COURT OF CHANCERY

OF THE

STATE OF DELAWARE

PAUL A. FIORAVANTI, JR.

VICE CHANCELLOR

LEONARD L. WILLIAMS JUSTICE CENTER

500 N. KING STREET, SUITE 11400

WILMINGTON, DELAWARE 19801-3734

Date Submitted: February 9, 2021

Date Decided: May 28, 2021

Garrett B. Moritz, Esquire

Elizabeth M. Taylor, Esquire

Ross Aronstam & Moritz LLP

100 S. West Street, Suite 400

Wilmington, DE 19801

Kevin M. Gallagher, Esquire

Angela Lam, Esquire

Richards, Layton & Finger, P.A.

One Rodney Square

920 N. King Street

Wilmington, DE 19801

RE: Roma Landmark Theaters, LLC et al. v. Cohen Exhibition Company LLC,

C.A. No. 2019-0585-PAF

Dear Counsel:

Plaintiffs Roma Landmark Theaters, LLC and MCC Entertainment LLC 

(together “Plaintiffs” or “Sellers”) have filed a Renewed Motion for Summary 

Judgment (the “Motion”) against Defendant Cohen Exhibition Company LLC 

(“Defendant” or “Buyer”) for confirmation of an arbitration award (the 

“Determination Letter”).

1

 Through the Motion, Plaintiffs seek an order granting 

summary judgment in their favor and directing Defendant to pay the amount 

awarded to Plaintiffs pursuant to the Determination Letter, plus interest and their 

1 Unless noted otherwise, capitalized terms are as defined in the Court’s September 30, 

2020 Memorandum Opinion (the “Opinion” or “Op.”). The Determination Letter is 

attached as Exhibit B to the Complaint.
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costs and expenses incurred in pursuing enforcement of the Determination Letter. 

Plaintiffs also seek to compel Buyer to execute a Joint Instruction Letter authorizing 

the release of funds from an escrow account for the award, and to pay any amount 

in excess of the award in the event the escrow is not sufficient to satisfy the award. 

This letter opinion resolves the Motion. 

I. Factual Background

a. The Acquisition and the Determination Letter

On December 3, 2018, Sellers sold the Company to the Buyer. The terms of 

the sale are contained in a Purchase Agreement and related Escrow Agreement.

2

 

Through the Escrow Agreement, $3 million of the purchase price was placed into an 

escrow account to cover post-closing purchase price adjustments. The Purchase 

Agreement defined a process through which the parties would calculate post-closing 

purchase price adjustments. The Purchase Agreement incorporated and attached 

Applicable Accounting Principles and a Sample Statement to guide the parties’ 

calculations. If the parties could not resolve a dispute over post-closing purchase 

price adjustments, the Purchase Agreement required the parties to select an 

independent accounting firm to decide the dispute. The accounting firm’s review 

2 The Purchase Agreement is attached as Exhibit A to the Complaint. The Escrow 

Agreement is attached as Exhibit C to the Complaint. 
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was limited to determining whether calculations had been correctly performed and 

whether the calculations were made pursuant to the Applicable Accounting 

Principles and the Sample Statement. The parties agreed that the accounting firm’s 

determination would be “conclusive and binding upon the parties” and would not be 

“subject to appeal or further review.”3

 The parties agreed that they would pay the 

costs of “any dispute resolution . . . including the fees and expenses of the 

Independent Accounting Firm and of any enforcement of the determination thereof” 

proportionally to the degree of their success, as calculated by the accounting firm.4

The parties disputed the post-closing price adjustments and engaged 

PricewaterhouseCoopers LLP (“PwC”) to serve as the independent public 

accounting firm. PwC obtained additional information through interrogatories and 

document requests to the parties. On June 28, 2019, PwC resolved the price 

adjustment disputes and documented its decision in the Determination Letter. By its 

terms, the Determination Letter became final five business days later.

5

 The 

Determination Letter resolved the disputes in Sellers’ favor, except that PwC agreed 

with Buyer’s calculation of the Company’s cash as of the closing date. 

3 Purchase Agreement § 1.3(d). 

4 Purchase Agreement § 1.3(e). 

5 See Determination Letter 15.
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Based on the Determination Letter, Plaintiffs calculate that they are entitled 

to $2,621,623 from the escrow. See Compl. ¶¶ 23–26 & Ex. E. Plaintiffs requested 

that Buyer execute a Joint Instruction Letter releasing that amount, and Buyer 

refused. 

b. This Action and the Memorandum Opinion.

On July 29, 2019, Plaintiffs filed the Complaint seeking (1) a judgment 

enforcing the Determination Letter as a binding arbitration award under the Federal 

Arbitration Act (Compl. Count I) and (2) an order of specific performance requiring 

Buyer to release the escrowed amounts pursuant to the Determination Letter (Compl. 

Count II). On September 12, 2019, Buyer filed an Answer and Verified 

Counterclaims (the “First Pleading”). As its fourth affirmative defense, the Answer 

in the First Pleading cited the Delaware Uniform Arbitration Act (the “DUAA”) and 

averred that the “Award must be vacated under 10 Del. C. § 5714(a)(5) as the 

agreement to arbitrate had not been complied with.” Dkt. 10 at 21. Count II of the 

Verified Counterclaims asserted a claim for vacatur of the Determination Letter 

under the same statute. Id. ¶¶ 32–35. 

On October 2, 2019, the Plaintiffs filed a motion to dismiss the counterclaims 

and for summary judgment, and on December 2, 2019, they filed their opening brief 

in support of both motions. Among the grounds for summary judgment, Plaintiffs 
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argued that Defendant erroneously sought to vacate the Award under the DUAA 

because the Award is governed by the FAA. Plaintiffs also pointed out that the 

section of the DUAA cited in the Answer was not one of the four enumerated 

grounds to vacate an award under the FAA. On January 13, 2020, Buyer responded 

to Plaintiffs’ opening brief in support of the motions by filing (1) an “Answer and 

Verified Amended Counterclaims,” (Dkt. 24) (the “Second Pleading”) and (2) an 

opening brief in opposition to Plaintiffs’ motion for summary judgment.

The Answer in the Second Pleading is not denominated as an “Amended” 

Answer. The affirmative defense section in the Answer in the Second Pleading, 

however, is different from that of the Answer in the First Pleading in the following 

respects: it renumbered the Affirmative Defenses, deleted the affirmative defense 

asserting that the Determination Letter should be vacated under the Delaware 

Uniform Arbitration Act, and added as a new, fifth affirmative defense that the 

“Award must be vacated under the FAA, 9 U.S.C. § 10(a)(1), because the Award 

was procured by corruption, fraud or undue means.” See Dkt. 24 at 21. Like the 

Answer in the First Pleading, the Answer in the Second Pleading did not contain any 

factual allegations that the Determination Letter was procured by fraud.

Unlike the Counterclaims in the First Pleading, the Amended Counterclaims 

in the Second Pleading did not assert a claim to vacate the Determination Letter. 
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Because the Buyer amended its counterclaims, Sellers filed a new motion to dismiss 

the Amended Counterclaims, and the parties completed a full round of briefing

regarding the new motion to dismiss.

6

 

The parties did not, however, conduct a full round of new briefing on 

Plaintiffs’ motion for summary judgment to confirm the Award. Instead, on April 

27, 2020, Plaintiffs filed a reply brief in support of the motion for summary 

judgment. Because Buyer filed the Second Pleading in the middle of briefing on 

Plaintiff’s motion for summary judgment, Plaintiffs were required to adjust their aim 

at a moving target. In their opening brief, Plaintiffs had argued, among other things, 

that Buyer had “mistakenly moved for vacatur under Section 5724(a)(5) [sic] of the 

DUAA.” Dkt. 19 at 39. Because the Buyer’s Second Pleading dropped the 

counterclaim for vacatur of the Award under the DUAA and the Answer cited 

vacatur under the FAA rather than the DUAA as an affirmative defense, Plaintiffs’ 

reply brief, for the first time, argued that Buyer had not filed a timely motion to 

6 Because Buyer was confronted with a motion to dismiss the Counterclaims in the First

Pleading, Buyer contends it was permitted to file the Second Pleading without seeking 

written consent of Plaintiffs or leave of court under Rule 15(aaa) (permitting a party to 

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

by filing an “amended complaint, or a motion to amend . . . no later than the time such 

party’s answering brief” is due in response to the motion to dismiss); but see Ct. Ch. R. 

15(a) (requiring written consent of the opposing party or leave of court to file an amended 

pleading after a party can no longer amend its pleading as of right).
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vacate within three months of the Determination Letter, as required by the FAA. 

Dkt. 36 at 3–7. Plaintiffs further argued that none of Buyer’s pleadings satisfied the 

requirements to vacate the Award under the FAA. Id. 

On September 30, 2020, the Court issued a Memorandum Opinion granting 

and denying Sellers’ motion to dismiss in part. As to Plaintiffs’ motion for summary 

judgment, the Court observed that there was a material issue of fact preventing entry 

of summary judgment because it was possible that certain liabilities were 

fraudulently omitted “from the Interim Financial Statements [that] formed part of 

the calculations relied upon by PwC in its Determination Letter.” Opinion at 51–52. 

The Court further observed that the issue of whether Buyer had timely filed a motion 

to vacate the Determination Letter “arose in an awkward procedural context due to 

the Buyer’s filing of amended counterclaims and altering its legal theory” after the 

opening brief in support of summary judgment, which caused Plaintiffs to raise its 

timeliness argument for the first time in their reply brief. Id. at 52 n.87. The Court 

therefore “conclude[d] that the Buyer should be permitted to appropriately address 

the procedural challenge to its attempt to vacate the Determination Letter” under the 

FAA. Id. The Court thus denied the motion for summary judgment without

prejudice. Id. at 52. 
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On November 20, 2020, Plaintiffs filed a renewed motion for summary 

judgment. The parties briefed the renewed motion, and the Court heard oral 

argument on February 9, 2021. 

II. Analysis

a. Buyer Did Not Provide Notice of a Motion to Vacate the 

Determination Letter as Required by the FAA.

The parties do not dispute that the Determination Letter is an arbitration award 

that is governed by the terms of the FAA. Under the FAA, to vacate an arbitration 

award, “[n]otice of a motion to vacate, modify, or correct an award must be served 

upon the adverse party or his attorney within three months after the award is filed or 

delivered.” 9 U.S.C. § 12. The Determination Letter was “filed or delivered” on 

June 28, 2019 and became final five business days later. Thus, at the latest, Buyer 

was required to serve a notice of motion to vacate, modify, or correct the 

Determination Letter no later than October 6, 2019.

Defendant contends it was not required to file a notice of motion, pointing to 

Section 6 of the FAA, which provides that any application to a court must be “made 

and heard in the manner provided by law for the making and hearing of motions, 

except as otherwise herein expressly provided.” Id. § 6. Defendant argues that its 

Answer and Verified Counterclaims, served on September 12, 2019, are sufficient 
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to serve as a motion to vacate under the FAA. Buyer’s Answer contained an 

affirmative defense averring that the “Award must be vacated under 10 Del. C. § 

5714(a)(5) as the agreement to arbitrate had not been complied with.” Dkt. 10 at 21. 

In addition, Count II of the Verified Counterclaims asserted a claim for vacatur of 

the Determination Letter. Id. ¶¶ 32–35. Like the Answer, the Verified 

Counterclaims only sought to vacate the Award under the same provision of the 

DUAA. Id. ¶ 34. Buyer does not contend that it provided notice of a motion to 

vacate under the FAA other than through its filings in this action.

Under Court of Chancery Rule 7(b), no notice of a motion is required. Court 

of Chancery Rule 7(b) provides that “[a]n application to the Court for an order shall 

be by motion which, unless made during a hearing or trial, shall be in writing, shall 

state with particularity the grounds therefor, and shall set forth clearly in the motion 

the relief sought. The party making the application shall not file a separate notice of 

motion.” Ct. Ch. R. 7(b).

Plaintiffs argue that neither the First Pleading nor the Second Pleading is 

sufficient to satisfy the FAA’s requirement of a timely notice of a motion to vacate.

Plaintiffs contend that pleadings and affirmative defenses cannot be deemed

equivalent to a motion to vacate, see Ct. Ch. R. 7(a) (listing an answer as a pleading); 

Ct. Ch. R. 13 (requiring counterclaims to be stated in the pleading), and that Buyer’s 
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affirmative defense and counterclaims in the First Pleading invoked the DUAA, 

rather than the FAA. Dkt. 10 at 21 & 33–34.7

Federal courts applying the FAA have discretion to determine that a pleading 

or other application for vacatur is equivalent to a motion.

8 There are strong policy 

reasons not to do so. As the United States District Court for the Southern District of 

New York has held, the FAA’s requirement of a motion to vacate ensures that the 

burden of proof properly remains on the party seeking vacatur. See Kruse, 226 F. 

Supp. 2d at 487 (holding that a petition to vacate was untimely because it was not a 

motion to vacate and noting that, if a party could seek vacatur via pleading, “[t]he 

7 Not only did Buyer improperly invoke the DUAA, but it also cited grounds to vacate 

under the DUAA that are not recognized by and have no equivalent under the FAA. 

Compare 10 Del. C. § 5714(a)(5) (“There was no valid arbitration agreement, or the 

agreement to arbitrate had not been complied with, or the arbitrated claim was barred by 

limitation and the party applying to vacate the award did not participate in the arbitration 

hearing without raising the objection”), with 9 U.S.C. § 10(a)(1)–(4) (containing no similar 

provision). 

8 See Kruse v. Sands Bros. & Co., Ltd., 226 F. Supp. 2d 484, 486–87 (S.D.N.Y. 2002) 

(discussing the policy that motions should not be deemed equivalent to pleadings for 

purposes of seeking vacatur and holding that “[a] party cannot initiate a challenge to an 

arbitration award by filing a complaint or an application”); Questar Cap. Corp. v. Gorter, 

909 F. Supp. 2d 789, 803 (W.D. Ky. 2012) (discussing the discretionary determination to 

treat a pleading as a motion and noting that “the clear intent” of the FAA “was to remove 

confirmation and vacatur procedures . . . from the ambit of pleadings and their attendant 

rules of civil procedure” in order to preserve the summary disposition of vacatur 

proceedings). See also O.R. Sec., Inc. v. Prof’l Planning Assocs., Inc., 857 F.2d 742, 746 

(11th Cir. 1988) (holding that the “erroneous nomenclature” of a complaint was immaterial 

because the briefing “adequately briefed the issue of whether the arbitration award in 

question should have been vacated”). 
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burden would be on Petitioner to show that Respondents could not prove any facts 

that would entitle them to relief from the Award. This is contrary to the FAA and 

basic principles of fairness.”) (internal citations omitted); see also O. R. Sec., Inc., 

857 F.2d at 745 (“The manner in which an action to vacate an arbitration award is 

made is obviously important, for the nature of the proceedings affects the burdens 

of the various parties.”). Addressing the applicability of the disparate and 

discretionary applications of this rule is not necessary here, however, because the 

affirmative defenses in the First and Second Pleadings were deficient as a matter of 

Delaware law.

The First Pleading asserted an affirmative defense for vacatur and a 

counterclaim for vacatur under the DUAA, the latter of which was later withdrawn 

through the Second Pleading. See Dkt. 10. The affirmative defense seeking vacatur 

in the First Pleading avers, in its entirety, that “[t]he Award must be vacated under 

[the DUAA] as the agreement to arbitrate had not been complied with.” Dkt. 10 at 

21. The affirmative defense was not supported by any factual allegation. The 

affirmative defense in the First Pleading seeking vacatur was not supported by any 

well-pleaded fact, as required by Delaware law. Under Delaware law, “affirmative 

defenses must be supported by pled facts.” Cypress Assocs., LLC v. Sunnyside 

Cogeneration Assocs. Project, 2007 WL 148754, at *18 (Del. Ch. Jan. 17, 2007); 
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accord Leaf Invenergy Co. v. Invenergy Wind LLC, 2016 WL 3566365, at *3 (Del. 

Ch. June 30, 2016) (holding that a conclusory affirmative defense was insufficient 

to warrant denial of motion for judgment on the pleadings); Di Loreto v. Tiber Hldg. 

Corp., 1999 WL 1261450, at *4 n.9 (Del. Ch. June 29, 1999) (dismissing conclusory 

affirmative defenses); Kurz v. Holbrook, 2009 WL 4682622, at *6 (Del. Ch. Dec. 1, 

2009) (dismissing an unclean hands defense because it was alleged “in conclusory 

fashion without providing any supporting allegations,” and holding that “[t]he rote 

recitation of an unclean hands defense is not a free pass to conduct discovery”); see 

also Shechter v. Comptroller of City of New York, 79 F.3d 265, 268 (2d Cir. 1996)

(“Affirmative defenses which amount to nothing more than mere conclusions of law 

and are not warranted by any asserted facts have no efficacy.”) (internal citations 

omitted). At best, Count II of the Buyer’s Counterclaim alleged a violation of the 

DUAA and that “[t]he Purchase Agreement has not been complied with, in that the 

Counterclaim Defendants failed to abide by the good-faith requirement of Section 

1.3 of the Purchase Agreement, by omitting material information from the Sample 

Statement in bad faith.” Id. at 33. This bare allegation did not provide notice that 

Buyer would seek to vacate the Determination Letter under the FAA on the grounds 

that the Determination Letter was “procured by corruption, fraud, or undue means.” 
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9 U.S.C. § 10(a)(1).9 The affirmative defense in the First Pleading was therefore not 

an adequate substitute for notice of a motion to vacate under the FAA because it 

cited the wrong statute, did not provide notice of the eventual fraud defense asserted 

under the FAA, and was insufficient as a matter of Delaware law. 

Buyer argues that the amended affirmative defense in the Second Pleading

seeking vacatur under the FAA relates back to the date of its original pleading. As 

Buyer observes, federal courts have permitted parties to amend motions to vacate to 

assert new theories of vacatur after timely notice of a motion to vacate. But Buyer’s

argument fails because the Second Pleading is just as conclusory as the First 

Pleading. See Dkt. 24 at 21 (averring that the Determination Letter “must be vacated 

under the FAA, 9 U.S.C. § 10(a)(1), because the Award was procured by corruption, 

fraud or undue means”). The affirmative defense seeking vacatur in the Second 

Pleading is, like the affirmative defense in the First Pleading, unsupported by any 

pleaded fact. It merely cites and quotes a portion of the statutory provision. Thus, 

9 PwC was not authorized to address whether Sellers engaged in pre-arbitration fraud by 

omitting information from the Sample Statement. The Purchase Agreement provides that 

the “scope of the disputes to be resolved by the Independent Accounting Firm shall be 

limited to correcting mathematical errors and determining whether the items and amounts 

in dispute were determined in accordance with the Applicable Accounting Principles and 

the Sample Statement, and the Independent Accounting Firm is not to make any other 

determination.” Purchase Agreement § 1.3(d). 
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even if the Second Pleading related back to the date of the First Pleading, the 

affirmative defense in the Second Pleading was not sufficient to provide notice of a 

motion to vacate as required by the FAA because it was deficient as a matter of 

Delaware law. 

Buyer relies on M3 Healthcare Solutions v. Family Practice Associates, P.A.,

996 A.2d 1279 (Del. 2010), to support its position that it has effectively moved to 

vacate the Determination Letter under the FAA by asserting vacatur in its affirmative 

defenses. In M3 Healthcare, the Delaware Supreme Court held that an “application”

to vacate an arbitration award under the Delaware Uniform Arbitration Act “may be 

raised in an answer to a complaint to confirm the award,” including by “listing 

‘affirmative defenses’ that requested modification, vacation or correction of errors 

in the arbitration award.” Id. at 1283. Buyer argues that, because “the assertion of

affirmative defenses or counterclaims is sufficient for purposes of making an 

‘application’ under the DUAA,” “[t]he same should be true for purposes of making 

a ‘notice of motion to vacate’ under the FAA.” Def.’s Answering Br. 18. 

Buyer’s argument fails for two reasons. First, in M3 Healthcare, the party 

seeking vacatur provided factual allegations in support of its affirmative defense 

seeking to vacate an arbitration award. In M3 Healthcare, the party seeking vacatur 

averred, as an affirmative defense, that the arbitration award should be vacated under 
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the DUAA because the arbitrator improperly permitted a “previously unidentified 

witness” to testify, that such witness offered testimony regarding “purported internal 

working guidelines of Blue Cross/Blue Shield,” and that the witness had not been

required to “produce the internal guidelines for use during cross-examination.”

Family Practice Assocs., P.A., v. M3 Healthcare Solutions, C.A. No. 4488-VCS, 

Dkt. 6 ¶ 19. By contrast, Buyer’s affirmative defense here is facially inadequate and 

more closely resembles the pleading deemed untimely in Kruse, where the 

“paragraphs relevant to the petition’s substance” contained “only conclusory 

statements” and were “devoid of any argument or factual or legal support.” See 

Kruse, 226 F. Supp. 2d at 486. Buyer cannot forestall confirmation of the 

Determination Letter indefinitely on the basis of a conclusory affirmative defense.

Second, the FAA and the DUAA do not contain interchangeable language

regarding the procedural requirements to timely vacate an arbitration award. The 

DUAA permits a party to seek vacatur “[u]pon complaint or application of a party 

in an existing case” and permits “[a]n application under this section . . . within 90 

days after delivery of a copy of the award to the applicant.” 10 Del. C. § 5714. By 

comparison, the FAA requires “[n]otice of a motion to vacate, modify, or correct an 

award” to be “served upon the adverse party or his attorney within three months after 

the award is filed or delivered.” 9 U.S.C. § 12. The FAA is narrower than the 
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DUAA, which expressly permits a party to seek vacatur through a “complaint or 

application . . . in an existing case.” 10 Del. C. § 5714. As previously noted, the 

parties do not dispute that the FAA applies to the Determination Letter. 

Superimposing the requirements of the DUAA over the FAA is not appropriate 

merely because Buyer initially sought to vacate the Determination Letter under the 

wrong statute. Buyer’s belated and ineffective invocation of the FAA therefore does 

not cure its failure to provide notice that it would affirmatively move to vacate the 

Determination Letter in the first instance.

As a final argument, Buyer asserts that this Court may set aside the timeliness 

requirements of the FAA altogether, and argues that “each state is free to apply its 

own procedural requirements so long as those procedures do not defeat the purposes 

of the [FAA].” Def.’s Answering Br. 18–19 (quoting TowerHill Wealth Mgmt., LLC 

v. Bander Family P’ship, L.P., 2008 WL 4615865, at *1 n.3 (Del. Ch. Oct. 9, 2008)); 

see also 9 U.S.C. § 6 (“Any application to the court hereunder shall be made and 

heard in the manner provided by law for the making and hearing of motions, except 

as otherwise herein expressly provided.”). TowerHill involved a different section of 

the FAA that concerned application for an interlocutory appeal. The FAA provides 

that “[a]n appeal may be taken from . . . an interlocutory order granting . . . an 

injunction against an arbitration.” 9 U.S.C. § 16. In TowerHill, the court held that 
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the FAA cannot be read so broadly as to require the Court of Chancery to certify an 

interlocutory appeal. TowerHill does not require the court to disregard the language 

of the FAA. In any event, as discussed above, the affirmative defenses seeking to 

vacate the Award lacked factual support and were inadequate under Delaware law 

and, therefore, cannot be deemed a timely motion to vacate. 

For the foregoing reasons, the First and Second Pleadings did not timely 

provide notice of a motion to vacate under the FAA, and the motion for summary 

judgment will be granted. 

b. Buyer Has Not Demonstrated that There Is a Material Issue of 

Disputed Fact Requiring Denial of the Motion.

Under Court of Chancery Rule 56, summary judgment may be granted if 

“there is no genuine issue as to any material fact and . . . the moving party is entitled 

to judgment as a matter of law.” Ct. Ch. R. 56(c). “A motion for summary judgment 

is the ‘common [method] for this court to determine whether to vacate or confirm an 

arbitration award.’” TD Ameritrade, Inc. v. McLaughlin, Piven, Vogel Sec., Inc., 

953 A.2d 726, 730 (Del. Ch. 2008) (quoting Beebe Med. Ctr. Inc. v. InSight Health 

Servs. Corp., 751 A.2d 426, 431 (Del. Ch. 1999)). 

Plaintiffs’ motion for summary judgment must be granted for the independent 

reason that Buyer has failed to meet its burden to establish that the Determination 
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Letter was “procured by corruption, fraud, or undue means.” 9 U.S.C. § 10(a)(1). 

A party seeking to vacate an arbitration award under Section 10(a)(1) of the FAA 

must establish “(1) the existence of fraud by clear and convincing evidence, (2) that 

the fraud was not discoverable with the exercise of due diligence, and (3) that the 

fraud materially relates to an issue in the arbitration.” Int’l Brotherhood of 

Teamsters, Local 701 v. CBF Trucking, Inc., 440 F. App’x 76, 77–78 (3d Cir. 2011). 

The FAA “does not provide for vacatur in the event of any fraudulent conduct, but 

only where the award was procured by corruption, fraud, or undue means.” 

Forsythe Int’l, S.A. v. Gibbs Oil Co. of Tex., 915 F.2d 1017, 1022 (5th Cir. 1990)

(quoting 9 U.S.C. § 10(a)).

Buyer does not dispute that this standard applies to confirmation of the 

Determination Letter, and Buyer does not contend that it has established fraud by 

“clear and convincing evidence.” Indeed, Buyer has not advanced any argument 

supported by evidence that the Determination Letter was procured by fraud. Buyer 

instead relies on the Court’s Opinion denying Plaintiffs’ initial motion for summary 

judgment without prejudice. Buyer argues that this Court previously determined that 

there was a material issue of disputed fact preventing summary judgment, that the 

Court’s holding is the law of the case, and that Plaintiffs’ renewed motion for 
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summary judgment is an untimely motion for reargument under Court of Chancery 

Rule 59(f). According to Buyer: 

Giving Defendant the benefit of every reasonable inference, this 

Court can readily conclude that its prior determination in the Opinion 

was correctly reached. The present record poses multiple fact question 

as to whether Plaintiffs’ nondisclosure of the Medical Claim Liabilities 

and Management Bonus Liabilities resulted in the procurement of the 

PwC Determination Letter by fraud and denied Defendant a 

“fundamentally fair hearing.”

Def.’s Answering Br. 28 (quoting Hayne, Miller & Farni, Inc. v. Flume, 888 F. Supp. 

949, 942–53 (E.D. Wis. 1995)). 

The Opinion observed that Buyer did not have a meaningful opportunity to 

respond to Plaintiffs’ argument that it had never provided notice of a motion to 

vacate the Determination Letter within ninety days because Plaintiffs raised that 

issue for the first time in their reply brief. Opinion 52 n.87. The Opinion also

observed that “it is possible that the Determination Letter was procured by fraud to 

the extent that the omission of the Management Bonus Liabilities and the Medical 

Claim Liabilities from the Interim Financial Statements formed part of the 

calculations relied upon by PwC in its Determination Letter.” Id. at 51–52. In that 

regard, the Opinion noted that the Determination Letter appeared to contradict 

Buyer’s allegations, and indicated that further clarification of that factual issue 

would be helpful. Id. at 52 n.86. Based on the record before me at the time, I 
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determined that resolving all issues relating to Plaintiffs’ motion for summary 

judgment at once would be the fairest and most efficient method to proceed, and for 

those reasons, I denied it without prejudice. 

The law of the case doctrine applies “‘when a specific legal principle is 

applied to an issue presented by facts which remain constant throughout the 

subsequent course of the same litigation.’” Frederick-Conaway v. Baird, 159 A.3d 

285, 296 (Del. 2017) (quoting Kenton v. Kenton, 571 A.2d 778, 784 (Del. 1990)). 

The law of the case doctrine appears “‘most often when a trial court is required to 

give effect to law established in a case after it has been appealed,’” but the doctrine 

also “‘applies to decisions rendered by a court that arise again later in the same court, 

in the same proceedings.’” Frederick-Conaway, 159 A.3d at 296 (quoting Carlyle 

Inv. Mgmt. L.L.C. v. Moonmouth Co. S.A., 2015 WL 5278913, at *7 (Del. Ch. Sept. 

10, 2015)). Here, the law of the case doctrine does not require denial of the renewed 

motion for summary judgment because the Opinion denied the first motion for 

summary judgment without prejudice. The Opinion did not hold that a future motion 

for summary judgment by Plaintiffs would be unsuccessful—otherwise, denying the 
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motion for summary judgment “without prejudice” would have been a futile act.

10

The law of the case doctrine therefore has no application here because granting the 

renewed motion for summary judgment is consistent with “the principle of stability 

and respect for court processes and precedent.” See Gannett Co., Inc. v. Kanaga, 

750 A.2d 1174, 1181 (Del. 2000).11 

Buyer’s reliance on the Opinion is additionally unavailing because it has 

failed to provide “clear and convincing” evidence, as required to vacate the 

Determination Letter and to prevent confirmation. 9 U.S.C. § 9 (requiring courts to 

confirm arbitration awards unless the award is “vacated, modified, or corrected”). 

Under Court of Chancery Rule 56(e), a party confronting a supported motion for 

summary judgment “may not rest upon the mere allegations or denials of [its] 

pleading, but . . . must set forth specific facts showing that there is a genuine issue 

for trial.” Ct. Ch. R. 56(e). Buyer has submitted no evidence in response to 

Plaintiffs’ renewed motion for summary judgment. The only evidence that Buyer 

10 To the extent that the Opinion may be read to imply that summary judgment was 

unavailable, the law of the case doctrine does not prevent this Court from clarifying its 

prior language. Frederick-Conaway, 149 A.3d at 297. 

11 For the same reasons, the renewed motion for summary judgment is not a motion for 

reargument. See Techmer Accel Hldgs., LLC v. Amer, 2011 WL 567456, at *3 n.28 (Del. 

Ch. Feb. 8, 2011) (holding that the Court “made no determination” regarding a particular 

issue and therefore “there is no decision to reexamine on a Court of Chancery Rule 59(f) 

motion for reargument”). 
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has submitted to date has been an affidavit submitted in connection with the original 

motion for summary judgment. See Dkt. 26 (“Cherniak Aff.”). The affidavit does 

not satisfy Buyer’s burden to present evidence from which any rational trier of fact 

could infer that Plaintiffs engaged in fraud in procuring the Determination Letter by 

clear and convincing evidence, as the FAA requires. See Forsythe, 915 F.2d at

1022.

12 As the Opinion held, Buyer may eventually prevail on a claim of fraud 

against the Sellers arising from the transaction, but that does not preclude 

confirmation of the Determination Letter prior to the resolution of the fraud claim. 

See MarkDutch Co 1 B.V. v. Zeta Interactive Corp., 411 F. Supp. 3d 316, 328–29 

(D. Del. 2019) (declining to deny a motion to confirm an arbitral award because it 

would “transform a summary proceeding into a protracted dispute”).

Buyer has also not presented evidence sufficient to create an issue of fact as 

to its burden of showing that the fraud was not discoverable with the exercise of 

reasonable diligence. Buyer argues that “the timing of what [Buyer] discovered and 

12 See Cerberus Int’l v. Apollo Mgm’t, L.P., 794 A.2d 1141, 1149 (Del. 2002) (adopting 

majority rule that the substantive burden of proof can be taken into account at the summary 

judgment stage). In that regard, Buyer’s burden of establishing fraud for purposes of the 

FAA (clear and convincing evidence) is higher than that of its common law fraud 

counterclaim, which is governed by Delaware law. See In re IBP, Inc. S’holders Litig., 

789 A.2d 14, 54 (Del. Ch. 2001) (observing that under Delaware law a party must prove 

fraud by a preponderance of the evidence). 
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when, and whether [Buyer] could have uncovered Plaintiffs’ fraudulent 

nondisclosures in time to present the matters at the arbitration, are fact-specific 

issues that must await discovery.” Def.’s Answering Br. 28. Buyer cannot rely on 

that argument to avoid summary judgment. The Cherniak Affidavit submitted in 

opposition to the original summary judgment motion states:

Following the Award, Buyer learned of additional bad faith 

conduct and fraud by Sellers who, upon information and belief, have 

intentionally concealed information that “past practices” as well as 

unsigned agreements, provide for merit increases for certain field 

management personnel each February based upon defined goals and 

milestones, as well as incentives based on performance targets. . . .

Cohen has further learned of medical claim liabilities, which 

were known to Sellers prior to closing, of roughly $500,000 . . . .13

The answers to the questions of what Buyer discovered and when is wholly 

within Buyer’s knowledge and control. Buyer controls the Company and has had 

access to the Company’s emails and employees since the closing of the transaction 

in December 2018. Dkt. 24 ¶ 12 (“Defendant admits entering into the Purchase 

Agreement and closing on the acquisition of Landmark Acquisition Corporation . . . 

on or about December 3, 2018.”). Discovery of Sellers is not required for Buyer to 

present facts to establish when it learned of the existence of the items that it claims 

13 Cherniak Aff. ¶¶ 44–45.
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that establish the grounds for its claim that the Award was procured by fraud. See

Chartis Specialty Ins. Co. v. LaSalle Bank, Nat’l Ass’n, 2011 WL 3276369 (Del. Ch. 

July 29, 2011) (noting that “discovery is limited in actions challenging an arbitration 

award under the FAA,” and that “post-arbitration discovery is rarely permitted”). 

Buyer’s cagey assertions as to what it discovered and when are not sufficient to deny 

summary judgment. See Bay Capital Finance, L.L.C. v. Barnes and Noble Educ., 

Inc., 2020 WL 1527784, at *10 (Del. Ch. Mar. 30, 2020) (observing that when a 

party invokes Rule 56(f) to seek additional discovery in response to a motion for 

summary judgment, “the onus is on the non-moving party to state with some degree 

of specificity, the additional facts sought by the requested discovery”) (internal 

citations omitted). In short, Buyer has not adequately established a factual basis for 

the denial of summary judgment.

For the foregoing reasons, the confirmation of the Determination Letter is 

overdue, and Plaintiffs’ motion for summary judgment must be granted. The Court 
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will enter Plaintiffs’ proposed form of order contemporaneously with the issuance 

of this Letter Opinion.

14

Very truly yours,

/s/ Paul A. Fioravanti, Jr.

Vice Chancellor

14 Plaintiffs seek their costs for obtaining confirmation of the Determination Letter in this 

action. Buyer has not contested that Plaintiffs are entitled to costs in the event that 

Plaintiffs prevail. See Purchase Agreement § 1.3(e) (“The costs of any dispute resolution 

pursuant to this Section 1.3, including the fees and expenses of the Independent Accounting 

Firm and of any enforcement of the determination thereof, shall be borne, on the one hand 

by the Sellers and, on the other hand, by the Buyer, in inverse proportion as they may 

prevail on the matters resolved by the Independent Accounting Firm, which proportionate 

allocation shall be calculated on an aggregate basis based on the relative dollar values of 

the amounts in dispute and shall be determined by the Independent Accounting Firm at the 

time the determination of such firm is rendered on the merits of the matters submitted. The 

fees and disbursements of the Representatives of each party incurred in connection with 

the preparation or review of the Final Closing Statement and preparation or review of any 

Notice of Disagreement, as applicable, shall be borne by such party.”).