Anzu Partners LLC v. Omegax, Inc.

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

ANZU PARTNERS LLC, a Florida Limited )
Liability Company; ANZU RBI )
MEZZANINE PREFERRED LLC, a )
Delaware Limited Liability Company; )
ANZU RBI MEZZANINE PREFERRED )
GP LLC, a Delaware Limited Liability )
Company; ANZU INDUSTRIAL FUND I )
ANNEX LP, a Delaware Limited )
Partnership, Kevin Hill, )
)
Plaintiffs, )
)
v. ) C.A. No. 2024-0526-PAF
)
OMEGAX, INC., a California Corporation, )
)
Defendant, )

POST-TRIAL ORDER

I. WHEREAS:1
1. On November 10, 2023, defendant OmegaX, Inc. (“OmegaX” or the

“Defendant”), OmegaX Merger Sub, Inc. (“Merger Sub”), Pivotal Systems

Corporation (“Pivotal”), and plaintiff Anzu RBI Mezzanine Preferred GP LLC

(“Anzu Mezzanine GP”), as representative for the securityholders of Pivotal, entered

1
Trial exhibits are cited as “JX” followed by the relevant section, page, paragraph, or
exhibit number. Citations to the docket in this action are in the form of “Dkt. [#].”
Stipulated facts in the Dkt. 46 are cited as “Joint Stip.” After being identified initially,
individuals are referenced herein by their surnames without regard to honorifics. No
disrespect is intended. Unless otherwise indicated, citations to the parties’ brief are to pre-
trial briefs.
into an agreement and plan of merger (the “Merger Agreement”).2 The Merger

Agreement provided for OmegaX to acquire Pivotal in an all-cash transaction. Upon

the closing of the transaction on November 19, 2023,3 Pivotal merged with and into

Merger Sub, a wholly owned subsidiary of OmegaX, with Pivotal surviving (the

“Merger”).

2. Plaintiff Anzu Partners, LLC (“Anzu”) is a Florida limited liability

company. Plaintiff Anzu Industrial Fund I Annex LP (collectively with Anzu, Anzu

Mezzanine GP, and Anzu Mezzanine, the “Anzu Plaintiffs”) is a Delaware limited

partnership.4

3. Plaintiff Kevin Hill (collectively with the Anzu Plaintiffs, the

“Plaintiffs”) was, before the merger, the chief executive officer of non-party Pivotal

and executed the Merger Agreement on behalf of Pivotal.5

4. Pivotal is a Delaware corporation with its principal place of business in

California.6

2
JX 3; Joint Stip. at ¶ 12.
3
See JX 5 at 2.
4
Joint Stip. ¶ 7.
5
Id. ¶ 3.
6
Id. ¶ 1.
5. Defendant OmegaX is a California corporation with its principal place

of business in California.7 OmegaX Merger Sub, Inc. (“Merger Sub”) was a

Delaware corporation.8

6. Section 7.10 of the Merger Agreement designates Delaware law to

govern the contract (the “Choice of Law Clause”) and for the courts of Delaware as

the exclusive forum for any disputes that might arise under the Merger Agreement

(the “Forum Clause”). Section 7.10 states, in pertinent part:

This Agreement, and all claims arising hereunder or related thereto,
whether in contract, tort or otherwise, shall be governed by and
construed in accordance with the laws of the State of Delaware without
reference to such state’s principles of conflicts of law. Each of the
parties hereby expressly and irrevocably submit[] to the exclusive
jurisdiction of the Delaware Court of Chancery in and for New Castle
County, or in the event (and only in the event) that such Delaware Court
of Chancery does not have subject matter [jurisdiction] over such
dispute, any Delaware State court sitting in New Castle County, unless
the federal courts have exclusive jurisdiction, in which case the federal
courts located in New Castle County in the State of Delaware
(collectively, the “Specified Courts”), preserving, however, all rights of
removal to such federal court under 28 U.S.C. 1441…

7. The parties also agreed to waive any right to a jury trial.9

8. On April 4, 2024, OmegaX filed a complaint against the Plaintiffs in

the California Superior Court for the County of Alameda, OmegaX, Inc. v. Anzu

7
Id. ¶ 8.
8
Id. ¶ 9.
9
See JX 3 § 7.12.
Partners LLC, et al., C.A. No. 24CV070406, (the “California Action”).10 The

California Action asserts claims under the California Securities Act (the “California

Blue Sky Claim”), common law fraud, conspiracy, and aiding and abetting.11 The

complaint in the California Action requests a jury trial and punitive damages.12

OmegaX, the plaintiff in the California Action, strategically chose not to allege

breach of the Merger Agreement.

9. On May 17, 2024, the Anzu Plaintiffs filed a verified complaint in this

court alleging breach of the Merger Agreement and seeking to enjoin OmegaX from

pursuing the California Action in contravention of the Forum Clause. The complaint

requests declaratory and injunctive relief, specific performance, and damages.13 The

Anzu Plaintiffs also filed a motion for expedited proceedings.14 After motion

practice, this court granted the Anzu Plaintiffs’ motion to expedite without hearing

argument.15

10. On June 17, Anzu Plaintiffs filed a motion for a preliminary injunction

to enjoin OmegaX from pursuing its claims against the Anzu Plaintiffs in the

10
Joint Stip. ¶ 14; JX 5.
11
Id. ¶ 16.
12
Id. ¶ 19.
13
Dkt. 1.
14
Dkt. 2.
15
Dkts. 21, 25, 31.
California Action.16 After briefing and argument, the court granted the motion on

August 2.17

11. On August 29, the court entered an order granting Hill’s motion to

intervene as a plaintiff in this action under Court of Chancery Rule 24(b)(1)(B).18

Hill adopted the Anzu complaint in entirety.19

12. The court held a one-day trial on a paper record on September 23,

2024.20 The parties presented two central issues at trial: (a) whether the Forum

Clause is unenforceable because applying it would deprive OmegaX of a jury trial

in contravention of California public policy and (b) whether the Forum Clause and

Choice of Law Clause would deprive OmegaX of pursuing its unwaivable right

under California law to pursue its California Blue Sky Claim.21

13. On September 25, this court entered an order (i) amending the

preliminary injunction to also enjoin OmegaX from pursuing all claims against Hill

in the California Action and (ii) deferring decision and staying this action until after

16
Dkt. 24.
17
Dkts. 32, 34, 35.
18
Dkts. 42, 45.
19
Dkt. 45 at 3.
20
Dkt. 54.
21
JX 5. See Dkt. 48 (“Def.’s Answering Br.”); Dkt. 64 (“Def.’s Post-Trial Answering Br.”)
at 2-5.
the California Supreme Court issued a final decision in EpicentRx, Inc. et al. v. The

Superior Court of San Diego County, Case No. S282521.22

14. On July 21, 2025, the California Supreme Court issued its decision in

EpicentRx, Inc. v. Superior Court of San Diego County, 572 P.3d 1 (Cal. 2025).

Thereafter, the parties submitted supplemental briefing on the implications of

EpicentRx to this case.23

NOW THEREFORE, IT IS HEREBY ORDERED, this 6th day of November,

2025, as follows:

15. “[T]he Court of Chancery has subject matter jurisdiction to enjoin

violations of a valid forum selection clause.” Nat’l Indus. Gp. (Hldg.) v. Carlyle Inv.

Mgmt., L.L.C., 67 A.3d 373, 383 (Del. 2013). A permanent injunction is warranted

if the moving party: (1) proves actual success on the merits of its claims, (2)

demonstrates that other remedies are inadequate, and (3) shows that the harm that

will result if an injunction is not issued outweighs the harm that the non-movant will

suffer if it is issued. In re Covid-Related Restrictions on Religious Servs., 285 A.3d

1205, 1224, 1228 (Del. Ch. 2022).

22
Dkt. 55. OmegaX and the Plaintiffs have agreed to refrain from engaging in any written
discovery or depositions regarding OmegaX’s claims against Plaintiffs in the California
Action until this court rules on Plaintiffs’ pending claims. Joint Stip. ¶ 21.
23
Dkts. 63–65.
16. The court has already found, and the parties did not dispute in their

briefing or at trial that, if the Forum Clause is valid and enforceable, then the

following is true: (i) the Anzu Plaintiffs would suffer irreparable harm by being

forced to litigate in a forum other than what is provided for in the Merger Agreement,

thereby demonstrating that a permanent injunction would be warranted and (ii) the

balance of equities favors the Anzu Plaintiffs.24 This equally applies as to Hall, and

Defendant has not argued that he is differently situated than the Anzu Plaintiffs.

Therefore, prongs two and three of the test are satisfied as to all Plaintiffs.

17. To prove success on the merits, Plaintiffs must show that (i) the Forum

Clause is enforceable and (ii) Defendant breached the Forum Clause by commencing

and maintaining the California Action.

18. At trial, Defendant argued two reasons against enforcement of the

Forum Clause. First, Defendant contended that the Forum Clause was void and

unenforceable as against California’s prohibition against pre-dispute jury trial

24
See Dkt. 41; see also ASDC Hldgs., LLC v. Richard J. Malouf 2008 All Smiles Grantor
Retained Annuity Tr., 2011 WL 4552508, at *8 (Del. Ch. Sept. 14, 2011) (explaining, a
party will suffer irreparable harm if it is forced to litigate in a forum other than the
contractually agreed upon forum, because that party will be deprived of the benefit of the
bargain it struck, regardless of whether it later prevails on the merits); SPay, Inc. v. Stack
Media Inc., 2021 WL 1109181, at *2 (Del. Ch. Mar. 23, 2021) (citing BE & K Eng’g Co.,
LLC v. RockTenn CP, LLC, 2014 WL 186835, at *23 (Del. Ch. Jan. 15, 2014), aff’d, 103
A.3d 512 (Del. 2014)) (explaining, the balance of equities does not favor the party who
breached a forum-selection clause, because the breaching party “will suffer no harm by
being forced to bring [its] claims in the forum where [it] agreed by contract to litigate.”).
waivers.25 Defendant has since conceded this argument after the California Supreme

Court’s EpicentRx decision,26 which held that a forum selection clause is not

unenforceable “on public policy grounds based solely on the clause’s impact on

plaintiff’s jury trial right.” EpicentRx, 572 P.3d at 18.

19. Omega’s second argument, which it still maintains, contends that the

Forum Clause is invalid because of California’s “strong public policy against

waiving the protections of California’s blue sky laws.”27

20. The Defendant frames this as a dispute over the enforceability of the

Forum Clause. The Defendant argues that the Forum Clause cannot be enforced

because doing so “would . . . contravene California’s strong public policy against

25
Defendants argued that California has a strong public policy prohibiting pre-dispute jury
trial waivers as outlined in Article I, Section 16 of the California Constitution, which
provides, that “[t]rial by jury is an inviolate right,” and that “[i]n a civil cause a jury may
be waived by the consent of the parties . . . as prescribed by statute.” The California
legislature has provided that, except in certain circumstances not present here, a civil jury
trial may only be waived after a dispute has arisen. See Cal. Code Civ. Pro., § 631, subd.
(a), (f); see also Grafton P’rs v. Super. Ct., 116 P.3d 479, 482 (Cal. 2005). Therefore,
defendants argued that the enforcement of the Forum Clause would contravene California’s
strong public policy against pre-dispute jury trial waivers because the Court of Chancery
does not hold jury trials. Def.’s Answering Br. 25; see Pennzoil Co. v. Getty Oil Co., 473
A.2d 358, 364 (Del. Ch. 1984) (“Pennzoil wants to present its damage claims against
Texaco for tortious interference to a jury. It cannot do so in this Court since there is no
right of a litigant to a trial by jury in the Delaware Court of Chancery”); Preston Hallow
Cap. LLC v. Nuveen LLC, 216 A.3d 1, 11 n. 64 (Del. Ch. 2019) (explaining that jury trials
are mere “vestigal [sic] structure[s]” in the Court of Chancery). Thus, Defendants argue,
“enforcement of the forum selection clause will result in OmegaX losing its fundamental
right to a jury trial and under Bremen the clause cannot be enforced.” Id.
26
Def.’s Post-Trial Answering Br. 1.
27
See Def.’s Post-Trial Answering Br. 1.
waiving the protections of California’s blue sky laws.” Defendant points to

California Corporations Code Section 25701, which provides: “any condition,

stipulation or provision purporting to bind any person acquiring any security to

waive compliance with any provision of [the California Securities Act] or any rule

or order hereunder is void.”28

21. The real basis of this argument is the combined effect of both the Forum

Clause and the Choice of Law Clause. Defendant does not cite any authority which

suggests that the Forum Clause, standing alone, prevents Defendant from asserting

its California Blue Sky Claim in a Delaware court. Rather, the issue is the

applicability and scope of the Delaware Choice of Law Provision. Read literally,

the Delaware Choice of Law Provision would preclude the Defendant from asserting

a California Blue Sky Claim arising out of the Merger.

22. This court has previously addressed this precise issue. In Swipe, this

court held that a contractual Delaware choice of law provision and Delaware

exclusive forum provision in a stock purchase agreement did not extinguish the

plaintiff’s California blue sky law claim. After a thorough and detailed analysis, this

court explained that the choice of law provision did not result in a waiver of

plaintiff’s California blue sky law claim, because doing so “would offend California

28
Def.’s Answering Br. 36.
public policy.” The court denied the motion to dismiss the California blue sky law

claim in the Delaware action and held that it could be pursued in Delaware.

23. Defendant does not challenge this court’s decision in Swipe or its

reasoning. Instead, it argues Plaintiffs can prevail only if (1) Plaintiffs concede that

Defendant can pursue a California Blue Sky Claim in this court; and (2) this court

will “guarantee” that OmegaX can pursue a California Blue Sky Claim in this court.

The first argument is moot. The Plaintiffs have acknowledged that “a Delaware

forum is not unjust or unreasonable . . . nor would it diminish any of Defendant’s

unwaivable blue-sky rights.”29

24. Second the argument fails because it asks this court to give an

impermissible advisory opinion on a complaint that has not been filed in this court.

See Buzzfeed, Inc. v. Anderson, et al., 2022 WL 15627216, at *19 (Del Ch. Oct. 28,

2022) (“[T]his Court will not render an advisory opinion in advance of litigation or

in the absence of a factual situation giving rise to an imminent controversy between

the parties.”) (citation modified). For example, if OmegaX were to assert only a

California blue sky law claim seeking money damages in this court, it could present

a question for which this court might not have subject matter jurisdiction.

29
Dkt. 65 at 4.
25. Swipe held that a California blue sky law claim can be litigated in a

Delaware court, notwithstanding a contractual provision that dictates Delaware law

alone governs any claims arising under the contract. The court need not go beyond

that decision to reject Defendant’s arguments in opposition to the Plaintiffs’ claims.

26. The Plaintiffs have proven success on the merits of their claims.

Therefore, the Plaintiffs have established the right to a permanent injunction that

enjoins Defendant from continuing to litigate the California Action.

Scope of relief.

27. Plaintiffs have requested an order not only enjoining Defendant from

pursuing its claims in the California Action, but also “enjoining Defendant from

further breach of the Merger Agreement.”30 Defendants oppose the Plaintiffs’

proposed injunction to the extent it extends beyond the California Action.31

28. A permanent anti-suit injunction that extends beyond extant litigation

is warranted only if “there is reason to believe that a defendant will resume his

wrongful course of conduct . . . [not where the plaintiff has] already achieved the

relief sought by successfully obtaining an antisuit injunction that forced [the

defendant] to litigate all of his claims [in Delaware].” Vivint Solar, Inc. v.

Lunderberg, 2024 WL 2755380, at *41 (Del. Ch. May 30, 2024). Absent such a

30
Id.; Dkt. 1 at 9.
31
Def.’s Answering Br. 53-54.
showing, the movant is effectively seeking an improper advisory opinion. See

Buzzfeed, 2022 WL 15627216, at *19. There is no reason to believe that OmegaX

will continue to violate the Merger Agreement after entry of this order. If Defendant

does so, Plaintiffs can file a new action in this court.

29. Plaintiffs have established a right to a permanent injunction. Defendant

is permanently enjoined from pursuing the California Action and the claims brought

in that action in a non-Delaware court.

CONCLUSION

For the foregoing reasons the Forum Clause is enforceable. The Defendant

breached the Forum Clause by filing and maintaining the California Action.

Plaintiffs’ request for a permanent injunction against Defendant for bringing the

California Action in a forum other than that chosen in the Forum Clause is granted,

and Plaintiffs’ additional requested relief is denied.

/s/ Paul A. Fioravanti, Jr.
Vice Chancellor