Advent International, L.P. v. Servicios Funerarios GG S.A. DE C.V.

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

ADVENT INTERNATIONAL, L.P f/k/a/ )
ADVENT INTERNATIONAL )
CORPORATION, ADVENT )
INTERNATIONAL PE ADVISORS, S.C., )
ADVENT LATIN AMERICAN PRIVATE )
EQUITY FUND III LIMITED )
PARTNERSHIP, ADVENT LATIN )
AMERICAN PRIVATE EQUITY FUND )
III-A LIMITED PARTNERSHIP, )
ADVENT LATIN AMERICAN PRIVATE )
EQUITY FUND III-B LIMITED )
PARTNERSHIP, ADVENT LATIN )
AMERICAN PRIVATE EQUITY FUND )
III-C LIMITED PARTNERSHIP, )
ADVENT LATIN AMERICAN PRIVATE )
EQUITY FUND III-D LIMITED )
PARTNERSHIP, ADVENT LATIN )
AMERICAN PRIVATE EQUITY FUND )
III-E LIMITED PARTNERSHIP, ADVENT )
LATIN AMERICAN PRIVATE EQUITY )
FUND III-F LIMITED PARTNERSHIP, )
ADVENT LATIN AMERICAN PRIVATE )
EQUITY FUND III-G LIMITED )
PARTNERSHIP, ADVENT PARTNERS )
LAPEF III LIMITED PARTNERSHIP, )
ADVENT LATIN AMERICAN PRIVATE )
EQUITY FUND IV LIMITED )
PARTNERSHIP, ADVENT LATIN )
AMERICAN PRIVATE EQUITY FUND )
IV-A LIMITED PARTNERSHIP, )
ADVENT LATIN AMERICAN PRIVATE )
EQUITY FUND IV-B LIMITED )
PARTNERSHIP, ADVENT LATIN )
AMERICAN PRIVATE EQUITY )
FUND IV-C LIMITED PARTNERSHIP, )
ADVENT LATIN AMERICAN PRIVATE )
EQUITY FUND IV-D LIMITED )
PARTNERSHIP, ADVENT LATIN )
AMERICAN PRIVATE EQUITY FUND )
IV-E LIMITED PARTNERSHIP, )
ADVENT LATIN AMERICAN PRIVATE )
EQUITY FUND IV-F LIMITED )
PARTNERSHIP, ADVENT LATIN )
AMERICAN PRIVATE EQUITY FUND )
IV-G LIMITED PARTNERSHIP, )
ADVENT PARTNERS LAPEF IV )
LIMITED PARTNERSHIP, ADVENT )
PARTNERS III LIMITED )
PARTNERSHIP, )
)
Plaintiffs, )
)
v. ) C.A. No. 2023-0647-LWW
)
SERVICIOS FUNERARIOS GG S.A. DE C.V., )
)
Defendant. )

MEMORANDUM OPINION

Date Submitted: July 31, 2024
Date Decided: October 29, 2024

William M. Lafferty, Kevin M. Coen & Alex F. Hoeschel, MORRIS NICHOLS
ARSHT & TUNNELL LLP, Wilmington, Delaware; Peter L. Welsh & Daniel V.
Ward, ROPES & GRAY LLP, Boston, Massachusetts; Nicholas A. S. Hoy &
Andrew J. Rossman, QUINN EMANUEL URQUHART & SULLIVAN LLP, New
York, NY; Joseph Margolies, QUINN EMANUEL URQUHART & SULLIVAN
LLP, Chicago, Illinois; Gabriel F. Soledad, QUINN EMANUEL URQUHART &
SULLIVAN LLP, Washington, D.C.; Counsel for Plaintiffs

Peter J. Walsh, Jr., Aaron R. Sims & Charles R. Hallinan, POTTER ANDERSON
& CORROON LLP, Wilmington, Delaware; David Boies & Marc Ayala, BOIES
SCHILLER FLEXNER LLP, Armonk, New York; Carlos M. Sires, BOIES
SCHILLER FLEXNER LLP, Fort Lauderdale, Florida; Counsel for Defendant

WILL, Vice Chancellor
A Mexican holding company purchased a Mexican funeral services company

from private equity-owned special purpose vehicles. Along with a stock purchase

agreement, the parties negotiated a guarantee by which private equity funds agreed

to backstop the special purpose vehicles’ indemnification obligations to the buyer.

In return, the buyer agreed to a release, a non-recourse provision, covenants not to

sue non-parties to the agreements, and a Delaware forum provision for permitted

claims.

The buyer nevertheless initiated civil and criminal proceedings in Mexico

against the private equity firm affiliated with the guarantor funds—a contractual

non-party. In response, the guarantors and private equity firm sued the buyer in this

court, seeking anti-suit injunctions and declaratory relief. Since the private equity

firm’s substantive response to the Mexican civil action was due imminently, I

expedited consideration of that claim. In June, I enjoined the buyer from prosecuting

the Mexican civil action against the private equity firm.

Now, I resolve the remaining non-expedited issues. I decline to issue an

anti-suit injunction of the Mexican criminal action for reasons of international

comity. And I clarify that, due to laches, the injunction of the Mexican civil action

does not extend to the private equity firm’s Mexican affiliate. On the contract

claims, however, I enter judgment largely in the private equity plaintiffs’ favor. I

hold that the buyer breached the guarantee, causing it to terminate by its terms.

1
I. ESSENTIAL FACTS

This decision complements a June 7, 2024 memorandum opinion (the “June

Opinion”) that granted partial summary judgment and denied motions to dismiss.1

The facts framing this dispute are set out in the June Opinion and remain unchanged.

For the benefit of the reader, I recount the basic facts below.

Unless otherwise noted, the following summary is drawn from the undisputed

facts outlined in the June Opinion, the pleadings, and exhibits submitted by the

parties.

A. The Share Purchase Agreement

In 2021, Servicios Funerarios GG S.A. de C.V.—an acquisition vehicle of a

Mexican real estate investor—purchased Mexican funeral company Grupo Gayosso

S.A. (“Gayosso”) from Advent International Corporation, a private equity firm.2 At

the time, Advent International owned substantially all of Gayosso’s capital stock

through various affiliated funds (the “Guarantors”).3 The Guarantors’ interests in

Gayosso were, in turn, held through seven special purpose vehicles (the “Sellers”).4

1
See generally Advent Int’l Corp. v. Servicios Funerarios GG S.A. de C.V., 2024 WL
3580934 (Del. Ch. June 7, 2024) (“June Op.”).
2
Id. at *2.
3
Id. at *1.
4
Id.
2
In January 2021, the Sellers and Servicios Funerarios executed a Share

Purchase Agreement (the “SPA”) contemplating Servicios Funerarios’s acquisition

of Gayosso for 4.076 million pesos. The SPA outlined representations by Servicios

Funerarios, the Sellers, and Gayosso. It also set an indemnification cap limiting

Servicios Funerarios’s recovery from the Sellers to Gayosso’s enterprise value.5 The

Sellers were subsequently dissolved.6

B. The Guarantee

As a condition to and concurrent with the SPA, the Guarantors executed a

financial guarantee (the “Guarantee”) of the Sellers’ indemnification obligations to

Servicios Funerarios up to the full purchase price.7 In exchange, Servicios

5
Id. at *2. Specifically, the indemnification cap limited the maximum recovery to 300
million pesos (approximately $17 million) for certain defined “Losses” resulting from “any
breach of [the Sellers’] respective obligations assumed” in the SPA or “the lack of veracity
in the statements of the Sellers and [Gayosso].” Id. It also defined additional “Losses” to
which this initial indemnification cap did not apply, such that the maximum recovery was
the full enterprise value of 4.076 million pesos. Id.
6
Id.
7
Id.; Verified Second Am. Compl. for Inj. Relief (Dkt. 68) (“Compl.”) Ex. A
(“Guarantee”).
3
Funerarios agreed to waive and release all “Claims” in connection with the SPA

against “Non-Parties.”8 Advent International is one such Non-Party.9

Servicios Funerarios preserved two pathways to recover for wrongdoing

related to the Gayosso transaction: suing (1) the Guarantors under the Guarantee, or

(2) the Sellers under the SPA.10 Servicios Funerarios “irrevocably agree[d] that any

permitted Claim [would] be brought exclusively in the state and federal courts

located in the . . . State of Delaware.”11

Several provisions of the Guarantee reflect Servicios Funerarios’s agreement

to waive or disclaim its ability to bring claims against non-parties.

8
“Non-Parties” include: “(i) any past, present or future director, officer, employee,
incorporator, member, partner, manager, direct or indirect equityholder, management
company, Affiliate (other than [the Sellers] or any assignee of [the Sellers] or of a
Guarantor under the [SPA] or hereunder), agent, attorney, or representative of, and any
financial advisor or lender to (all above-described Persons in this subclause (i), each a
‘Related Party’) to a Guarantor or any Affiliate of a Guarantor, and (ii) any Related Party
of such Guarantor’s Related Parties.” Guarantee § 9(a).
9
June Op. *8.
10
“Claims” include: “all claims, obligations, liabilities, causes of action, or proceedings (in
each case, whether at law or in equity, and whether sounding in contract, tort, statute or
otherwise) that may be based upon, in respect of, arise under, out or by reason of, be
connected with, or relate in any manner to this Guarantee, or the negotiation, execution,
performance, or breach (whether willful, intentional, unintentional or otherwise) of this
Guarantee, including, without limitation, any representation or warranty made or alleged
to be made in, in connection with, or an as [sic] inducement to, this
Guarantee . . . .” Guarantee § 9(a).
11
Id. § 10.
4
Section 3(c) of the Guarantee is a covenant not to sue. It provides that

Servicios Funerarios:

covenants and agrees that it shall not institute or assert . . . any action
or proceeding or bring any other Claim . . . of any kind whatsoever
against the Guarantors, [the Sellers] or any other Non-
Parties . . . except for claims against: (i) the Guarantors under and
pursuant to this Guarantee and (ii) [the Sellers] under and pursuant to
the Agreement.12

Section 9(a) is a non-recourse clause. Servicios Funerarios agreed that a

Claim “may be made or asserted only against (and [is] expressly limited to) the

Guarantors.”13 It also confirmed that no “Non-Parties . . . shall have any liability or

obligation” to it “in respect of any Claims.”14

Section 9(b) is a release and anti-reliance provision. Servicios Funerarios

broadly “waive[d], release[d] and disclaim[ed] any and all Claims against all Non-

Parties, including, without limitation, any Claims to avoid or disregard the entity

form of any Guarantor or otherwise seek to impose any liability arising out of,

relating to or in connection with a Claim on any Non-Parties . . . .”15 It also

“disclaim[ed] any reliance upon any Non-Parties with respect to the performance of

12
Id. § 3(c).
13
Id. § 9(a).
14
Id.
15
Id. § 9(b)(i).
5
th[e] Guarantee or any representation or warranty made in connection with, or as an

inducement to th[e] Guarantee.”16

Section 9(c) is another covenant not to sue. Servicios Funerarios confirmed

that it would not bring:

any Claim whatsoever against . . . Non-Parties . . . in connection
with th[e] Guarantee or the [SPA] or any transactions
contemplated hereby or thereby . . . other than a
claim . . . against the Guarantors for payment or performance of
the Obligations pursuant to (and as limited by) the terms of th[e]
Guarantee or . . . against [the Sellers] pursuant to [the SPA].17

The Guarantee includes a termination clause in Section 8. The parties agreed

that if Servicios Funerarios brought claims in breach of Section 9, the Guarantee

would “terminate automatically and immediately.”18 In full, the provision states

that:

Th[e] Guarantee shall terminate automatically and
immediately . . . and the Guarantors shall have no further
obligations under th[e] Guarantee as of . . . the date of
commencement of any litigation or other proceeding by the
Guaranteed Party or any Affiliate thereof . . . prohibited by
Section 9 of th[e] Guarantee . . . . 19

16
Id. § 9(b)(ii).
17
Id. § 9(c)(ii).
18
Id. § 8.
19
Id.
6
Finally, Section 9 provides that these releases and covenants not to sue survive

the termination of the Guarantee.20

C. Servicios Funerarios’s Lawsuits
Fourteen months after the Gayosso transaction closed, in March 2022,

Servicios Funerarios filed a civil suit in a Mexican federal court related to the SPA

against Advent International, Advent International PE Advisors, S.C. (“Advent

Mexico,” Advent International’s Mexican subsidiary), and various Advent-affiliated

funds.21 Servicios Funerarios’s complaint alleged that the Sellers, Advent

International, and Advent Mexico “omitted to truthfully reflect, disclose and/or

record the financial and accounting reality of Gayosso . . . at the time of the signing

of the SPA.”22 It sought damages and a judicial declaration that the SPA was a

“nullity.”23

Four months later, in June 2022, Servicios Funerarios initiated a criminal

proceeding with a Mexican prosecutor against Advent International, certain current

and former Advent employees, and Advent Mexico.24 Under Mexican law, criminal

proceedings can be initiated by non-state actors through a private complaint called a

20
Id. § 9(b).
21
Compl. ¶ 91.
22
Compl. Ex. C.
23
Id.
24
Compl. ¶¶ 104, 106; Compl. Ex. D.
7
querella.25 Servicios Funerarios’s querella asserted fraud in connection with the

SPA.26

Nearly a year later, in March 2023, Servicios Funerarios filed claims against

Advent International in the United States District Court for the District of

Massachusetts.27 The claims in Massachusetts involve alleged false representations

in the SPA that induced Servicios Funerarios to enter into the Gayosso transaction.28

D. This Litigation

In June 2023, Advent International and affiliated funds (together, “Advent”)

sued Servicios Funerarios in this court for breach of the Guarantee. They sought

damages, declaratory judgments concerning the validity of the suit under the

Guarantee, and an anti-suit injunction of the Mexican civil action. Briefing on

cross-motions for summary judgment and to dismiss was completed in March

2024.29

In April 2024, after Advent International was served with the Mexican civil

complaint and required to respond, the anti-suit injunction request was heard on an

25
Compl. ¶ 103; see Pls.’ Opening Suppl. Submission in Supp. of an Order Permanently
Enjoining the Mexican Criminal Action (Dkt. 69) Ex. 2; Def.’s Opp’n to Pls.’ Opening
Suppl. Submission (Dkt. 82) Ex. A.
26
Compl. Ex. D.
27
Compl. Ex. E.
28
Id. ¶¶ 48-74.
29
See Dkt. 38.
8
expedited basis. On June 7, 2024, I granted an anti-suit injunction concerning the

Mexican civil action as brought against Advent International.30 The June Opinion

set out my reasoning.

I denied Servicios Funerarios’s motion to dismiss and concluded that the court

had subject matter jurisdiction over the suit.31 I declined to stay this suit in deference

to the Massachusetts action.32 And I held that the Mexican civil action breached the

forum selection clause in the Guarantee.33 Supplemental submissions about the

propriety of an anti-suit injunction for the Mexican criminal action were requested.34

My June 7, 2024 order (the “Injunction Order”) stated that “Servicios

Funerarios is permanently enjoined from prosecuting the Mexican [c]ivil [a]ction in

any forum other than the courts designated in the forum selection clause in Section

10 of the Guarantee.”35

30
Dkt. 53.
31
June Op. *4-6.
32
Id. at *6-7.
33
Id. at *12.
34
Id. (“From my limited understanding of Mexican criminal procedure, it is unclear by
whom (and how) the case was initiated and whether the prosecutor can (or would) stop the
case if Servicios Funerarios were enjoined from pressing it. Before I wade into that topic,
I expect the parties to provide supplemental submissions on the status and procedure of the
Mexican criminal action.”).
35
Dkt. 53.
9
Regrettably, the parties could not agree on how to effectuate the Injunction

Order. Advent claimed that the Injunction Order extended to Advent Mexico—even

though it was then a non-party to this lawsuit and unmentioned in the June Opinion.

Advent also asserted that the Injunction Order required Servicios Funerarios to

dismiss with prejudice its claims in the Mexican civil action—though the June

Opinion said nothing of the sort. Servicios Funerarios disagreed with both

contentions. Advent International therefore had to answer the complaint in the

Mexican civil action despite the June Opinion and Injunction Order. Servicios

Funerarios moved for clarification the next week.36

For over a month, the parties remained unable to agree on how to implement

the Injunction Order. The Mexican civil action proceeded. In July, Servicios

Funerarios asked for permission to file a substantive reply to Advent International’s

answer in the Mexican criminal action.37 I “decline[d] to affirmatively grant [it]

permission to violate my [Injunction Order].”38 After a flurry of letters, a reasoned

outcome emerged: the Mexican civil action was stayed at the request of the parties

and with the blessing of the presiding judge.39

36
Dkt. 54.
37
See Dkt. 78.
38
Dkt. 79.
39
See Dkt. 89; Dkt. 96.
10
This stay mooted Servicios Funerarios’s motion for clarification in part. But

whether the Injunction Order applied to claims against Advent Mexico remained

unresolved. Advent, which had not sought relief on behalf of non-party Advent

Mexico, asked to amend its complaint to do so. Servicios Funerarios consented to

the amendment, so long as further summary judgment briefing was not required.40

A second amended complaint (the operative “Complaint”) was filed on July 3,

seeking relief on behalf of Advent Mexico and the individual Advent employees

defending the Mexican criminal action.41

Meanwhile, the supplemental submissions requested by the June Opinion

were filed. These submissions focused on the nature of the Mexican criminal action

and whether this court can enjoin it.42

On July 31, 2024, oral argument on these issues was held.43

40
See Dkts. 72-73.
41
Dkt. 68. Servicios Funerarios has moved to dismiss that complaint. Dkt. 75.
Nevertheless, for efficiency’s sake, the parties asked to for the court to resolve the summary
judgment arguments remaining after the expedited June Opinion. See Dkts. 73, 99.
42
See Dkts. 69, 82, 94.
43
Dkt. 99. Servicios Funerarios subsequently moved to supplement the record. Def.’s
Mot. for Leave to Suppl. the Record (Dkt. 102). It argued that: (1) contrary to
representations of counsel during the July 31 hearing, questions of fact remained regarding
the Guarantors’ ability to meet its funding obligations under the Guarantee, warranting
denial of summary judgment; (2) Advent’s counsel mischaracterized the law by stating that
one contract must be incorporated expressly into the other; and (3) Section 9(b)(ii) of the
Guarantee is a “non-recourse” rather than “anti-reliance” provision that does not preclude
Servicios Funerarios’s reliance on representations in the SPA. Id. at 3 (citing Tr. of July
31, 2024 Oral Arg. (Dkt. 29) (“July Hr’g Tr.”) 65); Id. at Ex. 1. In opposing the motion,
Advent argues that Servicios Funerarios waived its first and third arguments because it
11
II. LEGAL ANALYSIS

Under Court of Chancery Rule 56, summary judgment is granted only if “there

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

judgment as a matter of law.”44 “[T]he facts must be viewed in the light most

favorable to the nonmoving party and the moving party has the burden of

demonstrating that there is no material question of fact.”45

Two categories of matters are before the court. The first category concerns

whether Servicios Funerarios breached the Guarantee by pursuing prohibited

litigation, and if so, whether the breach caused the Guarantee to terminate. The

second category concerns Advent’s request to extend the Injunction Order to include

(1) the claims against Advent Mexico in the Mexican civil action and (2) the

Mexican criminal action.

could have, but failed to, raise them in its summary judgment briefing. Pls.’ Opp’n to
Def.’s Mot. for Leave to Supplement the Record (Dkt. 104) ¶¶ 15-16. I agree; these
arguments are waived. See Emerald P’rs v. Berlin, 726 A.2d 1215, 1224 (Del. 1999)
(“Issues not briefed are deemed waived.”). Regarding Servicios Funerarios’s second
argument, Advent contends that the issues were already addressed by both parties in their
summary judgment briefs. Id. ¶ 17. I agree with Advent on this point as well. Servicios
Funerarios did not request, and was not granted, an opportunity to submit further summary
judgment briefing. The motion to supplement is denied.
44
Ct. Ch. R. 56.
45
Senior Tour Players 207 Mgmt. Co. v. Golftown 207 Hldgs. Co., 853 A.2d 124, 126 (Del.
Ch. 2004).
12
I resolve the first category in Advent’s favor. Servicios Funerarios breached

Sections 3(c) and 9 of the Guarantee when it filed the Mexican civil action against

Advent International. The breaches of Section 9 caused the Guarantee to terminate

by its terms.

I resolve the second category in favor of Servicios Funerarios. I decline to

enjoin the Mexican criminal action based on international comity concerns. And

though Servicios Funerarios breached the Guarantee by prosecuting the Mexican

civil action against Advent Mexico, I decline to enter an injunction due to laches.

A. Breach and Termination of the Guarantee

“Under Delaware law, the elements of a breach of contract claim are: 1) a

contractual obligation; 2) a breach of that obligation by the defendant; and 3) a

resulting damage to the plaintiff.”46 Advent contends that the Guarantee obligated

Servicios Funerarios not to sue “Non-Parties” like Advent International for claims

involving the Gayosso transaction. It maintains that Servicios Funerarios breached

the Guarantee by filing the Mexican and Massachusetts actions.

The Guarantee is governed by Delaware law.47 “Delaware law adheres to the

objective theory of contracts,” meaning that “a contract’s construction should be that

46
H-M Wexford LLC v. Encorp, Inc., 832 A.2d 129, 140 (Del. Ch. 2003).
47
Guarantee § 10.
13
which would be understood by an objective, reasonable third party.”48 “When

interpreting a contract, [the] Court ‘will give priority to the parties’ intentions as

reflected in the four corners of the agreement.’”49 The court must construe the

contract “as a whole and . . . will give each provision and term effect, so as not to

render any part of the contract mere surplusage.”50 A court will not look beyond the

four corners of an agreement if a contract is unambiguous.51 Ambiguity exists only

if “the provisions in controversy are fairly susceptible of different interpretations.”52

“The parties’ steadfast disagreement over interpretation will not, alone, render the

contract ambiguous. The determination of ambiguity lies within the sole province

of the court.”53

48
Salamone v. Gorman, 106 A.3d 354, 367-68 (Del. 2014) (quoting Osborn ex rel. Osborn
v. Kemp, 991 A.2d 1153, 1159 (Del. 2010)).
49
Id. at 368 (quoting GMG Cap. Invs., LLC, 36 A.3d at 779).
50
Osborn, 991 A.2d at 1159 (quoting Kuhn Constr., Inc. v. Diamond State Port Corp.,
2010 WL 779992, at *2 (Del. Mar. 8, 2010)).
51
Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232 (Del. 1997)
(“Contract terms themselves will be controlling when they establish the parties’ common
meaning so that a reasonable person in the position of either party would have no
expectations inconsistent with the contract language.”); ITG Brands, LLC v. Reynolds Am.,
Inc., 2019 WL 4593495, at *4 (Del. Ch. Sept. 23, 2019) (“Clear and unambiguous
language . . . should be given its ordinary and usual meaning.” (quoting Lorillard Tobacco
Co. v. Am. Legacy Found., 903 A.2d 728, 739 (Del. 2006))). Neither party argues that the
portions of the Guarantee at issue are ambiguous. Nor do I find any ambiguity.
52
Eagle Indus., 702 A.2d at 1232.
53
Osborn, 991 A.2d at 1160 (citation omitted).
14
The Delaware Supreme Court “‘has described pure matters of contractual

interpretation as readily amenable to summary judgment,’ because ‘proper

interpretation of language in a contract . . . is treated as a question of law.’”54

Delaware courts will grant summary judgment when the contract is unambiguous or

when extrinsic evidence fails to create a triable issue of material fact.55 The movant

may be entitled to summary judgment where its proffered construction is the only

reasonable interpretation of a contract.56

1. Whether the Guarantee is Enforceable

Servicios Funerarios first asserts that the Guarantee is invalid and

unenforceable because the Gayosso transaction was procured by fraudulent

representations and warranties in the SPA. Whether fraud induced that transaction

is before the Mexican and Massachusetts courts. The merits of Servicios

Funerarios’s fraud claims have no bearing on this case, which concerns the

Guarantee.

54
Tetragon Fin. Grp. Ltd. v. Ripple Labs Inc., 2021 WL 1053835, at *3 (Del. Ch. Mar. 19,
2021) (first quoting Barton v. Club Ventures Invs. LLC, 2013 WL 6072249, at *5 (Del. Ch.
Nov. 7, 2013); and then quoting Pellaton v. Bank of N.Y., 592 A.2d 473, 478 (Del. 1991)).
55
Julius v. Accurus Aerospace Corp., 2019 WL 5681610, at *7 (Del. Ch. Oct. 31, 2019),
aff’d, 241 A.3d 220 (Del. 2020); see GMG Cap. Invs., LLC v. Athenian Venture P’rs I,
L.P., 36 A.3d 776, 783 (Del. 2012) (“[I]n a dispute over the proper interpretation of a
contract, summary judgment may not be awarded if the language is ambiguous and the
moving party has failed to offer uncontested evidence as to the proper interpretation.”).
56
United Rentals, Inc. v. RAM Holdings, Inc., 937 A.2d 810, 830 (Del. Ch. 2007).
15
The Guarantee includes anti-reliance and integration clauses that preclude

fraud claims falling outside its four corners. These clauses provide that:

• Servicios Funerarios “disclaims any reliance upon any Non-
Parties with respect to . . . any representation or warranty
made . . . in connection with, or as an inducement to this
Guarantee”;57 and

• the “Guarantee constitutes the entire agreement with respect to
the subject matter hereof and supersedes any and all prior
discussions . . . and agreements, whether written or oral . . . .”58
Servicios Funerarios also “agree[d] that it [would] not assert . . . that . . . the

provisions of . . . Section 9 of this Guarantee [were] illegal, invalid or unenforceable

in whole or in part[.]”59

Servicios Funerarios contends that Delaware law prohibits Advent from

insulating itself from fraud using contractual limitations.60 It relies on ABRY

Partners V, L.P. v. F&W Acquisition LLC, where the court explained that “when a

seller intentionally misrepresents a fact embodied in a contract—that is, when a

seller lies—public policy will not permit a contractual provision to limit the remedy

of the buyer to a capped damage claim.”61 Then-Vice Chancellor Strine observed

57
Guarantee § 9(b)(ii).
58
Id. § 12.
59
Id. § 9(c)(i).
60
Def.’s Omnibus Opening Br. in Supp. of its Mot. to Dismiss Pls.’ Verified Am. Compl.
or, in the Alternative, to Stay this Action and Answering Br. in Opp’n to Pls.’ Mot. for
Summ. J. (Dkt. 30) (“Def.’s Omnibus Br.”) 45.
61
891 A.2d 1032, 1036 (Del. Ch. 2006).
16
that this policy maintains an equilibrium between economic efficiency and morality.

On the one hand, where a factual error is made unintentionally, there is “no moral

imperative to impinge on the ability of rational parties dealing at arms-length to

shape their own arrangements.”62 On the other hand, where an untruth sprouts from

an intent to deceive, “[t]he public policy against fraud is a strong and venerable one

that is largely founded on the societal consensus that lying is wrong.”63

But Servicios Funerarios is not asserting that the Guarantee contained

fraudulent misrepresentations. Its fraud arguments concern the SPA, which is

extraneous to the Guarantee. Servicios Funerarios raises the sort of “‘Double Liar

scenario” rejected in ABRY.64 “[A] party cannot promise, in a clear integration

clause of a negotiated agreement, that it will not rely on promises and representations

outside of the agreement and then shirk its own bargain in favor of a ‘but we did rely

on those other representations’ fraudulent inducement claim.”65

62
Id. at 1035.
63
Id. at 1036.
64
Id. at 1058; see also Online HealthNow v. CIP OCL Invs., LLC, 2021 WL 3557857, at
*12 (Del. Ch. Aug. 12, 2021) (explaining that any party who purports to rely on statements
outside a contract’s four corners, after disclaiming reliance on those statements, “reveals
[it]self as a liar in [its] own right and so has no basis to claim harm from fraud”).
65
ABRY, 891 A.2d at 1036; see also RAA Mgmt., LLC v. Savage Sports Hldgs., Inc., 45
A.3d 107, 119 (Del. 2012) (recognizing “Delaware’s public policy in favor of enforcing
contractually binding written disclaimers of reliance on representations outside of a final
agreement of sale or merger”).
17
Thus, Delaware courts distinguish between intra-contractual and extra-

contractual fraud. The former, which concerns statements within a contract, may

allow a party to avoid a contractual limitation. But where a party contracts for clear

anti-reliance language, she cannot avoid that promise by alleging fraud based on

extra-contractual statements.66 The disclaimer of reliance bars her ability to claim

fraud over the latter.

Servicios Funerarios acknowledges that the alleged fraudulent statements in

the SPA fall outside the Guarantee’s four corners.67 It asserts that the court should

nevertheless view the SPA and Guarantee as a single contract because the two were

executed concurrently and effectuate one transaction.68 It cites case law concluding

that where parties to a transaction “intend[ed] [two] documents to ‘operate as two

halves of the same business transaction,’ . . . the Court must treat them as one

contract.”69

66
See ABRY, 891 A.2d at 1057-58; see also Online HealthNow, 2021 WL 3557857, at *1
n.2; Roma Landmark Theaters, LLC v. Cohen Exhibition Co. LLC, 2020 WL 5816759, at
*17 (Del. Ch. Sept. 30, 2020) (“[H]aving disclaimed reliance upon the Preliminary Closing
Statement, Buyer cannot now claim that it justifiably relied upon the Preliminary Closing
Statement in entering into the Purchase Agreement.”).
67
It does not allege that the release in Section 9(b) of the Guarantee was fraudulently
induced.
68
Def.’s Omnibus Br. 47-49.
69
Id. at 48 (citing Segovia v. Equities First Hldgs., LLC, 2008 WL 2251218, at *9 (Del.
Super. May 30, 2008); quoting E.I. du Pont de Nemours & Co. v. Shell Oil Co., 498 A.2d
1108, 1115 (Del. 1985))); but see Eagle Force Hldgs., LLC v. Campbell, 187 A.3d 1209,
18
As even this quote evinces, however, key to “incorporat[ion] [of] one

document into another” is “an explicit manifestation of intent.”70 The Guarantee

mentions the SPA and states that the Guarantee was intended to “induce [Servicios

Funerarios] to enter into the [SPA].”71 But it does not incorporate any of the SPA’s

representations and warranties into the Guarantee by reference. In fact, the

Guarantee has its own representations and warranties that make no mention of the

SPA.72 The two agreements were executed by different parties (the Sellers for the

SPA; the Guarantors for the Guarantee), written in different languages (Spanish for

the SPA; English for the Guarantee), governed by different law (Mexican law for

the SPA; Delaware law for the Guarantee), and subject to different forum selection

clauses (Mexico for the SPA; Delaware for the Guarantee).73

1238 (Del. 2018) (explaining that Shell “speaks more to the interpretation of the contracts
at issue there—and not the court’s evaluation of the parties’ intent to be bound”).
70
Town of Cheswold v. Cent. Del. Bus. Park, 188 A.3d 810, 819 (Del. 2018); see also
Wiggs v. Summit Midstream Partners, LLC, 2013 WL 1286180, at *6 (Del. Ch. Mar. 28,
2013) (“Provisions in one agreement are not read into another agreement unless the
wording of the agreement evidences the parties’ intent to incorporate terms from another
agreement.”); Murphy Marine Servs. of Del., Inc. v. GT USA Wilmington, LLC, 2021 WL
2181424, at *6-7 (Del. Ch. May 28, 2021) (“If the documents were intended to constitute
the same agreement . . . [agreement one] would likely have incorporated by reference the
entirety or provisions of [agreement two] . . . .”).
71
Guarantee § 1.
72
See id. § 5.
73
Compl. Ex. B (“SPA”) §§ 22-23; Guarantee § 10.
19
Further, Servicios Funerarios’s theory is undercut by its own argument that its

claims in Massachusetts and Mexico are not prohibited by the Guarantee. It asserts

that “[t]he Guarantee . . . only precludes claims against Non-Parties . . . that relate to

the Guarantee”—not those that relate to the SPA.74 That is, it believes both that the

Guarantee only bars claims arising from the Guarantee itself and that the Guarantee

and SPA are interchangeable in negating the anti-reliance provision. These

incompatible positions cannot coexist.75

2. Whether the Guarantee Terminated

In the June Opinion, I held that Servicios Funerarios breached the forum

selection clause in Section 10 of the Guarantee. Now, I consider whether Servicios

Funerarios breached the covenants not to sue, release, and non-recourse provisions

in Sections 3(c) and 9 of the Guarantee. If Servicios Funerarios breached Section 9

74
Def.’s Omnibus Br. 8.
75
In the June Opinion, I concluded that narrowing the definition of Claims “to actions
depending on the Guarantee’s terms” would render “portions of the
definition . . . superfluous,” since various claims included in the definition—such as those
sounding in tort, including fraud claims—“sweep[] beyond the enforcement or
interpretation of the Guarantee.” June Op. *10. Servicios Funerarios’ reading of the
definition of Claims would render illogical its covenant “not to pursue ‘any Claim
whatsoever against the Guarantors or any other Non-Parties affiliated with [the Sellers]
under or in connection with th[e] Guarantee or the [SPA] . . . ’” if the definition of Claims
did not include litigation “in connection with . . . the [SPA].” Id. at *11. I held that the
language in Section 9(a), which bars claims related to “any representation or warranty
made or alleged to be made, in connection with, or as an inducement to, this Guarantee,”
was broad enough to include claims about the SPA. Id. at *10 (quoting Guarantee § 9(a)).
20
by commencing prohibited litigation, I must determine whether the Guarantee

terminated.

a. Breach of Section 3(c) of the Guarantee
In Section 3(c) of the Guarantee, Servicios Funerarios “covenant[ed] and

agree[d] that it [would] not institute or assert . . . any action or proceeding or bring

any other Claim . . . except for claims against: (i) the Guarantors under and pursuant

to this Guarantee and (ii) [the Sellers] under and pursuant to the [SPA].”76 This term

barred Servicios Funerarios from filing lawsuits other than the permitted Claims

against the Guarantors and Sellers.

Servicios Funerarios breached Section 3(c) when it brought Claims against

Non-Parties, including the Mexican civil action against Advent International. I

found in the June Opinion that both Advent International and Advent Mexico are

“Non-Parties” as defined the Guarantee.77 Servicios Funerarios does not allege

otherwise.

This breach did not, however, cause the Guarantee to terminate by its terms.

Section 8 provides that the Guarantee terminates upon the “commencement of any

76
See supra note 12 and accompanying text.
77
June Op. *9 (“Advent International (like Advent Mexico) is a ‘Non-Party’ to the
Guarantee.”).
21
litigation or other proceeding by [Servicios Funerarios] . . . prohibited by Section 9

of th[e] Guarantee.”78

b. Breaches of Section 9 of the Guarantee
In Section 9 of the Guarantee, Servicios Funerarios agreed that it could only

pursue certain defined Claims in connection with the Guarantee.

Section 9(a) is a non-recourse provision in which Servicios Funerarios agreed

that a “Claim . . . may be made or asserted only against (and [is] expressly limited

to) the Guarantors” and that “Non-Parties” had no “liability or obligation in respect

of any Claims.”79

Similarly, in Section 9(b), Servicios Funerarios “waive[d], release[d] and

disclaim[ed] any and all Claims against all Non-Parties,” and “disclaim[ed] any

reliance upon any Non-Parties with respect to the performance of th[e] Guarantee or

any representation or warranty made in connection with, or as an inducement to th[e]

Guarantee.”80

As in Section 3(c), Servicios Funerarios confirmed in Section 9(c) that it was

barred from “assert[ing] . . . any Claim . . . other than a claim . . . against the

Guarantors for payment or performance of the Obligations pursuant to (and as

78
Guarantee § 8 (emphasis added).
79
Id. § 9(a); see supra notes 13-14 and accompanying text.
80
Guarantee § 9(b); see supra notes 15-16 and accompanying text.
22
limited by) the terms of this Guarantee or . . . against [the Sellers] pursuant to [the

SPA].”81

As explained, Advent International is a “Non-Part[y]” under the Guarantee.82

So is Advent Mexico.83 Yet Servicios Funerarios brought the Mexican civil action

against Advent International and Advent Mexico. In doing so, Servicios Funerarios

breached Sections 9(a), 9(b), and 9(c) of the Guarantee.

These breaches of Section 9 triggered the termination provision in

Section 8(a), which states that the Guarantee “terminates” upon Servicios Funerarios

commencing “any litigation or other proceeding . . . prohibited by Section 9.”84

Thus, the Guarantee terminated on March 24, 2022 when Servicios Funerarios filed

the Mexican civil action against Advent International and Advent Mexico. The

prohibitions and releases in Section 9 concerning claims against “Non-Parties”

remain in effect.85

c. Servicios Funerarios’s Arguments Against Termination
Servicios Funerarios argues that even if it initiated litigation prohibited by

Section 9 of the Guarantee, the Guarantee would not terminate if the Sellers’

81
Guarantee § 9(c); see supra note 17 and accompanying text.
82
See supra note 9 and accompanying text; see also supra note 8 (defining “Non-Parties”).
83
See supra note 77.
84
Guarantee § 8(a); see supra note 19 and accompanying text.
85
Guarantee § 9; see supra note 20 and accompanying text.
23
representations in the SPA were inaccurate.86 It asserts that so long as it alleges false

representations by the Sellers in the SPA, it can breach its promises in the Guarantee

not to bring Claims against Non-Parties. This argument rests on an illogical reading

of Section 8 of the Guarantee.

Section 8 provides for automatic termination of the Guarantee upon “the

earlier of” three circumstances: (a) the date Servicios Funerarios commences

litigation “prohibited by Section 9”; (b) for any individual Guarantor, when that

Guarantor’s maximum guarantee obligation is satisfied; or (c) when 90 days have

elapsed after the Sellers’ obligation to indemnify Servicios Funerarios under Section

9(f) of the SPA terminates.87 Section 8 adds that the Guarantee “remain[s] in full

force and effect indefinitely with respect to a Payment Event arising as a result of”

inaccurate representations by the Sellers in enumerated provisions of the SPA.88

Servicios Funerarios calls this “full force and effect” provision a

“[t]ermination [c]aveat” and argues that it qualifies each of the three termination

criteria in Sections 8(a), 8(b), and 8(c).89 Advent, however, argues that the so-called

86
Def.’s Omnibus Br. 63.
87
Guarantee §§ 8(a)-(c).
88
See supra note 19 and accompanying text.
89
Def.’s Omnibus Br. 63.
24
“[t]ermination [c]aveat” only applies to Section 8(c)—not Sections 8(a) or 8(b).90

Advent’s reading is reasonable and supported by the operative contracts. Servicios

Funerarios’s reading is not.

The caveat is nonsensical as applied to Section 8(a), which concerns

termination of the Guarantee due to Servicios Funerarios’s own breaches. Similarly,

regarding Section 8(b), it would be unreasonable for the Guarantors to have

additional obligations due to the “[t]ermination [c]aveat” if they satisfied their

maximum payment obligations.

But, read together with the SPA, the caveat makes sense as applied to Section

8(c).91 Under Section 9(f) of the SPA, the Sellers’ obligations to indemnify Servicios

Funerarios for false representations is time-limited, except for “Fundamental

Representations” that “survive indefinitely.”92 These “Fundamental

90
Pls.’ Omnibus Reply Br. in Further Support of its Mot. for Summ. J. and Answering Br.
in Opp’n to Def.’s Mot. to Dismiss or Stay (Dkt. 34) (“Pls.’ Omnibus Reply Br.”) 35-36.
91
The direct reference to Section 9(f) of the SPA within Section 8(c) of the Guarantee
evinces the transactional parties’ intent to construe these two provisions together. See
Segovia v. Equities First Hldgs., LLC, 2008 WL 2251218, at *9 (Del. Super. May 30,
2008).
92
SPA § 9(f). Section 9(f) of the SPA pertains to the Sellers’ period of liability under the
SPA and provides that:
(i) The liability of the Sellers to indemnify the Purchaser or, when
appropriate, the Acquirer of the Real Estate Assets, in terms of this
Section will continue for a period from the Closing Date and until the
date that is 36 (thirty-six) months after the Closing Date, except for
(i) any lack of veracity in the Fundamental Representations that will
survive indefinitely and (ii) Fiscal and Labor Matters, which will
25
Representations” are defined as those made by the Sellers in Section 5.1 of the SPA,

except for Section 5.1(g), and 5.2(a)-(d), (n)(i), and (r)(i).93 They are the same

provisions listed in Section 8 of the Guarantee.94 Since the Sellers’ indemnification

obligations relating to “Fundamental Representations” in the SPA are not time-

barred, neither are the Guarantors’ obligations to backstop those obligations. Thus,

Section 8(c) alone is subject to this “[t]ermination [c]aveat.”

Because Section 8 contemplates termination upon “the earlier of” the three

circumstances in Section 8 and Section 8(a) was triggered first, it is irrelevant that

the caveat might prevent termination of the Guarantee under Section 8(c). To hold

otherwise would permit Servicios Funerarios to breach its promises not to sue Non-

Parties except for permitted Claims against the Guarantors so long as it alleged that

survive until the expiration of their respective prescription term in
accordance with the Applicable Law.
(ii) The obligations, agreements and commitments contained in this
Contract will continue in force after the Closing Date, without
limitation.
Id. § 9(f).
93
Id. § 1. These enumerated sections of the SPA include the Sellers’ representations
(except those pertaining to fees paid to financial intermediaries) and Gayosso’s
representations about Gayosso’s incorporation, capitalization, power and capacity to enter
into the SPA, property ownership, and trademarks. Id. §§ 5.1(a)-(f), (h); id. § 5.2(a)-
(d),(n)(i),(r)(i).
94
Compare Guarantee § 8(c), with SPA § 1 (definition of “Fundamental Representations”).
26
the Sellers made representations in the SPA. Servicios Funerarios’s commercially

unreasonable interpretation would eviscerate these bargained-for protections.95

* * *

The Guarantee is a valid and binding contract. Servicios Funerarios has

breached Sections 3(c) and 9(a)-(c) of the Guarantee by suing Advent International

and Advent Mexico in the Mexican civil action. As a result of the breaches of

Section 9, the Guarantee terminated under Section 8(a) upon the filing of the

Mexican civil action against Advent International and Advent Mexico.

Advent is entitled to the related declaratory relief sought in Count IV to its

Complaint in part. Servicios Funerarios was contractually barred by the Guarantee

from bringing the Mexican civil action against Advent International and Advent

Mexico. Advent is also entitled to the declaration sought in Count V that the

Guarantee terminated no later than March 24, 2022 when Servicios Funerarios filed

the Mexican civil action.

Advent also seeks declaratory relief regarding the Massachusetts action and

the Mexican criminal action.96 But given that the filing of the Mexican civil action

95
See Chi. Bridge & Iron Co. v. Westinghouse Elec. Co., 166 A.3d 912, 927 (Del. 2017)
(“The basic business relationship between parties must be understood to give sensible life
to any contract.”).
96
See, e.g., Compl. ¶ 168 (“The Claims barred by the Guarantee include the claims
Servicios Funerarios has made against AIC, Advent Mexico, and the Targeted Employees
in the Mexican Civil Complaint, Mexican Criminal Complaint, and the Massachusetts
Complaint.”).
27
caused the Guarantee to terminate, declaratory relief regarding the other suits would

be meaningless.97 Advent is not seeking an anti-suit injunction of the Massachusetts

action and, as discussed below, I decline to enjoin the Mexican civil action.98

“Delaware courts will . . . not issue declaratory relief when it can have no practical

effect on the injury complained of.”99 Nor can a declaratory judgment be issued

“merely to satisfy a party’s desire for an advisory opinion or an adjudication of

hypothetical questions.”100

B. Breadth of the Anti-Suit Injunction

The Injunction Order barred Servicios Funerarios from pressing claims

against Advent International in the Mexican civil action.101 Now, Advent seeks an

97
A four-part test to determine whether an actual live case or controversy meriting
declaratory relief exists: (1) the controversy must involve the rights of the party seeking
declaratory relief; (2) the claim of right must be asserted against someone with an interest
in contesting the claim; (3) the parties must be adverse; and (4) the issue in controversy
must be ripe for judicial determination. See Rollins Intern., Inc. v. International Hydronics
Corp., 303 A.2d 660, 662-63 (Del. 1973).
98
See infra Part II.B.1. Advent also neglected to meaningfully address the Massachusetts
action during oral argument, mentioning it only once as comprising a breach of the
Guarantee. See July Hr’g Tr. 33. It instead focused on the Mexican civil action as to
Advent International (which I resolved in the June Opinion) and Advent Mexico, as well
as the Mexican criminal action as brought against Advent International, Advent Mexico,
and certain employees.
99
In re COVID-Related Restrictions on Religious Services, 302 A.3d 464, 493 (Del. Super.
2023) (citing Intermec IP Corp. v. TransCore, LP, 2021 WL 4841131, at *2 (Del. Super.
Oct. 18, 2021)).
100
Havens v. Attar, 1997 WL 55957, at *9 (Del. Ch. Jan. 30, 1997).
June Op. *13 (“Servicios Funerarios is permanently enjoined from litigating the
101

Mexican civil action against Advent International.”).
28
anti-suit injunction against the Mexican criminal action. It also asks that I extend

the Injunction Order to include claims against Advent Mexico in the Mexican civil

action. I deny both requests.

1. Application to the Mexican Criminal Action
In July 2022, Servicios Funerarios initiated a Mexican criminal action called

a querella in which it accused Advent International, certain Advent affiliates

(including Advent Mexico), and several individuals of committing fraud.102 The

individuals named were three current and former Advent employees, a former audit

partner of Ernst & Young who performed due diligence on the Gayosso transaction,

and former officers of Gayosso. Arrest warrants were issued for everyone except

the Gayosso officers, who Servicios Funerarios subsequently pardoned.103 Servicios

Funerarios sought asset freezes denied in the Mexican civil action.

Now, Advent asks that I enjoin Servicios Funerarios from pressing the

Mexican criminal action against itself, its current and former employees, and its

affiliates—including Advent Mexico. Whether a Delaware court can enjoin a

foreign criminal proceeding appears to be an issue of first impression. As discussed

below, I decline to do so here.

Compl. ¶¶ 111-12; Compl. Ex. D; Mijangos Decl. ¶ 14; see also Pls.’ Opening Suppl.
102

Submission in Supp. of an Order Permanently Enjoining the Mexican Criminal Action
(Dkt. 69) (“Pls. Opening Suppl. Submission”) 7.
103
Compl. ¶ 111.
29
Servicios Funerarios’s effort to flout bargained-for contractual protections by

launching criminal proceedings over a merger gone bad is alarming. But the

proceedings are now in the hands of the Mexican criminal justice system. The relief

Advent seeks from this court would require Servicios Funerarios to affirmatively

pardon the defendants, displacing the power of Mexican state prosecutors and courts.

On balance, an injunction of this magnitude would test equity’s limits and

contravene principles of international comity.

My analysis proceeds in three parts. First, I begin by summarizing the

querella system in Mexico. Second, I survey case law from other jurisdictions

addressing orders to stop or limit foreign criminal proceedings. Third, I consider the

plaintiff’s request under Delaware law.

a. Relevant Mexican Criminal Procedure

A querella is one method of initiating criminal proceedings under Mexican

law.104 In contrast to a state-initiated action, it is commenced by a private actor.105

A querella is the only method of prosecuting criminal fraud in Mexico.106

104
See Causbie Gullers v. Bejarano, 293 F. App’x 488, 490 (9th Cir. 2008) (citing Rodolfo
Monarque Ureña, Derecho Procesal Penal Esquematico (A Schematic of the Right to
Criminal Process) 21-27 (2002)); James F. Smith, et al., Why Mexico? Why Mexican Law?
Why Now?, 24 Penn St. Int’l L.R. 373, 406 (2005); see also Compl. ¶ 103.
105
Código Nacional de Procedimientos Penales Art. 225; see also Kuri Decl. ¶ 15;
Mijangos Decl. ¶ 8 (“The querella consists of the act by which a putative victim or
offended party informs the Prosecutor’s Office of the commission of a crime and his
intention for it to be prosecuted.”).
106
See Kuri Decl. ¶ 15 (discussing that a querella is “require[d] to initiate the
30
Although a querella is initiated by the offended party, the next steps are led

by state actors. The public prosecutor directs the investigation into the

accusations.107 The prosecutor then decides whether the case will be taken before a

judge.108 If the prosecutor moves forward, the presiding judge will only issue an

arrest warrant if she determines that the prosecutor has presented sufficient evidence

to establish probable cause that the act was committed with the accused’s

participation.109

At any point, the victim may choose to pardon the accused. 110 Doing so is

final—it ends the querella, absolves the accused party, and extinguishes the state’s

investigation . . . because the Public Prosecutor’s Office could not open an investigation
file without the notice of the victim”); id. ¶ 16 (enumerating the crimes for which querella
is required, including fraud); Decl. by Javier Mijangos y Gonzáles (Dkt. 69 Ex. 2)
(“Mijangos Decl.”) (explaining that fraud requires a querella); see also Compl. ¶ 103.
107
Kuri Decl. ¶ 20. For example, it is within the power of the public prosecutor to receive
and order acts of investigation, request precautionary measures, dictate protective
measures, request investigations from the police, and conduct interviews with witnesses.
Id.
108
Id. ¶ 16.
109
Id. ¶¶ 17-18.
110
Id. ¶ 25.
31
power to prosecute the matter.111 In Mexico City, a pardon is the only way to

terminate the querella.112 The pardon cannot be revoked once made.113

b. Relevant Case Law from Other Jurisdictions
Delaware courts have lacked prior occasion to consider whether they may

enjoin a foreign criminal proceeding to enforce a forum selection clause in a

commercial contract. The parties thus look instead to decisions from various federal

courts.

Advent cites precedent supporting the notion that the enforcement of forum

selection (or arbitration) provisions can trump international comity concerns.114 It

relies principally on Rintin Corp., S.A. v. Domar, Ltd., where the United States

District Court for the Southern District of Florida confirmed an arbitral award that

required a party to “terminate its foreign civil and criminal lawsuits” in multiple

international jurisdictions.115 In affirming the award, the United States Court of

111
Id. ¶ 21 (“By means of a pardon, the victim of crimes prosecuted through a criminal
complaint waives the protection of his, her, or its rights affected by the crime, preventing
the Public Prosecutor’s Office from going to the Control Judge to initiate the criminal
process, or the Control Judge from continuing with the process in the event that the pardon
is granted once the arrest warrant has been issued.”).
112
Mijangos Decl. ¶ 10.
113
Kuri Decl. ¶¶ 24, 26-27; Mijangos Decl. ¶ 11.
114
Plaintiffs’ Suppl. Reply Submission in Further Supp. of an Order Permanently
Enjoining SF from Prosecuting the Mexican Criminal Action (Dkt. 94) (“Pls.’ Suppl.
Reply”) ¶¶ 10, 17
115
Rintin Corp., S.A. v. Domar, Ltd., 374 F. Supp. 2d 1165, 1168 (S.D. Fla. 2005), aff’d
476 F.3d 1254 (11th Cir. 2007).
32
Appeals for the Eleventh Circuit rejected the argument that the order “violate[d] the

public policy of Florida . . . favoring international comity,” countering that allowing

the other suits to “circumvent the arbitration” would “set the entire arbitration at

naught” and reduce it to “a sideshow.”116 But the Rintin courts did not enjoin the

prosecution of a foreign criminal matter, as Advent would have me do. They applied

the Florida International Arbitration Act in an “extremely limited” review of an

arbitration award.117

Advent relies on Quaak v. Klynveld Peat Marwick Goerdeler

Bedrijfsrevisoren for a similar point.118 There, the district court ordered an auditor

to produce certain auditing records in ruling on a motion to compel. The auditor was

a defendant in a securities fraud action and the target of a related criminal

investigation in Belgium.119 The auditor obtained a writ from a Belgian court

regarding the records after it was compelled to produce discovery in the fraud action.

The United States District Court for the District of Massachusetts then entered an

anti-suit injunction preventing the auditor from pursuing, and ordered it to withdraw,

its writ in Belgium.120 The United States Court of Appeals for the First Circuit

116
Id. at 1261.
117
Id. at 1169 (citation omitted).
118
361 F.3d 11, 20 (1st Cir. 2004); see Pls.’ Suppl. Reply ¶ 17.
119
Quaak, 361 F.3d at 15.
120
Id. (quoting injunction order).
33
affirmed the district court, remarking that “the character of the foreign action, the

public policy favoring the safeguarding of investors from securities fraud, the need

to protect the court’s own processes, and the balance of the equities” trumped

international comity concerns.121 Unlike the relief Advent seeks, however, the

injunction was of the auditor’s writ—not the Belgian criminal proceeding.122

Advent also cites Collins as Next Friend of J.Y.C.C. v. Doe Run Resources

Corp., which is even further afield from this matter.123 In Collins, the United States

District Court for the Eastern District of Missouri entered a protective order

prohibiting the defendants’ Peruvian counsel from having ex parte communications

with represented parties during witness interviews in a parallel Peruvian criminal

investigation.124 The district court’s order was based on concerns “about whether

the defendants were circumventing [its] discovery rulings—a matter relating to the

conduct of litigation before the court.”125 The court did not mention comity in its

decision. The Peruvian investigation continued, and the defendants remained able

121
Id. at 20.
122
Id. at 21-22.
123
65 F.4th 370 (8th Cir. 2023); see Pls.’ Suppl. Reply ¶ 17.
124
Collins, 65 F.4th at 378.
125
Id.
34
to participate in it.126 The United States Court of Appeals for the Eighth Circuit

dismissed the appeal for lack of jurisdiction.127

Servicios Funerarios, for its part, relies on authority addressing limits on

United States courts’ ability to enjoin, limit, or affect a foreign government’s

prosecution of its own criminal laws. It cites several cases in which courts declined

to enjoin a party’s participation in a foreign criminal proceeding due to international

comity concerns.128 It chiefly relies on Universal Entertainment Corp. v. Aruze

Gaming America, Inc. (“UEC”), in which the United States District Court for the

District of Nevada denied the defendants’ request to enjoin the plaintiffs from

voluntarily cooperating with authorities in a Macanese criminal investigation.129

The facts of UEC are like those here. The defendants in UEC asserted that

the investigation was launched in Macau by a private entity and pursued by a public

126
Id. at 375.
127
Id. at 378.
128
Def.’s Opp’n to Pls.’ Opening Suppl. Submission (Dkt. 81) (“Def.’s Suppl.
Opp’n”) ¶ 25 (citing Republic of Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 79
(3d Cir. 1994) (“We are unaware of any court in the United States—or elsewhere—that
has ever attempted to inject itself . . . into the internal law enforcement activities of a
foreign sovereign.”) and Allscripts Healthcare, LLC v. Andor Health, LLC, 2021 WL
4061544, at *1, 10 (D. Del. 2021) (“We deny the plaintiffs’ motion for immediate
extraordinary relief . . . to preliminarily enjoin the Indian entity defendant from further
cooperating in an ongoing criminal investigation against nonparties in India . . . We trust
the Indian investigators and courts will determine the truth of statements Mahathi India
made to police authorities regarding non-parties in India.”)).
129
2020 WL 1258428, at *5 (D. Nev. Mar. 16, 2020).
35
prosecutor—much like the querella system in Mexico.130 The plaintiffs there, like

Servicios Funerarios, had a role in initiating the criminal investigation.131

Despite that, the UEC court declined to enter an anti-suit injunction of the

Macanese investigation. It held that the role of the Macanese authorities in directing

the investigation and deciding which charges to bring distinguished it from a civil

proceeding.132 Since “the determination of how a country’s criminal laws should be

investigated and enforced represents one of the most important characteristics of

sovereign authority, th[e] Court w[ould] not intervene in an essentially criminal

proceeding of another country.”133 It observed that to do so “would have an

intolerable impact on the criminal proceeding and thus international comity.”134

130
Id. (“[I]n Macau, a private entity may file either a civil or criminal complaint for patent
infringement and ‘may request to be appointed as an assistant to the criminal proceedings
and, in that capacity . . . may provide its collaboration in the investigation, as well as
request that investigative measures and further means of evidence be produced and/or
collected.’ The Public Prosecutor, ‘directly or with the assistance of the police
authority . . . must investigate the complaint.’ It is ultimately the Public Prosecutor’s
decision whether to bring an indictment after investigation, but if ‘sufficient evidence
exists’ to suggest that a crime may have been committed, the Prosecutor ‘must’ pursue
charges.” (quoting affidavit from defendant’s counsel)).
131
Id.
132
Id.
133
Id.
134
Id.
36
c. Delaware Law

Armed with an understanding of the Mexican querella system and federal

precedent, I turn to consider whether the injunction Advent seeks should be entered

under Delaware law. To obtain a permanent injunction of the Mexican criminal

action, Advent must show (1) “actual success on the merits,” (2) that “irreparable

harm will be suffered” absent injunctive relief, and (3) that any harm resulting from

denial of the injunction “outweighs the harm that would befall” the non-movant if

an injunction were entered.135 The third factor is wanting.

Advent International and its affiliates face harm absent an injunction.

Assuming they could prove actual success on the merits for the reasons considered

above and in the June Opinion,136 the bargained-for protections of the Guarantee are

frustrated by the Mexican criminal action. An injunction would give the parties the

value of their bargained-for rights. I enjoined Servicios Funerarios from pursuing

the Mexican civil action against Advent International for this reason.137 Although I

135
Christiana Town Ctr., LLC v. New Castle Ctr., 2003 WL 21314499, at *2 (Del. Ch.
June 6, 2003) (citation omitted), aff’d sub nom. Christiana Town Ctr. LLC v. New Castle
Cnty., 841 A.2d 307 (Del. 2004) (TABLE).
136
See supra Parts II.A.2; June Op. *12 (“Advent is entitled to summary judgment in its
favor insofar as Servicios Funerarios’ filing of the Mexican civil action breached Section
10 of the Guarantee.”).
137
June Op. *12.
37
sympathize with the defendants facing prosecution, I cannot prejudge the merits of

a foreign nation’s enforcement of its criminal laws.

At the same time, Servicios Funerarios risks harm if I were to grant the

injunction. In substantial contrast to the injunction of the Mexican civil action, an

injunction of the Mexican criminal action would effectively extinguish Servicios

Funerarios’s appeal rights.138

More critically, dropping the querella would require Servicios Funerarios to

affirmatively pardon Advent International and its affiliates.139 That is, Servicios

Funerarios would not only be compelled to cease the proceeding but also to

exonerate these parties. Bringing to bear more than 30 years of Mexican criminal

law experience, Servicios Funerarios’s expert cites precedent from the Supreme

Court of Justice of the Nation (Mexico’s Supreme Court) in explaining that a pardon

“constitutes a manifestation of will between the parties that intervene in it . . . an act

independent of what must be carried out and expressed before said authority, who,

138
Kuri Decl. ¶¶ 21-27. In Carlyle Investment Management L.L.C. v. National Industries
Group, the court affirmed an order that “permanently enjoined” one of the parties “from
filing or prosecuting any action subject to the forum selection clause . . . in any forum other
than the courts of the State of Delaware,” preventing the party from appealing in other
courts. 2012 WL 4847089, at *4 (Del. Ch. Oct. 11, 2012). There, however, the order was
in the form of a default judgment since the party subject to the injunction consistently and
willfully failed to appear in Delaware. Id. No such circumstances are present here.
139
Kuri Decl. ¶ 26.
38
taking as a basis what was manifested before it, will resolve what is legally

appropriate . . . .”140

Perhaps most critically, I cannot ignore that principles of international comity

favor denial of the injunction.141 The unusual and extreme relief Advent seeks would

interfere with the Mexican government’s prosecution of its own laws. As the matter

stands, a Mexican prosecutor and judge found probable cause to issue arrest

warrants.142 “Whether those allegations [we]re credible enough . . . is a decision to

be made by the foreign government.”143

On balance, I decline to enter the injunction sought.144 To demand that

Servicios Funerarios grant pardons and end criminal proceedings under the direction

of foreign state actors would exceed the reach of any anti-suit injunction issued by a

Delaware court. The Mexican courts and prosecutor are in control of the matter. As

in UEC, I hesitate “to intrude upon this sovereign discretion.”145

140
Id. (citing Detail – Thesis – 196940 (scjn.gob.mx)). Advent’s expert, Javier Mijangos
y Gonzalez, did not speak in his declarations to whether a pardon constituted a judgment
on the merits. See Mijangos Decl; Decl. by Javier Mijangos y González (Dkt. 94)
(“Mijangos Reply Decl.”).
141
See supra note 128 and accompanying text.
142
Def.’s Suppl. Opp’n Ex. E.
143
UEC, 2020 WL 1258428, at *5.
144
See Turek v. Tull, 139 A.2d 368, 374-75 (Del. Ch. 1958) (explaining the discretionary
nature of permanent injunctive relief).
145
UEC, 2020 WL 1258428, at *5.
39
2. Extension of the Anti-Suit Injunction to Advent Mexico

Finally, Advent seeks to enjoin Servicios Funerarios from prosecuting the

Mexican civil action against Advent Mexico. Although the June Opinion and

Injunction Order made no mention of Advent Mexico, Advent insisted that the relief

extended to this entity.146 After Servicios Funerarios filed a motion for clarification,

Advent filed the operative Complaint to affirmatively request injunctive relief on

behalf of Advent Mexico, which was added as a plaintiff.147

Now, Advent correctly argues that the reasoning in the June Opinion applies

to Advent Mexico and supports a related injunction. Again, Advent International

and Advent Mexico are “Non-Parties” that Servicios Funerarios covenanted in the

Guarantee not to sue.148 Thus, Section 10 of the Guarantee’s bar against suing

Advent International in a non-Delaware forum logically extends to Advent

Mexico.149

Still, I decline to enjoin Servicios Funerarios from pressing the Mexican civil

action against Advent International for two reasons. First, although extending the

146
Pls.’ Resp. to Def.’s Mot. For Rearg. (Dkt. 59) ¶ 19 (“The plain language of the Opinion
and Order makes clear that the Guarantee prohibits [Servicios Funerarios] from litigating
the Mexican Civil Action against Advent Mexico.”).
147
See Tr. of June 27, 2024 Telephonic Status Conf. and Sched. Conf. (“June Conf. Tr.”)
12; Compl. Ex. 1 (redline).
148
June Op. *9; see supra note 77.
149
June Op. *12.
40
injunction to cover Advent Mexico would be consistent with the reasoning of the

June Opinion, Advent Mexico was not a party to the action when I issued the

Injunction Order.150 I reject Advent’s invitation to extend relief to non-party entities

“acting in concert” with Advent International.151 Second, laches bar the extension

of injunctive relief to Advent Mexico.152

A laches-based defense requires a showing of: (1) knowledge by the claimant;

(2) unreasonable delay in bringing the claim; and (3) resulting prejudice to the

defendant.153 All three elements are present here.

150
Moreover, Advent’s initial briefing expressly disclaimed that it was asking for relief on
behalf of Advent Mexico. In its reply in further support of its summary judgment motion,
Advent acknowledged that Advent Mexico was not a party to the action but stated that the
court could ignore that in deciding whether to enjoin the Mexican civil action since it “ha[d]
never asked th[e] Court to enjoin [Servicios Funerarios] from pursuing the Mexican Civil
Action in its entirety.” Pls.’ Omnibus Reply Br. 13; see also Tr. of May 16, 2024 Oral
Arg. Regarding Pls.’ Mot. for Summ. J. and Def.’s Mot. to Dismiss or Stay (Dkt. 50) 4-5
(seeking a “very limited” anti-suit injunction “solely as to AIC in the Mexico civil case”).
Advent fails to explain why it has since shifted position on this point.
151
June Conf. Tr. 12. Advent relies on Goldstein v. Denner for this contention. Pls.’ Resp.
to Def.’s Mot. for Rearg. ¶ 24 (citing 2022 WL 1797224, at *15 (Del. Ch. June 2, 2022)).
But Goldstein speaks only to the court’s ability to grant relief that the parties did not seek
in their pleadings—not its ability to grant relief with respect to non-parties. Goldstein,
2022 WL 1797224, at *15 (citation omitted).
152
Servicios Funerarios’s motion for clarification contends that to extend relief to Advent
Mexico would “ignore the fact that Advent Mexico has been actively litigating in the
Mexico civil action for approximately two years.” Def.’s Mot. for Clarification ¶ 24.
153
Whittington v. Dragon Grp., L.L.C., 991 A.2d 1, at 8 (Del. 2009).
41
On the first laches element, Advent Mexico knew about the Mexican civil

action by the time that it was served on April 19, 2022.154 It was involved in the

Gayosso transaction from its earliest stages. Pablo Peña, Servicios Funerarios’s

principal, initially approached Advent Mexico about purchasing Gayosso and it was

Advent Mexico that entered into a non-binding term sheet with Peña.155 Advent

Mexico was also actively involved in the negotiation of the SPA.156 As such, Advent

Mexico was surely aware of the terms of the Guarantee, including that it was a “Non-

Party” protected from litigation by Servicios Funerarios over the transaction.

Second, Advent Mexico’s delay in seeking injunctive relief was unreasonable.

Advent Mexico answered the complaint in the Mexican civil action more than two

years ago, shortly after it was served.157 Yet it waited until recently to seek an anti-

suit injunction from this court. This is in significant contrast to Advent International,

which sought an expedited anti-suit injunction immediately upon being served with

154
Decl. of Daniel A. Díaz Alvarez, Servicios Funerarios’ Mexican Civil Counsel, in Supp.
of its Reply in Further Supp. of its Mot. For Clarification (Dkt. 67) (“Díaz Decl.”) ⁋ 33.
155
June Op. *2.
156
Id.
157
Def.’s Mot. for Clarification ¶ 24. Advent asserts that Advent Mexico has not been
actively litigating the Mexican civil action. See Dkt. 42. According to Advent, since
“Mexican civil actions may proceed only after all defendants are served; thus, no party has
been ‘actively litigating’ during the past two years.” Pls.’ Resp. to Def.’s Mot. for Rearg.
¶ 23 n.3. That may be true. But Advent Mexico answered the complaint in the Mexican
civil action and waited for years to request an anti-suit injunction from this court.
42
the Mexican civil action complaint.158 While Advent International sought injunctive

relief, Advent Mexico did not.159 Advent Mexico offers no reason for its delay.160

Third, Servicios Funerarios was prejudiced by Advent Mexico’s failure to

timely pursue injunctive relief. For two years, it has litigated claims against Advent

Mexico in the Mexican civil action.161 Given Advent Mexico’s answer to the

complaint in that suit, Servicios Funerarios had reason to believe that its claims

against Advent Mexico would not proceed apace. Servicios Funerarios also devoted

resources to litigating Advent’s claim in this court for an anti-suit injunction

protecting Advent International. It is now being caused to revisit these arguments

as to Advent Mexico—though both parties initially agreed that Advent Mexico was

not a party to this suit.162

158
See June Op. *6 n.66 (“Laches also does not bar Advent [International]’s request for an
injunction. Advent sought this relief when Advent International was served with process
in Mexico, which occurred long after the suit was filed. Before then, Advent International
had no obligation to respond to the suit.” (emphasis added)); Dkt. 42 (letter from Advent
International requesting expedited relief immediately following service of process); see
also June Op. *4 (granting expedited relief).
159
See supra notes 146-47 and accompanying text; see also supra note 150.
160
CNL-AB LLC v. Eastern Prop. Fund I SPE, 2011 WL 353529, at *5 (Del. Ch. Jan. 28,
2011) (“[T]he temporal aspect of the delay is less critical than the reasons for it.”) (citing
Whittington, 991 A.2d at 7-8).
161
See Tracker Marine, L.L.C. v. Pena, 2017 WL 3528633, at *3 (Del. Ch. July 17, 2017)
(discussing prejudice suffered by a defendant where a plaintiff’s delay forced him to “pay
for additional counsel in order to litigate parallel proceedings” in two jurisdictions).
162
See supra note 150.
43
Accordingly, Servicios Funerarios is not enjoined from pursuing the Mexican

civil action against Advent Mexico. Advent Mexico has “waited too long to invoke

equity, and [its] request is [now] barred by laches.”163

III. CONCLUSION

For the reasons outlined above, summary judgment is granted in Advent’s

favor in part. Servicios Funerarios breached Section 9 the Guarantee by filing the

Mexican civil action against Advent International and Advent Mexico, which caused

the Guarantee to terminate.

I decline to issue an anti-suit injunction of the Mexican criminal action. I also

decline to enjoin Servicios Funerarios from prosecuting the Mexican civil action

against Advent Mexico.

If there are remaining matters to be resolved, the parties are to inform the court

by joint letter within 14 days. Otherwise, the parties are to submit a proposed order

to implement this decision or competing proposed orders with a joint letter outlining

the differences and a redline comparing the two proposed orders.

163
FP UC Holdings, LLC v. Hamilton, 2020 WL 1492783, at *14-15 (Del. Ch. Mar. 27,
2020); see also Brookstone P’rs Acq. XVI, LLC v. Tanus, 2012 WL 3711410, at *4 (Del.
Ch. Aug. 22,2012) (denying a motion to expedite after party sought to preempt foreign
proceeding after waiting five months).
44