”).

96 See Zhou and Ou Purchase Agreement at 7 (Zhou signing as “Investor” and Ou signing 

as “Co-Investor”).

97 Ou Dep. 121:5–123:7 (testifying that he was not under the control of any person or entity 

with respect to the exercise of his rights as an iFresh shareholder).
25

As for the source of Ou’s funds, the fact the shares were purchased with 

borrowed money does not mean Ou’s investment was not for his own account. And

Defendants have not explained how or where the Purchase Agreement expressly 

requires Ou to disclose that the funds used to acquire the shares were sourced 

through a loan. In any event, as mentioned, that loan was later disclosed in a public 

filing.98 

Second, Ou represented in Section 3(c) that he was an “accredited investor, as 

such term is defined in Rule 501 of Regulation D, promulgated under the Securities 

Act.”

99 Defendants claim Ou was not an accredited investor, rendering this 

representation materially false.100 

The Securities Act defines an “Accredited Investor” as any natural person 

whose individual net worth, or joint net worth with that person’s spouse, at the time 

of his purchase exceeds $1,000,000.101 To prove Ou did not meet this definition, 

Defendants rely entirely upon Ou’s testimony that his individual net worth was less 

98 JX 114 at Item 3 (Schedule 13D disclosing the source of funds for Mr. Ou’s purchase 

was an interest free loan from Mr. Bin Zhou in the amount of $1,010,000, payable on 

demand).

99 Zhou and Ou Purchase Agreement § 3(c).

100 DOB at 17.

101 17 C.F.R. 230.501(a)(5).
26

than $500,000.102 But, according to the “Accredited Investor” definition, net worth 

includes the net worth of one’s spouse, and the only relevant evidence regarding 

Ou’s spouse’s financial condition comes from Zhou, who testified credibly and 

without challenge that Ou’s “wife’s family was very rich.”103 Here again, 

Defendants were obliged to prove a knowing misrepresentation by clear and 

convincing evidence. Given the failure to address the “Accredited Investor” 

definition in full, Defendants failed to meet their burden. 

Third, Defendants argue that Zhou misrepresented that he was “not subject to 

the ‘Bad Actor’ disqualification, as such term is defined in Rule 506 of

Regulation D, promulgated under the Securities Act.”104 Defendants did not raise

their “Bad Actor” argument until their opening post-trial brief.105 The argument was 

not previewed in the Amended Counterclaim, the pretrial order or Defendants’ 

pretrial brief. It is deemed waived.

It also fails on the merits. According to Defendants, Zhou was a “Bad Actor” 

because he owned over 20% of the outstanding iFresh shares even though he had a 

102 Ou Dep. 33:24–34:5.

103 Zhou Dep. 29:4–5.

104 DOB at 6; Zhou and Ou Purchase Agreement § 3(c).

105 See DOB at 6.
27

qualifying criminal conviction within the past 10 years.106 Even if Zhou satisfied the 

20% ownership requirement,107 Zhou did not need to disclose his conviction in 

China because, according to unrebutted evidence of which the Court may take 

judicial notice, the “Bad Actor” definition is not triggered by convictions entered in 

a foreign court.108

Defendants point to Zhou’s legal troubles in China not just to argue that Zhou 

meets the definition of “Bad Actor” as used in the Zhou and Ou Purchase Agreement,

106 17 CFR § 230.506(d)(1)(i) (defining “Bad Actor”). 

107 Zhou disputes this proposition. See PAB at 19–20. According to Zhou, he attempted 

to buy HK XD for $3.5 million, which would have put him over the 20% ownership 

requirement. Tr. 38:6–39:9 (Zhou). But the deal never finalized because, according to 

Zhou, Deng had already sold the shares to another buyer. Tr. 42:6–14 (Zhou). The parties 

are in separate litigation surrounding this dispute. Id. The ownership dispute is also 

relevant to Defendants’ claim, made perfunctorily in their post-trial answering brief, that 

Zhou failed to file a Form 13D regarding his ownership of more than 20% of iFresh. 

Besides Zhou’s steadfast contention that he did not own 20% of the outstanding shares of 

iFresh, he also points out that a Form 13D was filed when the “government records were 

updated in Hong Kong” to reflect that Zhou never owned HK XD, and that “it is [] 

incredible for Defendants to claim they were somehow in the ‘dark’ about [Zhou’s] belief 

as to his ownership stake when he was investing in March of 2020” because “it was 

Deng . . . who brokered the sale.” PAB at 18. Zhou’s argument is persuasive and 

supported by the credible evidence presented at trial. 

108 See DRE 201(b)(2) (“The court may judicially notice a fact that is not subject to 

reasonable dispute because it can be accurately and readily determined from sources whose 

accuracy cannot reasonably be questioned.”); PAB at 18–19 (quoting SEC Compliance and 

Disclosure Interpretations, Interpretive Answer to Question 260.20)

(“Question: Is disqualification under Rule 506(d) triggered by actions taken in 

jurisdictions other than the United States, such as convictions, court orders, or injunctions 

in a foreign court, or regulatory orders issued by foreign regulatory authorities? 

Answer: No.”) (emphasis in original).
28

such that Zhou’s failure to disclose his legal troubles amounted to contractual fraud, 

but also to argue that Zhou engaged in extra-contractual fraud.109 On January 16, 

2020, Deng sent Zhou an article about a “Xiangtian [] share scam that went 

on 8 years,” to which Zhou replied that Jiuxiang “[h]as not the slightest connection 

with Xiangtian” and that legal due diligence would confirm Jiuxiang was an 

“independent legal person.”110 He also said the report was comprised of 

“[i]ntentionally made up rumors.”111 Zhou testified at trial that he disclosed to Deng 

that he was “suspected to be involved” in a “multilevel marketing case.”112 

Defendants argue these representations were false and misleading because Zhou was 

indisputably investigated, detained and sentenced for criminal activity in China in 

connection with Xiangtian and a multi-level “pyramid” scheme.

113 The argument is 

not persuasive. 

109 Defendants also point to extra-contractual statements Zhou made to unrelated parties, 

such as investors discovered after the stock sale, as supporting a claim for fraud. 

See DOB at 7–11. This argument fails. Defendants could not have relied on statements 

they did not know about. Nor do Zhou’s statements to unrelated parties have anything to 

do with his or his supposed allies’ acquisition of iFresh shares. 

110 JX 46B at 21–22.

111 Id. at 22. 

112 Tr. 61:23–62:1 (Zhou). Deng testified that Zhou did not disclose his prior conviction 

to him at any time. Tr. 304:4–6 (Deng). 

113 See PTO ¶¶ 45–48; Tr. 230:4–7 (Zhou) (“Q. So the people below you took his money 

in the pyramid scheme, correct, not you? A. Correct. Well, I didn’t take the money. They 

have a team leader. Their team leader took the money.”); JX 6A at 18 (“On January 16, 
29

As a preliminary matter, it is difficult to see how Zhou’s omissions or 

misleading statements, which were not the subject of any specific representations in 

the Zhou and Ou Purchase Agreements, factually could support a fraud claim where 

the contract contains a rather broad integration clause and Defendants made no 

attempt to prove why they would have agreed to that clause if they, in fact, had 

secured “prior agreements, . . . understandings [or] communications” not reflected 

in the contract.

114

 Even accepting Defendants’ argument that the integration clause 

was not specific enough to disclaim reliance, the fraud claim still fails.115 The 

inquiry is whether Defendants have proven by clear and convincing evidence that 

Zhou defrauded them in a manner that would justify a declaration that his attempt to 

2016, Zhou Dengrong was sentenced . . . for the crime of organizing and leading pyramid 

selling activities.”).

114 See Zhou and Ou Purchase Agreement § 4(e) (“Entire Agreement. This Agreement 

constitutes and contains the entire agreement among Company and the Investor and 

supersede[s] any and all prior agreements, negotiations, correspondence, understandings 

and communications among the parties, whether written or oral, respecting the subject 

matter hereof.”). 

115 DRB at 10–11; Zhou and Ou Purchase Agreement at § 4(e). To be sure, there is support 

in Delaware and New York law that a general integration clause will not bar a fraud 

claim. See Basis Yield Alpha Fund (Master) v. Goldman Sachs Gp., Inc., 980 N.Y.S.2d 

21, 28 (App. Div. 2014) (“[O]nly where a written contract contains a specific disclaimer 

of responsibility for extraneous representations, that is, a provision that the parties are not 

bound by or relying upon representations or omissions as to the specific matter, is a plaintiff 

precluded from later claiming fraud on the ground of a prior misrepresentation as to the 

specific matter.”); Kronenberg v. Katz, 872 A.2d 568, 592 (Del. Ch. 2004) (“[M]any 

learned authorities state that typical integration clauses do not operate to bar fraud claims 

based on factual statements not made in the written agreement.”). 
30

vote his iFresh shares was void. Defendants would need to point to something that 

caused the transaction by which Zhou acquired his shares—the Zhou and Ou 

Purchase Agreement—to be tainted by fraud to a degree that it is reasonable to 

conclude the transaction would not have been consummated had the fraud been 

detected pre-closing. Zhou’s supposed extra-contractual denial of his association 

with the pyramid scheme, in my view, as a matter of persuasive evidence, does not 

rise to that level, regardless of the specificity, or not, of the integration clause. 

Additionally, Defendants could not have reasonably relied on Zhou’s 

messages to Deng because Zhou’s conviction was a matter of public record.116 

Defendants themselves appear to admit that this was disclosed in public records in 

their Amended Counterclaim.117 Deng also testified at trial that he did not ask Zhou

about his conviction prior to his investment.118 Indeed, at Deng’s express direction, 

116 The conviction was disclosed in domestic public filings and Chinese criminal records. 

See JX 2 at Item 5.02 (disclosing Zhou as the subject of an investigation by the Chinese 

government); JX 6 (Chinese Criminal Judgment); JX 17 at 24 (Xiangtian Form 10-K 

explaining Zhou was involved in an alleged pyramid-style marketing campaign in 2013). 

117 See Am. Countercl. ¶ 18 (“Dengrong Zhou’s involvement in pyramid stock schemes 

was disclosed in various filings of Xiangtian (USA) Air Power Co., Ltd., inter alia, 

Xiangtian (USA) Air Power Co., Ltd.’s 2018 10-K, which stated ‘Zhou Dengrong, the 

former CEO, was involved in an alleged allegation of pyramid marketing campaign in 

2013.’ Press coverage of the scheme stated Xiangtian Group ‘has been fined and 

confiscated nearly 100 million yuan’ for the pyramid stock scheme.”).

118 Tr. 322:5–8 (Deng) (“Q. Mr. Deng, did you ever ask Mr. Zhou whether he was convicted 

prior to taking his money in March of 2020? A. No.”).
31

no formal due diligence was performed on Zhou or Ou.119 Under New York law, 

“where a party has the means, by the exercise of reasonable diligence, to ascertain 

the truth or falsity of material representations, he or she cannot assert justifiable 

reliance.”120 In any event, the credible evidence revealed that iFresh needed 

investors and that it likely would have accepted Zhou’s investment regardless of his 

criminal conviction in China.121

The same is true for the other supposed misrepresentations identified by 

Defendants. As representatives of a publicly traded company, Defendants could 

have readily determined whether Ou and Zhou met the requirements of Section 3(c) 

by exercising reasonable due diligence.122 Again, iFresh performed no due diligence 

119 JX 84 (“There is no official due diligence report of these two investors. . . . Mr. Deng 

also mentioned the investors have donated $200k to Hubei province in China, the hardesthit area by Coronavirus. Mr. Deng said he has friends who know these two investors too 

and have a good reference of these two investors.”).

120 Rudolph v. Turecek, 658 N.Y.S.2d 769, 771 (App. Div. 1997).

121 See JX 41 (Letter from NASDAQ notifying iFresh that it was not compliant with 

Listing Rule 5550(b), which states that “For continued inclusion, the issuer shall maintain 

either: (1) stockholders’ equity of $2.5 million; or (2) market value of listed securities of 

$35 million; or (3) net income from continuing operations of $500,000 in the most recently 

completed fiscal year or two of the last three most recently completed fiscal years.”); 

see also Tr. 304:22–305:19 (Deng) (explaining that he was seeking investments to maintain 

iFresh’s NASDAQ listing and he thought Zhou’s investment would be “much simpler” 

than other options and would provide iFresh “a lot more money”).

122 Defendants argue that they may claim reliance on Zhou’s alleged misrepresentations 

notwithstanding the lack of diligence and ready public disclosure of the information 

because the misrepresentations were within Zhou’s “peculiar knowledge.” DRB at 11–15. 

New York’s “peculiar knowledge” carveout to fraudulent misrepresentation is inapplicable 

here. Defendants and iFresh are sophisticated parties who were represented by counsel 
32

because Deng directed that diligence was not necessary.

123

 For his part, Fang 

acknowledged that no inquiry was made regarding Ou’s source of funds.124 Then, 

when the source of Ou’s funds was publicly disclosed in a 13D filing, Defendants 

took no action to address the supposed issue.125 According to Fang, he expected 

iFresh’s counsel, Loeb & Loeb, to review relevant public filings in the course of 

their due diligence.126 Viewed together, the evidence does not support a finding that 

when entering into each of the purchase agreements at issue. The peculiar-knowledge

exception has been rejected by courts when sophisticated parties could have negotiated 

contractual protections for themselves. See, e.g., Psenicska v. Twentieth Century Fox Film 

Corp., 409 F. App’x 368, 371 (2d Cir. 2009) (finding peculiar-knowledge exception does 

not apply “where a party could have insisted that the written contract terms reflect any oral 

undertaking on a deal-breaking issue”); RAA Mgmt., LLC v. Savage Sports Hldgs., Inc., 

45 A.3d 107, 115 (Del. 2021) (applying New York law and determining that the exception 

was inapplicable where two sophisticated parties could have “insisted on contractual 

protections for themselves.”).

123 JX 84.

124 Tr. 281:9–15 (Fang) (“Q. Now, the other part of the investment that you thought was 

problematic was that Mr. Ou didn’t disclose where he got his funds. Correct? A. Correct.

Q. But, again, you never asked him, did you? A. No.”).

125 JX 114 at Item 3 (Schedule 13D disclosing the source of funds for Mr. Ou’s purchase 

was an interest free loan from Mr. Bin Zhou in the amount of $1,010,000, payable on 

demand); PTO ¶ 52 (“Bin Zhou is [Plaintiff] Dengrong Zhou’s nephew”). 

126 Tr. 261:9–20 (Fang) (“Q. You did your own due diligence? A. Yes. Q. Did you rely 

on due diligence by Loeb & Loeb? A. Yes. Q. And Loeb & Loeb is a major law firm; 

correct? A. Yes. Q. And you had testified that you expected Loeb & Loeb to review public 

filings; right? A. I don’t recall what I testified, but that seems reasonable, yeah.”); 

Tr. 262:7–17 (Fang) (“Q. Okay. And, in fact, your pleading quotes several public filings, 

including where you got the fact that Mr. Zhou was implicated in multi-level marketing; 

correct? A. Yes. . . . Q. And that was the sort of document you would have expected 

Loeb & Loeb to review as part of his due diligence; correct? A. Yes.”).
33

Defendants justifiably relied on any of the representations within Section 3(c) or the 

alleged extra-contractual representations regarding Zhou’s criminal history.

127

b. The Tong and Huang RET Wine Acquisition

Defendants also seek to invalidate the votes of shares acquired by Kairui Tong 

and Hao Huang when they sold their interests in RET Wine to iFresh.128 In support 

of this fraud claim, Defendants assert that Section 3.6 and Section 3.9 of the RET 

127 Defendants argue that iFresh’s due diligence efforts are irrelevant as to reliance because 

“express contractual representations are at issue” and their reliability, therefore, is 

“absolute.” DRB at 5. Specifically, Defendants contend that “New York courts uniformly 

require that, for a contractual warranty to be inapplicable, the sellers themselves must have 

actively disclosed that their warranties were no longer true prior to the completion of the 

transaction.” Id. at 6 (internal quotation marks omitted). Defendants muddle the 

distinction between fraud reliance and breach of warranty reliance. In this regard, they cite 

Merrill Lynch & Co. v. Allegheny Energy, Inc., 500 F.3d 171, 186 (2d Cir. 2007) and 

Preferred Fragrance, Inc. v. Buchanan Ingersoll & Rooney PC, 2015 WL 6143612, at *3 

(E.D.N.Y. Oct. 18, 2015), but both cases state the reliance rule specific to a breach of an 

express warranty. The New York Court of Appeals has distinguished the reliance 

requirement in an action for breach of warranty from the reliance requirement in an action 

for fraud. See CBS, Inc. v. Ziff-Davis Pub. Co., 553 N.E.2d 997, 1000 (N.Y. 1990). In a 

breach of warranty action, the critical question is whether the promisee believed that he 

was purchasing the promisor’s promise as to the truth of the representation, regardless of 

reasonable reliance. Id. In a fraud action, by contrast, the plaintiff must prove reasonable 

reliance upon the truth of the representation and a change of position in reliance on that 

belief. Id. Thus, to prove reasonable reliance upon an express contractual representation 

for the purposes of fraud, the plaintiff must prove that he “believed [the representation] to 

be true. If it appears that he knew the facts, or believed the statement to be false, or that he 

was in fact so skeptical as to its truth that he reposed no confidence in it, it cannot be 

regarded as a substantial cause of his conduct.” Ainger v. Mich. Gen. Corp., 476 F. Supp. 

1209, 1224 (S.D.N.Y. 1979). Defendants failed to prove such reasonable reliance here. 

And, in any event, Defendants’ reliance argument is ultimately inconsequential because it 

hinges on the assumption that Zhou provided a false representation or warranty, which also 

was not proven.

128 DOB at 23–24.
34

Wine Agreement reflect fraudulent misrepresentations by the sellers.

129

 

In Section 3.6, Tong and Huang represented and warranted that they held “good and 

valid title to Equity Interests [of RET Wine], free and clear of all Encumbrances.”

130

And in Section 3.9, they represented that, “other than Sellers,” RET Wine was 

“not Controlled by any Person” and that there were no undisclosed affiliates.131 

In addition to this alleged contractual fraud, Defendants argue that extracontractual 

statements made by Amy Xue to an iFresh Board member to the effect that 

RET Wine’s financials were reliable because they were audited by Friedman LLP,

and that XT Energy had “sold [RET Wine] off,” were also false and misleading.132

Defendants’ only reference to Section 3.6 of the RET Wine Agreement in any 

document before trial is a passing (and untimely) reference in the facts section of 

their pretrial brief.133 Section 3.6 is not discussed in the Amended Counterclaim or 

129 Id.

130 RET Wine Agreement § 3.6(c).

131 RET Wine Agreement § 3.9.

132 JX 77 at 1.

133 D.I. 175 at 10 (“Section 3.6 of the purchase agreement stated that ‘Sellers,’ i.e. Tong 

and Huang held ‘good and valid title to the Equity Interests [of RET Wine being sold], free 

and clear of all Encumbrances.’”); id. at 11 (observing that “despite their representation 

that their ownership of RET Wine’s equity was ‘free and clear of all encumbrances,’ neither 

Tong nor Huang had paid [a] single dime to XT Energy for RET Wine”). 
35

the pretrial order.134 The argument that Section 3.6 reflects a contractual fraudulent 

misrepresentation was not articulated until the opening post-trial brief.135 The 

argument is deemed waived.136

On the merits, Defendants have not shown by clear and convincing evidence 

that Sections 3.6 and 3.9 were knowingly false. Defendants argue that Tong and 

Huang did not own RET Wine’s equity interests free and clear of all encumbrances 

because they had not made payments to XT Energy, RET Wine’s previous owner, 

until after selling those equity interests to iFresh.137 Thus, according to Defendants, 

when iFresh purchased RET Wine it was still controlled and encumbered by its 

previous owner, XT Energy.138 And because Ou, XT Energy’s newly appointed 

COO, supposedly reported to Zhou, “that meant that [Zhou] controlled RET Wine 

as well.”139 Defendants also argue that RET Wine was controlled and encumbered

by XT Energy because XT Energy still possessed RET Wine’s corporate seals when 

134 See generally PTO; Am. Countercl. In contrast, Section 3.9 is mentioned a handful of 

times in the Amended Counterclaim. See Am. Countercl. ¶¶ 60–61, 153.

135 DOB at 23.

136 See Snow Phipps, 2021 WL 1714202, at *44. 

137 DOB at 23–24.

138 Id.

139 Id. at 24.
36

Tong and Huang sold RET Wine to iFresh.140 Each of these arguments fail, either 

for want of requisite proof or want of a plausible theory. 

Defendants did not prove that RET Wine was encumbered by XT Energy. 

Defendants rely on an unauthenticated spreadsheet produced by Friedman LLP, 

XT Energy’s auditor, to support their argument that Tong and Huang did not make 

payments to XT Energy with respect to its interest in RET Wine until after they sold 

the company to iFresh.141 Even if the spreadsheet supported the inference that Tong 

and Huang had not yet made full payment to XT Energy, it does not establish by 

clear and convincing evidence that the lack of payments meant RET Wine was 

encumbered or that XT Energy maintained control over RET Wine such that a 

disclosure to the contrary was materially false. In fact, public filings and 

contemporaneous emails are consistent in stating that XT Energy sold off its interest 

in RET Wine prior to the sale to iFresh.

142

140 Id. at 23–24.

141 See JX 32.

142 See JX 55 (XT Energy 8-K dated December 20, 2018) (“On January 6th, 2020, 

the company (90% owner of Rongentang Wine Company) and Mr. Chen, Dahuan (10% coowner of Rongentang Wine Company) jointly entered into an [sic] Sales Agreement with 

Mr. Tong, Kairui and Mr. Huang, Hao (the Buyers / Tong – 60% and Huang [–] 40%) to 

sell co-owned Rongentang Wine Company for 75 million yuan (RMB).”); see also JX 72 

(March 15, 2020 email to all iFresh directors with 2019 Valuation Report attached 

(JX 72A). The attached Valuation Report stated XT Energy entered into an investment 

agreement obtaining “90% equity interest in both [RET Companies].”); JX 77 (March 18, 
37

Nor did Defendants prove that Tong and Huang or RET Wine were controlled 

by Zhou through his alleged control of XT Energy. Zhou credibly denied having 

any control over XT Energy after 2014 when he sold his shares and stepped down 

from management at the company, which is a separate entity from Xiangtian.143 

He testified that public disclosures revealed that his brother was the CEO, and the 

company had an independent board of directors.144 Zhou also had minimal 

connection to Tong and Huang; he testified he had never met Huang and that he had

met Tong only once.145 Zhou also did not have any proven financial connection to 

2020 email to all iFresh directors, including Defendants and iFresh counsel, stating, 

“XT Energy sold [RET Wine] off on January 6, 2020 to two individuals.”).

143 Tr. 27:20–28:12 (Zhou) (“Q. Was there a point in time where you owned both 

companies? A. Prior to 2014, I was a founder, but I have nothing to do with it since 2014. 

Q. And what changed in 2014 with respect to XT Energy? A. I became a suspect of a 

multilevel marketing case, and I withdrew from the company. Q. Was that publicly 

disclosed by the company? A. Yes. It was public information. Q. Do you still own any 

shares of XT Energy? A. No, I don’t. Q. Do you still have a role in running XT Energy? 

A. I don’t.”); Tr. 27:12–19 (Zhou) (“Q. Now, this lawsuit mentions XT Energy multiple 

times. Are you aware of this? A. No. Q. It also mentions Xiangtian. Are you aware of 

this? A. Yes. Q. Are those the same company? A. They’re not.”); Tr. 113:20–114:2 

(Zhou) (“XTEG is a separate independent company. It has an independent board. It has 

their own shareholder meetings. I don’t know if they need to file the document in ten 

days – I don’t know when they need to file the 10-K or 8-K. It’s not part of my job. I don’t 

have the power to direct them to do anything.”).

144 Tr. 28:13–28:22 (Zhou) (“Q. But your family members, at least until 2021, were 

involved in running XT Energy. Correct? A. My family – well, it was an independent 

board of directors. Q. But your brother was the CEO. Correct? A. Correct. Q. Was that 

publicly disclosed? A. Yes. It was in the public disclosure.”).

145 Tr. 67:23–68:10 (Zhou) (“Q. Do you have a longstanding relationship with either one 

of them? A. No. Q. Have you ever met Hao Huang? A. I did not. Q. How about Kairui 

Tong? A. I met with Kairui Tong once at a meeting before I came to the United States. 
38

Tong and Huang’s RET Wine purchase. In this regard, he credibly testified that he 

did not loan money to Tong and Huang to acquire RET Wine,146 which is supported 

by Tong’s deposition in which he testified he purchased RET Wine with funds 

secured in a loan from his family.147

XT Energy’s failure to turn over RET Wine’s corporate seals to Tong and 

Huang, by itself, also does not establish that XT Energy maintained any control over 

RET Wine. I do not doubt that the possession of corporate seals is important in 

China and that only certain corporate officers have access to them; Zhou himself 

testified as much.148 But Defendants injected the argument that possession of 

corporate seals is powerful evidence of control too late, leaving Zhou with 

inadequate time to conduct discovery on the issue.149 Moreover, Defendants 

Q. Was that meeting about acquiring RET Wine? A. No, no. It was just another regular 

meeting, general meeting.”).

146 Tr. 67:20–22 (Zhou) (“Q. Did you loan the money to acquire RET Wine to Kairui Tong 

and Hao Huang? A. No.”).

147 Tong Dep. 48:19–23 (“Q. And where did you come up with the cash? A. From my dad, 

from my mom. We have our family business. We have a big family business.”).

148 Tr. 97:20–98:8 (Zhou) (“Q. Let me ask you, Mr. Zhou, are corporate seals very 

important in China? A. It is very important. Q. Would companies just randomly place 

their corporate seals on documents without knowing what they’re planning? A. The 

corporate seal was applied by the legal department. They register that. Q. And it’s a 

company’s legal department and/or its senior management that holds onto the corporate 

seal. Right? This is not something that’s just given away to random people to use. 

A. Correct.”). 

149 Defendants rely on a footnote from a New York case, cited for the first time in their 

post-trial reply brief, in support of their corporate seal argument. See DRB at 3–4 (“As one 
39

presented no expert opinion or other persuasive evidence at trial regarding the 

importance and consequences of possessing a corporate seal as a matter of Chinese 

law or practice. And counsel’s “testimony” regarding these points is no substitute 

for competent evidence.150 Thus, the argument that Section 3.6 or 3.9 reflect 

fraudulent misrepresentations by virtue of XT Energy’s alleged possession of the 

RET Wine corporate seals is not supported by any competent, much less clear and 

convincing, evidence. 

Finally, Amy Xue’s email stating that “Rongentang’s numbers . . . were 

audited by Friedman LLP” and that “XT Energy Group sold [] off” certain 

subsidiaries cannot serve as the basis for a fraud claim for the simple reason that 

they were not misrepresentations at all—Friedman did in fact audit the “numbers,”

151

New York court observed, ‘mere possession of a corporate chop is considered adequate 

proof of a person’s authority to bind the company. As such, that little stamp grants great 

power.’”) (citing Special Situations Fund III QP, L.P. v. Deloitte Touche Tohmatsu CPA, 

Ltd., 33 F. Supp. 3d 401, 417 n.6 (S.D.N.Y. 2014)) (alterations omitted). But the legal 

effect of possession of the corporate seal in Special Situations was a finding supported by 

evidence presented to the court in that case. Id. No such evidence was presented here.

150 Post-Trial Oral Arg. (D.I. 209) at 76:5–16 (“It’s been recognized in New York that the 

mere possession of chops, or the seal in China, is adequate authority to bind a Chinese 

company. These seals are of utmost importance to Chinese corporate governance. If you 

have the seals in your hands, people treat you as the binding controller or principal of the 

company. And the seals, as Mr. Zhou testified, are kept by the corporate secretary or its 

legal department. And that’s from a case called Special Situations Fund III v. Deloitte 

Touche Tohmatsu, 33 F. Supp. 3d 401. That’s cited in our reply brief.”). 

151 JX 32; JX 55; Tr. 105:11–14, 106:4–107:1, 108:12–16 (Zhou) (referring to Friedman 

LLP as “XT Energy’s auditors”).
40

and XT Energy Group did sell off the subsidiaries at issue.152 There was no proven 

fraud.

While the failure to prove a false representation, alone, defeats the fraud claim

with respect to RET Wine, the failure to prove justifiable reliance also dooms the 

effort to set aside the Consent on this ground. Defendants knew or readily could 

have known all of the facts they now allege were concealed. XT Energy’s prior 

ownership of RET Wine was fully disclosed to iFresh directly and through public 

filings.153 Additionally, Defendants’ counsel at the time of the transaction, Loeb & 

Loeb, conducted due diligence and were involved in the sales process.154 Prior to 

the transaction, Deng, David Caruso (iFresh’s counsel at Loeb & Loeb), 

David Cheng (XT Energy’s then COO), and Amy Xue were in communication 

regarding the RET Wine deal through a WeChat group chat,155 further revealing 

XT Energy’s connection with RET Wine. In fact, David Cheng explained that the 

152 JX 55; JX 72; JX 77.

153 JX 55; JX 72–72B; JX 77.

154 Tr. 261:11–20 (Fang) (“Q. Did you rely on due diligence by Loeb & Loeb? A. Yes. 

Q. And you had testified that you expected Loeb & Loeb to review public filings; right? 

A. I don’t recall what I testified, but that seems reasonable, yeah.”). Loeb & Loeb later 

withdrew from representation. Fang Dep. 31:13–22 (“Q. Yeah, I know. So your 

understanding is that they withdrew because Mr. Deng made representations to them that 

turned out not to be true? A. Yeah. You know that’s what they – that’s what they – I think 

that was their position along with Delaware counsel.”).

155 JX 200 (WeChat communication regarding RET Wine transaction).
41

“Game Plan” was to “merge in [RET Wine] into [iFresh] immediately,” which 

diminishes Defendants’ contention that XT Energy sought to maintain any control 

over RET Wine.156 Having all this information at their disposal, iFresh represented 

to NASDAQ that it was confident it had conducted proper due diligence on each of 

the transactions, including the RET Wine transaction.

157

 Under these circumstances, 

the evidence does not support a finding of justifiable reliance.

c. The Fei and Meng Jiuxiang Acquisition

Defendants make similar arguments in support of a fraudulent inducement 

claim regarding iFresh’s acquisition of Jiuxiang. According to Defendants, 

Sections 3.9 and 3.13 of the Jiuxiang Agreement were fraudulent 

misrepresentations. Section 3.9 states that Jiuxiang is “not Controlled by any 

Person” other than their “Sellers.”158 Defendants contend that “Jiuxiang was under 

the ‘Control’ of Xiangtian,” which was “ultimately under [Zhou’s] ‘Control.’”

159

 

156 Id.

157 JX 169 at 4 (Correspondence to NASDAQ) (“The Company states senior management 

conducted proper due diligence at the time the Subsidiaries were acquired and they are 

confident the process was carried out in a manner that is consistent with legal and 

accounting industry practice.”).

158 Jiuxiang Agreement § 3.9.

159 PAB at 3.
42

Defendants also assert that Section 3.13, which represents that Jiuxiang’s financial 

statements are complete and accurate, was materially false when made. 

These arguments were not fairly noticed by Defendants and are deemed 

waived. Section 3.13 is not referenced in the Amended Counterclaim, the pretrial 

order or Defendants’ pre-trial brief. It appears for the first time in Defendants’ posttrial briefing.160

 That is too late. Defendants mention the alleged misrepresentation 

within Section 3.9 in their Amended Counterclaim, but Section 3.9 is not referenced 

in their pretrial brief or opening post-trial brief.

161 The argument relating to 

Section 3.9 does not resurface until Defendants’ post-trial reply brief.162 Again, the 

argument comes too late and is deemed waived. 

Both arguments also fail on their merits. As for Section 3.13, Defendants have 

not proven that the representation was false. Defendants claim that Zhou “tried to 

pump up Jiuxiang’s sales by exhorting Xiangtian investors to buy on it,” which 

“drove Jiuxiang’s revenues at Zhou’s instigation.”163 Even if true, which is difficult 

to discern from the evidence, the best Defendants could say is that Jiuxiang benefited 

160 DOB at 15–16.

161 See Am. Countercl. ¶¶ 88–89, 162. To clarify, Section 3.9 of the RET Wine Agreement 

is mentioned in the pre-trial brief, as noted above, but not Section 3.9 of the Jiuxiang 

Agreement.

162 DRB at 3.

163 DOB at 12.
43

from Zhou’s efforts to urge people he knew or had influence over to use the platform. 

That is a far cry from proving by clear and convincing evidence that the company’s 

financial statements were somehow inaccurate or not prepared in good faith; 

the sales reflected in the financial statements actually occurred, even if at Zhou’s 

urging. Moreover, Defendants made no real effort to prove the impact of Zhou’s 

efforts to boost sales such that the Court could find that the representation was 

materially false.

As for Section 3.9, the agreement defines “Affiliate” as “any other Person 

directly or indirectly Controlling, Controlled by, or under common Control with 

such Person.”164 “Control” is defined as “the possession, directly or indirectly, of 

the power to direct or cause the direction of the management and policies of such 

Person.”165 Zhou testified that Xiangtian was his company.166 But the links 

Defendants proffer between Xiangtian and Jiuxiang do not establish that Xiangtian

or Zhou were in control of Jiuxiang. 

Defendants point to three facts that purportedly illustrate Zhou’s control over 

Jiuxiang: (1) Zhou’s efforts to get Xiangtian investors to utilize Jiuxiang’s platform, 

164 Jiuxiang Agreement § 1.1.

165 Jiuxiang Agreement § 1.7.

166 Tr. 29:19–21 (Zhou) (“Q. You still have a separate company called Xiangtian. Correct?

A. Yes.”).
44

(2) “at least one Xiangtian staffer also served as Jiuxiang’s senior management,” and 

(3) Xiangtian paid for Jiuxiang’s audit by Friedman LLP prior to its acquisition by 

iFresh.

167 But Zhou allegedly “pumping up” sales does not establish that he or 

Xiangtian controlled Jiuxiang, nor, as noted, did Defendants produce any financials 

to illustrate the supposed impact of Zhou’s efforts on the Jiuxiang valuation. 

Additionally, the fact that a “Xiangtian staffer” worked for both entities and that 

Xiangtian paid for Jiuxiang’s audit does not establish that Xiangtian had sufficient 

“power to direct or cause the direction of the management and policies” of 

Jiuxiang.168 Moreover, Zhou credibly testified that Jiuxiang borrowed the money for 

the audit from Xiangtian because Jiuxiang was short on US dollars.169 After 

carefully considering the evidence, I am satisfied Defendants have not proven a 

misrepresentation regarding the Jiuxiang Agreement.

And, here again, there appears to be a reliance problem. iFresh was informed 

of the business relationship between Zhou, Jiuxiang, XT Energy and Xiangtian 

before the acquisition in a due diligence report prepared by a Chinese law firm 

167 DOB at 12 (internal quotes omitted).

168 See Jiuxiang Agreement § 1.7.

169 Tr. 181:11–16 (Zhou) (“Q. So Jiuxiang borrowed money from XT with your 

authorization to pay for Friedman’s audit? A. I did not authorize. I didn’t have the power.

They approached me, asked for help. It’s accounting department contacting accounting 

department from another company trying to borrow money.”).
45

retained by iFresh.170 The diligence report is consistent with Meng Liu’s statements 

that Jiuxiang was not an affiliate of XT Energy but simply maintained a working 

partnership with the company.

171

 The diligence report also references the Xiangtian 

“pyramid scheme and scam,” which Defendants assert was concealed by Zhou.

172

 

Fang testified that he did not read the due diligence report because it was written in 

Chinese, and he did not recall whether it was ever translated.173 That is not behavior 

reflective of reasonable reliance. 

* * * * *

Zhou carried his prima facie burden to prove that the Consent reflected the 

votes of a majority of the iFresh common stock issued and outstanding at the time, 

and that the Consent otherwise complied with iFresh’s constitutive documents and 

Delaware law. Defendants’ attempt to prove that the shares voted in the Consent 

were obtained by breach of contract, fraud or other wrongdoing failed for want of 

170 JX 102 (July 6, 2020, email to iFresh directors with due diligence report from iFresh’s 

Chinese lawyers); JX 102AA at 23, 63 (Jiuxiang Due Diligence Report referencing that 

Jiuxiang “is related to XT Energy to some extent,” and “Ms. Liu Meng of Jiuxiang Lantian 

is familiar with Mr. Zhou.” The report also indicates a business relationship between 

Jiuxiang and XT Energy.). 

171 Liu Dep. 87:8–11 (“Jiuxiang Lantian and Xiangtian Energy have no affiliation, 

relationship. It’s only work partnership.”).

172 JX 102AA at 19. 

173 Tr. 292:5–22 (Fang) (“I definitely didn’t read [the report in JX 102A]. I didn’t read a 

Chinese report.”).
46

adequate proof or failure properly to preserve and present the arguments. 

Accordingly, my verdict is for Plaintiff. 

III. CONCLUSION

For the foregoing reasons, judgment is entered for Plaintiff. The Court 

declares that:

(1) The Consent is valid and effective, and the corporate action taken in the 

Consent was effective upon delivery;

(2) Defendants, Deng and Fang, were validly removed as directors of iFresh; 

and

(3) Qiang Ou and Jiandong Xu were validly elected as directors of iFresh. 

The Counterclaims are dismissed in their entirety with prejudice. Plaintiff is 

entitled to recoverable prevailing party costs and expenses under Chancery 

Rule 54(d).174 There shall be no award of attorneys’ fees.175

IT IS SO ORDERED.

174 Plaintiff shall submit his bill of costs, on notice to defense counsel, by April 12, 2022, 

along with a proposed form of order awarding the costs. Defendants shall submit any 

objections to the bill of costs within five (5) days of receipt from Plaintiff’s counsel. 

The Court’s judgment will be deemed final and appealable upon entry of the Order on the 

bill of costs. 

175 Plaintiff requested attorneys’ fees in his Complaint and in the pretrial order but did not 

attempt to justify the request at trial or in post-trial briefing.