2020-02

Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP ( 2020 )

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IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
GREAT HILL EQUITY PARTNERS IV, )
LP, GREAT HILL INVESTORS LLC, )
FREMONT HOLDCO, INC., and )
BLUESNAP, INC. (F/K/A PLIMUS), )
)
Plaintiffs, )
)
v. ) C.A. No. 7906-VCG
)
SIG GROWTH EQUITY FUND I, )
LLLP, SIG GROWTH EQUITY )
MANAGEMENT, LLC, AMIR )
GOLDMAN, JONATHAN KLAHR, )
HAGAI TAL, TOMER HERZOG, )
DANIEL KLEINBERG, IRIT SEGAL )
ITSHAYEK, DONORS CAPITAL )
FUND, INC., and KIDS CONNECT )
CHARITABLE FUND, )
)
Defendants. )
MEMORANDUM OPINION
Date Submitted: November 15, 2019
Date Decided: February 27, 2020
Rudolf Koch, Robert L. Burns, and Megan E. O’Connor, of RICHARDS, LAYTON
& FINGER, P.A., Wilmington, Delaware; OF COUNSEL: Adam Slutsky, of
GOODWIN PROCTER LLP, Boston, Massachusetts, Attorneys for Plaintiffs Great
Hill Equity Partners IV, LP, Great Hill Investors LLC, Fremont Holdco, Inc., and
BlueSnap, Inc. (f/k/a Plimus).
William B. Chandler III, Ian R. Liston, and Jessica A. Hartwell, of WILSON
SONSINI GOODRICH & ROSATI, P.C., Wilmington, Delaware; OF COUNSEL:
Mark A. Kirsch, Scott A. Edelman, Aric H. Wu, Laura K. O’Boyle, and Peter Wade,
of GIBSON, DUNN & CRUTCHER LLP, New York, New York, Attorneys for
Defendants SIG Growth Equity Fund I, LLLP, SIG Growth Equity Management,
LLC, Amir Goldman, Jonathan Klahr, Donors Capital Fund, Inc., and Kids Connect
Charitable Fund.
Lewis H. Lazarus of MORRIS JAMES LLP, Wilmington, Delaware; OF COUNSEL:
Peter N. Flocos and Joanna A. Diakos, of K&L GATES LLP, New York, New York,
Attorneys for Defendants Tomer Herzog and Daniel Kleinberg.
David S. Eagle and Sean M. Brennecke, of KLEHR HARRISON HARVEY
BRANZBURG LLP, Wilmington, Delaware; OF COUNSEL: Michael K. Coran,
William T. Hill, Monica Clarke Platt, and Gregory R. Sellers, of KLEHR
HARRISON HARVEY BRANZBURG LLP, Philadelphia, Pennsylvania, Attorneys
for Defendants Hagai Tal and Irit Segal Itshayek.
GLASSCOCK, Vice Chancellor
This matter arises from the purchase and sale of a company, now BlueSnap,
Inc., formerly, and referred to in this Memorandum Opinion as, Plimus. This has
been a large litigation; generous in the scope of its allegations of fraud and
contractual breach; broad in its cast of Defendants; deep in its damages claims;
extensive in its discovery and preparation; and lengthy in its trial presentation and
briefing. The latter resulted in a liability Memorandum Opinion (“Great Hill I”) in
which I rejected the bulk of the Plaintiffs’ claims, but found liability for a few
breaches of contractual representations and for two instances fraudulent
misrepresentation, the latter on the part of Defendant Hagai Tal. Both breach of
contract and fraud number among their elements resulting damages; this
Memorandum Opinion deals with that element of the Plaintiffs’ case. The
Plaintiffs—who bear the burden to demonstrate damages—were content with the
presentation they had made at trial, primarily relying on an expert report and
testimony made in light of the aforementioned generously-proportioned allegations,
rather than the greatly circumscribed liability I found in Great Hill I.
Accordingly, I address damages below. The result I reach, as a function of
the scope of the litigation, is not large; it is constrained by the record created, and is
cabined by the law of damages as I understand it. This Memorandum Opinion also
addresses the Plaintiffs’ claim against stockholders of Plimus for unjust enrichment,
which I find to be unfounded. My rationale follows.
1
I. GREAT HILL I1
This action concerns the acquisition of a California corporation, Plimus, by a
private equity firm, Great Hill.2 Plimus facilitated transactions between small online
retailers and consumers by operating as a “reseller.”3 Plimus’s business depended
on relationships with payment processors, PayPal being a well-known example.4
Plimus, which had relationships with both the retailers, on one side, and the payment
processors, on the other, offered a service that permitted the payment processors to
deal with a single reseller rather than contracting with the large number of small
retailers.5 Plimus would constructively “acquire” the product from the retailer and
receive payment for that retailer from a payment processor.6 The payment
processors had contractual relationships with the credit card companies and their
banks.7 The arrangement allowed the service or product to be delivered directly to
the credit card holder/purchaser from the online merchant.8
1
Interested readers can refer to Great Hill I, the post-trial memorandum opinion concerning
liability: Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP,

2018 WL 6311829

(Del. Ch. Dec. 3, 2018).
2
Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP,

2018 WL 6311829

, at
*1–2 (Del. Ch. Dec. 3, 2018). I refer to Plaintiffs Great Hill Equity Partners IV, LP, and Great
Hill Investors LLC collectively as “Great Hill.”
3

Id. at *1.

Such small online retailers are known as “long tail” vendors.

Id. 4 Id.

Id. 6 Id.

Id. 8 Id.

2
This system works as long as the online retailer delivers a satisfactory product
or service—if not, the credit card companies are responsible to their card holders for
cancellation of the debt incurred for fraudulent or misrepresented products known
as “chargebacks.”9 Where chargebacks occur, the banks and credit card companies
impose contractual “fines” on the payment processors.10 As the ultimate source of
the fines are the retailers, and the payment processors serve the retailers through
facilitators/resellers like Plimus, chargebacks harmed the relationship between
Plimus and its payment processors.11 “In other words, if the reseller handles
transactions from retailers whose business practices engender excessive
chargebacks, the contractual relationship between the reseller and the payment
processor will be strained or ruptured.”12 Plimus’s business could not survive
without such relationships.
Great Hill bought Plimus in 2011 (the “Merger”), valuing Plimus based on
due diligence, management projections, and representations and warranties made in
the Merger agreement (the “Merger Agreement”).13                  Post-Merger, Plimus
underperformed Great Hill’s expectations and Great Hill sued the principals and
9

Id. 10 Id.

Id. 12 Id.

Id. 3 stockholders

of Plimus, alleging breaches of the contractual representations and
warranties, and fraud and fraudulent inducement related to the sale.14
In November and December of 2017 I held a ten-day trial with live testimony
from thirteen witnesses.15 The parties submitted over two thousand exhibits and
lodged fifty-eight depositions.16 I released Great Hill I, a post-trial Memorandum
Opinion on December 3, 2018.17 The matter was bifurcated, so Great Hill I
concerned only the liability of the Defendants—matters of damages were not
considered. This Memorandum Opinion considers the damages flowing from the
liability proven by the Plaintiffs at trial by a preponderance of the evidence.18 This
section offers a (regrettably) lengthy summary of Great Hill I, as necessary to an
understanding of my decision here. I then assign damages.
A. The Parties
Defendant Hagai Tal was Plimus’s CEO at the time of the Merger, a position
he held since 2008.19 Tal was the only Defendant found liable for fraud or fraudulent
inducement in Great Hill I and I necessarily consider the damages owed by him apart
from the other Defendants.20
14

Id. 15 Id.

Id. 17 Memorandum

Opinion, D.I. 644.
18
Great Hill,

2018 WL 6311829

, at *1.
19

Id. at *3,

*22.
20

Id. at *45.

4
The other liable Defendants, along with Tal, were termed the
“Indemnification Defendants” in Great Hill I. The Indemnification Defendants were
termed as such because indemnification claims were brought against them under the
Merger Agreement—the Indemnification Defendants include all pre-Merger
stockholders of Plimus.21 In addition to Tal, the Indemnification Defendants are: Irit
Segal Itshayek, Plimus’s then-Vice President of Financial Strategy and Payment
Solutions,22 Tomer Herzog and Daniel Kleinberg, Plimus’s founders (the
“Founders”),23 SIG Growth Equity Fund I, LLLP (“SIG Fund”), a private equity
fund and a large stockholder in Plimus at the time of the Merger,24 SIG Growth
Equity Management, LLC (“SGE”), SIG Fund’s manager,25 and Kids Connect
Charitable Fund and Donors Capital Fund, Inc. (together, the “Charity Defendants”),
two donees of Plimus preferred shares.26
Apart from Tal and the Indemnification Defendants are two additional
Defendants: Amir Goldman and Jonathan Klahr.                  Goldman and Klahr were
21

Id. at *46.

Id. at *6.

Id. at *2.

Id. 25 Id.

Id. at *27.

The Charity Defendants’ shares were donated by SGE.

Id. 5 managing

directors at SGE during the relevant time period.27 Goldman and Klahr
were absolved of liability in Great Hill I.28
The Plaintiffs, Great Hill and its affiliates, purchased Plimus in a transaction
that closed on September 29, 2011.29 Plaintiff BlueSnap, Inc. is the same entity as
Plimus, which was renamed after the transaction closed.30 I refer to the entity here
pre and post-closing as Plimus for simplicity’s sake.
I discuss each of the Plaintiffs’ claims and my findings on liability below,
offering that background information sufficient to comprehension of the claims and
my subsequent findings and resulting damages. Unfortunately, I find the nature of
the damages analysis offered by the Plaintiffs requires that minimum background to
nonetheless be rather extensive.
B. Fraud and Fraudulent Inducement Claims
The Plaintiffs brought fraud and fraudulent inducement claims against
Goldman, Klahr, Tal, and Itshayek (together, the “Fraud Defendants”) highlighting
“four major interrelated components” of the alleged fraud.31 I noted that the
elements of fraud and fraudulent inducement are:
(1) a false representation, usually one of fact, made by the defendant;
(2) the defendant’s knowledge or belief that the representation was
27

Id. at *2,

*3.
28

Id. at *31–45.

Another defined group of Defendants, discussed below, is the “Fraud
Defendants,” which is: Tal, Itshayek, Goldman, and Klahr.

Id. at *31.

Id. at *6.

Id. at *28.

Id. at *31.

6
false, or was made with reckless indifference to the truth; (3) an intent
to induce the plaintiff to act or to refrain from acting; (4) the plaintiff’s
action or inaction taken in justifiable reliance upon the representation;
and (5) damage to the plaintiff as a result of such reliance.32
I also noted that “[a] false representation is not only an overt misrepresentation—
that is, a lie—but can also be a deliberate concealment of material facts, or silence
in the face of a duty to speak.”33 Furthermore, in contrast with breaches of the
Merger Agreement (which are discussed in Section I.C. infra), “in the case of fraud
or misrepresentation” the Merger Agreement does not limit remedies.34
1. Fraud Claim for the Paymentech Termination
The first fraud claim alleged misrepresentations and omissions against the
Fraud Defendants in connection with the termination of the business relationship
between Plimus and a payment processor, Paymentech.35
In late 2010 and early 2011, both Paymentech and Plimus soured on their
business relationship.36 Tal and Itshayek determined that Plimus needed to end its
relationship with Paymentech towards the end of 2010 after Paymentech informed
Plimus it would stop processing Plimus’s transactions outside the United States,
32

Id. at *32

(citing E.I. DuPont de Nemours & Co. v. Fla. Evergreen Foliage,

744 A.2d 457

, 461–
62 (Del. 1999); Stephenson v. Capano Dev., Inc.,

462 A.2d 1069

, 1074 (Del. 1983); Trascent
Mgmt. Consulting, LLC v. Bouri,

2018 WL 4293359

, at *12 (Del. Ch. Sept. 10, 2018)).
33

Id. (citing Stephenson,

462 A.2d at 1074).
34

Id. at *48–50.

Id. at *33.

Id. at *7.

7
Canada, and the European Union.37 This included areas “in which Plimus did
significant business.”38 Paymentech, on the other hand, had repeatedly informed
Plimus that Plimus was failing to comply with various credit card association rules.39
Paymentech, not Plimus, ultimately decided to unilaterally terminate the
business relationship via letters to Plimus on February 4, February 14, March 1, and
March 3, 2011 (the “Paymentech Termination Letters”).40 Great Hill never received
the Paymentech Termination Letters.41 The Plaintiffs levied two separate fraud
allegations in connection with Paymentech’s termination of the business
relationship: (1) because the Paymentech Termination Letters were responsive to
due diligence requests, the failure to disclose them to Great Hill constituted a
“deliberate concealment of material facts” sufficient to support a finding of fraud
and (2) a legal disclosure describing the termination as “mutual” was a fraudulent
misrepresentation.42 I discuss each allegation, and my findings, in turn.
a. The Fraud Defendants Did Not Knowingly Conceal the
Paymentech Termination Letters from Great Hill
While I found that Great Hill never received the Paymentech Termination
Letters, I also found that Goldman and Klahr did not knowingly conceal the
37

Id. 38 Id.

39
Id.
40

Id. at *33.

Id. 42 Id.

8
Paymentech Termination Letters because they directed Plimus’s legal counsel,
Perkins Coie LLP (“Perkins Coie”), to release them into a due diligence data room
in early May 2011 and “expressed an understanding that the Paymentech
Termination had been resolved and was ordinary course.”43 Thus, Goldman and
Klahr “subsequently believed that the letters had been released to the data room” and
“had no knowledge of the omission of the letters, nor were they recklessly indifferent
to the omission” because they “had no responsibility regarding the data room or
responding to diligence requests.”44 I likewise found that Itshayek believed the
Paymentech Termination Letters were in the data room. 45 Finally, I found that Tal
believed that the Paymentech Termination Letters were in the data room, as
corroborated by his assent (to Perkins Coie) to their release to the data room and his
offer of physical copies of the letters to PricewaterhouseCoopers LLP (“PwC”) in
June 2011 when PwC was conducting on-site due diligence of Plimus on Great Hill’s
behalf.46 Because “none of the Fraud Defendants intentionally concealed [the
Paymentech Termination Letters],” I concluded that no finding of fraud could be
based on failure to provide the Paymentech Termination Letters to Great Hill.47
43

Id. 44 Id.

Id. 46 Id.

Id. 9 b.

The False Representation on the Paymentech Termination
Was Not Material
As part of the sale process Perkins Coie drafted a disclosure schedule, which
included a disclosure of Paymentech’s termination of Plimus.48 The disclosure
schedule was eventually presented to Great Hill, and read, in pertinent part:
[Plimus] and Paymentech . . . entered into an exclusive . . . Agreement
. . . . [which] was scheduled to be renewed in September 2011.
However, in early 2011, [Plimus] decided that it did not want to
continue working with [Paymentech] under the then negotiated terms .
. . . [Plimus] then attempted to negotiate modified terms . . . . However,
[Paymentech] refused . . . . In February and March 2011, [Paymentech]
encountered issues related to the Royal Bank of India . . . .
[Paymentech] asked Plimus to make specific changes to the Company’s
platform . . . . Since [Plimus] did not feel this would in its best interests,
[Plimus] and [Paymentech] instead mutually agreed to terminate the
agreement . . . . As of May 13, 2011, [Paymentech] continues to hold a
reserve of approximately $500,000 to cover future potential refunds and
chargebacks . . . .49
I found that this disclosure was false and that Tal, Goldman, and Klahr knew it was
false because all three knew it was Paymentech who had ended the relationship while
the disclosure described the ending as “mutual.”50 I also found that Tal, Goldman,
and Klahr intended Great Hill to rely on the false disclosure in order to facilitate the
48

Id. at *11.

Id. This disclosure

was eventually removed and did not appear in the disclosure schedule that
accompanied the Initial Merger Agreement.

Id. 50 Id.

at *34. As to Itshayek, I found that “[w]hile Itshayek also knew Paymentech had taken the
first step in terminating the relationship, the Plaintiffs do not allege that she helped draft, review
or even that she saw the disclosure that Tal prepared. As a result, Itshayek did not have the
requisite knowledge that the disclosure was false to support a fraud claim against her.”

Id. 10 sale

process, Merger Agreement, and closing of the Merger.51 However, I found that
Great Hill did not justifiably rely on the disclosure because Great Hill had an
“accurate understanding [as to the Paymentech termination] as of the time of the
transaction,” and thus the misrepresentation and not material.52 Therefore, I found
that the Fraud Defendants’ misrepresentation regarding Paymentech could not
support liability for fraud.53
2. Fraud Claim for Plimus’s History of Violations and Risk
Monitoring Systems
The Plaintiffs next fraud claim concerned the quality of Plimus’s business and
alleged that the Fraud Defendants hid a long history of violations and fabricated
Plimus’s risk-monitoring prowess.54
a. The Fraud Defendants Did Not Make Any False
Representations on Plimus’s Risk Monitoring Systems
The Plaintiffs claimed that the Fraud Defendants falsely represented that
Plimus had “robust” and “proactive” risk monitoring systems because certain “mass
vendor terminations” in 2010 and 2011 were initiated by Plimus’s payment
processors and not from Plimus’s own internal risk monitoring.55              The Fraud
Defendants denied making those representations and retorted that they represented
51

11
only that “Plimus monitors the performance of sellers and cleanse[s] sellers with
negative perception, consistent issues with buyers or high chargeback issues”—
insisting this representation was accurate.56 Plimus’s written policy on risk review—
disclosed to Great Hill—stated that Plimus reviewed vendors for violations of
Plimus’s terms of use and for copyright infringement, and that Plimus will react to
alerts from processors “based on the [processor’s] requirements.” 57 The Plaintiffs’
fraud allegations regarding risk monitoring centered on two instances of vendor
terminations, one in 2010 and one in 2011.
i. 2010 Vendor Terminations
Plimus responded to a due diligence request from Great Hill requesting more
information about $250,000 in fines that Plimus paid for an excessive chargeback
monitoring program in 2010 due to an increase in chargebacks related to Plimus’s
56

Id. (internal quotation

marks omitted). “The credit card associations had excessive chargeback
monitoring programs for merchants designed to incentivize these merchants to reduce their
chargebacks. Generally, merchants entered the programs when their chargeback ratio exceeded a
certain threshold for a number of consecutive months. After that point, the merchant would be
charged a fine per chargeback (on top of already paying the amount of the chargeback and a fee),
and the amount of the fine per chargeback would increase the longer the merchant remained in the
program. Once the chargeback ratio fell below the threshold, the merchant would generally be
removed from the excessive chargeback program. The key metric was the chargeback ratio, which
was generally calculated by dividing the number of chargebacks in a month by the total number of
transactions in the same month. Visa and MasterCard calculated the chargeback ratio slightly
differently; MasterCard used the previous month’s transaction volume to calculate the chargeback
ratio. Visa and MasterCard would place merchants in excessive chargeback monitoring programs
if the merchant’s chargeback ratio for United States transactions exceeded one percent for two
consecutive months.”

Id. at *13

(internal citations and quotation marks omitted).
57

Id. at *37.

12
“poker chip vendors.”58 After Great Hill followed up on these responses, Plimus
indicated that eight hundred vendors, consisting of “[p]arty poker chip vendors,
underperforming utility software vendors, and certain online services with high rate
[sic] of dissatisfaction” were terminated in the first quarter of 2010.59 The vendors
had been terminated for issues with excessive customer disputes, chargeback
activity, and business models that were not attractive to Plimus’s payment
processors.60
Regarding these vendors, Plimus had received notices from Paymentech that
Plimus as a whole was exceeding its chargeback ratio ceiling—no individualized
notices specific to each Plimus vendor exceeding the ceiling were sent to Plimus. 61
Plimus then identified and terminated certain vendors with high chargebacks to
reduce the Plimus-wide chargeback ratio although in the record there was no
indication that prior to their termination these vendors violated Plimus’s terms of
use.62 The Plaintiffs claimed that Plimus’s diligence disclosure that “[Plimus]
became aware of these issues upon reviewing each vendors’ chargeback history”
was a false representation because it “conveyed the impression that Plimus’s own
internal procedures led to this review, which in fact arose based on communication
58

Id. at *15.

Id. at *16.

60
Id.
61

Id. at *37.

Id. 13 from

the processor.”63 However, because nothing about the disclosure to Great Hill
“suggest[ed] that the review was independent of communications with Paymentech,
and the disclosure is not otherwise inconsistent with Plimus’s disclosed written
policies,” I found that the Fraud Defendants did not make false written
representations in the disclosure regarding the vendor terminations.64
ii. 2011 Vendor Terminations
In March and April 2011, Plimus added new vendors, several of whom were
known as “biz opp” vendors involved in “get rich quick” schemes—by May 2011
the “biz opp” vendors were producing high chargebacks.65 PayPal, which was
processing most of Plimus’s United States transactions at this time, raised concern
about these vendors and told Plimus it should terminate one vendor in particular,
GoClickCash.66 Plimus immediately terminated GoClickCash, and after an internal
review terminated sixteen additional vendors.67
The Plaintiffs alleged that Itshayek falsely told Great Hill that the termination
of the sixteen vendors was the result of Plimus’s risk monitoring systems.68
However, I found that this statement was not false because Itshayek “testified
63

Id. 64 Id.

Because the Plaintiffs’ allegations of fraud against Goldman and Klahr in connection with
risk monitoring stemmed only from written communications, I found that the Plaintiffs had failed
to show fraud against Goldman and Klahr for risk monitoring representations. Id.
65

Id. at *15.

Id. 67 Id.

Id. at *37.

14
credibly” that she told Great Hill that the 2011 termination started with a PayPal
notice on GoClickCash and that Plimus then identified sixteen similar vendors and
terminated them as well.69 I noted that while Plimus “may have felt that the sixteen
similar vendors would cause problems with PayPal in light of PayPal’s initial notice,
it was still Plimus who identified the sixteen problematic vendors, and Plimus who
decided to terminate the additional vendors based on the assessment of the risk
imposed on Plimus.”70 Itshayek’s description of the termination was consistent with
Great Hill’s account and matched Plimus’s written policy, thus, there was no false
representation regarding the termination of the “biz opp” vendors.71
iii. Alleged Descriptions of Plimus’s Risk Monitoring as
“Robust” or “Proactive”
Finally, I found that even if the Plaintiffs could show that Tal and Itshayek
mischaracterized Plimus’s risk monitoring systems and policies as “robust” or
“proactive,” as Great Hill alleged, Great Hill did not prove fraud because it could
not justifiably rely on these alleged misrepresentations.72 The reasons for this were
threefold. First, PwC’s due diligence report stated that Plimus should be more
“proactive” in dealing with chargebacks and detailed how vendors were enrolled as
Plimus clients.73 Such enrollment was “self-service” and PwC noted that Plimus
69

Id. 70 Id.

Id. 72 Id.

at *38.
73

Id. 15 “delay[ed]

the majority of the seller underwriting until the point at which the seller
is most likely to begin processing.”74 Second, Great Hill’s own due diligence,
confirmed through the testimony of a Great Hill employee, disclosed the limited
extent to which Plimus could be said to have “robust” or “proactive” risk monitoring
systems because vendors could onboard themselves and avoid scrutiny for months.75
Finally, Great Hill was aware that Plimus “engaged in sporadic large-scale purges
of vendors” as opposed to “continuous small scale terminations” that would have
been “consistent with proactive risk monitoring.”76 Therefore, based on Great Hill’s
own diligence findings, the Plaintiffs could not have justifiably relied upon alleged
representations that Plimus’s risk monitoring was “robust” or “proactive.”
b. The Plaintiffs Did Not Show Justifiable Reliance on False
Representations Made About Plimus’s History of Violations
In terms of a history of violations, Paymentech fined Plimus on many
occasions—almost all of the fines related to excessive chargebacks.77 Furthermore,
Plimus exceeded permitted chargeback ratios for PayPal Pro (discussed in detail in
Section I.B.4. infra) and was apprised before closing that PayPal would levy a fine
related to GoClickCash.78 When Plimus exceeded chargeback ratios, entered into
74

Id. The implications

of this were that “Plimus’s onboarding process allowed vendors—
including illegitimate vendors—to potentially transact business through Plimus for months before
discovery.”

Id. at *41.

Id. at *38.

76
Id.
77

Id. at *36.

Id. 16 excessive

chargeback programs, or otherwise violated card network rules and
regulations the applicable payment processor (such as Paymentech or PayPal) would
email Plimus.79 The emails “at least contained a description of the problem, and
sometimes included language copied and pasted from a notice the processor received
from the card networks.”80 The Plaintiffs noted that the emails were responsive to
diligence requests—the Plaintiffs received a response that no such communications
existed and these emails were not provided to Great Hill.81 Furthermore, Plimus
reported to Great Hill only $250,000 in fines for 2010, however, they did not report
fines Plimus paid in 2010 for MasterCard excessive chargebacks.82 The Plaintiffs
alleged that these actions were fraudulent.83
I termed the fines and communications on violations as “Plimus’s history of
violations” and found that the lack of disclosure regarding Plimus’s history of
violations constituted false representations.84 I found that Tal and Itshayek—but not
Goldman and Klahr—had knowledge of such false representations and intended that
Great Hill rely on them and consummate the transaction.85 However, I found that
79

Id. 80 Id.

In some cases, the emails included the whole notice.

Id. 81 Id.

at *36, *38. The responses from Plimus were in Plimus’s June 18, 2011 and June 25, 2011
responses to a Great Hill diligence request.

I did note that Tal and Itshayek shared information such as Plimus’s processor
statements and certain PayPal chargeback issues with Great Hill, “run[ning] counter to the
Plaintiffs’ theory that Tal and Itshayek were trying to create an illusion of a company in good
17
Great Hill did not justifiably rely on Tal and Itshayek’s false representations and
omissions about Plimus’s history of violations and could not “have reasonably
believed that Plimus was always a company in good standing with the card
associations, based on Tal and Itshayek’s false representations and omissions.”86
Furthermore, PwC’s diligence report and Great Hill’s own due diligence memo to
its partners showed that Great Hill was aware that Plimus exceeded chargeback
ratios throughout 2010 and in June 2011.87 Thus, communications to this effect
“would simply have confirmed Great Hill’s understanding.”88 Finally, I turned to
the non-disclosure of certain PayPal communications from 2011 and found that
based on Great Hill’s actual knowledge of Plimus’s extensive history with
chargebacks and a bargained-for indemnity for fines related to pre-closing
chargeback issues, there was “no justifiable reliance on false representations about
Plimus’s history of violations and compliance with card network rules.”89
standing.”

Id. at *39.

I found, however, that “despite Tal and Itshayek’s willingness to discuss
chargebacks with Great Hill, they withheld the actual notices that underlined those chargeback
issues, even when PwC sent a specific diligence request for such notices after its on-site visit.
Furthermore, the representation that Plimus had no such notices was reiterated with each update
to Plimus’s response to Great Hill’s due diligence request—responses that were reviewed or
drafted, in pertinent part, by Tal and Itshayek. This belies innocent mistake.” Id.
86

Id. at *39.

Id. 88 Id.

I also found that Great Hill did not demonstrate justifiable reliance on the “exact amount of
fines paid in 2010, the affirmatively false representation that documents explaining the fines and
violations did not exist, nor on Tal’s and Itshayek’s silence when the due diligence responses were
updated [on June 25, 2011] without correcting the original false representations” because “[a]ny
information provided to Great Hill in that regard would have been cumulative.”

Id. 89 Id.

at *40. I discuss Plimus’s relationship with PayPal extensively in Section I.B.4. infra.
18
c. Miscellaneous Fraud Allegations
After finding that the Plaintiffs did not prove fraud in relation to Plimus’s
history of violations or risk monitoring systems I discussed several miscellaneous
fraud allegations that did not fit into either of the four general categories of alleged
fraud. These “violations of practices” were allegedly not disclosed and “reflected
poor business quality or poor processor relationships.”90 I declined to find liability
on each and discuss each in turn.
The Plaintiffs alleged that Plimus engaged in mass refunds and volume
shifting to avoid excessive chargebacks and that this practice should have been
disclosed.91 Plimus would sometimes issue mass refunds to their vendor’s customers
so that they would not ask for chargebacks; this practice was an effort to decrease
the chargeback ratio.92 Volume shifting or “load balancing” was a practice whereby
Plimus would manually reroute transactions through certain payment processors in
an attempt to reduce the chargeback ratio—increasing the number of transactions
increased the denominator in the chargeback ratio, reducing the chargeback ratio.93
The evidence did not show that either practice violated card association rules at the
time.94 Therefore Plimus was not required to disclose the practices as rule violations,
90

Id. 91 Id.

Id. at *13

.
93

Id. at *23.

Id. at *40.

19
and the Plaintiffs did not point to any affirmative misrepresentations in regard to
mass refunds or volume shifting.95
The Plaintiffs complained about disclosures on IP infringement. I found that
Plimus was often sent inquiries about IP infringement, and Great Hill was aware
Plimus received such notifications on an ordinary basis and that they were common
in the industry.96      I found that the Plaintiffs failed to demonstrate any
misrepresentation with respect to IP infringement.97
The Plaintiffs also contended that the Fraud Defendants made representations
about the growth of Plimus, the visibility of financial performance, and the quality
of vendors.98 To the extent the statements were projections or expectations, I found
there was no reliance and that the Plaintiffs had not made any claims that the
projections were not made in good faith.99 Additionally, the Plaintiffs appeared to
contend that Plimus concealed or misrepresented the fact that many of its vendors’
businesses were of questionable validity.100 I found, however, that Great Hill knew
before the transaction that “the vast majority of Plimus’s vendors were ‘long tail’
vendors, and that there was frequent churn of these vendors.”101 Great Hill was well
95

Id. 96 Id.

97
Id.
98

Id. at *41.

Id. 100 Id.

Id. 20 aware

of Plimus’s business model which included the quality of the vendors, and
thus could not establish justifiable reliance on any misrepresentations that may have
been made regarding vendor quality.102
3. Fraud Claim for Dispute over Tal’s Earn Out Agreement with the
Founders
I discussed a separate fraud allegation relating to an earn-out agreement Tal
had with the Founders.103 The substance of the Plaintiffs’ allegation was that a
dispute existed between Tal and the Founders and the substance of the dispute was
not disclosed and that any partial disclosure of the dispute was materially
misleading.104 The details of this allegation are not pertinent to determining the
damages owed pursuant to the liability found in the Great Hill I, and it suffices to
say that I did not find any liability for the fraud claims in connection with the dispute
over the earn-out agreement.105
4. Fraud Claim for PayPal’s Notice of Violations and Threats to
Terminate
The final fraud allegations involved Plimus’s relationship with PayPal.106 The
allegations of fraud in connection with PayPal involved the failure to disclose and/or
102

Id. Along with

the three miscellaneous fraud allegations discussed above, I noted allegations
surrounding a PayPal Business Risk Assessment and Mitigation (“BRAM”) violation in
connection with GoClickCash. I discussed that allegation in greater depth in connection with the
other PayPal fraud allegations, which are summarized infra Section I.B.4.
103

Id. 104 Id.

Id. at *41–42.

Id. at *43.

21
the active concealment of: PayPal’s notice of violations and fines; Plimus’s efforts
to address chargebacks and other violations with PayPal; Plimus’s practice of
reactive vendor termination; and PayPal’s threats to terminate its relationship with
Plimus.107
I noted that I had already found that the Plaintiffs had not shown fraud as to
notices of chargebacks, the practices of load balancing and mass refunds, and
representations about business quality and risk management systems. 108              I
additionally found that there was no misrepresentation as to PayPal’s determination
that Plimus would be assessed a Business Risk Assessment and Mitigation
(“BRAM”) violation in connection with GoClickCash.109 A BRAM violation is
considered a severe violation.110 PayPal notified Plimus of the BRAM violation in
connection with GoClickCash on October 6, 2011.111           The Merger closed on
September 29, 2011.112 Thus, the allegation of a BRAM violation was not disclosed
to Great Hill pre-closing; it could not have been, because Tal and Itshayek (and the
other Fraud Defendants) were unaware, pre-closing, that PayPal considered the
GoClickCash violation to be a BRAM violation.113 Therefore, there could be no
107

Id. 108 Id.

109
Id.
110

Id. at *28.

111
Id.
112

Id. at *27.

Id. at *43.

22
fraud liability for failing to disclose that Plimus would be assessed a BRAM
violation in connection with GoClickCash.114
After finding no fraud liability based on the above allegations in connection
with PayPal, I moved onto the remaining allegations of fraud: the failure to disclose
that PayPal was fining Plimus related to GoClickCash and the failure to disclose that
PayPal was threatening to terminate its relationship with Plimus.115
Plimus had three separate PayPal accounts: PayPal Wallet,116 PayPal Israel,117
and PayPal Pro.118 At the end of the Paymentech relationship, PayPal Pro became
Plimus’s top processor by volume and its only United States-based processor.119 On
August 4, 2011 PayPal informed Plimus that Plimus had exceeded a one percent
chargeback for MasterCard for July 2011, the second consecutive month, and a week
later informed Plimus that if the chargeback ratio for MasterCard exceeded one
percent for a third month, PayPal might issue a 30-day termination notice and end
its relationship with Plimus.120 A Plimus employee wrote to Tal: “PayPal will issue
114

Id. 115 Id.

116
PayPal Wallet was an alternative payment method, under which consumers entrusted PayPal
with their financial information and PayPal then provided payment directly, so that the merchant
never saw the consumer’s financial information.

Id. at *22.

PayPal Wallet stored consumer’s
financial information, making transactions more convenient, and Plimus’s own PayPal Wallet
account allowed it to accept payments from consumers’ PayPal Wallet accounts.

Id. 117 Plimus’s

PayPal Israel account was a PayPal Wallet account, but for international, primarily
Israeli, transactions and was maintained separately from the PayPal Wallet account.

Id. 118 Plimus’s

PayPal Pro account was simply a payment processing account, largely
indistinguishable from the service provided by Plimus’s other payment processors.

Id. 119 Id.

Id. 23 a

30 day notice to potentially shut down Plimus’[s] ability to process on the [PayPal]
Pro account unless numbers improve.”121 On August 15, 2011 the same employee
detailed to PayPal Plimus’s efforts to reduce chargebacks including by mass refunds
and load balancing.122 PayPal continued to threaten termination and in mid-August
2011 explained to Plimus that the chargeback ratio for August would be
determinative.123 PayPal’s internal emails reflected calls with Plimus on August 19,
August 26, and September 1 threatening termination.124                  However, based on
experience with other payment processors, neither Tal nor Itshayek believed a third
month of excessive chargebacks would actually result in a thirty-day termination
letter.125
Plimus’s MasterCard chargeback ratio for PayPal Pro once again exceeded
one percent for August 2011.126 However, Plimus did not receive a thirty-day
termination notice in September and PayPal did not notify Plimus of any further
plans or threats to terminate any of Plimus’s PayPal accounts for the rest of the
month.127 Plimus and PayPal communicated through the month, for instance in late
121
Id.
122

Id. at *23.

Id. 124 Id.

Id. 126 Id.

Id. “Itshayek e-mailed

PayPal on September 9, 2011 to memorialize a call PayPal had with
Tal. In the e-mail, Itshayek summarized the events and chargeback ratios of the past few months,
and ended by telling PayPal, ‘we would highly appreciate receiving one additional month to prove
the actions taken by Plimus to reduce and control [the chargeback] ratio and general risk.’”

Id. 24 September

2011 PayPal reviewed a list of Plimus vendors and recommended that
certain vendor categories be “shut down if [Plimus] want[ed] to keep [their]
relationship with [PayPal].”128 I found that at the Merger close Tal and Itshayek did
not believe PayPal would terminate Plimus’s PayPal Pro account, and believed
Plimus’s chargeback ratio for MasterCard would not exceed one percent for
September.129 As of September 29, 2011 (the date of closing) an internal PayPal
email reflected than an official decision on whether to terminate PayPal had not yet
been reached.130
After a July 27, 2011 email from Itshayek where she wrote that Plimus did
not expect the July PayPal Pro chargeback ratios for Visa or MasterCard for July to
exceed one percent, Great Hill received no specific update on the Visa or MasterCard
chargeback ratios before the Merger closed.131 Great Hill did not ask for updates on
these specific ratios, but did track Plimus’s aggregate chargeback ratio, calculating
it from Plimus’s materials that Great Hill had been provided with.132 However, Great
Hill was aware that Plimus’s aggregate chargeback ratio in July continued to exceed
one percent, and in August and September 2011 Great Hill paid close attention to
128

Id. 129 Id.

Id. 131 Id.

at *24. I discussed Visa chargebacks in more depth in Great Hill I, but the MasterCard
chargeback ratio played a larger role in the PayPal saga because the chargeback ratio for Visa
through PayPal Pro did not exceed one percent in July or August 2011.

Id. at *22–23.

Id. at *24.

Great Hill did not have the detail necessary to calculate the chargeback ratios by
processor and region, which were the relevant chargeback ratios for PayPal Pro purposes.

Id. 25 the

transactions of new vendors.133 Tal and a Great Hill employee met in Israel in
September 2011, and I found it was most likely that Tal disclosed that Plimus and
PayPal were having some dispute, but did not disclose the extent of the issue or that
it involved explicit threats of termination.134
An initial merger agreement was dated August 3, 2011 (the “Initial Merger
Agreement”), but the Merger did not close until September 29, 2011.135 In the
interim, Klahr and SGE’s in-house counsel organized a “bring down call” with
Plimus management to determine if there had been any changes in the business that
would require the disclosure schedule, which had accompanied the Initial Merger
Agreement, to be amended.136 While Tal did not participate in the call, Tal and
Itshayek identified three business issues responsive to the list of questions: (1) the
potential fine related to GoClickCash, (2) PayPal’s termination threats, and (3) a
recent request from PayPal for information on vendor Home Wealth Solutions,
whose Visa chargeback ratio was 1.65%.137 Tal and Itshayek determined that
Itshayek (who participated in the call) should only bring up the request for
information on Home Wealth Solutions (which is what occurred)—they reasoned
that they should not bring up the GoClickCash fine or the termination threats because
133

*25.
26
Plimus had not yet received formal notice from PayPal for either and Tal told
Itshayek he would bring up both issues personally with Great Hill prior to closing.138
On September 22, 2011 PayPal informed Itshayek that a $200,000 fine would
be imposed for GoClickCash and Itshayek shared this information with Tal.139 Tal
and Itshayek did not raise the PayPal Pro excessive chargebacks, the GoClickCash
fine, or PayPal’s threats of termination to the Plimus Board of Directors—thus,
Goldman, Klahr, Herzog, and Kleinberg were unaware that Plimus had threatened
termination of Plimus’s PayPal account or of the GoClickCash fine or that Plimus
recently exceeded a one percent chargeback ratio for several months.140
Additionally, the supplemental disclosure to the Merger Agreement included a
disclosure on Home Wealth Solutions but no disclosure of the GoClickCash fine or
the threatened PayPal termination.141
The Merger closed on September 29, 2011.142 On October 6, 2011, PayPal
told Plimus that the fine related to GoClickCash was a BRAM violation.143 While
Plimus’s PayPal Pro chargeback ratio in September 2011 did not exceed one percent,
on October 7, 2011 PayPal sent Plimus a notice of termination, ending its
138

Id. at *25.

Id. 140 Id.

141
Id.
142

Id. at *27.

Id. at *28.

27
relationship with Plimus.144 PayPal terminated all of Plimus’s PayPal accounts—
PayPal Pro, PayPal Wallet, and PayPal Israel—between November and December
2011.145
I found that the non-disclosure of PayPal’s termination threats and the
GoClickCash fine constituted false representations because they ran counter to
representations of the Fraud Defendants that Plimus was in compliance with card
network rules and that no suppliers had threatened termination.146 However, of the
Fraud Defendants I found that only Tal knew of the false representations.147
Goldman and Klahr were not informed of the issues and were not recklessly
indifferent as evidenced by the scheduled “bring down” call.148 Moreover, while
Itshayek knew of the issues, given Tal’s assurance he would bring up the
GoClickCash fine and the termination threats to Great Hill personally, Itshayek had
no reason to believe that the facts would be withheld from Great Hill.149 Tal intended
Great Hill to rely on the false representations in order to induce Great Hill to proceed
with the Merger because he recognized that Plimus’s problems with PayPal could
have a negative effect on the Merger.150
144

Id. 145 Id.

at *29.
146

I found that Great Hill justifiably relied on Tal’s false
representations.151 In contrast to Paymentech, where I found that certain immaterial
details were not disclosed, I found that the possibility of losing a second major
processor in a matter of few months to be material to a prospective buyer. 152 In
contrast to the situation with Paymentech, Plimus was not ambivalent to the PayPal
relationship and the loss of PayPal would mean a major disruption to Plimus’s
business.153 The reliance was reasonable because Great Hill had completed due
diligence before any PayPal termination threats and in the period between the Initial
Merger Agreement and closing Great Hill could rely on Tal to raise issues that
required attention and Plimus was contractually bound to disclose this
information.154
My findings were sufficient to find liability against Tal for fraud/fraudulent
inducement.155 In other words, with respect to the multiple allegations of fraud made
by the Plaintiffs against multiple Defendants, I found for the Defendants; the only
151

Id. 152 Id.

Id. 154 Id.

Id. at *45.

Furthermore, I found the other Fraud Defendants not liable for aiding and abetting
because they did not show reckless indifference to the PayPal termination threats, and found no
civil conspiracy because I did not find aiding and abetting.

Id. It is

worth noting, perhaps, that
Tal testified—I believe truthfully—that he did not believe that PayPal would act on its threats to
terminate. See

Id. at *23.

Nonetheless, Tal was aware of the threats and fraudulently concealed
them from Great Hill.
29
exception being the allegations against Tal with respect to PayPal (including the
threat of PayPal to terminate and the GoClickCash fine).
C. Indemnification Claims
In addition to their fraud claims, the Plaintiffs alleged that four representations
and warranties in the Merger Agreement (a contract) were breached. The claims
were brought against the Indemnification Defendants, who were required to
indemnify the purchasers for certain breaches of the Merger Agreement.156
Indemnification claims were not brought against Goldman and Klahr because they
were not stockholders of Plimus.157
The selling stockholders of Plimus, here the Indemnification Defendants, are
known in the Merger Agreement as Effective Time Holders (“ETHs”).158 Section
10.03 of the Merger Agreement provided a limitation on indemnification liability of
ETHs for breaches of representations and warranties in the Merger Agreement up to
the “Escrow Amount.”159 The Escrow Amount—$9.2 million—was funded by
withholding a pro rata share of each ETH’s Merger consideration, and was to be held
for the “Escrow Period” (twelve months after closing) or until any prior claims were
finally adjudicated.160 Breaches of representations and warranties were to be paid
156

Id. at *46,

*48.
157

Id. at *46.

158
Id.
159

Id. at *27.

Id. 30 from

the escrow fund regardless of any fault on the part of an individual ETH and
regardless of pre-contractual notice of the falsity of the representations on the part
of Great Hill.161 In the case of a breach, the Plaintiffs can seek indemnification but
their right to recover is limited to indemnification under the Merger Agreement from
the Escrow Amount.162 In other words, restitution for breaches of representations
and warranties is capped at $9.2 million.163
The Plaintiffs alleged breaches of the Merger Agreement representations and
warranties on: (1) material liabilities or obligations, (2) compliance with contracts,
(3) compliance with card system rules, and (4) relationships with suppliers. I found
there was no breach of the representation on material liabilities and obligations,164
and found that a breach of the representations concerning compliance with
contracts165 was duplicative of the representations concerning supplier relationships
and compliance with card system rules, both of which I found were breached.166
1. Representation on Compliance with Card System Rules
The Plaintiffs alleged a breach of Section 3.23 of the Merger Agreement,
which contains the following representation:
The Company . . . is and has been in compliance with the bylaws and
operating rules of any Card System(s), the Payment Card Industry
161

Id. at *49.

Id. at *50.

Id. at *51.

164
In Section 3.09 of the Merger Agreement.
165
In Section 3.16 of the Merger Agreement.
166
Great Hill,

2018 WL 6311829

, at *46–47.
31
Standard (including the Payment Card Industry Data Security
Standard), the operating rules of the National Automated Clearing
House Association, the applicable regulations of the credit card
industry and its member banks regarding the collection, storage,
processing, and disposal of credit card data, and any other industry or
association rules applicable to the Company . . . in connection with their
respective operations.167
Specifically the Plaintiffs pointed to the numerous violation notices that Plimus
received from Paymentech and PayPal as a breach of the representation that Plimus
“is and has been in compliance with the bylaws and operating rules of any Card
System(s).”168
The Indemnification Defendants conceded a breach of this representation with
respect to three fines from PayPal for pre-closing transactions: excessive
chargebacks in July, excessive chargebacks in August, and the fine related to
GoClickCash.169 The Plaintiffs did not show any additional fines or violations with
regard to PayPal.170 The Plaintiffs also identified Plimus’s failure to disclose
violations with connection with Paymentech—I found that the Indemnification
Defendants breached the representation with respect to Paymentech given, among
other things, its excessive chargeback issues in 2011.171
167
JX 796, at 47–48.
168
JX 796, at 47.
169
Great Hill,

2018 WL 6311829

, at *47.
170

Id. 171 Id.

32
2. Representation on Relationships with Suppliers
The Plaintiffs alleged that the Indemnification Defendants breached the
representation in Section 3.26(b) of the Merger Agreement, which reads:
There are no suppliers of products or services . . . that are material to
[the Company’s] business with respect to which alternative sources of
supply are not general available on comparable terms and conditions in
the marketplace. No supplier of products or services to the Company .
. . had notified the Company . . . that it intends to terminate its business
relationship with the Company . . . .172
The Plaintiffs pointed to the non-disclosure of the threatened PayPal termination as
a notification of an intent to terminate a business relationship. 173 Although a
termination decision was not made prior to closing, I found that the language did not
require a notice of termination, only notification of an intent to terminate.174 Because
PayPal representatives expressed such an intent to terminate in emails and calls to
Plimus in August and September 2011, I found the Section 3.26(b) of the Merger
Agreement was breached.175
D. Summary of Liability
In summary, out of four categories of fraud claims against the Fraud
Defendants (Tal, Itshayek, Goldman, and Klahr), Great Hill I found that only Tal
had liability for fraud/fraudulent inducement and only for PayPal’s threats to
172
JX 796, at 68 (emphasis added).
173
Great Hill,

2018 WL 6311829

, at *47.
174

Id. 175 Id.

33
terminate and the non-disclosure of the GoClickCash fine. I did not find fraud
liability in connection with the Paymentech termination, Plimus’s history of
violations and risk monitoring systems, or Tal’s earn out agreement with the
Founders. Furthermore, out of four alleged breaches of the Merger Agreement, I
found that the Indemnification Defendants had indemnification liability for two
representations: compliance with card system rules176 and relationships with
suppliers.177 Tal’s fraud liability is uncapped while the breaches of the Merger
Agreement entitled to the Plaintiffs to restitution from the Indemnification
Defendants in an amount capped by the funds in escrow ($9.2 million).
E. Plimus’s Post-Merger Actions
Because the Plaintiffs’ calculation of damages is based in part on Plimus’s
actions post-Merger, before moving on to the proffered damages it is helpful to
recount happenings at Plimus post-Merger.
After PayPal terminated its business relationship with Plimus, it placed Plimus
on the MasterCard Alert to Control High-Risk Merchant (“MATCH”) list.178 Plimus
176
In Section 3.23 of the Merger Agreement.
177
In Section 3.26(b) of the Merger Agreement.
178
Great Hill,

2018 WL 6311829

, at *30. The MATCH list serves as a system to alert processors
to problematic merchants, and when processors terminate merchants, they often place them on the
list.

Id. at *8.

When, in turn, processors add merchants, MasterCard recommends that the
processor check the MATCH list; if the merchant appears on the MATCH list that is a red flag that
the merchant may present a high risk.

Id. Processors generally

conduct more detailed review of a
merchant as a result of finding it on the list, however, appearing on the MATCH list does not
preclude a merchant from being added by a processor.

Id. 34 entered

into an agreement with a different payment processor, Merchant e-Solutions,
and began processing transactions by November 13, 2011, but was terminated by
Merchant e-Solutions on January 5, 2012.179 Merchant e-Solutions similarly added
Plimus to the MATCH list under the reason code “Violation of MasterCard
Standards.”180
Great Hill noted in an annual report for the year ending on December 31, 2011
that “Plimus was the only portfolio company to experience decline in valuation, as
the company removed a number of high-risk clients from its payments platform,
resulting in a negative short-term impact.”181 Great Hill wrote that Plimus had been
terminated by PayPal and Merchant e-Solutions “related to MasterCard violations
by certain Plimus clients” and that Plimus took “several corrective actions, including
the immediate removal of a number of high-risk customers (which account for
approximately 10% of volume),” which meant that Plimus fell short of its processing
volume expectations.182
A business summary of Plimus’s performance in the fourth quarter of 2011
noted several corrective actions in the wake of the processor terminations.183 This
included a January 2012 purge of approximately 500 vendors in “higher-risk
179

Id. at *30.

Id. 181 Id.

Id. 183 Id.

35
merchant categories (auction/bid, forex software, media download, and virtual
currency)”; Plimus also stopped accepting new merchants in these categories.184
Great Hill also noted that Plimus changed its onboarding process, adding more
review before new vendors could begin processing transactions.185 Great Hill wrote:
“the impact of these events and the decision to remove the higher-risk customers
resulted in a decline in processing volume in December [2011] versus expectations,
and we anticipate lower volumes into 2012.”186 Summarizing Plimus’s business
from the first quarter of 2012, Great Hill noted that Plimus’s “key processing
relationships appear to be stabilized.”187
Tal was fired as CEO of Plimus in August 2012.188 Great Hill invested $20
million in Plimus during 2012 and 2013 and Plimus received an additional $28
million of funding in 2014, of which $15 million came from outside investor
Parthenon Capital Partners.189 In 2014 Plimus largely abandoned the reseller model
and instead began operating as a payment facilitator, a model processors and
acquiring banks preferred because it mandated much greater transparency on the
identity of Plimus’s vendors.190
184

Id. 185 Id.

Id. 187 Id.

188
Id.
189

Id. at *31.

Id. 36 II.

GREAT HILL’S DAMAGES VALUATION
Great Hill has submitted that it has suffered damages as follows: $90,313,817
(the difference between the $115 million purchase price and the value of Plimus as
of the Merger date, as Great Hill now calculates it) plus $31,500,000 (additional
investments Great Hill made in Plimus after the Merger) plus $212,259 (from pre-
closing fines).191 Thus, the Plaintiffs’ total proffered damages are $122,026,076.
The Plaintiffs derive their damages estimate from the Corrected Expert Report of
Kevin F. Dages (the “Dages Report”).192 The Plaintiffs engaged Dages to “review
the record evidence and opine on the damages incurred by Great Hill as a result of
the alleged breaches by Defendants and resulting diminution in the fair value of
Great Hill’s equity investment in Plimus.”193 Dages identified the harm to the
Plaintiffs as stemming from the loss of Plimus’s key payment processors and the
harm to Plimus’s business and reputation from the pre-Merger violations of credit
card association rules.194
A. Difference in Merger Price vs. Estimated Value of Plimus
The bulk of the Dages Report focuses on calculating the “reduction in fair
value of Plimus” attributable to the Defendants’ actions—approximately $90 million
191
Pls.’ Opening Pre-Trial Br. on Damages, D.I. 650 (“Pls.’ Opening Br.”), at 36–37.
192
JX 1132.
193

Id. ¶ 6

(emphasis added). As discussed below, the Dages Report was submitted into evidence
at the liability phase of this action and was not updated subsequent to Great Hill I.
194

Id. ¶ 7.

37
per the Dages Report. This represents the difference between the value of Plimus as
represented ($115 million) and the value of Plimus that Great Hill actually purchased
(calculated as $24,686,183).195
The Dages Report begins its estimate of Plimus’s “fair value” by selecting a
valuation metric. The Dages Report notes that “Great Hill justified the $115 million
acquisition price to its Investment Committee based on multiples of 2011 actual Q2
run rate EBITDA and 2011 estimated Q4 and yearly EBITDA . . . .” 196 Dages also
opines that the record suggests that there was “no significant new information
regarding Plimus’s prospects disclosed to Great Hill” between the development of
Great Hill’s projections and the close of the Merger.197 Therefore, Dages deems it
“appropriate” to estimate Great Hill’s damages by referring to the “same
methodology” that Great Hill used in determining the price Great Hill paid to acquire
Plimus.198 Dages ultimately uses the 2011 Q4 EBITDA multiple of 10.1x—the
multiple upon which Dages states that Great Hill based its valuation.199 Thus, Dages
195

Id. ¶ 59.

Id. ¶ 40.

Dages notes that the estimates (of 2011 Q4 and yearly EBITDA) were based on Great
Hill’s “Base Case Projections,” which reflected Great Hill’s adjustments to Plimus’s management
projections; the Based Case Projections were adjusted “to be conservative and to reflect what
[Great Hill] had learned during due diligence about vendor terminations (including those imposed
by Plimus as well as through normal customer churn) and gains of new customer accounts . . . .”

Id. ¶ 28.

Id. ¶ 42.

Id. ¶¶ 40,

42.
199

Id. ¶¶ 41,

57.
38
valuation of Plimus of $24,686,183 is 10.1 times Dages’s calculated 2011 Q4
EBITDA.
Dages begins his calculation of 2011 Q4 EBITDA with Plimus’s actual 2011
Q4 EBITDA. This contrasts with Great Hill’s projected 2011 Q4 EBITDA. Great
Hill’s projected 2011 Q4 EBITDA for Plimus was $11,413,400 and Plimus’s actual
2011 Q4 EBITDA was $5,075,307.200                        $11,413,400 times 10.1 equals
$115,000,000—the Merger price. $5,075,307 times 10.1 equals $51,260,596.201
However, the delta between these numbers—$63,739,404— is not Dages’s
calculation of the difference between the fair value of Plimus and the Merger
price.202 Instead, Dages adjusts Plimus’s actual Q4 2011 EBITDA to reflect what
he views as the full extent of the harm.
Dages’s adjustment to Plimus’s actual Q4 2011 EBITDA represents the
elimination of revenues from “transactions attributable to the lost volume due to
Plimus’s decision to terminate the relationship of customers with chargebacks in
excess of levels allowed by the payment processors or other risk concerns.”203 The
200

Id. at Ex.

4.
201

Id. 202 Id.

Id. ¶ 43.

Dages identifies these terminations as “Plimus terminations” in contrast to “customer
terminations” which Dages defines as “terminations made at the option of the customer due to
Plimus’s loss of key payment processors.”

Id. Dages calculates

“customer terminations” to
include those customers who terminated their relationship with Plimus (rather than being
terminated by Plimus) however, these vendors (added to the Plimus terminations resulting in an
amount coined “Tranche 3” in the Dages Report) are not ultimately included in the damages
calculation.

Id. ¶ 59.

39
Plaintiffs explain that Dages made these adjustments to Plimus’s actual Q4 2011
EBITDA because “the full effects of the fraud were not felt until 2012 and beyond .
. . [t]hat is, the actual [Q4 2011] EBITDA results still included the benefit of profits
from clients that were shortly were lost or terminated as the fallout from the fraud
continued . . . .”204
Dages obtained monthly financial sales volume data from January 2010
through December 2012 from a database that collects data maintained in Plimus’s
“Huge Excel” files.205 The “Huge Excels” are a series of Excel workbooks which
were used at that time to compile merchant information as part of Plimus’s business
records.206 The Plaintiffs also produced to Dages a “list of clients that ceased doing
business with Plimus between the closing of the Merger and September 27, 2012”
(the “Lost Client List”).207 Dages notes that the Lost Client List, on which he based
the Dages Report, included, for those client accounts suspended by Plimus, “the date
of suspension and the reason for suspension.”208
204
Pls.’ Opening Br., at 34. The Plaintiffs also note that Plimus suffered decreased revenue from
“clients that greatly reduced the amount of business they were sending Plimus.”

Id. 205 JX

1132, ¶ 44.
206
Trial Tr. 2679:4–2679:10 (LaPierre).
207
JX 1132, ¶ 45. There are three versions of the Lost Client List in the record: JX 1110, JX 1128,
and JX 2077. The Plaintiffs note that had the Dages Report been based on the Lost Client List
presented at trial (JX 2077) the ultimate damages number increases approximately $1.6 million.
Pls.’ Opening Br., at 37 n.14. The Defendants objected to the Lost Client List (and “any purported
expert opinions that rely on it”) via a motion in limine. Defs.’ Mot. In Limine to Exclude Pls.’ So-
Called “Lost Client List” and any Purported Expert Opinions that Rely on It, D.I. 518. Due to my
findings below, I need not decide the motion.
208
JX 1132, ¶ 45.
40
Dages identifies two “tranches” of customers based on the Lost Client List
and removes those customers’ corresponding revenue from actual Q4 2011
EBITDA. The first tranche (“Tranche One”) is composed of 302 customers with a
“Last Suspend Date” (meaning the last date the Lost Client List comments note a
suspension) of January 12, 2012 and who all have the comment “SUSPEND: per
Perach and Irit.”209 Dages surmises that these 302 customers are some of the
approximately 500 customers terminated in the January 2012 purge.210 Because
Tranche One “may not reflect all customers terminated by pre-Merger Plimus
management in January 2012, and does not reflect any customers terminated after
early January 2012,” Dages created a second tranche (“Tranche Two”).211 Tranche
Two “adds to Tranche One the 1,557 remaining clients on the Lost Client List with
a Last Suspend Date between the Merger close October 1, 2011 and June 30, 2012
(i.e. before Mr. Tal’s firing in August 2012).”212 Dages notes that Tranche Two is
cumulative, in that it includes Tranche One.213 In short, Dages backed out from
Plimus’s actual Q4 2011 EBITDA the corresponding revenue from any client who
was terminated by Plimus between a few days after the close of the Merger and June
209

Id. ¶ 46.

Dages notes that Irit is Irit Itshayek and Perach Raccah “was Plimus’s Chief Operating
Officer” in 2011.

Id. 210 Id.

Id. 212 Id.

I note as discussed above, the actual date of the Merger close was September 29, 2011.
213

Id. Dages adjusted

the Tranches in order to account for Plimus’s normal churn of customers so
that he only removed the revenue that exceeded Plimus’s normal customer loss.

Id. ¶¶ 48,

57.
41
30, 2012 (i.e. Tranche Two).214 Dages states that adjusting actual 2011 Q4 EBITDA
by backing out only these customers represents a “conservative estimate of the harm
incurred by Great Hill.”215
Dages adjusted the actual Q4 2011 EBITDA to account for the loss of revenue
of vendors in Tranche Two,216 and calculates the adjusted amount as $2,450,013.217
This is a decrease from actual Q4 2011 EBITDA of $5,075,307.218 Thus, in Dages’s
estimate, once accounting for all clients terminated by Plimus from October 1, 2011
through June 30, 2012, Plimus’s 2011 Q4 EBITDA would have been $2,450,013.219
Applying the 10.1x multiple, this results in a valuation of Plimus of $24,686,183.220
The delta between $24,686,183 and $115,000,000 is $90,313,817. In Dages view,
the difference between what Great Hill paid for Plimus and what Plimus was actually
worth (based on Q4 2011 EBITDA) was $90,313,817.221
214
In deriving EBITDA from revenue, Dages “assume[s] that the operating expenses that Plimus
would have incurred upon removing the lost customers is equal to the actual operating expenses
incurred” because “the record evidence indicates that Plimus’s operating expenses were relatively
fixed in the short-term (and Plimus did not benefit from reduced operating expenses as revenue
declined in 2012).”

Id. ¶ 49.

I note that customers who were added after Q4 2011 are not backed
out because there is no corresponding revenue in Q4 2011.
215

Id. ¶ 57.

216
As noted, Tranche Two is cumulative of Tranche One and Tranche Two.
217
JX 1132, Ex. 4.
218

Id. The adjustments

drop the corresponding total volume from $246,559,738 to $199,348,943.

Id. 219 Id.

Id. 221 Id.

Dages performs several sensitivity analyses and confirms that they result in damages within
the range of his primary damages analysis (which employs only multiples (based on Q4 and full
year 2011 EBITDA) and Tranches).

Id. ¶ 57.

42
B. Additional Investments and Fines
Dages notes that “in order to fund operations and rebuild the customer base to
recover from the 2012 customer terminations,” Great Hill invested $31.5 million in
additional equity between September 2012 and December 2014.222 Dages states that
“to the extent that the Court determines that some or all of these investment amounts
should be considered to be damages, they are incremental” to the approximately
$90.3 million described above.223 Finally, Dages notes $612,258.74 in undisclosed
pre-closing fines—the Dages Report was submitted before Great Hill I, and the
Plaintiffs have submitted only $212,259 in pre-closing fines at this damages phase,
consistent with the limited liability findings in that decision.224
III. ANALYSIS
Great Hill seeks monetary damages. Resulting damages are an element of the
tort and contract claims,225 and Great Hill must prove its damages by a
preponderance of the evidence.226 Below I discuss damages for the fraud and
indemnification liability identified in Great Hill I.
222

Id. ¶ 58.

Id. 224 Id.;

Pls.’ Opening Br., at 37, 50.
225
See York Lingings v. Roach,

1999 WL 608850

, at *3 (Del. Ch. July 28, 1999) (listing damages
as an element of fraud); see also VLIW Tech., LLC v. Hewlett-Packard Co.,

840 A.2d 606

, 612
(Del. 2003) (noting “resultant damage to the plaintiff” as an element of breach of contract).
226
Beard Research, Inc. v. Kates,

8 A.3d 573

, 613 (Del. Ch. 2010), aff’d sub nom. ASDI, Inc. v.
Beard Research, Inc.,

11 A.3d 749

(Del. 2010).
43
As the analysis above makes clear, Dages’ damage analysis, on which Great
Hill relies, made the assumption that Great Hill would prevail on its extensive
allegations of misrepresentation and fraud. As a weary perusal of the background
section of this Memorandum Opinion should also demonstrate, the bulk of those
wide-ranging allegation were unproved and cannot support damages. The Plaintiffs,
however, were content, to rely on the factual evidence at trial together with the Dages
Report and testimony to demonstrate damages.227 It falls to me, therefore, to
determine what portion of the damages alleged are reasonably demonstrated to have
227
At the post-trial damages Oral Argument the following exchange occurred with Tal’s counsel:
“The Court: Before you begin, let me ask you what your understanding was -- and maybe mine
was wrong -- but I had thought we were going to have additional evidentiary presentations after
the trial on damages that would focus damages on the results of the post-trial opinion. Obviously,
the parties agreed to a briefing schedule, and I assume everyone is content with the record as it is.
But was that -- was your understanding that we were -- that the record was and is limited to what
was presented at trial? Mr. Coran: Yes, Your Honor.” Post-Trial Damages Oral Argument, D.I.
677, at 53:12–53:22. Plaintiffs’ counsel later remarked: “I think, starting first with Your Honor’s
question about additional evidence, I think the plaintiffs didn’t think additional evidence was
necessary, precisely because the Court found there was fraud regarding PayPal. There certainly
was a variety or -- I shouldn’t even say that. There were several fraud claims presented at trial,
but they all built to the PayPal fraud. The PayPal fraud was always the main issue. It’s also where
we tracked the damages from. And when that was the fraud that was found, we thought we could
move forward on that basis. If Your Honor thinks that more specific evidence or additional
evidence would be helpful in quantifying that, plaintiffs are certainly willing to do that. But it was
precisely because the fraud that was found here that we thought we could move forward with the
expert report that we had. And I think on – there’s a number of reasons on that. Your Honor’s
opinion in the liability opinion found, quote, ‘the possibility of losing a second major processor in
a matter of [a] few months to be material to a prospective buyer.’ Right. ‘Furthermore, unlike with
Paymentech, Plimus was not ambivalent to the PayPal relationship, and the loss of PayPal would
mean a major disruption to Plimus’s business. And Tal knew that the grounds raised by PayPal -
excessive chargebacks - were an ongoing problem for Plimus.’ So, again, that’s sort of where we
focus our damages analysis on, and that’s why we proceeded on this basis.”

Id. at 103:1–104:8.

At the end of the post-trial damages Oral Argument, I noted: “I appreciate the offer from Mr. Burns
to supplement the record if I feel I need to, but I think there’s been an election here from both sides
to rely on the record developed at trial. I’m going to do that going forward.”

Id. at 114:20–114:24.

44
occurred as a result of the actions for which the Defendants are liable, based on this
record.
A. Great Hill is Only Entitled to Damages Resulting from PayPal’s
Termination Threats and the PayPal and Paymentech Fines
As recounted in detail above, Tal was found liable for fraud in Great Hill I for
the non-disclosure of the PayPal termination threats and the GoClickCash fine. The
Indemnification Defendants were found to have indemnification obligations for the
breach of the representation on compliance with card system rules in connection
with the GoClickCash fine, the other PayPal fines, and the Paymentech fines; the
Indemnification Defendants were also found to have indemnification obligations for
the breach of the representation on relationships with suppliers in connection with
the PayPal termination threats. Significant overlap exists between the tortious and
extra-contractual conduct, falling into two buckets: PayPal termination threats and
fines. I discuss each in turn.
1. Fines
a. PayPal Excessive Chargeback Fines for July and August
2011
The Indemnification Defendants were found to have indemnification
obligations for breaches of Section 3.23 of the Merger Agreement in connection with
45
PayPal’s fines for excessive chargebacks in July and August of 2011.228 All of the
Indemnification Defendants have conceded damages of $12,255.74 for these two
fines.229 The Plaintiffs have not disputed the amount of such fines.230 Consequently,
I find that the damages resulting from the fines assessed by PayPal for excessive
chargebacks in July and August of 2011 are $12,255.74 to be paid from the escrow
funds.
b. PayPal Fine for GoClickCash
The Indemnification Defendants were likewise found to have indemnification
obligations for a breach of Section 3.23 of the Merger Agreement in connection with
PayPal’s $200,000 fine related to GoClickCash.231 Tal was found liable for fraud
for the non-disclosure of the same $200,000 fine.232 Tal concedes $200,000 in fraud
damages for the GoClickCash fine.233
228
Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP,

2018 WL 6311829

, at
*47 (Del. Ch. Dec. 3, 2018).
229
Def. Hagai Tal’s Answering Br. on Damages, D.I. 653 (“Tal’s Answ. Br.”), at 53; Defs. Tomer
Herzog and Daniel Kleinberg’s Answering Br. on Damages, D.I. 652 (“Founders’ Answ. Br.”), at
5; Answering Damages Br. of the Charity Defs., the SIG Entity Defs., and Irit Segal Itshayek, D.I.
654 (“Charity Defs., SIG Entity Defs., and Itshayek’s Answ. Br.”), at 9–10.
230
Pls.’ Reply Br. on Damages, D.I. 622 (“Pls.’ Reply Br.”), at 48 n.33. I note that the Plaintiffs
allege $212,259 in pre-closing fine damages, which is a $3.26 difference from the sum of the
$12,255.74 in chargeback fines conceded by the Indemnification Defendants and the $200,000
GoClickCash fine—I consider the $3.26 difference immaterial and award the amount conceded by
the Indemnification Defendants because it is not disputed by the Plaintiffs.
231
Great Hill,

2018 WL 6311829

, at *47.
232

Id. at *43–45.

233
Tal’s Answ. Br., at 53.
46
The other Indemnification Defendants do not dispute the amount of the fine.
They point out, however, that their obligations for payment are subject to a $500,000
deductible amount under the Merger Agreement. Whether liability exceeds the
deductible will turn, in part, on indemnification obligations for the Plaintiffs’
attorney fees,234 an issue that I will address in a subsequent order (for reasons
addressed infra). Therefore, I reserve decision, and will not address the deductible
further in this Memorandum Opinion.
c. Paymentech Fines
Great Hill I also identified a breach of Section 3.23 of the Merger Agreement
in connection with the non-disclosure of violations in connection with Paymentech,
which the Indemnification Defendants are required to indemnify.235 However, I
234
Section 10.03(a) of the Merger Agreement provides, in pertinent part: “(i) the Effective Time
Holders will not have any obligation under Section 10.02(a)(i) (other than with respect to the Fully
Indemnified Representations), unless and until the aggregate amount of all Losses for which the
Effective Time Holders are obligated thereunder exceeds $500,000 (the “Deductible”), and then
only for the amount of such Losses in excess of the Deductible, subject to the other terms of this
Article 10 . . . .” JX 796, at 71. Section 10.02(a)(i) of the Merger Agreement concerns “Losses .
. . as a result of, in connection with or relating to . . . any breach by the Company of any
representation or warranty of the Company set forth herein, in any Disclosure Schedule or in the
company Closing Certificate.” JX 796, at 69. “Losses” is defined as “any actual loss, liability,
damage, obligation, cost, deficiency, Tax, penalty, fine or expense, where or not arising out of
third party claims (including interest, penalties, reasonable legal fees and expenses, court costs and
all amounts paid in investigation, defense or settlement of any of the foregoing) . . . .” JX 796, at
69. All parties concede that the July and August 2011 chargeback fines are not subject to the
deductible because they fall under Section 10.02(a)(iii). See Tal’s Answ. Br., at 53; Founders’
Answ. Br., at 5; Charity Defs., SIG Entity Defs., and Itshayek’s Answ. Br., at 9–10; Pls.’ Reply
Br., at 48 n.33. Section 10.02(a)(iii) of the Merger Agreement covers “fines, penalties, or similar
assessments imposed against the Company or any of its Subsidiaries for violating applicable credit
card association policies, procedures, guidelines or rules with respect to excessive chargebacks or
similar recurring payments . . . .” JX 796, at 69.
235
Great Hill,

2018 WL 6311829

, at *47.
47
noted in Great Hill I that any fines related to the Paymentech violations were paid
before closing and the Paymentech relationship ended before the bidding process
was even complete, and remarked that “the Plaintiffs, will, perhaps, have difficulty
showing any damages with respect to the Paymentech violations.”236 The Plaintiffs
have given me no reason to deviate from this preconception; they have offered no
damages tied to the non-disclosure of the pre-closing Paymentech fines—the
Plaintiffs ask for damages for “pre-closing fines” in an amount equal to the PayPal
July and August 2011 chargeback fines and the GoClickCash fine.237 Therefore, the
Plaintiffs are awarded no damages in connection with the non-disclosure of the
Paymentech fines.
d. Summary of Fine Liability
In summary, the Indemnification Defendants must pay damages of
$12,255.74 for the July and August 2011 chargeback fines from PayPal. Tal must
pay $200,000 in fraud damages for the PayPal GoClickCash fine. No damages are
awarded in connection with the Paymentech fines. I reserve decision on whether the
Indemnification Defendants may avoid indemnification for the $200,000
GoClickCash fine under the deductible provision in the Merger Agreement.
236

Id. 237 Pls.’

Opening Br., at 37; see note 230, supra.
48
2. Non-Disclosure of PayPal’s Termination Threats
Other than fine-related damages, the only remaining damages to be considered
are those in connection with the failure to disclose PayPal’s termination threats. The
liability for this non-disclosure stems from fraud—in the case of Tal—and
indemnification for breach of contract238—in the case of the Indemnification
Defendants. While the source of liability is different—tort vs. contract—the
damages to the Plaintiffs arising from the liability are identical. Therefore, I consider
together the conduct underlying the breach of contract and fraud connected to the
non-disclosure of PayPal’s termination threats.
The germane question is as follows: what harm did Great Hill suffer as a
consequence of not being told of PayPal’s threats to terminate its relationship with
Plimus, in light of PayPal’s actual termination, immediately post-Merger? Contract
law conceives of damages based on “the reasonable expectations of the parties ex
ante.”239 Expectation damages are “measured by the amount of money that would
put [Great Hill] in the same position as if [Plimus] had performed the contract” and
“require[s] the [Indemnification Defendants] to compensate [Great Hill] for [Great
Hill’s] reasonable expectation of the value of the breached contact, and, hence what
238
Specifically Section 3.26(b) of the Merger Agreement; I found that this Section was breached
because PayPal had communicated an “intent” to terminate its relationship. Great Hill,

2018 WL 6311829

, at *47.
239
Siga Techs., Inc. v. PharmAthene, Inc.,

132 A.3d 1108

, 1130 (Del. 2015) (quoting Duncan v.
Theratx, Inc.,

775 A.2d 1019

, 1022 (Del. 2001)).
49
[Great Hill] lost.”240          As for fraud, “[t]he recipient of a fraudulent
misrepresentation241 is entitled to recover as damages . . . the pecuniary loss to him
of which the misrepresentation is a legal cause . . . .”242 Both contract and tort law
thus conceive of damages as the pecuniary consequences of the breach or tort. This
requires an identification of the conduct for which a defendant is liable and an
isolation of the harm occurring therefrom. Here, I must separate the non-disclosure
of PayPal’s termination threats—and the harm occurring therefrom—from all other
fraud and breach allegations. Only then can I turn to the quantum of damages. Those
damages, in turn, must represent the difference between what the Plaintiffs
expected—Plimus with PayPal as a processor—and what they got—Plimus sans
PayPal.
Great Hill I spoke to the consequences of the non-disclosure of PayPal’s
termination threats in the context of the materiality of Tal’s fraud: “the possibility of
losing a second major processor in a matter of few months [was] material to a
prospective buyer . . . and the loss of PayPal would mean a major disruption to
Plimus’s business.”243 The repercussions were stark: the loss of the ability to use
240

Id. (quoting Duncan

v. Theratx, Inc.,

775 A.2d 1019

, 1022 (Del. 2001)).
241
The fraudulent misrepresentation here is the representation that “no suppliers had threatened
termination even though PayPal had made several such threats throughout August and September
2011.” Great Hill,

2018 WL 6311829

, at *47.
242
Restatement (Second) of Torts § 549 (1977). “Delaware courts have cited the Restatement
(Second) of Torts [§] 549 . . . with approval.” Envo, Inc. v. Walters,

2009 WL 5173807

, at *7 n.37
(Del. Ch. Dec. 30, 2009), aff’d,

2013 WL 1283533

(Del. Mar. 28, 2013).
243
Great Hill,

2018 WL 6311829

, at *44.
50
PayPal as a payment processor.              The loss of the PayPal relationship had
consequences; I found that “[t]he loss of PayPal as a processor and the temporary
loss of PayPal [W]allet as a payment method affected Plimus’s ability to do
business” and “hurt Plimus’s reputation.”244
While this finding of fraud is significant, I also found against the Plaintiffs on
the bulk of their fraud claims. Among other fraud claims, I found no liability for
fraud allegations concerning Plimus’s risk monitoring system, Plimus’s history of
violations, and Plimus’s vendor quality.245 Supporting this conclusion were findings
that Great Hill was aware: (1) that Plimus did not have proactive risk monitoring,246
(2) that Plimus had an “extensive history with chargebacks,”247 (3) that “Plimus’s
onboarding      process    allowed     vendors—including    illegitimate   vendors—to
potentially transact business through Plimus for months before discovery,”248 and
(4) “of Plimus’s business model, including the quality249 of vendors.”250 These were
facts known to Great Hill, and presumably factored into the price it chose to pay for
Plimus. This means that Great Hill is not entitled to damages because Plimus (1)
did not have proactive risk monitoring, or (2) had a history of chargebacks, or (3)
244

Id. at *30.

Id. at *36–40.

Id. at *38.

Id. at *40.

Id. at *41.

249
Or lack thereof.
250
Great Hill,

2018 WL 6311829

, at *41.
51
had illegitimate vendors on its system.251 In other words, even though PayPal may
have terminated the relationship because of certain characteristics of Plimus’s
business—including a high level of chargebacks and illegitimate vendors—Great
Hill is not entitled to receive damages for the consequences of these traits of Plimus’s
business—other than those proximately caused by the PayPal termination itself—
because I found no liability for the allegations in connection with them.252
The implications of the above are that Great Hill is only entitled to damages
consequent to the loss of the PayPal relationship which meant the inability to use
PayPal’s services, and the resulting reputational damage. The underlying reasons as
to why PayPal may have terminated the relationship—which could include
chargebacks, lack of risk monitoring, and illegitimate vendors—are not a proper
basis for assessing damages generally for those conditions which, again, were known
to Great Hill at the time of the Merger. The Plaintiffs sought liability for claims
connected with these characteristics of Plimus’s business, and lost. They do not get
a second bite at the damages apple; recovering damages, for instance, for the
consequences of Plimus’s abundancy of illegitimate vendors, by squeezing that
251
This list is illustrative, not comprehensive.
252
See Hajoca Corp. v. Sec. Tr. Co.,

25 A.2d 378

, 381 (Del. Super. 1942) (“The law does not hold
one liable for all injuries that follow a breach of contract, but only for such injuries as are the direct,
natural and proximate result of the breach.”); see also Cont’l Illinois Nat. Bank & Tr. Co. of
Chicago v. Hunt Int’l Res. Corp.,

1987 WL 55826

, at *6 (Del. Ch. Feb. 27, 1987) (dismissing a
fraud claim under Chancery Court Rule 9(b) where “the complaint [was] barren of particularized
allegations as to how the alleged fraud proximately caused [the plaintiff] to suffer damages.”).
52
allegation under the rubric of PayPal’s termination. Therefore, other than fine-
related damages, the Plaintiffs are entitled only to damages resulting proximately
from the loss of PayPal as a payment processing service.253 I now proceed to
quantifying these damages.
B. The Plaintiffs’ Damages Calculation for the Non-Disclosure of the
PayPal Termination Threats is Speculative
The burden is on Great Hill to demonstrate damages, which is an element of
both breach of contract and fraud cases of action. Great Hill must prove the fact of
damages in connection with PayPal’s termination threats “with a reasonable degree
of certainty”254 but the “quantum of proof required to establish the amount of damage
is not as great as that required to establish the fact of damage.”255 “Delaware does
not require certainty in the award of damages where a wrong has been proven and
injury established . . . [and] [r]esponsible estimates of damages that lack
mathematical certainty are permissible so long as the court has a basis to make such
a responsible estimate.’”256 In accordance with public policy, Delaware courts place
the burden of uncertainty where it belongs; so long as a plaintiff provides a
253
This includes the services provided by PayPal Wallet.
254
Medicalgorithmics S.A. v. AMI Monitoring, Inc.,

2016 WL 4401038

, at *26 (Del. Ch. Aug. 18,
2016) (quoting Kronenberg v. Katz,

872 A.2d 568

, 609 (Del. Ch. 2004)).
255
Total Care Physicians, P.A. v. O’Hara,

2003 WL 21733023

, at *3 (Del. Super. July 10, 2003).
256
Medicalgorithmics,

2016 WL 4401038

, at *26 (quoting Beard Research, Inc. v. Kates,

8 A.3d 573

, 613 (Del. Ch. 2010)). In the context of contractual damages, our Supreme Court has stated:
“when a contract is breached, expectation damages can be established as long as the plaintiff can
prove the fact of damages with reasonable certainty. The amount of damages can be an estimate.”
Siga Techs., Inc. v. PharmAthene, Inc.,

132 A.3d 1108

, 1111 (Del. 2015).
53
reasonable method to calculate damages, the risk that such cannot be determined
with mathematical certitude falls on the wrongdoer, not the wronged.257
“Nevertheless, when acting as the fact finder, this Court may not set damages based
on mere ‘speculation or conjecture’ where a plaintiff fails adequately to prove
damages.”258 With these general principles in mind, I turn to the record here.
The Plaintiffs’ have presented the Dages Report as a basis to award
contractual and fraud damages for the misrepresentations and omissions in
connection with PayPal’s termination threats. The Plaintiffs’ damages expert, Kevin
F. Dages, calculated the difference between the Merger price and the “fair value” of
Plimus as the 10.1 EBITDA multiple times the sum of (1) the difference between
Plimus’s actual Q4 2011 EBITDA and Plimus’s expected Q4 2011 EBITDA259 and
(2) the portion of Plimus’s actual Q4 2011 EBITDA that is attributable to customers
on the “Lost Client List” that Plimus terminated between October 1, 2011 and June
30, 2012 (after accounting for expected churn).260 Along with this amount, the
Plaintiffs contend that their damages from the loss of the PayPal relationship also
includes the $31.5 million they invested in Plimus after the Merger.261 Plaintiffs thus
throw everything in the hopper: all amounts by which Plimus missed Great Hill’s
257
See In re Mobilactive Media, LLC,

2013 WL 297950

, at *24 (Del. Ch. Jan. 25, 2013).
258

Id. (quoting Medek

v. Medek,

2009 WL 2005365

, at *12 n.78 (Del. Ch. July 1, 2009)).
259
As projected by Great Hill.
260
JX 1132, ¶ 59.
261

Id. 54 projections

for Q4 2011 EBITDA, all revenue and volume from vendors terminated
in the 9 month period after the Merger, and all amounts Great Hill invested in Plimus
in the years after the Merger.
Due to Tal’s fraud, Great Hill reasonably expected it was buying Plimus with
PayPal as one of its processors, it received Plimus without a PayPal relationship.
The fundamental problem with the Plaintiffs’ damages estimate is that it offers the
entirety (and more) of the deviation from Great Hill’s EBITDA estimate as damages,
but fails to link the harm from the non-disclosure of PayPal’s termination threats to
the damages calculation, “mak[ing] it impossible to determine what amount of
damages, if any, was caused by that wrong.”262
Importantly, the Dages Report was completed before the trial and before I
issued Great Hill I, when Plaintiffs’ allegations of fraud were so wide-ranging, the
Plaintiffs themselves stated that they were too extensive to recount in full in their
briefing.263 The fraud finding in Great Hill I, in contrast, was quite cabined; two
allegations (one for a relatively minor sum certain) against one Defendant. Dages
himself admitted that his “assignment was to calculate a damage number, and [he]
262
OptimisCorp v. Waite,

2015 WL 5147038

, at *81 (Del. Ch. Aug. 26, 2015), aff’d,

137 A.3d 970

(Del. 2016).
263
Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP,

2018 WL 6311829

, at
*31 (Del. Ch. Dec. 3, 2018) (“While the Plaintiffs, unhelpfully, argue in briefing that the ‘fraud in
this action was extensive, and cannot be recounted in full here,’ they ‘highlight [ ] four major
interrelated components’ of the fraud.”).
55
did not attempt to parse that damage number across all the different overlapping
components of the fraud.”264 Further questioning of Dages is insightful:
Q.     You do not identify the amount of damages attributable to the
loss of Paymentech; right?
A.   I do not parse the aggregate damages among all the multiple
components of the fraud, that’s correct.
Q.    Okay. You do not opine on what portion of your damages figures
were caused by the loss of the PayPal Pro account. Right?
A.     Same answer.
Q.     You don’t do that; right?
A.     Sorry?
Q.     You do not do that; correct?
A.   Correct. I was just trying to save the court reporter. Same
answer, yes.265
Thus, Dages himself testified that his calculations fail to break out damages from the
wrongs Great Hill was able to establish at trial, which are a rather small subset of its
allegations. Yet, even after I issued Great Hill I, the Plaintiffs have elected to stand
on the Dages Report as their damages estimate of the Defendants’ liability.
The deficiencies of the Plaintiffs’ damages estimate are not limited to those
represented by the forgoing flaw. Neither component that Dages deducts from the
264
Trial Tr. 2779:10–2779:13 (Dages).
265

Id. at 2780:11–2780:24

(Dages).
56
Merger price to arrive at “fair value” has any mechanism for segregating out the
decrease in Q4 2011 EBITDA attributable to the loss of PayPal.266 Thus, the
Plaintiffs ask me to hold that all actual decrease in Q4 2011 EBITDA and all
customer terminations from October 2011–June 2012 are tied to the loss of PayPal’s
payment processing services. Plaintiffs make these assertions notwithstanding the
fact that the “Lost Client List” does not even identify which Plimus clients used
PayPal, even though it appears that the Plaintiffs had access to this information.267
What difference this may make is untold—by my count, of the 3,415 “Merchant
IDs” on the Lost Client List, only seven have the word “PayPal” in their
comments.268 Furthermore, 455 merchants who joined Plimus’s platform post-
closing, and thereafter were terminated, are included in Tranche Two of the Dages
Report, for which the Plaintiffs seek damages here.269 When asked about the
inclusion of these terminated merchants in the damages calculation, Dages replied:
I think merchants that are joining post close that get terminated by the
time the management team leaves or terminated in January are more
evidence of the lack of controls and not sustainable customers that
ought to have been in [the damages figure]. And had all this
information be revealed to the buyers, and for some reason they had a
gun to their head to still go to the table, they clearly would have peeled
these out of any valuation piece.270
266
This assumes that it is non-speculative to base the damages for the loss of the PayPal
relationship on a multiple of Q4 2011 EBITDA. I do not reach the question of whether such a
snapshot approach to damages is reliable here.
267
JX 2077; Trial Tr. 2698:10–2699:12 (LaPierre).
268
JX 2077.
269
Trial Tr. 2769:16–2772:2 (Dages).
270

Id. at 2771:16–2772:2

(Dages) (emphasis added).
57
Thus, Dages bases the inclusion of these 455 merchants in the damages calculation
to “lack of controls” and “not sustainable customers” that Great Hill “would have
peeled . . . out of any valuation piece” “had all this information be[en] revealed to
[Great Hill].”271 Yet, the Plaintiffs are not entitled to damages for customers who
were terminated from Plimus solely due to lack of controls or unsustainability—a
state of affairs of which, I found, the Plaintiffs were aware upon entering the
Merger—only for damages for the loss of PayPal.272
The Plaintiffs’ request for damages totaling the full amount of their
investment in Plimus post-Merger suffers from the same deficiencies—nowhere do
the Plaintiffs segregate what portion of this post-Merger investment—if any—was
required because of the loss of PayPal.273 Furthermore, the Plaintiffs have not shown
how the damages they request for reimbursement are not already encompassed in
their “fair value” estimate. In other words, the Plaintiffs ask for damages that would
compensate them for the difference between the Merger price and Plimus’s value,
then also ask for $31.5 million in additional damages.
271

Id. at 2771:19–2771:24

(Dages).
272
See Section

III.A.2. supra

.
273
Compared to the portion, if any, of the post-Merger investment that would have been made
regardless of whether PayPal terminated the relationship.
58
Plaintiffs’ rely on Cobalt Operating, LLC v. James Crystal Enterprises,
LLC274 in support of the proposition that I may award damages in addition to the
difference in value between what was paid for Plimus and Plimus’s actual value. In
that case, this Court found that the defendant had falsely inflated a radio station’s
EBITDA by billing clients for ads that did not run and the buyer had purchased the
station based on its projected EBITDA.275 When the buyer discovered the fraud had
occurred, it decided to grant free airtime credits to advertisers that were affected
during the three month period after the sale while the fraud was still ongoing. 276 In
addition to damages linked to the sale price, the buyer sought reimbursement for the
costs of the free airtime, which this Court granted, reasoning that the free airtime
given out “used up commercial time that could have been used for a full-price
commercial” and thus it “had a direct impact on [the buyer’s] bottom line.” 277 In
Cobalt, an identifiable difference existed between the value of the company and the
merger price on one hand, and the additional damages incurred to compensate third
parties on the other. For both, the fraud was the proximate cause. Here, in contrast,
there is no specific identifiable harm existing outside the Merger that would not be
compensated by awarding the Plaintiffs damages based on the “fair value” of
274

2007 WL 2142926

(Del. Ch. July 20, 2007) aff’d,

945 A.2d 594

(Del. 2008).
275

Id. at *25,

*27.
276

Id. at *30.

Id. at *31.

59
Plimus.278 The nexus between the tort and the other damages sought, evident in
Cobalt, is lacking here.
In Siga Technologies, Inc. v. PharmAthene, Inc., our Supreme Court held that
a “breaching party cannot avoid responsibility for making the other party whole
simply by arguing that expectation damages . . . are speculative because they come
from an uncertain world created by the wrongdoer.”279 This rationale applies equally
to torts, and the United States Supreme Court has stated that “[w]here the tort itself
is of such a nature as to preclude the ascertainment of the amount of damages with
certainty, it would be a perversion of fundamental principles of justice to deny all
relief to the injured person, and thereby relieve the wrongdoer from making any
amend for his acts.”280 In this vein, where the uncertainty of the amount of damages
is not the fault of the plaintiff and is the fault of the defendant, “to the extent the
court has to resolve uncertainties, those uncertainties will be resolved in the
plaintiffs’ favor.”281 This makes sense as a matter of policy—a wrongdoer should
278
Additionally, there was no substantial ongoing fraud post-Merger here as there was in Cobalt
because Tal informed Great Hill of the PayPal termination within days after the termination
occurred (which was about two weeks after the Merger closed). Great Hill Equity Partners IV,
LP v. SIG Growth Equity Fund I, LLLP,

2018 WL 6311829

, at *29 (Del. Ch. Dec. 3, 2018).
279

132 A.3d 1108

, 1111 (Del. 2015).
280
Vianix Delaware LLC v. Nuance Commc’ns, Inc.,

2010 WL 3221898

, at *7 (Del. Ch. Aug. 13,
2010) (quoting Story Parchment Co. v. Paterson Parchment Paper Co.,

282 U.S. 555

, 563 (1931)).
281
Comrie v. Enterasys Networks, Inc.,

837 A.2d 1

, 19 (Del. Ch. 2003) (citing Duncan v. Theratx,
Inc.,

775 A.2d 1019

, 1023 (Del. 2001)).
60
not be permitted to use a prohibition against award of uncertain damages as a shield,
where that uncertainty is attributable to the wrongdoer himself.
Here, in contrast, it is the Plaintiffs who, having presented a substantial
number of fraud claims and succeeded on a fraction of the total, have presented a
damages analysis that, in the words of the Plaintiffs’ damages expert, “do[es] not
allocate the damages total among all the various components and contributing
factors of the fraud . . . .”282 Furthermore, the Lost Client List, created by the
Plaintiffs and relied upon by Dages for his analysis, does not include any information
demonstrating the relationship of particular lost clients to the use of PayPal, even
though the database from which it was drawn—which is controlled by the
Plaintiffs—contains data showing what payment processor was used for any
particular transaction.283 The uncertainty of damages here, if attributable to any
party, is attributable to the Plaintiffs. They could have, but did not, provide a non-
speculative way to quantify damages from the loss of PayPal.284
I reiterate that “when acting as the fact finder, this Court may not set damages
based on mere ‘speculation or conjecture’ where a plaintiff fails adequately to prove
282
Trial Tr. 2781:4–2781:6 (Dages).
283

Id. at 2698:4–2699:12

(LaPierre); JX 2077.
284
Because I find that the Plaintiffs have failed to meet their burden with regard to the damages
methodology, I do not reach the Defendants’ contentions that Plimus’s downturn was not as severe
as suggested by Great Hill and that explanations exist for any downturn other than the allegations
lodged by Great Hill. Indeed, Great Hill’s own annual report for 2011 noted that Plimus’s Q4
2011 EBITDA “declined primarily due to 25 incremental hires necessary to support Plimus’[s]
anticipated growth.” JX 922, at 3.
61
damages.”285 Any attempt I could make to assign damages caused by Plimus’s loss
of PayPal as a payment processor would be mere speculation or conjecture because
the Plaintiffs failed to tie any portion of their damages estimate to the loss of PayPal
as a processing service provider. While I have found that the Plaintiffs suffered
harm from the non-disclosure of PayPal’s termination threats,286 harm is in itself
insufficient for a damages award if I have no basis to make a “responsible estimate”
of damages.287 It would be, in my view, irresponsible to assign damages to the
Plaintiffs for the tortious and extra-contractual non-disclosure of PayPal’s
termination threats on the record before me. While I assume that the Plaintiffs
suffered some pecuniary damage from Tal’s behavior, were I to assign an amount to
that damage I would be only marginally more confident than if I randomly picked a
number between $0 and $121,813,817.               To grant damages on that dubious
foundation would run afoul of Delaware law. The Plaintiffs were “allowed to make
[the] strategic choice to present one unified remedy theory. This choice, however,
now prevents me from awarding damages for the parts of its case that it was able to
prove as it has given me no way to separate the actual harm to [the Plaintiffs] from
285
In re Mobilactive Media, LLC,

2013 WL 297950

, at *24 (Del. Ch. Jan. 25, 2013) (quoting
Medek v. Medek,

2009 WL 2005365

, at *12 n.78 (Del. Ch. July 1, 2009)).
286
Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP,

2018 WL 6311829

, at
*30, *44 (Del. Ch. Dec. 3, 2018).
287
Medicalgorithmics S.A. v. AMI Monitoring, Inc.,

2016 WL 4401038

, at *26 (Del. Ch. Aug. 18,
2016) (quoting Beard Research, Inc. v. Kates,

8 A.3d 573

, 613 (Del. Ch. 2010)).
62
the consequences of allowed behavior by the [Defendants].”288 I consequently
award no fraud or contract damages to the Plaintiffs in connection with the
misrepresentations regarding PayPal’s termination threats.
C. Unjust Enrichment
The Plaintiffs allege unjust enrichment against SIG Fund, Tal, Herzog,
Kleinberg, Itshayek, and the Charity Defendants. Unjust enrichment is “the unjust
retention of a benefit to the loss of another, or the retention of money or property of
another against the fundamental principles of justice or equity and good
conscience.”289 The elements of unjust enrichment are: (1) an enrichment, (2) an
impoverishment, (3) a relation between the enrichment and impoverishment, (4) the
absence of justification, and (5) the absence of a remedy provided by law.290
I need only address the last element, which is manifestly not met. Sufficient
funds are in escrow to make the Plaintiffs whole for the loss they have demonstrated,
and there is no need for equity to act.291 I make no determination whether, if such
were not the case here, unjust enrichment would apply.
288
CSH Theatres, L.L.C. v. Nederlander of San Francisco Assocs.,

2018 WL 3646817

, at *29 (Del.
Ch. July 31, 2018), rev’d on other grounds sub nom. In re Shorenstein Hays-Nederlander Theatres
LLC Appeals,

213 A.3d 39

(Del. 2019).
289
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)).
290

Id. 291 Tal

has conceded that “any damages award against Tal must first be offset” by $478,508 and
$678,605 of Merger proceeds placed in escrow and evidenced by promissory notes. Tal’s Answ.
Br., at 53. Additionally, the Escrow Amount of $9.2 million is significantly more than the
63
Because the Plaintiffs have failed to show an inadequate remedy at law, I deny
their unjust enrichment claim.
D. Fees and Costs
Finally, the Plaintiffs have sought indemnification, under the Merger
Agreement, for fees and costs incurred in investigating Defendants’ fraud and
contract breaches. The Founders have submitted that after I render this decision they
will move for an award of their own attorneys’ fees and costs, also under the Merger
Agreement.292 For efficiency’s sake, I hold the Plaintiffs’ claims for fees and costs
in abeyance, and will consider them concurrently with any applications for fees and
costs of any Defendants.293
IV. CONCLUSION
Tal is liable for $200,000 in fraud damages. The Indemnifications Defendants
are liable for $12,255.47 in indemnification obligations payable from the escrow
funds and split pro rata in accordance with the Merger Agreement, as well as for the
$200,000 GoClickCash fine to the extent not barred by the deducible provision of
the Merger Agreement. The Plaintiffs are entitled to prejudgment interest on these
$212,255.47 of damages owed by the Indemnification Defendants (without consideration of
amounts that may be excluded under the deductible).
292
Founders’ Answ. Br, at 15.
293
If any Defendant wishes to move for fees and/or costs under the Merger Agreement, they should
do so within ten (10) business days from the issuance of this Memorandum Opinion.
64
sums. The parties should submit a form of order consistent with this Memorandum
Opinion.
65