IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LEE FELDMAN, MATS )

LEDERHAUSEN, )

and DOV SEIDMAN, )

Plaintiff(s), ) 

) C.A. No. N21C-09-206 DJB

v. )

) 

HOWARD MARKS, ) 

Defendant. ) 

)

Date Submitted: June 18, 2024

Date Decided: September 23, 2024

Memorandum Opinion on Defendant’s Motion to Dismiss 

and the Cross Motions for Summary Judgment

On Defendant’s Motion to Dismiss - DENIED

On Defendant’s Motion for Summary Judgment – DENIED

On Plaintiff’s Motion for Summary Judgment – GRANTED

Brian E. Farnan, Esquire, Michael Farnan, Esquire, and Rosemary J. 

Piergiovanni, Esquire, Farnan LLP, Wilmington, Delaware, and Stephen 

Shackelford, Esquire, Susman Godfrey L.L.P., New York, New York, admitted 

pro hac vice, Counsel for Plaintiffs

Joe P. Yeager, Esquire, Margolis Edelstein, Wilmington, Delaware, Counsel for 

Defendant

BRENNAN, J. 
1

I. INTRODUCTION 

This defamation case is rooted in the jurisdiction of both the Court of 

Chancery and Superior Court of Delaware. In this Court, Plaintiffs sue Defendant 

Howard Marks (“Marks”) for sending a verified court filing to The Financial Times

that allegedly contained false and defamatory statements relating to Marks’s

decision to sell his shares of LRN Corporation (“LRN”). In their suit, Plaintiffs Lee 

Feldman (“Feldman”), Mats Lederhausen (“Lederhausen”), and Dov Seidman

(“Seidman”) allege one count of defamation per se.

1

 

Initially, Marks moved to dismiss this action. Following a brief stay, crossmotions for summary judgment were filed. Because Marks’s published statement to 

The Financial Times about Plaintiffs was false and can only be interpreted to malign 

Plaintiff’s business or profession, Plaintiffs’ Motion for Partial Summary Judgment 

is GRANTED. Marks’s Motion to Dismiss is DENIED, as jurisdiction is proper. 

Marks’s Motion for Summary Judgment is DENIED.

II. FACTS

Seidman founded LRN in 1994 and served as LRN’s CEO until 2019.2 LRN 

provides ethics compliance education and other related services.3 Currently, 

1 See Feldman, et. al. v. Marks, N21C-09-206 DJB, Complaint (“Compl.”) D.I. 1.

2 Compl. ¶ 15.

3

Id. at ¶ 1.
2

Seidman serves as the chairman of LRN’s board and resides in Florida.4 LRN, a 

Delaware corporation, asserts it “has helped hundreds of companies and their 

employees translate ethical corporate behavior into superior performance and 

sustainable economic value.”5 Feldman, a New York resident, served as director of 

LRN from 2004 through 2018.6 Lederhausen, resides in Illinois, and has been a 

director of LRN since 2012.7 Marks, a 20-year investor in LRN, sold the entirety of

his LRN shares in October 2017.8 Currently, Marks is the “CEO and Co-founder of 

StartEngine, the self-proclaimed largest equity crowdfunding platform, valued at 

hundreds of millions of dollars.”9 

Tender Offer

In October 2017, LRN issued an Offer to Purchase (“OTP”) up to 7,407,407 

shares of its stock from existing shareholders. This “Tender Officer” was open and 

available to shareholders through November 17, 2017.10 Despite initially informing 

Plaintiffs he only intended to tender one million of his shares, Marks, his wife, and 

his various trusts tendered all 3,029,174 of their collective shares on October 29, 

4

Id. at ¶ 11.

5

Id. at ¶ 15.

6

Id. at ¶ 12.

7

Id. at ¶ 13.

8

Id. at ¶¶ 14, 23.

9

Id. at ¶ 14.

10 Id. at ¶¶ 20, 24.
3

2017.

11

 Due to the detrimental effect to LRN of Marks’s tender of the entirety of his 

shares, Seidman, on behalf of the Board, repeatedly asked Marks to reduce the 

number of shares he intended to tender.12 Even after the time frame passed for the 

Tender Offer, Seidman again approached Marks and asked him to reduce the number 

of shares he was tendering.13 Marks declined. The Board increased the cap on its

Tender Offer, and repurchased 9,092,248 shares in the Tender Offer, to avoid 

disappointing “numerous smaller longtime investors who had expressed their strong 

desire for a complete exit.”14 Approximately one year after the Tender Offer, on 

November 27, 2018, LRN was sold to Leeds Equity Partners.15 As Marks sold all 

his shares in LRN, and no longer had an interest in the company, he was not informed 

of, nor did he profit from, the sale.16

On February 25, 2019, a former LRN shareholder, Robert Davidow, filed 

shareholder litigation in the Court of Chancery.

17 The Chancery litigation was filed, 

“on behalf of a punitive class of LRN shareholders who tendered their shares in the 

Tender Offer.”

18 On May 14, 2020, Marks moved to intervene in the Court of 

11 Id. at ¶¶ 21, 23.

12 Id. at ¶ 22, 24.

13 Id.

14 Id. at ¶ 22. 

15 Id. at ¶ 26.

16 Id.

17 Davidow v. Seidman. C.A. No. 2019-0150-MTZ, D.I. 372-374.

18 Id. at ¶ 27.
4

Chancery shareholder action.19 Marks’s motion included allegations, “specific to 

Marks, which accused Seidman and his fellow directors of ‘cheating’ a longtime 

friend and investor through trickery, to prevent him from discovering Plaintiffs’ 

‘scheme.’”20 Specifically, Marks’s supplemental filing included the following 

statement (the “Statement”): 

Marks’ tender included the 8,581 shares held in the Marks Irrevocable 

Living Trust on November 29, 2017. Marks did not realize that his 

tender of these shares missed the November 17, 2017 deadline to 

tender. The Individual Defendants21 knew that if they did not accept 

these 8,581 shares, Marks would continue to be a LRN stockholder and 

would subsequently learn of a sale of the entire Company at a premium 

price. As one of the largest individual tenderer of shares, the Individual 

Defendants did not want Marks to learn that he had been cheated by the 

Individual Defendants on almost all of his LRN stock and all of his 

wife’s stock. As a result, the Individual Defendants accepted these 

8,581 shares even though the Tender Offer had already closed, so that 

Marks was no longer a stockholder and would never discover their 

scheme. As they intended, after Marks’ shares were accepted in the 

Tender Offer, he no longer received information concerning LRN and 

was unaware that the Company was sold to Leeds for 5.2x more than 

he received in the Tender Offer.22

Around September 28, 2020, Marks and his Chancery counsel determined the 

“allegation in the first five sentences of Paragraph 6 of the Supplement and the 

19 Id. at ¶ 28.

20 Id. at ¶ 30.

21 As noted above, the “Defendants” in the Court of Chancery action are the 

Plaintiffs in this litigation. 

22 Id. at ¶ 31 (quoted directly, without correction, from Complaint; emphasis 

omitted).
5

inferences drawn therefrom were incorrect.”23 Marks then informed Plaintiffs, on 

September 28, 2020, “that he would be amending and supplementing his response 

to the interrogatory directed at paragraph 6 to correct them.”24 On September 28, 

2020, one day after acknowledging the incorrect statement, Marks, through 

Chancery counsel, sent the reporters of The Financial Times a complete set of the 

court filings of the shareholder litigation.25 An article was published on October 4, 

2020, which, according to Plaintiffs, “echoed Marks’ false and defamatory 

allegations” that Plaintiffs “schemed” and “cheated” him.26

Plaintiffs repeatedly demanded Marks withdraw the Statement from his 

Chancery pleadings and correct the record. On October 13, 2020, Marks filed a 

Motion to Amend and removed the first five sentences of the Statement.27 Marks 

never provided The Financial Times with the Amendment. 

This suit was filed on September 27, 2021.28 In lieu of an Answer, Marks 

moved to dismiss.29 Prior to the resolution of that motion, this matter was stayed 

pending resolution of the related Chancery action, based upon the representations by 

23 Id. at ¶ 37 (emphasis omitted).

24 Id.

25 Id. at ¶ 39. See also D.I. 54. Ex. F at Ex. B.

26 Compl. at ¶ 7 (quoted without correction).

27 Id. at ¶ 41.

28 Feldman, et. al. v. Marks, N21C-009-206 DJB, D.I. 1. 

29 Id., D.I. 18.
6

counsel that resolution of that action may resolve this litigation.30 The stay was lifted 

on January 5, 2024, when counsel relayed the outcome of the September 2023 

settlement hearing in the Court of Chancery and represented that this case was now 

ready for adjudication.31 

On September 7, 2023, during the settlement hearing, the Court of Chancery

disqualified Marks as a potential class representative. In so doing, the Court stated: 

Simply put, Marks made false statements in a sworn pleading submitted 

to this Court by counsel. His supplement to the complaint contained the 

false allegation that defendants had accepted certain belatedly tendered 

shares of stock in a conscious effort to prevent Marks from discovering 

LRN’s eventual sale. 

After learning his pleadings contained false statements, Marks’s

counsel sent his false supplement to The Financial Times. Marks later 

withdrew the allegations that he tendered after the deadline and that 

LRN's acceptance of his shares was part of a scheme to ensure he did 

not discover he had been cheated. Defendants sued him for defamation 

in Superior Court. 

Based on counsel’s representations in today’s hearing, it sounds like 

settlement negotiations were conditioned on obtaining a retraction from 

Marks and that the $10 million and releases did not serve to close the 

deal until that retraction was obtained. Indeed, within the terms of this 

class action settlement, Marks promised to retract his supplement and 

the defendants promised to dismiss the Superior Court action and a 

release of claims related to the Superior Court action. In this way, 

Marks obtained a private benefit by reason of his power resulting from 

his representative status.32

30 Id., D.I. 33, 34.

31 Id., D.I. 38, 43.

32 Pl. Opp. Ex. D at 78-79.
7

On February 26, 2024, Marks filed his Opening Brief in support of 

Defendant’s Motion for Summary Judgment.33 On March 27, 2024, Plaintiffs 

submitted their opposition.34 On April 11, 2024, Marks filed his Reply.35 

Similarly, on February 26, 2024, Plaintiffs filed their Opening Brief in 

Support of Motion for Partial Summary Judgment.36 On April 10, 2024, Marks 

submitted his opposition.37 On April 25, 2024, Plaintiffs filed their Reply.38 These 

motions engulfed the pending Motion to Dismiss and will determine that pending 

matter. All arguments made within that motion, and its opposition, will be resolved 

in conjunction with the instant cross motions for summary judgment. Oral argument 

was held on the cross motions on June 18, 2024.39 This is the Court’s decision on 

all matters. 

33 Marks’s Opening Brief in support of Defendant’s Motion for Summary 

Judgment. (“Def. Motion”) D.I. 53.

34 Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment (“Pl. 

Opp.”) D.I. 57.

35 D.I. 62.

36 Plaintiffs’ Opening Brief in Support of Motion for Partial Summary Judgment. 

(“Pl. Motion”) D.I. 54.

37 Marks’s Opposition to Plaintiffs’ Motion for Partial Summary Judgment (“Def. 

Opp.”) D.I. 59.

38 D.I. 65.

39 D.I. 68.
8

III. STANDARD OF REVIEW

When reviewing a motion for summary judgment under Superior Court Civil 

Rule 56, the Court must determine whether any genuine issues of material fact 

exist.40 The moving party bears the burden of showing that there are no genuine 

issues of material fact to be entitled to judgment as a matter of law.41 The Court will 

not grant summary judgment if it appears that there is a material fact in dispute or 

that further inquiry into the facts would be appropriate.42 In determining whether a 

genuine issue of material fact exists, the Court must view the facts in the light most 

favorable to the non-moving party.43 

The standard for summary judgment is not altered when the parties have filed 

cross-motions for summary judgment.44 Cross-motions for summary judgment are 

not per se concessions that no genuine issue of material fact exists.45 “But, where 

cross-motions for summary judgment are filed and neither party argues the existence 

of a genuine issue of material fact, the Court shall deem the motions to be the 

40 Radulski v. Liberty Mut. Fire Ins. Co., 2020 WL 8676027, at *3 (Del. Super. Oct. 

28, 2020).

41 Id.

42 Legion Partners Asset Mgmt., LLC v. Underwriters at Lloyds London, 2021 WL 

6621168, at *6 (Del. Super. Sept. 30, 2021). 

43 Capano v. Lockwood, 2013 WL 2724634, at *2 (Del. Super. Feb. 20, 2013).

44 Legion, 2021 WL 6622168, at *6. 

45 United Vanguard Fund, Inc. v. TakeCare, Inc., 693 A.2d 1076, 1079 (Del. 1997). 
9

equivalent of a stipulation for decision on the merits based on the [submitted 

record].”46 

IV. ARGUMENTS

A. MARKS’S MOTIONS

Marks moves for summary judgment on the premise that “Plaintiffs cannot 

demonstrate that [Marks] made the statement with the required intent to harm his 

reputation because there was no intent.”

47

 Marks argues his Chancery filing was 

amended after recognizing his misstatement.48 Further, Marks contends that The 

Financial Times’ reporter who received the court filing “would have known said 

statement was made to provide further factual grounds for Defendant’s Motion to 

Intervene.”

49 Marks continues that the reader “could not possibly have understood 

Defendant’s statement to be made to injure Plaintiffs’ reputation.”50 Last, Marks 

contends that even, if the Court finds that Plaintiffs have satisfied every element of 

46 Radulski, 2020 WL 8676027, at *4 (internal quotation marks omitted).

47 Def. Motion at 15.

48 Id.

49 Id. at 17.

50 Id. “The only individuals who could have possibly ‘saw, heard, or read’ the full 

‘defamatory statement’ are those employed by The Financial Times, not the readers 

of that publication or the general public as a whole. The ‘defamatory statement’ 

should not be conflated with the subsequently published article, as that article only 

used two words from the ‘defamatory statement’ at issue.” Id. at 13.
10

their defamation claim, Marks’s “statement is not actionable because it is protected 

by [either absolute or conditional] privilege.”51 

Marks moves to dismiss based upon a lack of personal jurisdiction.52 Marks 

claims the statute of limitations for California – his state of residence – should apply 

and this suit should be dismissed as untimely, as the statute of limitations in 

California has run.

53

 Marks additionally claims that the doctrine of forum non 

conveniens mandates the Court decline jurisdiction, as the only contact Marks has 

to Delaware consists of the shareholder litigation.54

In opposition, Plaintiffs assert, “as a matter of law, there is no way the two 

reporters (or any reasonable reader) could have understood the false statements at 

issue in this case as anything other than defamatory.”55 Plaintiffs emphasize that 

Marks did not issue a retraction to The Financial Times and amending the court 

filings “has no bearing at all on whether the statements would be understood as 

defamatory.”56 Plaintiffs additionally respond that the two affirmative defenses of 

privilege are not available to Marks, because he sent court filings to the news 

media.57 

51 Def. Motion at 18.

52 D.I. 18.

53 Id.

54 Id.

55 Pl. Opp. at 7.

56 Id. at 8.

57 Id. at 9.
11

With respect to the Motion to Dismiss, Plaintiffs argue personal jurisdiction 

results from the alleged defamatory Statement at issue having been made in 

Delaware. Plaintiffs reference the long history of Delaware courts granting a liberal 

construction to the Long Arm Statute, favoring the choice of forum selected by a 

plaintiff. Further, Plaintiffs argue that Marks availed himself of the privileges of 

filing suit in Delaware, albeit in the Court of Chancery, and cannot now argue lack 

of personal jurisdiction in a related suit. Finally, Plaintiffs assert Marks has not 

established the elements required for a forum non conveniens declination of 

jurisdiction.58 

B. PLAINTIFFS’ MOTION 

Plaintiffs move for partial summary judgment on the issue of Marks’s

liability, and ask the Court to allow a jury to determine damages.59 Plaintiffs assert 

judicial estoppel bars Marks from relitigating the same facts that were already raised 

and decided in the Court of Chancery.60 Plaintiffs argue this Court should apply 

collateral estoppel to findings made by the Court of Chancery as it proves Marks is 

liable for defamation as a matter of law.61 

58 D.I. 20.

59 See Pl. Motion., D.I. 54.

60 Id. at 14.

61 Id. at 10.
12

In opposition, Marks argues that when the Court of Chancery rejected Marks 

as a potential class representative, “no claims [were] fully litigated, and no definitive 

findings of fact [were] made.”

62 Marks continues that he would not derive an unfair 

advantage if this Court were to rule on the defamation allegations.63 As in his own 

summary judgment motion, Marks again argues the Statement “is not defamatory 

because Plaintiffs failed to properly identify the third party the statement was 

published to and how that statement was understood.”64 

V. ANALYSIS 

A. JURISDICTION

Jurisdiction is proper over Marks.

65

 When jurisdiction is challenged, the 

burden is on the Plaintiff to establish the basis for jurisdiction over the non-resident 

defendant.66 For a court to find jurisdiction over a non-resident defendant, the court 

must first consider whether Delaware’s long arm statue confers jurisdiction and then 

must decide whether conferring jurisdiction over the non-resident comports with the 

Due Process Clause of the Fourteenth Amendment.67 In reviewing a motion to 

62 Def. Opp. at 11, D.I. 59.

63 Id.

64 Id. at 16.

65 10 Del. C. § 3104(c)(3).

66 Herman v. BRP, Inc., 2015 WL 1733805, at *3 (Del. Super. 2015).

67 Id.
13

dismiss, the court is to review the allegations in the light most favorable to the nonmoving party.68

 

Marks argues the long arm statute does not apply to him and his filing in the 

shareholder litigation in the Court of Chancery did not avail him of personal 

jurisdiction in this matter. Marks continues that the doctrine of forum non 

conveniens prohibits a finding of personal jurisdiction over him in Delaware, 

therefore California law applies. Should California law apply, this suit was filed in 

violation of California’s one-year statute of limitations and must be dismissed. 

Plaintiffs retort that the Delaware long arm statute applies, as Marks’s alleged tort 

was committed in Delaware. Therefore, the Delaware statute of limitations controls

and forum non conveniens does not preclude a finding of jurisdiction. 

Delaware’s long arm statute confers personal jurisdiction over a non-resident 

if one “[c]auses tortious injury in the State by an act or omission in this State."69 

Consistent with Delaware’s practice of liberally construing the long arm statute, 

there is a sufficient nexus between the filing of the Statement in the Court of 

Chancery, in the very action Marks initiated, and the tort of defamation alleged here 

to confer personal jurisdiction over Marks.70 

68 Super. Ct. Civ. R. 12(b)(6).

69 10 Del. C § 3104(c)(3).

70 See Herman, 2013 WL 1733805 at *3.
14

Due Process is satisfied as Marks’s minimum contacts have been established. 

The “notions of fair play and substantial justice” are not offended in conferring 

jurisdiction over Marks given that he availed himself of the judicial process in 

Delaware in the Court of Chancery.71 Finally, forum non conveniens does not 

demand a declination of personal jurisdiction over Marks. Following the practice of 

this jurisdiction to heavily favor a plaintiff’s choice of forum, Marks has not shown 

the overwhelming hardship to invoke this doctrine. Marks’s claim of hardship is 

undermined by his election to intervene in filed litigation in Delaware’s Court of 

Chancery. Marks is actively engaged in that shareholder litigation and has not 

established any hardship as a result. Jurisdiction is proper here. 

B. DEFAMATION 

Under Delaware law, to state a claim for defamation, the plaintiff must 

establish that: “1) the defendant made a defamatory statement; 2) concerning the 

plaintiff; 3) the statement was published; and 4) a third party would understand the 

character of the communication as defamatory.”72 “Whether or not a statement is 

defamatory is a question of law.”73 A statement is made with actual malice when it 

71 See Intern’l Shoe Co. v. State of Washington, et. al., 326 U.S. 310, 315-316 

(1945); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

72 Page v. Oath Inc., 270 A.3d 833, 842 (Del. 2022), cert. denied, 142 S. Ct. 2717 

(2022), citing Doe v. Cahill, 884 A.2d 451, 463 (Del. 2005).

73 Doe, 884 A.2d at 463. “A statement is defamatory when it ‘tends so to harm the 

reputation of another as to lower him in the estimation of the community or to 
15

is made “with knowledge that it was false or with reckless disregard of whether it 

was false or not.”74

Defamation per se includes statements which: “(1) malign one in a trade, 

business or profession,” and those that “(2) impute a crime.”

75 “When a statement 

falls within one of the defamation per se categories, ‘the law presumes damages.’”

76

 

Libel actions, a written publication which defames a plaintiff, is actionable without 

special damages, whether the defamatory nature is apparent on the face of the 

statement or only by reference to extrinsic facts.77

Marks’s argument centers on the fourth element of defamation, claiming that 

a third party would not have understood the Statement as defamatory. Marks 

acknowledges Plaintiffs can satisfy the other elements. Marks believes Plaintiffs 

must state “with particularity who exactly saw, heard, or read the statement or how 

those individuals actually understood the statement.”78 The law does not support 

this supposition. Under Delaware law, Plaintiffs are not required to show the third 

party “actually understood the statement” to be defamatory. In Delaware, a plaintiff 

must only prove that a third party “would understand” the nature of the statement as 

deter third persons from associating or dealing with him.’” Cousins 8 v. Goodier, 

283 A.3d 1140, 1148 (Del. 2022) (quoting Rest. Torts § 559 (1938)).

74 New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).

75 Spence v. Funk, 396 A.2d 967, 970 (Del. 1978).

76 Id. at 970 (internal citation omitted).

77 Id. at 971.

78 Def. Motion at 16.
16

defamatory.79 Plaintiffs are in the business of providing ethical advice to large 

corporations. It can go without saying that being maligned in this fashion is a 

detriment to their character and business. Because the Statement here impugned 

Plaintiffs in their business and alleged Plaintiffs committed a crime, the Statement 

constitutes defamation per se.

80

 

Plaintiffs have satisfied all elements of defamation. Marks made a 

defamatory statement concerning Plaintiffs. That statement could potentially deter 

others from associating with Plaintiffs or investing in their new endeavors. The

Statement was published when Marks sent the court filings to The Financial Times

knowing he was going to amend his untrue statement. Finally, there can be no 

“neutral” or non-defamatory interpretation of the Statement, nor does Marks 

successfully provide such an interpretation. There is no neutral or flattering way to 

interpret that Plaintiffs “cheated” and “schemed” against Marks. 

C. PRIVILEGE

An affirmative defense may exist to a prima facie case for defamatory 

statements “made in certain contexts where there is a particular public interest in 

unchilled freedom of expression.”

81

79 See Page, 270 A.3d at 842.

80 D.I. 51, Ex. C. The published article is still available to the public: 

https://www.ft.com/content/265cac46-30b3-49ad-a0a7-e902e285826a

81 Barker v. Huang, 610 A.2d 1341, 1345 (Del. 1992).
17

The absolute privilege is a common law rule, long recognized in 

Delaware, that protects from actions for defamation statements of 

judges, parties, witnesses and attorneys offered in the course of judicial 

proceedings so long as the party claiming the privilege shows that the 

statements issued as part of a judicial proceeding and were relevant to 

a matter at issue in the case. However, statements made outside of the 

course of judicial proceedings, such as those made during a newspaper 

interview concerning judicial proceedings, are not accorded the 

protection of the absolute privilege.”82 

“A qualified privilege is often one which is related to the republication of 

material originally made by a person on a privileged occasion.”83 “The existence of 

a qualified privilege is conditioned on the absence of express malice, of any 

knowledge of falsity, or of any desire to cause harm.”84 

The law is clear that distributing court filings to the news media does not 

constitute a privileged occasion.85 Marks, of course, cannot be held liable for 

defamation solely on the Statement submitted to the Court of Chancery under 

absolute privilege. But Marks voluntarily sent court filings to The Financial Times 

one day after acknowledging the filing includes false statements. Marks could have 

easily provided the reporters with the amended filing or informed the reporters of 

his intention to amend the supplement. He did not. As a result, Plaintiffs established

Marks acted with knowledge of falsity when he sent the reporters the court filings. 

82 Id. (internal citations removed).

83 Short v. News-J. Co., 205 A.2d 6 (Del. Super. Jan. 19, 1965), aff'd, 58 Del. 592, 

212 A.2d 718 (1965).

84 Id.

85 Barker, 610 A.2d 1343.
18

As such, absolute privilege and conditional privilege do not shield Marks from 

liability. 

D. ESTOPPEL 

In determining whether collateral estoppel applies, the court must determine 

whether: 

(1) The issue previously decided is identical with the one presented in 

the action in question, (2) the prior action has been finally adjudicated 

on the merits, (3) the party against whom the doctrine is invoked was a 

party or in privity with a party to the prior adjudication, and (4) the 

party against whom the doctrine is raised had a full and fair opportunity 

to litigate the issue in the prior action.86

Judicial estoppel is meant to “protect the integrity of the judicial 

proceedings.”87 “Judicial estoppel also prevents a litigant from advancing an 

argument that contradicts a position previously taken that the court was persuaded 

to accept as the basis for its ruling.”88 

Here, collateral estoppel does not apply. Although the Court of Chancery

found Marks’s Statement to be false, that finding is not determinative. The Court of 

Chancery examined the Statement in a different context than presented here: the 

determination of whether Marks was fit to serve as a class representative. As such, 

86 Betts v. Townsends, Inc., 765 A.2d 531, 535 (Del. 2000). The Superior Court can

apply collateral estoppel to findings made by the Court of Chancery. See 

Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1075 (Del. 1983).

87 Motorola Inc. v. Amkor Tech., Inc., 958 A.2d 852, 859 (Del. 2008).

88 Id.
19

the defamation per se claim has not been fully litigated. However, the Court of 

Chancery’s finding in conjunction with the record make it clear Marks knowingly 

sent false statements to The Financial Times. Plaintiffs have pled and proven the 

four elements of defamation which warrants for summary judgment in their favor; 

the Court need not fully consider the estoppel argument because the defamation 

elements have been established. 

VI. CONCLUSION

For the reasons stated above, Marks’s Motions to Dismiss and Summary 

Judgment are DENIED and Plaintiffs’ Motion for Partial Summary Judgment is 

GRANTED. 

____________________________

Danielle J. Brennan, Judge

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