IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE TRANSDEV ON DEMAND, INC. , Plaintiff/Counterclaim

- Defendant, ) ) )

v. ) ) ) ) C.A. No. 2019

- 0912

- S G
BLACKSTREET INVESTMENT HOLDINGS , LLC, Defendant/Counterclaim

- Plaintiff

. ) ) ) )
MEMORANDUM OPINION Date Submitted : August 7, 2020 Date Decided : November 30, 2020 John L

. Reed, Peter H. Kyle, and Kelly L. Freund , of DLA PIPER LLP (US) , Wilmington, Delaware ; OF COUNSEL : Laura Sixkiller and Kyle T. Orne , of DLA PIPER LLP (US) , Phoenix, Arizona , Attorneys for Plaintiff/Counterclaim

Defendant

. Thomas E. Hanson, Jr. and William J. Burton, of B ARNES & THORNBURG LLP , Wilmington, Delaware, Attorneys for Defendant/Counterclaim

- Plaintiff

.

GLASSCOCK, Vice Chancellor1 The seller of a company promised to provide financial information in a certain form, prior to clos ing. According to the buyer, it failed. This Memorandum Opinion largely concerns itself with the seller’s argument that the buyer , allegedly contractually prevented from seeking contract damages for breach, has attempted to bootstrap the contractual claim into a claim for fraud. “Bootstrap” is , to me, an interesting metaphor. The actual boots t rap, of course, is a leather loop at the back of a high boot that allows a wearer to bring his strength to bear in pulling the boot over his heel. A third party, assuming sufficient strength of arm and loop , could lift a wearer by these bootstraps; lacking a fulcrum, however, a wearer never can . This ob servable fact has led to the phrase “ he lifted himself by his own bootstraps,” meaning that one has, admirably, by great effort overcome seemingly impossible obstacles withou t assistance. The impossibility of lifting oneself thus has also given rise to a metaphorical verb in legales e , “to bootstrap,” meaning to make an unsupported attempt to create from one thing or proposition an unlikely or impermissible other. 1 Here, the seller’s allegation is that the buyer has attempted to create, from the breach of a promise to act, a tort,

common - law fraud, on the theory that the seller never intended to perform. If true, this is an impermissible bootstrap.

1 Leading to the noun form for an instance of such an action, a “boots t rap.” The term may also refer to an individual creating the conditions by which she extends her own power or ability to act. See Stuart M

. Benjamin , B ootstrapping , 75 Law and Contemp

. Probs

. , no. 3, 2012, at 115

.2 The unusual contract at issue involves a sale by the Plaintiff and Counterclaim

- Defendant, Transdev on Deman d, Inc. (“Transdev”), of its wholly

owned subsidiary, SuperShuttle International, Inc. (“SuperShuttle”), to Defendant and Counterclaim

- Plaintiff, Blackstreet Investment Holdings, LLC (“Blackstreet”). The term “sale” is accurate but misleading; SuperShuttl e had, apparently, negative value, the sales price totaled $1 .00 , and Transdev agreed to retain certain liabilities and to fund working capital, ini tially by providing roughly $18 million to SuperShuttle for that purpose (the “Initial Funding Amount”) , wit h the amount to be “trued up” post

- closing

. The contract required Tran s dev to provide financial information pre

- closing, and then to make a n “ Estimated Closing Working Capital Statement,” to which Blac kstreet could object. It is the truing

- up process that is the issue here; the parties dispute the amount due SuperShuttle from Transdev as working capital, and whether the contract controlling the sale requires that amount to be determined by an accountant or the Court.
Tran s d ev , the natural party defendant, brought t his action for declaratory judg ment . It seeks a declaration that Blackstreet failed to make a timely objection to the Estimated Closing Working Capital Statement, and thus has waived it s contractual righ t to objec t. It also seeks a declaration that , in any event, Blackstreet’s contractual rights have terminated and that this Court must resolve any remaining legal issues regarding working capital. Blackstreet counterclaimed 1) seeking3 specific performance of a con tractual provision requiring the parties to submit the dispute to an independent accountant; 2) seeking a declaration that Transdev breached the contract in computing working capital ; and 3) claiming that Tran s dev fraudulently induced Blackstreet to purcha se SuperShu ttle via inaccuracies in its contractually

- required financial disclosures

. Before me is the Plaintiff’s Motion to Dismiss the counterclaims. For the reasons that follow, that Motion is granted in part and denied in part.
I. BACKGROUND 2
A. The Partie s Blackstreet, t he Defendant and Counterclaim

- Plaintiff, is a Delaware limited liability company with its principal place of business in Maryland

. 3 Blackstreet is a holding company created to purchase the stock of SuperShuttle

. 4 Transdev, t he Plaintiff and Counterclaim

- Defendant, is a Delaware corporation with its principal place of business in Illinois

. 5

2 The facts, except where otherwise noted, are drawn from the Defendant’s First Amended Answer to Verified Complaint and Counterclaims , Dkt. No. 26 (the “Answer” and the “ Amended Counterclaim” or “Am. Countercl.”) , and ar e presumed true for the purpose of ev aluating the Plaintiff ’ s Motion to Dismiss

. 3 Am. Countercl. ¶ 1. 4 Id. 5 Id. ¶ 2

.4 B. Relevant Facts
1. Blackstreet Agrees to Acquire SuperShuttle Prior to its acquisition by Blackstreet , SuperShuttle was a wholly

- owned subsidi ary of Transdev providing shared

- ride and private car transportation to and from various airports in the continental United States and Mexico. 6 However, due to a shiftin g transportation marketplace rife with new competition , SuperShuttle had suffered sign ificant losses

. 7 As a result of these losses, Transdev began to explore the possibility of selling SuperShuttle. 8 After failing to close a sale with a different buyer, Transdev approached Blackstreet about potentially purchasing SuperShuttle. 9 SuperS hutt le had lost $14.1
million in 2018, and by June 2019 its trailing twelve month losses were $13.1 million. 10 Accordingly, the pa rties entered into a stock purchase agreement (the
“SPA” ) whereby Transdev would finance Blackstreet’s purchase of SuperShuttle. 11
2. Relevant Provisions of the Stock Purchase Agreement
U nder the SPA, Transdev agreed to deposit an Initial Funding Amount of $17,953,375 into a SuperS huttle bank account at closing

. 12 In exchange, Blackstreet

6 See i d. ¶ ¶ 2, 4

. 7 Id. ¶ 4. 8 Id. 9 Id. ¶ 5. 10 Id. ¶ 7. 11 Id. ¶ 6. 12 Id. ¶¶ 8, 9.5 agreed to purchase all of the issued and outstan ding shares of SuperShuttle’s common stock for $1.00 in total

. 13 Certain “Excluded Assets” and “Exclude d Liabilities” were to remain obligations of Transdev post

- closing. 14 Transdev also agreed to provide certain unaudited financial statements of SuperShut tle that were “prepared in accordance with GAAP applied on a consistent basis throughout the period involved” and “fairly present[ed] in all material respects the financial condition of SuperShuttle as of the respective dates they were prepared and the

res ults of the operations of SuperShuttle for the periods indicated.” 15 The Initial Funding Amount could be increased or decreased to ensure that SuperShuttle would have sufficient working capital to operate post

- closing. 16 The parties agreed to a target amount for SuperShuttle’s working capital of negative $5,575,000 (the “Target Working Capital”). 17 Thus, if, at closing, SuperShuttle’s working capital (the “Closing Working Capital”) was less (or more) than the Target Work ing Capital, Transdev would deposit (or withdraw) the difference into the same account that held the Initial Funding Amount. 18 Section 2.06 of the SPA set forth the process for making these adjustments. 19

13 Am. Countercl. ¶ 9. 14 Id. ¶ 9. 15 Id. ¶ 10. 16 Id. ¶¶ 13, 9. 17 Id. ¶ 8. 18 Id. ¶ 8. 19 Id. ¶ 12.6 Under Section 2.06(b), Transdev was required to provide, at least three business days before the closing date, a “good faith” stateme nt of SuperShuttle’s estimated C l osing Working Capital, including certification by Transdev’s President “that the Estimated Closing Working Capital was prepared in accorda nce with
GAAP.” 20 After receiving the Estimated Closing Working Capital Statement, Blackstreet had thirty days to review the statement and then provide any objections (the “Working Capital Review Period”)

. 21 In the event of any objections, the parties

were to negotiate in good faith to resolve them. 22 If, after thirty days of negotiations , any amounts remained in dispute, the parties agreed to submit the “ Disputed
Amounts ” “to a mutually

- agreed and nationally recognized firm of independent certified public accountants other than [Transdev]’s Accountants or [Blackstreet]’s Accountants” (the “Independent Accountant”) for a binding determination of what , if any, adjustments should be made to the Initial Funding Amount. 23
3. Blackstreet Objects to the Closing Workin g Capital Statement At closing, Transdev provided Blackstreet with an E xcel summary estimating that the Initial Fundin g Amount should be decreased by $7 ,000

— the difference between Transdev’s estimated Closing W orking Capital and the Target Working

20 Id. ¶ 14. 21 Id. ¶ 15. 22 Id. ¶ 16. 23 Id. ¶ 17.7 Capital of $5,575,000

. 24 During the ensuing Working Capital Review Period , Blackstreet gained access to SuperShuttle’s full books and records and historical financial information. 25 After examining SuperShuttle’s books and records , Blackstreet came to the conclusi on that Transdev’s estimate had materially overstated SuperShuttle’s current a ssets and had materia lly understated SuperShuttle’s current l iabilities. 26 A s such, Blackstreet delivered Transdev its own calculation of SuperShuttle’s estimated Closing Working Capital with supporting balance sheets comparing the parties’ calculations. 27 Based on these calculations, Blackstreet a sserts that the Initial Funding Amount actually needed to be increased by $7,485,177 to reach the amount requ ired by the SPA. 28
4. The Parties Fail to Resolve Objections Over the next thirty days, the parties worked to resolve the discrepancies in their valuations, but were ultimately unsuccessful. 29 After B lackstreet demand ed that the dispute be submitted to an Ind ependent A ccountant , Transdev initiated this action. 30

24 Id. ¶ 20. 25 Id. ¶ 23. 26 Id. ¶ 24. 27 Id. ¶ 26. 28 Id. ¶ 24. 29 Id. ¶¶ 30

– 31. 30 Id. ¶¶ 33, 36; see also Verified Compl. for Decl. J., Dkt. No. 1 [hereinafter the “Complaint” or “Compl.”].8 C. Procedural History Transdev initiated this action on November 13, 2019 , seeking declaratory relief

. 31 In its Complaint, Transdev asserts three counts for declaratory judgment against Blackstreet. 32 Firs t, Transdev seeks a declaration that the spreadsheet Blackstreet provided on October 9, 2019 (the “October 9 Spreadsheet”) was not a Statement of Objections as defined in the SPA, and therefore, Blackstreet accepted Transdev’s Estimated Closing Working Cap ital Statement. 33 In the alternative, i.e. , if the Court determines that the October 9 Spreadsheet was a Statement of Objections , Transdev requests a declaration that those objections are invalid because they do not survive the Closing under Section 7.01 o f the SPA. 34 Lastly, Transd ev seeks a declaration that an Independent A ccountant may not determine legal issues and disputes or interpretations of the SPA and this Court is the exclusive forum for the parties to resolve their disputes relating to the Closi ng Working Capital

. 35 Blackstreet filed its first answer and counterclaim on December 12, 2019. 36
Transdev moved to di smiss Count II of that counterclaim , which sounded in breach

31 See generally Compl. 32 See generally id. 33 Id. ¶ 70. 34 E.g. , id. ¶ 80. 35 Id. ¶ 93. 36 See Answer to Verified Compl. and Countercl., Dkt. No. 14.9 of contract

. 37 Bla ck street responded by moving for judgment on the p leadings , 38 but subsequently filed its Amended Answer and Counterclaims, 39 which Transdev has also moved to dismiss. 40 I heard oral argument on Transdev’s Motion to Dismiss the Amended Counterclaims on August 7, 2020, and consider the matter submitted for decision as of that date.
II. STANDARD OF REVIEW The Defendants have moved to dismiss this action pursuant to Court of Chancery Rule 12(b)(6). 41 The standard applicable to resolution of a motion to dismiss under Rule 12(b)(6) is well

- established: (i) all well

- pleaded fac tual allegations are accepted as true; (ii) even vague allegations are well

- pleaded if they give the opposing party notice of the claim; (iii) the Court must draw all reasonable inferences in favor of the nonmoving party; and (iv) dismissal is inappropriat e unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof. 42 I need not, however, “accept conclusory allegations unsupported by specific facts, nor do we draw unreasonable inferences i n the plaintiff ’ s favor.” 43

37 See Pl.

- Countercl

. - Def.’ s Partial Mot. t o Dismiss Def.

- Count ercl.

- Pl.’ s Countercl s
. , Dkt. No. 17. 38 See Mot. for J . on the Pleadings and

- or Default J., Dkt. No. 18. 39 See generally Answer and Am. Countercl., Dkt. No. 26. 40 See Pl.

- C ountercl.

- Def.’ s Mot. to Dismiss Am. Countercls., Dkt. No. 30. 41 Ct. Ch. R. 12(b)(6). 42 Savor, Inc. v. FMR Corp. , 812 A.2d 894, 896

– 97 (Del. 2002) (f ootnotes and internal quotation marks omitted). 43 Windsor I, LLC v. CWCapital Asset Mgmt. LLC , 238 A.3d 863, 871 (Del. 2020) (internal quotation marks omitted).10 Additionally, “the court may consider docume nts outside the pleadings when

‘ the document is integral to a plaintiff ’ s claim and i ncorporated into the complaint.’” 44
III. ANALYSIS In analyzing a contract on a motion to dismiss under Rule 12(b)(6), the Court must interpret ambiguous provisions in the light most favorable to the nonmoving party. 45 The Court “give[s] priority to the intention of the parties

. . . by looking to the four corners of the contract to conclude whether the intent of the parties can be determined from its express language. In interpreting contract language, clear and unambiguous terms are interpreted according to their ordinary and usual meaning.” 46
A. The Motion to Dismiss is Denied in Part
Tran s dev’s Motion to Dismiss Count s I and II are rather easily resolved. Count I seeks specific performance of what Blackstreet contends is a contractual

44 Id. at 873 (quoting Vanderbilt Income & Growth Assoc., L.L.C. v. Arvida/JMB Man agers, Inc. , 691 A.2d 609, 613 (Del. 1996) ); see also In re General Motors (Hughes) S ’ holder Litig. , 897 A.2d 162, 169

– 70 (Del. 2006) (“W ithout the ability to consider the document at issue in its entirety, complaints that quoted only selected and misleading portions of such documents could not be dismissed under Rule 12(b)(6) even though they would be doomed to failure.” ). Because the SPA is integral to Blackstreet’s claim and incorporated into its counterclaim by reference, I refer to its provisi ons throughout. See generally Compl. , Ex. A, Dkt. No. 1 [hereinafter the SPA]. 45 Kuroda v. SPJS Holdings, L.L.C. , 971 A.2d 872, 881 (Del. Ch. 2009)

. 46 Paul v. Deloitte & Touche, LLP , 974 A.2d 140, 145 (Del. 2009); see also, e.g ., In re Viking Pump, Inc. , 1 48 A.3d 633, 648 (Del. 2016)

.11 right to submit the working capital dispute to an Independent A ccountant. 47
Transdev counters that this claim is merely a redundant mirror image o f its own request for declaratory relief. 48 I t is true that , in addition to specific performance, Count I also seek s a mirror

- image declaration regarding the me aning of the contractual language at issue. However, s pecific performance is an equitable remedy requiring a demonstration not only of a contractual right, but also that equity is compelled to act to enforce the right

. 49 A request for specific performance is therefore not merely redundant of Transdev’s claim. Transdev also avers that the specific performance claim is unripe , because Transdev’s declaratory judgment claim remains outstanding , under the theory that there can be no breach leading to specific performance while the legal issues remain unresolved. 50 A specific performance request may be ripe, however, when a duty to perform is outstanding; 51 such is Blackstreet’s allegation here.

47 See Am. Countercl. ¶¶ 46

– 60. Count I also requests , in the alternative, a declaratory judgment that the SPA requires submitting the Disputed Amounts to an Independent Accountant

. See id. 48 See Opening Br. of Pl.

- Countercl

. - Def. in Support of its Mot. to Dismiss Def.

- Countercl. Pl.’s Am. Countercls . 13

– 15, Dkt. No. 35 [hereinafter Transdev’s Op. Br.]. 49 See , e.g. , Osborn ex rel. Osborn v. Kemp , 991 A.2d 1153, 1158 (Del. 2010) ; Kuroda v. SPJS Holdings, L.L.C. , 971 A.2d at 88 3

. 50 See Reply Br. of Pl.

- Countercl.

- Def. in Support of its Mot. to Dismiss Def.

- Countercl. Pl.’s Am. Countercls. 24

– 26, Dkt. No. 41 [hereinafter Transdev’s Reply Br.]. In support of this proposition , Transdev notes that “ the Delaware courts will not grant specific performance when the contract has not been breached and theref ore the controversy is not ripe.” Transdev’s Reply Br. 25 (citing Mehiel v. Solo Cup Co. , 2005 WL 125234 8, at *8 (Del. Ch. May 13, 2005) ). 51 See, e.g , Chavin v. H. H. Rosin & Co. , 246 A.2d 921, 922 (Del. 1968) (“ The object of specific perfor mance is to enforce a plaintiff’ s equitable rights, and to compel a defendant to specifically perform his equitable obligations. ”). At this early stage in the proceedings, I must accept12 T he record necessa ry to invoke equity requires a factual record not appropriate to a pleading

- stage motion such as the one before me

. Accordingly, Transdev’s motion to dismiss Count I is denied. Count II alleges that Tran s dev breach ed the SPA by failing to accept responsibility for Aged Acco unts Payable, resulting in what Blackstreet alleges is
Tran s dev’s impro perly

- computed Estimated Closing Working Capital S tatement. 52
Tran s dev points out that contractually, this must be an indemnification claim, not a breach claim. This, argues Transdev, is because the SPA limits recovery for breach to indemnification. Further, Transdev avers that Blackstreet is not entitled to indemnification , because under the facts pled in light of the language in the SPA, indemnification is contractually unavailable; and , alternatively because Blackstreet is not out

- of

- pocket

. 53 A ccordingly, per Transdev, Blackstreet has failed to state a claim. It is true that contractual interpretation involves issues of law often well suited to motions to dismiss. 54 The questions he re presented involve mixed issues of fact and law regarding a complex stock

- purchase agreement. Count II , I note, is pled in

Blackstreet ’s allegations, and the reasonable inferences therefrom, that Transdev’s failure to refer the Disputed Amounts to an Independent Accountant was a breach of contract. Therefore, Blackstreet’s claim for specific performance cannot be dismissed as unripe. 52 Am . Countercl. ¶¶ 61

– 64. 53 See, e.g. , Tran s dev’s Op. Br. 19; Transdev’s Reply Br. 21. 54 E.g. Schuss v. Penfield Partners , L.P. , 2008 WL 2433842, at *6 (Del. Ch. June 13, 2008).13 the alternative. The issue it is directed toward, the computation of working capital and relief for any improprieties therein, is the whole subject of this ongoing litigation ; thus, resolution of the Motion to Dismiss Count II is unlikely to avoid appreciable litigation effort

. The question is whether I must resolve th is alternative request for relief by construing the contract at this pleading stage, regardless of the fact that other allegations in the Complaint and Amended Counterclaim may render the indemnification claim moot. That determination, it seems to me, should await resolution of the many predicate issues raised, which may moot Blackstreet’s damages/indemnification claim in any event

. 55 That is the efficient time to determine whether any portion of Count II survives. Accordingly, I deny the Motio n to Dismiss Count II without prejudice to its renewal (as a motion for jud gment on the pleadings or otherwise) should it become appropriate.
B. The Motion to Dismiss Count III is Granted Transdev’s Motion to Dismiss Count III, by contrast, must be granted. Count III is a claim, purportedly, for fraud in the inducement. 56 Blackstre et alleges that
Tr a nsdev represented contractually that “SuperShuttle’s Financial Statements were:

55 For instance, if Transdev is correct that Blackstreet has accepted Transdev’s Estimated Closing Working Capital Statement (or that its objections were invalid), I likely never reach the indemnification question. Alternatively, if Blackstreet is entitled to specific performance or a declaratory judgment, I similarly never reach the i ndemnification question. 56 Am. Countercl. ¶¶ 65

– 75.14 (a) ‘ prepared in accordance with GAAP . . .’ and (b) ‘fairly presented . . . the financial condition of SuperShuttle as of the respective dates they were pre pared , ’” and that these statement were “incorporated into the SPA itself.” 57 I note that Blackstreet itself uses the defined contractual term “ Financial Statements” in de limiting the fraudulent conduct. The fraud allegation is that Transdev promised to pr ovide Blackstreet with GAAP

- compliant financial statements, that such promise was made to induce Blackstreet to purchase SuperShuttle, and that Transdev failed to keep that promise . But , if true, this states a contract claim. The duty to provide certain financial stat ements is not a common

- law duty; it arises solely by contract. Blackstreet’s allegations are that this contractual duty was breached. It cannot also successfully argue that it was defrauded by Transdev’s failure to satisfy an obligation that arose exclusively from the terms of the SPA.
T he SPA , 58 and more fundamentally, the common law, limit Blackstreet’s ability to allege breach of the contract’s terms as the basis of a fraud claim

.

“ [ C ] ouching an alleged failure to comply with the contr act at issue as a failure to disclose an intention to take certain actions arguably inco nsistent with that contract

57 Def. Countercl.

- Pl.’ s Answering Br. in Opp’n to Pl. Countercl.

- Def.’ s Mot. t o Dismiss Am. Countercls. 5, Dkt. No. 39 [hereinafter Blackstreet’s Answering Br.]

. 58 See SPA §§ 3.28, 7.01, 8.09(a).15 is ‘ exactly the type of bootstrapping this Court will not entertain. ’ ” 59 If the financial
statement s were not compliant with the promises ma de in the SPA, Transdev has committed a contractual breach. But , having agreed to be bound by the contract, Blackstreet cannot litigate a tort action as a result of allegations of breach. 60 That is, Blackstreet identifies no duty breached by Tran s dev, bey ond those duties imposed by contract. In such a situation, Blackstreet is limited to its contractual remedies. Blackstreet argues that it has suffered fraud in the inducement; that it would never have entered the SPA if it had known that Tran s dev would pr oduce non

compliant financial statements that would prevent SuperShutt le from receiving a proper true

- up of working capital. But this is the quintessence of a bootstrap from contract to fraud. I note, in that regard, that the promises allegedly breached by
Tran s dev were promises to perform in the future : Blackstreet defines th e fraud alleged as Transdev’s promise under the SPA that it “ would provide a ‘good faith’ statement of SuperShuttle’s E stimated Closing Working C apital

. . . in accordance

59 MicroS trategy Inc. v. Acacia Research Corp. , 2010 WL 5550455, at *17 (Del. Ch. Dec. 30, 2010) (quoting BAE Sys. N. Am. Inc. v. Lockheed Martin Corp. , 2004 WL 1739522, at *8 (Del. Ch. Aug. 3, 2004) ) ; see also Smash Franchise P’ rs, LLC v. Kanda Hldgs., Inc. , 2020 WL 4692287, at *16 (Del. Ch. Aug. 13, 2020) (“A bootstrapped fraud claim thus takes the simple fact of nonperformance, ad ds a dollop of the counterparty’ s subjective intent not to perform, and claims fraud.” ); Narrowstep, Inc. v. Onstream Media Corp. , 2010 WL 5422405, at *15 (Del. Ch. Dec. 22, 2010) (“[A] plaintiff cannot bootstrap a claim of breach of contract into a claim of fraud merely by alleging that a contracting party never intended to perform its obligations.” (internal quotations omitted)). 60 See, e.g. , Narrowstep, Inc. , 2010 WL 5422405, at *15.16 with GAAP, ” which it failed to do. 61 Also, Blackstreet avers that fraud resides in the contractual promise Transdev made “to provide” unaudited financials, before closing, in accordance with GAAP. 62 These obligations, allegedly unperformed, arise solely by contract. Blackstreet relies on Abry Partners V, L.P. v. F&W Acquisition LLC 63 for the proposition that knowingly false contractual representations may breach a duty in tort as well as contract. In that case, however, financial statements were not merely inaccurat e or misrep resented; they were alleged to have been manipulated to induce the contract at issue. 64 T he buyer alleged that the c ompany used a variety of improper methods to manipulate its reported earnings and overstate its revenues in a series of financial reports

. 65 Specifically, the company, a book and magazine publisher, engage in such hijinks as “backstarting,” providing new magazine subscribers back issues when they receive their first issue under the subscription; “channel stuffing,” artificially infl ating revenue by providing discounts to retailers without accounting for the associated increase in returns of unsold inventory; extending quarterly reporting periods of its subsidiaries to mask losses; shipping

61 Blackstreet’s Answering Br . 31. 62 Blackstreet’s Answering Br. 32. 63 891 A.2d 1032 (Del. Ch. 2006)

. 64 Id. at 1038

– 41. 65 Id.17 subscriptions early to shift revenue from Ju ly to June; and reporting revenues in one period while delaying reporting of expenses until the following period. 66 Here, the allegations are simply that Tran s dev maintained and provided its records in a way that did not comply with what it had promised in the SPA

. 67 If so, and damage has resulted, this is a mundane contract claim, and not a tort claim. Having determined that the allegations of Count I II sound in contract, not fraud, I need not examine Tran s dev’s forceful argument that Count III otherwise
f

ails to plead the elements of a claim for fraud.
IV. CONCLUSION For the forgoing reasons, Tran s dev’s Motion to Dismiss Blackstreet’s Amended Counterclaims is GRANTED IN PART and DENIED IN PART . The
p arties should provide an appropriate form of order.

66 Id. 1038

– 39 67 Blackstreet also notes that Transdev “ provided false financial information and commingled assets of its affiliates .” Am. Countercl. ¶ 28. Because Blackstreet alleges no facts to support these conclus ions, I need not consider them further.