COURT OF CHANCERY

OF THE

STATE OF DELAWARE

J OSEPH R. S LIGHTS III

V ICE C HANCELLOR 417 S. State Street

Dover, Delaware 19901

Telephone: (302) 739

- 4397

Facsimile: (302) 739

- 6179

Date Submitted: November 22, 2021

Date Decided: January 31

, 2022

Blake Rohrbacher, Esquire

Kevin M. Gallagher, Esquire

Alexander M. Krischik, Esquire

Christian C.F. Roberts, Esquire

Richards, Layton & Finger, P.A.

920 North King Street

Wilmington, DE 19801 Mr. Ercin Eksin

Mennica Legacy Tower

Prosta 20

Warszawa, 00

- 850

Poland

ercineksin@gmail.com

Re: Lidya Holdings Inc., et al. v. Ercin Eksin

C.A. No. 2021

- 0110

- JRS

Dear Counsel and Mr. Eksin :

This Letter Opinion addresses a motion to dismiss counterclaims brought by

Ercin Eksin against Lidya Holdings Inc. (“Lidya” or the “Company” )

, Accion

International, Omidyar Network Fund LLC, Flourish Ventures and Bamboo Capital

(together, excluding Lidya, the “ Investor Defendants ” and

, w ith Lidya,

“Counterclaim Defendants”)

. For the reasons stated below, all counterclaims

against the Investor Defendants must be dismissed

. Counts 1

, 2

, 3, 4 and 6 of the

counterclaims against Lidya must also be dismissed

. With respect to the motion toLidya Holdings Inc., et al. v. Ercin Eksin

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dismiss Count 5 against Lidya

, the Court requires supplemental submissions before

addressing that claim.

“In deciding a motion to dismiss under Rule 12(b)(6), a trial court must

accept as true all of the well

- pleaded alleg ations of fact and draw reasonable

inferences in the plaintiff’s favor.” 1 The complaint

— and only the complaint

—

“generally defines the universe of facts that the trial court may consider in ruling on

a Rule 12(b)(6) motion to dismiss.” 2 As discussed below, Eksin has strayed well

beyond the pleading s in his bid to avoid dismis sal of the counterclaims. 3 Even after

allowing him more liberty to deviate from settled pleading standards to account for

1 In re Gen

. Motors (Hughes) S’holder Litig.

, 897 A.2d 162, 168 (Del. 2006).

2 Id.

3 In his response to the motion to dismiss, Eksin alleged new facts and attached several

new exhibits

. See Pls./Counter

- Defs.’ Reply Br. in Further Supp. of Their Mot. to Dismiss

Countercl s. (“CDRB”) (D.I. 62) at 6

– 7 (detailing additional facts and exhibits added in

Eksin’s response). As Counterclaim Defendants point out, “it is impermissible to attempt

to ame nd one’s pleading through a brief.” Standard Gen. L.P. v. Charney

, 2017 WL 6498063, at *25 (Del. Ch. Dec. 19, 2017), aff’d

, 195 A.3d 16 (Del. 2018)

(TABLE) ; CDRB at 5 (quoting Charney ). Because Eksin chose to respond to the motion

to dismiss instead of a mending his claims under Court of Chancery Rule 15(aaa), I may

consider only the allegations in the Verified Counterclaims. See Ct. Ch. R. 15(aaa).Lidya Holdings Inc., et al. v. Ercin Eksin

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his status as a pro se litigant

, as discussed below, I cannot conclude that he has

stated viable claims. My reasoning follows.

I. BACKGROUND

I take the facts from Eksin’s counterclaims, accept all well

- pled allegations

as true, and draw all reasonable inferences in Eksin’s favor

. 4

A. The Parties

Eksin is a co

- founder, shareholder, director and former co

- CEO of Lidya. 5

Lidya is a fintech company that provides loans to small and medium

- sized

businesses to finance their working capital needs, particularly in emerging

economies where traditional financing opportunities are limited and costly. 6 It has

grown rapidly and now operates in several countries. 7

4 See In re Gen

. Motors (Hughes )

, 897 A.2d at 168 (citing Savor, Inc. v. FMR Corp.

, 812 A.2d 894, 896

– 97 (Del. 2002)).

5 Verified Countercl s. Against Counter

- Defs. (“ Countercl aim ”) (D.I. 49) ¶ 1.

6 Counterclaim ¶¶ 21, 25.

7 Counterclaim ¶¶ 31

– 33.Lidya Holdings Inc., et al. v. Ercin Eksin

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In 2017 and 2018, Lidya conducted several private placements of its stock to

outside investors. 8 T he Investor Defendants acquired their Lidya shares in one of

these financing rounds and

, in doing so, gained control of three of the five board

seats on Lidya’s Board of Directors (the “Board”). 9 The then

- co

- CEOs, Eksin and

Tunde Kehinde

, controlled the other two Board seats. 10

B. Eksin Removed as Co

- CEO

Disagreements with an employee and with the Boa rd led to Eksin’s removal

as co

- CEO on January 21, 2021

. 11 Specifically, Eksin clashed with a n employee

“who was connected with and previously worked at Accion,” one of the Investor

Defendants represented on the Board

, over her “ demand for unearned incentives.” 12

8 Counterclaim ¶ 43.

9 Counterclaim ¶¶ 44, 48.

10 Counterclaim ¶¶ 45, 48.

11 Counterclaim ¶¶ 96

– 102.

12 Counterclaim ¶ 74. Eksin alleges that “this employee continues to have close

connections with Accion and one of the Board Director [sic] of Lidya, Ms. Lewis.”

Counterclaim ¶ 75.Lidya Holdings Inc., et al. v. Ercin Eksin

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This employee later accused Eksin of harassment

. 13 The Board formed a s pecial

committee to investigate the claim, “during which Eksin was not [] provided a

meaningful opportunity to respond.” 14

C oncerned about the Board ’s apparent sabotage of his attempts to make

additional investments in Lidya

, Eksin contacted the Board and questioned its

support, hoping to engage in a dialogue about the future of the Company. 15 This

contact was met with a month of silence

, after which the Board asked Eksin to step

down as co

- CEO. 16 When Eksin and the Board could not agree on a mutually

acceptable buy

- out a rrangement

, the Board voted to remove Eksin as co

- CEO “for

cause

, ” relying on the harassment claim and a determination that Eksin’s behavior

was “unprofessional” and “bullying

. ” 17

13 Counterclaim ¶¶ 72, 74.

14 Counterclaim ¶¶ 78

– 79.

15 Counterclaim ¶¶ 84

– 85.

16 Counterclaim ¶ 85.

17 Counterclaim ¶

¶ 99

– 102. Eksin surmises that these characterizations referred to

“Eksin’s engagement of counsel to represent Eksin’s interest against the Investor

Defendants’ attacks.” Counterclaim ¶ 101.Lidya Holdings Inc., et al. v. Ercin Eksin

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Eksin a lleges that the employee with whom he had clashed “collaborated

with Investor Defendants and Directors of Lidya appointed by the Investor

Defendants to create the means for Investor Defendants to gain control over the

Company.” 18 In other words, the harassment claim was part of a contrived scheme

to remove him as co

- CEO after he questioned the Board’s commitment to Lidya

. 19

C. Procedural History

This action began when Plaintiffs

, Lidya, Accion Gateway Fund L.L.C.,

Accion Venture Lab LP, Flourish Venture Fund LLC, Bamboo Financial Inclusion

Fund II

, S.A., Sicav

- Sif, Ashley Lewis, Ameya Upad h yay and Christian Ruehmer,

moved for a preliminary injunction to prevent Eksin from pursuing an emergency

arbitration against them. 20 Eksin removed the action to federal court, but the federal

court remanded the case back to this Court. 21 After briefing and argument, I granted

18 Counterclaim ¶ 76.

19 Counterclaim ¶¶ 80, 104

– 05.

20 Verified Compl. for Injunctive Relief (“Compl.”) (D.I. 1) ¶ 1.

21 D.I. 36.Lidya Holdings Inc., et al. v. Ercin Eksin

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the motion for a preliminary injunction in part a nd denied it in part. 22 Eksin’s

counsel withdrew, and Eksin, proceeding pro se

, filed a V erified C ounterclaim

against the Counter

- Defendants that draws heavily from his enjoined demand for

arbitration

. 23 Importantly, except for Lidya, the Counter

- Defendants are not

Plaintiffs in this action

. 24

Counter

- Defendants move to dismiss the Verified C ounterclaim under

Chancery Rules 12(b)(2), (4), (5) and (6). 25 For the reasons stated below, that

motion must be granted with prejudice as to all coun ts against the Investor

Defendants

. 26 Counts 1

, 2

, 3, 4 and 6 against Lidya are also dismissed with

22 D.I. 40.

23 The Court’s preliminary injunction prevented Eksin from pursuing in arbitration each

of the claims he now brings in his Counterclaim. D.I. 40.

24 Compare Compl

. (listing plaintiffs as “Lidya Holdings Inc.; Accion Gateway Fund

L.L.C.; Accion Venture Lab LP ; Flourish Venture Funds LLC; Bamboo Financial

Inclusion Fund II S.A., SICAV

- SIF; Ashley Lewis; Ameya Upadhyay; and Christian

R u ehmer”) with Counterclaim (bringing claims against Lidya Holdings Inc.; Accion

International; Flourish Ventures; Bamboo Capital; and Omidyar Network Fund LLC).

25 Pls. and Counter

- Defs.’ Mot. to Dismiss Countercl s. (D.I. 53).

26 Eksin chose to file a response to the Motion t o Dismiss instead of amending his

pleading. Rule 15(aaa) demands that any dismissal be with prejudice.

See Ct. Ch. R. 15(aaa) (“In the event a party fails to timely file an amended complaint orLidya Holdings Inc., et al. v. Ercin Eksin

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prejudice

. As explained below, the Court requires supplemental briefing before it

can decide the motion to dismiss Count 5

. 27

II. ANALYSIS

Most of the counterclaims brought by Eksin fail both as a matter of process

and as a matter of law. I address the grounds for dismissal in turn below.

A. Improper Service and Lack of Personal Jurisdiction

Under Delaware law, “[a]lthough pro se litigants ar e afforded some leniency

in presenting their cases,

. . . pro se litigants must abide by the same rules that apply

to all other litigants.” 28 One of those fundamental rules requires that a party seeking

motion to amend under this subsection (aaa) and the Court thereafter concludes that the

complaint should be dismissed under Rule 12(b)(6)

. . . , such dismissal shall be with

prejudice

. . . .”).

27 I note that, just before oral argument, the emergency arbitrator held that (1) Eksin was

to be reinstated as a director, (2) the implied covenant of good faith and fair dealing in an

Amended and Restat ed Voting Agreement guaranteed Eksin all concomitant rights to his

directorship, (3) Eksin was not entitled to emergency relief regarding his claim of breach

of an Investors’ Rights Agreement against Lidya for not purchasing D&O insurance

because the harm was remediable through money damages and therefore not irreparable

– irreparable harm being a prerequisite for “emergency” arbitration

. D.I. 66.

28 Hayward v. King

, 127 A.3d 1171, 2015 WL 6941599, at *4 (Del. 2015) (TABLE) ;

see also Draper v. Med. Ctr. of D el.

, 767 A.2d 796, 79 9 (Del. 2001) (“ There is no differentLidya Holdings Inc., et al. v. Ercin Eksin

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to pursue claims in this court must properly effect service of process on his

adversary

. 29 Indeed, this c ourt lacks personal jurisdiction over any defendant

(or counterclaim defendant) not properly served with process

. 30

In this case, Eksin has failed to demonstrate that he properly serve d the

Investor Defendants with process

. 31 This alone is fatal to his claims against them.

set of rules for pro se plaintiffs, and the trial court should not sacrifice the orderly and

efficient administration of justice to accommodate an unrepresented plaintiff.”).

29 See Slawik v. State

, 480 A.2d 636, 645 (Del. 1984) (“A rudiment of procedural due

process is the right to receive notice [through service of process]

. . . . ”).

30 Thomas v. Nationstar Mortg

. , Inc.

, 2015 WL 5766775, at *2 (Del. Ch. Sept. 18, 2015)

adopted

, 2015 WL 578613 5 (Del. Ch. Oct. 1, 2015) (“Court of Chancery Rule 12(b)(5)

requires dismissal of a complaint for improper service of process. It is fundamental that

the Court only may exercise personal jurisdiction over a defendant when service of process

is properly ef

fected, regardless of whether or not actual notice is achieved. Personal

jurisdiction must be effected through proper service of process, and actual notice by a

defendant does not satisfy this constitutional requirement. When service is defective, it is

no excuse that the plaintiff has acted in good faith to perfect service. The plaintiff bears

the burden of demonstrating that service of process was effective.”) (internal quotation

marks and footnotes omitted).

31 See Pls./Counter

- Defs.’ O pening Br. in Su pp. of Their Mot. to Dismiss Countercls.

(D.I. 58) at 15 (“No summons instructions appear on the docket. No summonses have

been issued by the Court. No returns of service have been filed. Accordingly, Eksin has

failed to make these entities part of this action.”). It appears Eksin has operated on the

assumptions that several of the named counterclaim defendants are plaintiffs in the action

and that he need not serve them with process. Those assumptions are both flawed.Lidya Holdings Inc., et al. v. Ercin Eksin

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To avoid dismissal, Eksin argues that he gave actual notice of his Counterclaim to

the counsel of Counter

- Defendants ’ respective institutions. But a ctual notice to

counsel is not enough

, 32 nor can Eksin ignore the corporate separateness of Counter

Defendants and their institutions

. 33

While this Court affords Eksin leniency as a pro se litigant

, it cannot override

the constitutional requirements of proper service of process and of personal

jurisdiction. For this reason alone, all claims against the Investor Defendants must

be dismissed.

B. Eksin’s Claims Fail on the Merits

Eksin brings six counts: (1) shareholder oppression against the Investor

Defendants

, (2) unjust enrichment against the Investor Defendants

, (3) breach of

fiduciary duty against the Investor Defendants

, (4) breach of the implied covenant

of good faith and fair de aling against all Counter

- Defendants

, (5) wrongful

32 Nationstar Mortg

. , Inc.

, 2015 WL 5766775, at *2 (“[T]he Court only may exercise

personal jurisdiction over a defendant when service of process is properly effected,

regardless of whether or not actual notice is achieved.”)

33 See

, e.g.

, Culverhouse v. Paulson & Co.

, 133 A.3d 195, 199 (Del. 2016) (“Delaware

courts take the corporate form and corporate formalities very seriously.”).Lidya Holdings Inc., et al. v. Ercin Eksin

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termination against Lidya

, and (6) injunctive relief against all Counter

- Defendants

.

I address each in turn.

1. Count 1

— Shareholder Oppression

Eksin’s first count is for shareholder oppression

. He alleg es th e “Investor

Defendants set on a quest to freeze Counterclaimant out of the Company without

any fair compensation.” 34 But “[t]here is no standalone remedy for stockholder

oppression in Delaware.” 35 As a standalone claim, it must be dismissed. To the

extent Count 1 overlaps with Eksin’s breach of fiduciary duty claim (Count 3)

,

I address it below.

34 Counterclaim ¶ 117.

35 Verdantus Advisors, LLC v. Parker Infrastructure P’rs, LLC , 2020 WL 5951368, at *5

(Del. Ch. Oct. 8, 2020) ; see also Nixon v. Bl ackwell , 626 A.2d 1366, 1380

– 81 (Del. 1993)

(“It would run counter to the spirit of the doctrine of independent legal significance, and

would be inappropriate judicial legislation for this Court to fashion a special judicially

created rule for minority inv estors when the entity does not fall within those [close

corporation] statutes, or when there are no negotiated special provisions in the certificate

of incorporation, by

- laws, or stockholder agreements.” (citations omitted) ).Lidya Holdings Inc., et al. v. Ercin Eksin

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2. Count 2

— Unjust Enrichment

In his unjust enrichment claim, Eksin alleges that

, “[b]y freezing

Counterclaimant out of the Company and summarily demanding that he step down

without fair compensation, Investor Defendants have been enriched at

Counterclaimant’s expense, including by depriving Counterclaimant of the value of

his shares and other compensation

. . . and diverting such value to themselves

. ” 36

“Unjust enrichment is ‘the unjust retention of a benefit to the loss of another, or the

retention of money or property of another against th e fundamental principles of

justice or equity and good conscience.’” 37 A s explained by our Supreme Court,

“[t]he elements of unjust enrichment are: ‘(1) an enrichment, (2) an

impoverishment

, (3) a relation between the enrichment and the impoverishment,

(4) the absence of justification, and (5) the absence of a remedy provided by law.’” 38

36 Counterclaim ¶ 121.

37 Nemec v. Shrader

, 991 A.2d 1120, 1130 (Del. 2010) (quoting Fleer Corp. v. Topps

Chewing Gum, Inc.

, 539 A.2d 1060, 1062 (Del. 1988)).

38 Windsor I, LLC v. CWCapital Asset Mgmt. LLC

, 238 A.3d 863, 875 (Del. 2020) (quoting

Nemec

, 991 A.2d at 1130 )

.Lidya Holdings Inc., et al. v. Ercin Eksin

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January 31 , 2022

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Eksin does not even attempt to plead the basics of an unjust enrichment claim

.

He fails to allege how the Counter

- Defendants were enriched or how he w as

impoverished

. He does not allege that the Counter

- Defendants received money or

property that belonged to him

. His termination did not “depriv [e] [him] of the value

of his shares” ; 39 indeed, Eksin still owns his shares. Nor is his loss of salary an

impoverishment that relates to the Investor Defendant s’ enrichment

. 40 Count 2

must be dismissed.

3. Count 3

— Breach of Fiduciary Duty

Eksin next alleges breach of fiduciary duty, claiming that “Investor

Defendants

. . . wrongfully ousted Counterclaimant from the Company ” and

“retailat[ed] against Counterclaimant.” 41 The breach of fiduciary claim fails.

39 Counte rclaim ¶ 121.

40 To the extent Eksin is attempting to plead that the Investor Defendants were indirectly

enriched by their stock ownership in a company that no longer was obliged to pay Eksin’s

salary, that claim is derivative. Such a derivative claim can not succeed here because

demand futility has not been pled under Chancery Rule 23.1. Moreover, derivative claims

cannot be asserted by pro se litigants. E.g.

, Kelly v. Fuqi Int’l, Inc.

, 2013 WL 135666,

at *7 (Del. Ch. Jan. 2, 2013) (“A derivative action may not be brought pro se

. . . .”)

.

41 Counterclaim ¶ 126.Lidya Holdings Inc., et al. v. Ercin Eksin

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First

, Eksin has not established that the Investor D efendants owed him

fiduciary duties. They are not directors

, 42 nor are they m ajority stockholders

. 43

Minority stockholders do not owe fiduciary duties “[a]bsent special

circumstances

, ” 44 such as when their control over the business affairs of the

corporation is such that they may be deemed to be controlling stockholders

notwithstanding their minority stake

. 45 Eksin alleges that

, together, t he Investor

Defendants control a majority of the Board, 46 but h is pleading fails to reveal any

m ore than a “mere concurrence of self

- interest

. ” 47 The facts as pled do not allow a

42 The Investor Defendants are entities, and a director of a Delaware corporation must

“be a natural person.” 8 Del. C. § 141(b).

43 Counterclaim ¶ 1 6.

44 In re Dell Techs. Inc. Class V S’holders Litig.

, 2020 WL 3096748, at *18 (Del. Ch.

June 11, 2020).

45 See Superior Vision Servs., Inc. v. ReliaStar Life Ins. Co.

, 2006 WL 2521426, at *4

(Del. Ch. Aug. 25, 2006) (“A shareholder owes fiduciary duties in two instances: (1) when

it is a majority shareholder, owning more than 50 percent of the shares, or (2) when it

exercises control over the business affairs of the corporation.” (internal quotation marks

omitted)).

46 Resp. to Mot. to Dismiss (“MTD Resp.”) (D.I. 61) at 22.

47 In re Crimson Expl

. Inc. S’holder Litig.

, 2014 WL 5449419, at *15 (Del. Ch. Oct. 24,

2014).Lidya Holdings Inc., et al. v. Ercin Eksin

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reasonable inference that the Investor Defendants are “connected in some legally

significant way

— e.g., by contract, common ownership, agreemen t, or other

arrangement.” 48

Second

, even assuming the Investor Defendants owed fiduciary duties, Eksin

does not allege a breach of those duties. It was the Board, not the Investor

Defendants as stockholders

, who terminated Eksin. Moreover, Eksin does not claim

that he was harmed as a stockholder ; he alleges, instead, that he suffered harm as

an employee

. Such a claim is not redressable through a breach of fiduciary duty

claim

. 49 If anything, the termination of Eksin as CEO may give rise to a wrongful

termination claim

, as pled in Count 5.

4. Count s 4 and 5

—

Breach of the Implied Covenant of Good Faith and

Fair Dealing and Wrongful Termination

Eksin alleges that Counter

- Defendants breached the implied covenant of

good faith and fair dealing by “freezing Counterclaimant out of the Company

. . .

48 Dubroff v. Wren Hldgs., LLC

, 2009 WL 1478697, at *3 (Del. Ch. May 22, 2009).

49 See Riblet Prods. Corp. v. Nagy

, 683 A.2d 37, 37 (Del. 1996) (holding that fiduciary

duties “are not implicated when the issue involves the rights of the minority stockholder

qua employee”).Lidya Holdings Inc., et al. v. Ercin Eksin

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without fair compensation, co operation, or assistance” and “[b]y ousting

Counterclaimant out of the Company that he built and had full expectations to grow

and manage.” 50 He also brings a claim for wrongful termination against Lidya,

alleging that his termination “was in bad faith an d was in retaliation for voicing his

concerns about Investor Defendants’ wrongful actions.” 51

“The implied covenant, inherent in all agreements, ensures that the parties

deal honestly and fairly with each other when addressing gaps in their agreement

. ” 52

O ur Supreme Court has admonished that invoking the implied covenant is a

“cautious enterprise

, ” 53 and has emphasized that the implied covenant is “a limited

and extraordinary legal remedy.” 54 T he purpose of the implied covenant in

50 Counterclaim ¶¶ 130

– 31.

51 Counterclaim ¶ 135.

52 Glaxo Gp. Ltd. v. DRIT LP

, 248 A.3d 911, 919 (Del. 2021).

53 Cincinnati SMSA LP v. Cincinnati Bell Cellular Sys. Co.

, 708 A.2d 989, 992

(Del. 1998).

54 Oxbow Carbon & Min s. Hldgs., Inc. v. Crestview

- Oxbow Acq., LLC

, 202 A.3d 482, 507

(Del. 2019) (quoting Nemec

, 991 A.2d at 1128).Lidya Holdings Inc., et al. v. Ercin Eksin

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Delaware is to serve a s a contractual gap

- filler. 55 But it should not be deployed

when “[t]here [is] no gap to fill in the Agreement.” 56

To the extent Eksin attempts to bring an implied covenant claim based on

some unspecified contract

, it fails because he does not identify a contractual gap for

the covenant to fill

. 57 And Eksin cannot bring a breach of the implied covenant

claim regarding his director status under the Amended and Restated Voting

Agreement because that issue was already ad judicated by the emergency

arbitrator. 58 Count 4

, therefore, must be dismissed.

While the implied covenant claim fails as pled in Count 4, there may be a

place for the implied covenant within Eksin's wrongful termination claim as pled in

55 See Glaxo Gp. Ltd

. , 248 A.3d at 919 (“ [T] he court has in its toolbox the implied

covenant of good faith and fair dealing to fill in the spaces between the written words.”).

56 Id. at 920.

57 See, e.g.

, Reardon v. CANarchy Holdco Corp.

, 2021 WL 2287468, at *3 (Del. Super. Ct.

June 4, 2021) (“Plaintiff’s implied covenant claim falters for several reasons. First,

Plaintiff fails to plead any contractual gap

. . . that the implied covenant would operate

to fill.”).

58 D.I. 66.Lidya Holdings Inc., et al. v. Ercin Eksin

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Count 5. Eksin admits

— as he must

— that he was an at

- will employee. 59 Lidya ’s

bylaws provide that officers serve “at the pleasure of the Board of Directors” and

“may be removed by the Board of Directors with or without cause .” 60 Delaware

generally does not recognize the claim of wrongful termination when the

employment relationship is at

- will

. 61

As with most general rules, there are narrow exceptions to the general rule

that an at

- will employee may not sue for wrongful termina tion. 62 Relevant here, i n

Pressman

, the Court held that “the [implied] [c]ovenant permits a cause of action

against an employer for the deceitful acts of its agent in manufacturing materially

false grounds to cause an employee’s dismissal.” 63 As I understand the pled facts,

59 MTD Resp. at 6, 44, 49.

60 Compl. Ex. E (Lidya Bylaws), Art. III

.

61 See Torres v. Sussex Cty. Council

, 2014 WL 7149179, at *2 (Del. Super. Ct. Dec. 8,

2014) ; see also E.I. DuPont de Nemours & Co. v. Pressman

, 679 A.2d 436, 437

(Del. 1996) (holding that t he at

- will doctrine “generally permits the dismissal of

employees without cause and regardless of motive” ).

62 See Pressman

, 679 A.2d at 441

– 42 (setting forth several recognized exceptions).

63 Id. at 437.Lidya Holdings Inc., et al. v. Ercin Eksin

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Eksin alleges that the Board and a Lidya employee fabricated a harassment claim

so that the Board could fire him “for cause” after he criticized the Board’s

commitment to Lidya. 64 That scenario may implicate Pressman and its progeny. 65

64 See Counterclaim ¶ 135 (“Counterclaimant’s termination was in bad faith and was i n

retaliation for voicing his concerns about Investor Defendants’ wrongful actions.”);

Counterclaim ¶ 82 (“It is evident that Investor Defendants attempted to use this contrived

harassment claim to push their own agenda through whatever means possible and gain

control of the Company even asking the Company’s counsel in the beginning of the

investigation whether they can fire Eksin.”); Counterclaim ¶¶ 76

– 77 (“Upon information

and belief, this employee [who brought the harassment claim] collaborated with Inve stor

Defendants and Directors of Lidya appointed by the Investor Defendants to create the

means for Investor Defendants to gain control over the Company. In fact, Accion and

other Investor Defendants used this disagreement to push Eksin out of the

Company

. . . . ”); Counterclaim ¶¶ 72

– 73 (“Investor Defendants’ improper ‘freeze

- out’

actions have been undertaken as part of the improper investigation, done contrary to the

rights of Eksin, in dealing with the situation that arose involving claimed harassment b y a

former employee connected to one of the Investor Defendants and one of [sic] board

directors of Lidya

— all of which were found to be unfounded as to Eksin

. These actions

were untaken after Eksin voiced his concerns about the Investor Defendants’ questi onable

actions during the failed Series B fundraising process .”) (emphasis added) ;

Counterclaim ¶ 80 (“Instead of engaging with Eksin and performing a complete and

thorough investigation, Counter

- Defendants engaged in secret negotiations without

Eksin’s involvement or input, all to his severe detriment, as part of what appears to have

been a larger plan to cut Eksin out of the Company.”)

. In my view, Eksin has done enough

to satisfy notice pleading under Rule 8 with respect to the factual bases o f his wrongful

termination claim

, especially considering his pro se status. See, e.g.

, Johnson v. State

, 442 A.2d 1362, 1364 (Del. 1982) (“[W]e adopt the view that a pro se pleading is judged

by a less stringent standard than a pleading o r document filed by an attorney.”) (internal

quotation marks omitted); Thornton v. Bernard Techs., Inc.

, 2009 WL 426179, at *1

(Del. Ch. Feb. 20, 2009) (“Because this is a pro se pleading, it may be judged by a ‘less

stringent standard’ than one filed by an attorney. Howe ver, proceeding pro se will notLidya Holdings Inc., et al. v. Ercin Eksin

C.A. No. 2021

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January 31 , 2022

Page 20

Neither party referred to Pressman in their briefs or discussed the role that

the implied covenant could play in Eksin’s wrongful termination claim against

Lidya

. For reasons explained above, the Court requ ires supplemental submissions

on whether, and to what extent, Pressman and its proge ny might apply to this case.

Of course, the Investor Defendants were not themselves Eksin’s employers

,

nor were they properly served with process

, as explained above. Therefore, Coun t 4

relieve the Plaintiffs of their responsibility to present and support cogent arguments

warranting the relief sought.”) ; Kelly v. Fuqi Int’l, Inc.

, 2013 WL 135666, at *6 (Del. Ch.

Jan. 2, 2013) (explaining in detail how this court evaluates pro se pleadings). Whether

vel non the claim is legally viable remains to be seen.

65 Pressman

, 679 A.2d at 443

– 44 (holding that the implied covenant applies to at

- will

employment where “acts of the employer manifesting bad faith or unfair dealing [are]

achieved by deceit or misrepresentation in falsifying or manipulating a record to create

fictitious grounds to terminate employment”); see also Sheehan v. AssuredPartners, Inc.

, 2020 WL 2838575, at *11 (Del. Ch. May 29, 2020) ( same); Smith v. Scott

, 2021

WL 1592463, at *7 (Del. Ch. Apr. 23, 2021) (same); SerVaas v. Ford Smart Mobility LLC

, 2021 WL 3779559, at *9

– 10 (Del. Ch. Aug. 25, 2021) (citing Pressman

, Sheehan and

Smith in denying a motion to dismiss where the complaint presents factual allegations that

the “cause” offered for termination was pretextual).Lidya Holdings Inc., et al. v. Ercin Eksin

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January 31 , 2022

Page 21

must be dismissed against the Investor Defendants both as a matter of process and

on the merits

. 66

5. Count 6

— Injunctive Relief

Finally, Eksin’s claim for injunctive relief must be dismissed because it is a

remedy dressed up as a cause of action. As this court has explained

, “[i]njunctions

are a form or relief, not a cause of action.” 67 Eksin has not pled a ny future act for

the C ourt to enjoin

, much less a cause of action to which his prayer for injunctive

relief would attach

. Count 6 fails.

III. C ONCLUSION

For the foregoing reasons

, the motion to dismiss all counts asserted against

the Investor Defendants is GRANTED. The motion to dismiss Counts 1

, 2

, 3

, 4

and 6 against Lidya is also GRANTED

.

66 Count 5 is brought only against Lidya. See Counterclaim at 32. T o the extent Eksin

has attempt ed in his briefing to sweep the Investor Defendants into Count 5, that effort

fails for the reasons stated above.

67 Quadrant Structured Prods. Co. v. Vertin

, 102 A.3d 155, 203 (Del. Ch. 2014); see id.

(dismissing two counts “because they seek remedies rather than assert cl aims”).Lidya Holdings Inc., et al. v. Ercin Eksin

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The Court requests supplemental briefing regarding the applicability of the

implied covenant of good faith and f air dealing to Eksin’s claim for wrongful

termination against Lidya, as alleged in Count 5

. Lidya shall file an opening letter

memorandum on this issue, limited to 2500 words, within thirty (30) days of the

filing of this Letter Opinion. Eksin shall file an answering letter memorandum

,

limited to 2500 words, within thirty (30) days of the filing of Lidya’ s opening letter

memorandum

. Lidya shall then file a reply letter memorandum, limited to 1500

words, within fifteen (15) days thereafter.

IT IS SO ORDERED.

Very truly yours,

/s/ Joseph R. Slights III