Ami Shafrir Berg v. Shai Bar-Lavi

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

AMI SHAFRIR BERG,

Plaintiff,

v. C.A. No. 2025-0959-LWW
SHAI BAR-LAVI and
SAUL BIENENFELD,

Defendants.

MEMORANDUM OPINION

Date Submitted: February 2, 2026
Date Decided: March 27, 2026

Charles D. Vavala & Matthew C. Conover, WILKS LAW, LLC, Wilmington,
Delaware; Counsel for Plaintiff Ami Shafrir Berg

David A. Dorey, James G. Gorman III & Gregory P. Ranzini, BLANK ROME LLP,
Wilmington, Delaware; Nicholas C. Guth, BLANK ROME LLP, Philadelphia,
Pennsylvania; Layla S. Najjar & Nicholas R. Spiller, BLANK ROME LLP,
Washington, D.C.; Counsel for Defendants Shai Bar Lavi and Saul Bienenfeld

WILL, Vice Chancellor
This post-trial decision resolves a proceeding under 8 Del. C. § 225 to

determine the rightful control of Tracki, Inc. The plaintiff claims to be Tracki’s sole

stockholder and director, relying on a purported 2019 written consent to justify his

recent attempt to oust the defendants. But trial revealed—through expert forensic

evidence—that the written consent and an accompanying stock ledger were

fabricated. The plaintiff is not a stockholder or director of Tracki, and he lacks

standing to press this action. Judgment is therefore entered for the defendants.

Because this case was litigated in bad faith, I shift fees to the defendants. But

I reduce their fee request by half to account for their own transgressions. The

defendants admitted to backdating corporate documents and to submitting false

testimony to this court.

Regrettably, this suit is a product of mutual deceit. Both parties treated

fundamental requirements of Delaware corporations—not to mention the most basic

expectations of this court—as mere suggestions. Their behavior transformed what

should have been a straightforward governance dispute into a morass of forgery and

perjury. Although the plaintiff’s fictitious evidence dictates the legal outcome, the

defendants’ reciprocal misconduct ensures that neither side emerges from this

litigation unblemished.

1
I. BACKGROUND

Unless otherwise noted, the following facts were stipulated to by the parties

or proven by a preponderance of the evidence at trial.1

A. Trackimo’s Invention

Defendant Shai Bar Lavi and plaintiff Ami Shafrir Berg first met in the early

1990s at a convention in Las Vegas.2 That meeting marked the beginning of a long-

standing business relationship and eventual friendship.3

By 2011, Bar Lavi was running a company creating cellular phones for

international travel.4 When a client requested that he develop a tracking device for

luggage, Bar Lavi was inspired.5 He created a personal tracking device that could

track “anything that you love [that] you don’t want to lose.”6

1
See Joint Submission of Pre-trial Order (Dkt. 63) (“PTO”). Trial occurred over two days,
during which two fact witnesses and two expert witnesses testified live in person, and one
fact witness testified live by Zoom. See Trial Trs. Vols. I and II (Dkts. 88-89). Trial
testimony is cited as “[Name] Tr. __.” The trial record contains 597 joint exhibits and five
deposition transcripts. Exhibits are cited by the numbers provided on the parties’ joint
exhibit list as “JX __,” unless otherwise defined. See Joint Ex. List (Dkt. 63); Pl.’s Notice
of Lodging (Dkt. 82). Deposition transcripts are cited as “[Name] Dep. __.”
2
PTO § II ¶ 1; Berg Tr. 14.
3
PTO § II ¶ 1; Berg Tr. 14, 69; Bar Lavi Tr. 334.
4
Bar Lavi Tr. 332; Bar Lavi Dep. 61-62.
5
Bar Lavi Tr. 332.
6
Id.; Bar Lavi Dep. 62.

2
On November 6, 2013, Bar Lavi’s Israeli counsel formed the Israeli

corporation Vestigo Technologies Ltd. to launch the tracking devices.7 Trackimo

LLC, a United States subsidiary of Vestigo that would act as its marketing arm, was

also formed.8 Bar Lavi founded Vestigo alongside two business partners.9

Defendant Saul Bienenfeld, a New York and Florida-licensed attorney, acted as U.S.

legal counsel.10

The tracking devices were sold under the brand name Trackimo.11 The

fledgling company operated under a business-to-business model, relying on revenue

from selling devices at cost with a one-year subscription.12

B. Berg’s Financial Support

In April 2016, Bar Lavi brought Berg on as an investor for Vestigo.13 Berg

advanced an initial $400,000 loan as part of a $1,000,000 commitment.14 He

7
PTO § II ¶ 2; Bar Lavi Tr. 332-33; Bienenfeld Tr. 210; JX 6 (Vestigo certificate of
incorporation).
8
Bar Lavi Tr. 332-33, 336, 348; Berg Tr. 53; Bienenfeld Tr. 208-10; JX 7 (Trackimo
certificate of incorporation). Trackimo was originally a New York limited liability
company and later converted into a Delaware limited liability company. Bar Lavi Tr.
332-33.
9
Bar Lavi Tr. 332-33, 336; Berg Tr. 28; see also Bar Lavi Dep. 158.
10
Bienenfeld Tr. 209-10, 212; PTO § II ¶ 17.
11
Bar Lavi Tr. 332-33, 340, 358; see also PTO § II ¶ 4.
12
Bar Lavi Tr. 337, 339, 341; Berg Tr. 53; see also PTO § II ¶ 4.
13
Bar Lavi Tr. 334; Berg Tr. 15.
14
Berg Tr. 14; Bar Lavi Tr. 334; JX 14.

3
obtained a minority equity interest in Vestigo.15 On July 11, 2016, Bienenfeld helped

Berg incorporate Totoco, Inc., a Delaware corporation, that Berg could use to

provide more funding to Vestigo.16

Berg began to provide ideas on Vestigo’s business model. Bar Lavi was keen

to leverage Berg’s expertise in online sales directly to consumers.17 To that end,

Berg assisted with Vestigo’s marketing operations.18 Totoco became an authorized

distributor of Trackimo-branded products.19 It managed Trackimo’s Amazon sales

channel, including online marketing and customer support functions.20

C. The Vodafone Deal

In 2017, the European telecommunications company Vodafone became

interested in selling Trackimo devices.21 To adapt to Vodafone’s needs, Bar Lavi

15
JX 14; see also Bar Lavi Tr. 334-35.
16
PTO § II ¶ 3; JX 15 (Totoco certificate of incorporation); Bar Lavi Tr. 355-56, 387; Berg
Tr. 19; Bienenfeld Tr. 206.
17
Bar Lavi Tr. 336-37; Berg Tr. 13 (testifying that he “had a B2C [business-to-customer]
business” in the 2000s and created and marketed multiple products).
18
Berg Tr. 21; Bar Lavi Tr. 336-37.
19
PTO § II ¶ 4.
20
Id.
21
Bar Lavi Tr. 338-39.

4
opted to use a business-to-customer model, which would focus on making money

from data subscriptions rather than the device itself.22 It was a success.23

Bar Lavi replicated this model with Vestigo.24 Vestigo launched the tracking

devices under a new brand name: “Tracki.”25 The product was the same as Trackimo

but would now be sold under the business-to-customer model, including on

Amazon.26

D. Tracki, Inc.’s Formation

In February 2019, Bar Lavi sought to create a formal vehicle for the Tracki

brand.27 He instructed Bienenfeld to work with Berg to incorporate a U.S. entity.28

By that point, Berg was a key driver of the devices’ marketing on Amazon.29

22
Id. at 339-40 (describing the model as having “the product being the razor and the
subscriptions being the blades”).
23
Id. at 339.
24
Id. at 340.
25
Id. at 340-41.
26
Id. at 341-42; PTO § II ¶ 5.
27
Bar Lavi Tr. 342; see PTO § II ¶ 5. He did not want to use the existing Trackimo entity
since it operated a store on Amazon that had negative reviews. Bar Lavi Tr. 342.
28
Bienenfeld Tr. 218; Bar Lavi Tr. 344.
29
Bar Lavi Tr. 343-44; Berg Tr. 21. Berg also had purchased the domain name Tracki.com.
PTO § II ¶ 7; Berg Tr. 23. Bar Lavi claims that he did not tell Berg to do so.
Bar Lavi Tr. 341.

5
On February 7, 2019, Berg held a call with Bienenfeld, and Tracki, Inc. was

incorporated in Delaware the next day.30 Tracki’s certificate of incorporation

authorized 200 shares of common stock.31

E. The “Secret Pact”

According to Berg, he insisted on 100% equity ownership of Tracki upon its

formation.32 Berg claims that this ownership was kept hidden because of a “secret

pact” he had previously made with Bar Lavi.33

This purported pact was described by Berg as follows. Bar Lavi dreamed of

taking Vestigo public.34 But Berg was a reputational risk, having been the victim of

a financial crime decades earlier.35 Bar Lavi was, in Berg’s estimation, concerned

about the press discussing the crime.36 As a result, Berg asserts that Bar Lavi asked

30
See JX 55 (Feb. 7, 2019 email from Berg to Bienenfeld with subject line “Please call me
soon re Tracki inco[rp]”); Berg Tr. 29-30; PTO § II ¶ 8; JX 62 (“Tracki Certificate of
Incorporation”) 1. Berg and Bar Lavi also registered a trademark for Tracki around that
time. PTO § II ¶ 6; Bar Lavi Tr. 344; Berg Tr. 42-43.
31
Tracki Certificate of Incorporation; PTO § II ¶ 9; Berg Tr. 31.
32
Berg Tr. 21-23, 30.
33
Id. at 63-64.
34
Bar Lavi Tr. 345, 383-84; Berg Tr. 18.
35
Berg Tr. 16-21; see also Bar Lavi Tr. 345; JX 2 (news release describing how Berg was
defrauded of “$40 million in cash, real property and businesses”).
36
Berg Tr. 18.

6
him to publicly represent that Tracki was a subsidiary of Vestigo, though Berg was

the true owner of its shares.37

Berg contends that on February 8, he held a Skype call with Bar Lavi to obtain

documentation supporting his ownership of Tracki.38 He testified that Bar Lavi sent,

by Skype chat, two documents executed on February 8, 2019: (1) a written consent

of directors (the “2019 Written Consent”) and (2) a stock ledger (the “2019 Stock

Ledger”; together, the “2019 Documents”).39

Tracki’s certificate of incorporation did not name any directors.40 But the

2019 Written Consent listed Bar Lavi as Tracki’s sole director, and purported to issue

all 200 shares of Tracki’s authorized stock to Berg.41 It also appointed Bar Lavi as

President and Treasurer of Tracki, and Bienenfeld as Secretary.42 The 2019 Stock

Ledger reflected that Berg was the sole owner of Tracki’s 200 shares.43 Berg

maintains that he received a WinZip file, which he saved to his laptop and then

extracted to an SD card before locking the SD card in a safe.44

37
Id. at 63-64.
38
Id. at 39, 57, 88.
39
Id. at 31-34, 38-39, 87-88; JX 63 (“2019 Written Consent”); JX 61 (“2019 Stock
Ledger”).
40
See generally Tracki Certificate of Incorporation.
41
2019 Written Consent.
42
Id.
43
2019 Stock Ledger.
44
Berg Tr. 57-59, 122-23.

7
Bar Lavi’s account of Tracki’s formation is markedly different. He denies that

the February 8 meeting with Berg occurred and that he transmitted the 2019

Documents to Berg.45 Bar Lavi insists that Vestigo always owned Tracki.

Bienenfeld also denies creating the 2019 Written Consent or the 2019 Stock

Ledger.46

F. Tracki’s Corporate Informality

Operationally, Tracki ran smoothly. Berg worked to market Tracki’s devices

on Amazon, just as he had with Trackimo.47 From a governance standpoint,

however, Tracki’s corporate record was a fiction. Bienenfeld—a criminal defense

lawyer—served as the corporate secretary.48 He routinely backdated corporate

documents to suit his clients’ requests.

On July 9, 2020, for example, a Vestigo executive asked Bienenfeld to “create

. . . a document establishing the ownership of Tracki by Vestigo” for a 2019 audit.49

Using a 2014 Trackimo written consent as a template, Bienenfeld prepared a written

consent issuing 1,500 Tracki shares to Vestigo, with Bar Lavi listed as Tracki’s sole

45
Bar Lavi Tr. 347-48 (calling Berg’s story “a huge lie”). Bar Lavi testified that he does
not have a computer. Id.
46
Bienenfeld Tr. 246-249. Bienenfeld further testified that he could not have created the
documents on February 8 because he strictly observes Shabbos. Id. at 249-50.
47
Berg Tr. 27-28, 49; see also Bar Lavi Tr. 356.
48
Bienenfeld Tr. 204, 218, 224.
49
JX 221 (email exchange between Bienenfeld and Bar Lavi).

8
director (the “2020 Written Consent”).50 The issuance of 1,500 shares—beyond the

200 authorized for Tracki—was an error carried over from the Trackimo consent

template.51 The 2020 Written Consent also listed Bar Lavi as Tracki’s President and

Treasurer, and Bienenfeld as Secretary. It was backdated to February 9, 2019.52 On

January 19, 2021, Berg was sent a copy of the 2020 Written Consent.53

Bienenfeld also did not draft bylaws upon Tracki’s formation, but he created

them retroactively upon request.54 In December 2021, for instance, Berg asked

Bienenfeld for Tracki bylaws to fulfill a requirement of Amazon UK.55 Bienenfeld

then created bylaws using a corporate form service.56 The resulting bylaws, which

were backdated to March 8, 2019, described Tracki as having a three-person board

50
Compare JX 222 (2014 Trackimo written consent), with JX 224 (“2020 Written
Consent”). See also JX 223 (July 9, 2020 email exchange where Bienenfeld sends the 2020
Written Consent back to Vestigo); Bienenfeld Tr. 230-31, 275-79.
51
Bienenfeld Tr. 227. The 2020 Written Consent erroneously states that the shares issued
were of Trackimo stock. See 2020 Written Consent.
52
2020 Written Consent.
53
JX 300.
54
Bienenfeld Tr. 233-35, 239. The parties stipulated that Bienenfeld generated Tracki’s
bylaws in March 2019, around the time of its formation. PTO § II ¶ 10; see JX 360 (bylaws
dated Mar. 8, 2019). But at trial, Bienenfeld admitted that the referenced bylaws had been
backdated. Bienenfeld Tr. 234-35.
55
Bienenfeld Tr. 235-37; JX 363 (Dec. 2, 2021 email between Bienenfeld and Berg with
subject line “Re: Amazon UK wants Tracki corporate-bylaws”); see also JX 361 (Dec. 2,
2021 email where Berg requests bylaws).
56
Bienenfeld Tr. 235.

9
of directors.57 Because Amazon frequently rejected Bienenfeld’s bylaws, he

periodically prepared additional sets.58

G. The Consulting Agreement

On April 10, 2021, Tracki and Totoco executed a Consulting Agreement

governed by Israeli law.59 It formalized Berg’s role in assisting with the “sales and

marketing” of Tracki.60 As consideration, Totoco would receive a $25,000 monthly

consulting fee, a 5% sales bonus on Tracki’s revenues, and a 2% sales bonus on

Vestigo’s revenues.61

The Consulting Agreement ran until October 1, 2024, after which either party

could terminate it at will upon 90 days’ prior written notice.62 Berg executed the

document, which explicitly referred to Tracki as “a subsidiary of Vestigo.”63

57
JX 364 (bylaws dated Mar. 8, 2019) art. II, § 1; Bienenfeld Tr. 235-37. Bienenfeld
testified at trial that he meant to input February 8, 2019, the date of Tracki’s incorporation.
Id. at 235.
58
Bienenfeld Tr. 237-38; see JX 377 (Dec. 28, 2021 email from Bienenfeld to Berg
providing bylaws with a corporate seal). Another set of bylaws drafted by Bienenfeld,
purportedly dated January 2, 2020, list Bar Lavi as the sole director of Tracki.
JX 369 art. II, § 1.
59
JX 332 (“Consulting Agreement”) § 8.
60
Id. § 1.1.
61
Id. at Ex. A §§ 4-5.
62
Id. § 2.1-.2.
63
Id. at 1.

10
Contemporaneously, Vestigo and Totoco entered into a convertible

promissory note, under which Totoco could convert the capital it advanced to Vestigo

into shares.64

H. The Ownership Dispute

For years, Berg acquiesced to Vestigo holding Tracki out as a wholly owned

subsidiary. Berg often received—and sometimes signed—financial and legal

documents attesting to Vestigo’s ownership of Tracki.65 His communications with

Bar Lavi and vendors reflected that same understanding.66 In October 2023, he even

clarified to third parties that he was not the owner of Tracki.67

64
JX 331 (convertible promissory note).
65
See, e.g., JX 283 at 5-25 (2019 federal tax returns sent to Berg stating that Tracki is a
subsidiary of Vestigo, and that Vestigo owns 100% of Tracki’s shares); id. at 31 (auditors’
report stating that Tracki “is a wholly owned subsidiary of Vestigo Technologies Ltd.”);
JX 294 (2020 Vestigo valuation report stating that Tracki is a “wholly owned subsidiary
of Vestigo Technologies Ltd.”); Berg. Tr. 149-50 (confirming Berg had the valuation
report); JX 512 at 2-3 (Berg failing to list Tracki as his asset on an undated wealth report);
JXs 263-65 (2020 Mizrahi Bank loan documents to Vestigo executed by Berg that represent
Tracki as an asset of Vestigo); Berg Tr. 146-48 (confirming Berg’s knowledge of the loan
documents and stating that “whatever [Bar Lavi] asked [him] to sign, [he] signed”).
66
JX 376 (Dec. 2021 email exchange where Bienenfeld generated Tracki bylaws for Berg
to provide to Amazon that list Bar Lavi as the sole stockholder); JX 384 (Jan. 2022
WhatsApp thread where Berg indicates that Vestigo owns 100% of the shares of Tracki);
JX 513 (December 2023 WhatsApp exchange transmitting financial statements to Berg
that state Vestigo “has 100% owned subsidiaries, [including] Tracki Inc[.]”).
67
In an October 1, 2023 director’s declaration, Berg stated that he was the majority
stockholder of Vestigo and the product owner of Tracki. JX 441 at 7-16. After a Trackimo
employee clarified to the private equity firm receiving the questionnaire that Berg was only
a consultant, Berg was asked to amend his questionnaire. See JX 440. He did so.
JX 441 at 1.

11
By 2024, 90% of Vestigo’s revenues were generated through the sale of

Tracki-branded products.68 Tracki was a success. But Berg and Bar Lavi’s

relationship broke down.

According to Berg, Bar Lavi was caught embezzling by Vestigo.69 Berg

confronted Bar Lavi about the purported theft, after which Bar Lavi stopped

communicating with him.70

In April 2024, Berg exercised his option under the promissory note to convert

his loan into Vestigo shares.71 He then attempted a failed takeover of Vestigo’s board

to “stop [Bar Lavi] from damaging the company” through misappropriation.72 He

hired counsel and sent an email to “Vestigo Officers” detailing his purported status

as the controlling stockholder due to the conversion, and his intention to effect

governance changes.73

On May 29, 2024, Berg unilaterally held a Vestigo board meeting.74 Acting

as chairman, Berg altered the signatory rights of Vestigo and its subsidiaries—

68
Bar Lavi Tr. 356-57; Berg Tr. 170-71; see also JX 515 (June 2024 filing in Israeli court
where Berg states Tracki is “responsible for approximately 90% of the Subsidiaries’
revenues” (emphasis added)) (“Statement of Claim”).
69
Berg Tr. 74.
70
Id. at 74-75.
71
Id. at 129-30; Bar Lavi Tr. 335.
72
Berg Tr. 161-62; Bar Lavi Tr. 364-65.
73
Berg Tr. 162; JX 453 (May 27, 2024 email to “Vestigo Officers”).
74
Bar Lavi Tr. 163.

12
designating Tracki and Trackimo as such—before appointing himself as the sole

Tracki director.75

Berg and Bar Lavi’s dispute then escalated to litigation. In June 2024, Berg

filed suit against Bar Lavi and Vestigo, among others, in the District Court of

Tel Aviv.76 He sought to determine the rightful ownership of Vestigo, claiming that

he held “at least 74.45%” of Vestigo’s shares.77 He simultaneously filed an

application for a temporary restraining order, seeking to prevent the disposition of

Vestigo’s shares.78 In these filings, Berg repeatedly referred to Tracki as a subsidiary

of Vestigo.79 Berg withdrew his claims after the defendants agreed to begin

settlement discussions.80

75
JX 456 (May 29, 2024 Vestigo board minutes); see also Berg Tr. 163-65.
76
PTO § II ¶¶ 14-15; Statement of Claim; JX 480 (June 14, 2024 Israeli court affidavit
filed by Berg) (“Tel Aviv Court Aff.”).
77
Statement of Claim 2; Tel Aviv Court Aff. ¶ 1. The issue of who owned Tracki was not
before the Israeli court. Berg Tr. 67.
78
JX 516 (“TRO Application”) 2.
79
Statement of Claim ¶ 3 (“Vestigo . . . holds the entire share capital of subsidiaries
incorporated in the U.S.: Trackimo, Inc. and Tracki, Inc.”); Tel Aviv Court Aff. ¶ 3 (also
noting that Vestigo “holds . . . the entire share capital of . . . Tracki Inc.”); TRO
Application ¶ 4 (same). Berg claims that these were misstatements made because he was
“emotionally distraught” from Bar Lavi’s betrayal of their friendship and business
relationship. Berg Tr. 66.
80
Berg Tr. 67-68.

13
On August 29, 2024, Vestigo gave notice of termination of the Consulting

Agreement, which was stayed due to the ongoing settlement discussions.81

Negotiations broke down once more. On June 5, 2025, Vestigo renewed its

termination notice of the Consulting Agreement.82 The termination was to occur on

September 3, 2025, when Berg would lose access to Tracki’s systems and assets.83

I. The 2025 Written Consents

On August 20, 2025, Berg generated two written consents. The first consent

purported to remove Bar Lavi and Bienenfeld from the Tracki board of directors and

elect Berg as the sole director.84 The second consent (together, the “2025 Written

Consents”) reduced Tracki’s board from three directors to one, terminated Bar Lavi

and Bienenfeld as officers, and appointed Berg as President, Treasurer, and Secretary

of Tracki.85

The 2025 Written Consents relied on Berg’s claimed status as the sole

stockholder of Tracki—which he drew from the 2019 Written Consent and the 2019

Stock Ledger.86 Although Berg had supposedly misplaced the 2019 Documents after

81
JX 459 (notice of termination); Berg Tr. 137-38.
82
Berg Tr. 80; JX 477 (renewed notice of termination).
83
JX 477 ¶ 12.
84
JX 481 (2025 stockholder consent).
85
JX 482.
86
Berg Tr. 79-82.

14
his Skype call with Bar Lavi in 2019, he claims to have found the SD card containing

them in an empty suitcase that past April.87 This was the first time he had invoked

the 2019 Documents to direct Tracki’s governance.88

On August 21, 2025, Vestigo filed suit in Israel against Berg and Totoco,

seeking an injunction compelling Berg to return Tracki digital assets.89 Two days

later, the District Court of Tel Aviv provisionally enjoined Berg from presenting

himself to any third party as Tracki’s owner.90 On September 26, pursuant to a

temporary mandatory order, Berg was instructed to return Tracki’s digital assets.91

The Tel Aviv litigation is ongoing.92

J. This Litigation

On August 25, 2025, Berg filed this action under 8 Del. C. § 225, seeking a

declaration that Bar Lavi and Bienenfeld were lawfully removed from Tracki’s board

and that Berg is its sole lawful director.93 I expedited the case and entered a status

quo order to govern Tracki’s operations during the pendency of this suit.94

87
Id. at 59-60, 123-24.
88
Id. at 95-98.
89
PTO § II ¶ 15; JXs 488-89 (Aug. 20, 2025 court filings).
90
JX 498 at 3.
91
JX 530 (2025 Tel Aviv District Court ruling) ¶ 18.
92
PTO § II ¶ 14.
93
See Verified Compl. for Declaratory J. (Dkt. 1) (“Compl.”).
94
See Dkt. 31.

15
The defendants filed their pre-trial brief on December 5, and Berg filed his

pre-trial brief on December 8.95 A two-day trial was held from December 16 to 17.96

The defendants filed a post-trial brief on January 30, 2026, and Berg filed a post-

trial brief on February 2, after which I took the matter under advisement.97

II. ANALYSIS

Section 225(a) of the Delaware General Corporation Law (DGCL) provides

that “[u]pon application of any stockholder or director . . . the Court of Chancery

may hear and determine the validity of any election, appointment, removal or

resignation of any director or officer of any corporation.”98 The plaintiff bears the

burden of proving his entitlement to relief by a preponderance of the evidence.99

Actions under Section 225 are summary and “in the nature of an in rem

proceeding.”100

95
See Pl.’s Pre-trial Br. (Dkt. 64); Defs.’ Pre-trial Br. (Dkt. 62).
96
See Dkt. 84.
97
See Pl.’s Post-trial Br. (Dkt. 95); Defs.’ Post-trial Br. (Dkt. 94). I concluded that post-
trial oral argument was unnecessary.
98
8 Del. C. § 225(a).
99
In re IAC/InterActive Corp., 948 A.2d 471, 493 (Del. Ch. 2008).
100
Arbitrium (Cayman Islands) Handels AG v. Johnston, 1997 WL 589030, at *4 (Del. Ch.
Sep. 17, 1997).

16
Because the proceeding is narrow in scope, the court may only grant the relief

needed to resolve the dispute over corporate office.101 It will decline to address

matters collateral to deciding the identity of the entity’s lawful directors or

officers.102

Berg seeks a declaration that he had the power to remove Bar Lavi and

Bienenfeld as directors of Tracki. To adjudicate whether Berg’s removal of the

defendants was valid, I must first determine who lawfully owns Tracki’s voting

stock. Section 227(a) of the DGCL grants the court ancillary jurisdiction in a

Section 225 matter to “determine the right and power of persons claiming to own

stock to vote at any meeting of the stockholders.”103 Berg has asserted his purported

right to exercise that voting power,104 and seeks a declaration that he has removal

authority as Tracki’s sole stockholder. Resolving that ownership dispute is a

prerequisite to determining whether Berg is entitled to relief.105

101
See Genger v. TR Invs., LLC, 26 A.3d 180, 199 (Del. 2011) (“A Section 225 proceeding
is summary in character, and its scope is limited to determining those issues that pertain to
the validity of actions to elect or remove a director or officer.”).
102
See Avgiris Brothers, LLC v. Bouikidis, 2022 WL 4672075, at *13–14 (Del. Ch.
Sep. 30, 2022) (declining to resolve collateral matters in the Section 18-110 context).
103
8 Del. C. § 227(a); see also CCSB Fin. Corp. v. Totta, 302 A.3d 387, 390 (Del. 2023)
(affirming the Court of Chancery’s invalidation of a board’s instruction to disregard certain
votes in a Section 225 proceeding).
104
See supra note 93 and accompanying text.
105
See Zohar II 2005-1, Ltd. v. FSAR Hldgs., Inc., 2017 WL 5956877, at *23 (Del. Ch.
Nov. 30, 2017) (noting that Section 225 implicitly grants the court power to adjudicate
beneficial ownership if necessary to determine the rightful directors, and that a judgment
17
Berg has not met his burden. As detailed below, the 2019 Documents he relies

upon are fabrications and based on an implausible “secret pact.” His years of

conduct after Tracki’s formation further undermine his claim to ownership. Because

Berg failed to prove he is Tracki’s sole stockholder, he lacked the authority to issue

the 2025 Written Consents and lacks standing to pursue this action. His remaining

collateral requests are therefore rejected.

A. The 2019 Documents

Berg relies on the validity of the 2019 Documents to remove Bar Lavi and

Bienenfeld as Tracki directors. He argues that the “resolution of this action may be

determined solely by reference to the [2019 Documents].”106 The defendants

respond that the 2019 Documents are fabricated and cannot serve as valid authority

for Berg’s stock ownership, and consequently, his subsequent removal of them.107

1. The Fabricated Documents

Under Delaware law, only the “holders of a majority of the shares then entitled

to vote at an election” can remove directors.108 The court “may look to the [stock]

failing to resolve such a dispute would be meaningless). My determination of stock
ownership and voting power is made solely for purposes of resolving the director control
dispute under Section 225.
106
Pl.’s Post-trial Br. 23; see also Pl.’s Pre-trial Br. 5 n.3.
107
Defs.’ Post-trial Br. 1, 15; see also Defs.’ Pre-trial Br. 44-47.
108
8 Del. C. § 141(k); see also Simple Glob., Inc. v. Banasik, 2021 WL 2587894, at *10
(Del. Ch. June 24, 2021). The two exceptions to this rule—involving a staggered board
and cumulative voting—are inapplicable here. See 8 Del. C. § 141(k).

18
ledger to determine the stockholders entitled to vote or act by written consent.”109

“The purpose of the stock ledger is to enable the corporation to determine who is

eligible to exercise the important rights of a stockholder.”110

Tracki’s certificate of incorporation authorized 200 shares at the time of

formation.111 It has never been amended.112 The only stock ledger in the record is

the 2019 Stock Ledger, which was created pursuant to the 2019 Written Consent that

issued all 200 shares to Berg.113 Because there is no “competing contemporaneous

issuance document or stock ledger,” Berg argues that “[t]he record resolves this case

decisively.”114 Not so. At trial, there was credible evidence that the 2019 Documents

are inauthentic.

a. The Secret Pact

The 2019 Documents rest on an implausible story—“a secret pact” between

Berg and Bar Lavi from Tracki’s formation to present.115 Berg claims that he

109
Boris v. Schaheen, 2013 WL 6331287, at *13 (Del. Ch. Dec. 2, 2013); see 8 Del. C.
§ 219(c) (“The stock ledger shall be the only evidence as to who are the stockholders
entitled by this section . . . to vote in person or by proxy at any meeting of stockholders.”).
110
Rainbow Nav., Inc. v. Pan Ocean Nav., Inc., 535 A.2d 1357, 1359 (Del. 1987).
111
See generally Tracki’s Certification of Incorporation.
112
PTO § II ¶ 9.
113
See 2019 Written Consent; 2019 Stock Ledger.
114
Pl.’s Post-trial Br. 23.
115
See supra Section I.E.

19
received the documents on February 8, 2019 from Bar Lavi through Skype.116

Because—according to Berg—Bar Lavi felt that Berg’s past dealings made him a

reputational risk, Berg kept the documents on SD card—even misplacing it for

years—before it resurfaced in an empty suitcase just ahead of this litigation.117

Berg’s testimony is shifting and unsupported. The supposed manner of

receiving the documents from Bar Lavi—whether that be from “dragg[ing] and

dropp[ing]” the documents to an SD card, or extracting a compressed WinZip file—

is inconsistent.118 The 2019 Written Consent was also purportedly executed by Bar

Lavi in his capacity as the sole director of Tracki.119 But Berg “ha[d] no idea” who

drafted the documents or how Bar Lavi’s signature appeared “out of the blue.”120

Both Bar Lavi and Bienenfeld credibly testified that they did not create the

documents and that the Skype chat and call never occurred.121

116
See supra notes 38-39 and accompanying text.
117
See supra notes 34-37, 86-88 and accompanying text. Berg’s story is outlandish. He
states that he misplaced the SD card containing the documents when he moved from the
Philippines to Bangkok in October 2023. Berg Tr. 59-60, 123-24. He then found them by
happenstance when he was about to trash an old suitcase. Id. at 123-24. He never used the
documents for any purpose until August 20, 2025, when he sought to remove the
defendants from their positions at Tracki. Id. at 124.
118
Berg Tr. 58, 103, 105, 112-14.
119
2019 Written Consent.
120
Berg Tr. 87-88.
121
See supra notes 45-46 and accompanying text.

20
Berg’s narrative requires me to accept that, to maintain this secret pact, he

willingly misrepresented his ownership of Tracki to numerous third parties for

years.122 I find this unlikely.

b. Forensic Evidence

The defendants rely on forensic expert testimony that the 2019 Documents are

manufactured. Before weighing the substance of this evidence, I first address a

procedural dispute about its admissibility. I then examine its substance, which

confirms that the 2019 Written Consent was created using the later-drafted 2020

Written Consent as a template.

i. Admissibility

At trial, Berg asked that I exclude as untimely the December 10, 2025

supplemental disclosure of defense expert Shaun Vodde, as well as any related

testimony.123 The supplemental disclosure, Berg contends, belatedly offers new

opinions about text-level and content-based alterations in the 2019 Written

Consent.124

122
For example, Berg executed bank loan documents for Vestigo that represent Tracki as
an asset of Vestigo, rather than Berg. See JXs 263-65. Lying on a bank application is a
crime. See, e.g, 18 U.S.C. § 1014.
123
Trial Tr. 4-5. Specifically, Berg objected to the introduction of JXs 563-76, JXs 579-89,
and Vodde’s related testimony regarding those exhibits. Vodde Tr. 412.
124
Pl.’s Post-trial Br. 29.

21
In deciding whether to accept an expert’s supplemental disclosure, I must

balance (1) the original scheduling order, (2) whether there is good cause to allow

the supplement, (3) the prejudice to the opposing party, and (4) any trial delay.125

The operative scheduling order lacked an expert discovery deadline.126 But

as Berg correctly points out, the absence of that deadline is not unusual in a summary

proceeding. Nor is it a blank check for a party to submit a supplemental disclosure

whenever it likes. Here, Vodde’s supplemental disclosure was served less than a

week before trial.

Although this timing was not ideal, the defendants had good cause for their

belated disclosure. It was offered in response to new considerations raised by Berg

shortly before trial. Berg’s December 5 pre-trial brief argued that the 2019 Written

Consent was copied from a 2014 Trackimo template, and his December 9

interrogatory responses introduced a newly recollected narrative about a WinZip file

to explain away metadata anomalies.127 The defendants reasonably concluded that

125
Coleman v. PricewaterhouseCoopers, LLC, 902 A.2d 1102, 1106 n.6 (Del. 2006).
126
See Scheduling Order (Dkt. 41).
127
See JX 586 (citing Berg’s pre-trial brief, received on December 5, and his responses to
interrogatories and his Rule 26 expert disclosure, received on December 9, as raising new
issues warranting re-examination).

22
these eleventh-hour shifts warranted Vodde revisiting his original opinion to directly

address Berg’s explanations.128

Prejudice to Berg is minimized by the fact that his counsel had the opportunity

to question Vodde about the supplemental disclosure during Vodde’s December 11

deposition.129 Berg also had the assistance of his own expert, Michael Nelson, who

was retained to rebut Vodde.130 Berg amplified any prejudice by waiting six days—

until the morning of trial—to object to the supplemental disclosure.131 Trial was not

delayed.

Excluding the supplemental disclosure would eliminate evidence going to the

core of this litigation, which turns on the validity and veracity of the 2019 Written

Consent and its accompanying 2019 Stock Ledger.132 Berg himself contends that

these documents are case-dispositive.133 Given the existence of good cause, minimal

128
See Moses v. Drake, 109 A.3d 562, 566 (Del. 2015) (“Good cause is likely to be found
when . . . the need for more time was neither foreseeable nor [the movant’s] fault.”).
129
See Vodde Dep. 80. Contra Union Carbide Chems. & Plastics Tech. Corp. v. Shell Oil
Co., 270 F. Supp. 2d 519, 524 (D. Del. 2003) (declining to admit supplemental disclosures
because doing so would essentially “reopen discovery”).
130
JX 586 at 2 (defendants’ notice of supplemental disclosure) (“We obviously expect that
you will discuss this with Mr. Nelson. Mr. Nelson is welcome to sit in on Mr. Vodde’s
deposition tomorrow.”).
131
Trial Tr. 4-5.
132
Cf. Green v. Alfred A.I. duPont Inst. of Nemours Found., 759 A.2d 1060, 1063
(Del. 2000) (“When the excluded evidence goes to ‘the very heart’ of plaintiffs’ case and
‘might well have affected the outcome’ of the trial, the exclusion of the evidence warrants
a new trial . . . .” (citation omitted)).
133
Pl.’s Post-trial Br. 23.

23
prejudice, and lack of a delay in trial proceedings, I admit Vodde’s supplemental

disclosure and related testimony.134

ii. Substance

Vodde is a Senior Vice President of Forensic Technology & Consulting at

TransPerfect Legal.135 He credibly testified that the 2019 Written Consent has

several font- and color-based alterations that suggest the documents are inauthentic.

Vodde opined that the 2019 Written Consent was based on a template. He

observed that portions of the 2019 Written Consent appeared “darker in color from

others, a little bit more bold.”136 The text color mismatch includes the entirety of

paragraph five, which issues 200 shares to Berg, the address in paragraph seven,

which lists Tracki’s principal place of business as Berg’s P.O. box, and the number

“8” in the date of the written consent—February 8, 2019.137 This is evident to the

naked eye.

134
Berg also attempts to exclude Vodde’s testimony based on its substance, including the
use of allegedly unreliable methodologies. Pl.’s Post-trial Br. 34-44. These arguments
were raised for the first-time in post-trial briefing. They are therefore waived. Beard Rsch.,
Inc. v. Kates, 8 A.3d 573, 593 (Del. Ch. 2010) (“Plaintiffs assert that Defendants waived
any Daubert challenge to Grabowski's testimony by failing to raise this challenge during
either the pretrial proceedings or the trial itself. . . . I find merit in Plaintiffs’
objection.”), aff’d sub nom., ASDI, Inc. v. Beard Rsch., Inc., 11 A.3d 749 (Del. 2010).
135
Vodde Tr. 406-07.
136
Id. at 413; see JX 63.
137
Vodde Tr. 413-14; see JX 63; see also Berg Tr. 36 (listing his P.O. Box as the Las Vegas
address in the 2019 Written Consent).

24
Vodde explained that, after running a pre-flight report in Adobe Acrobat

Pro,138 it became evident that the bolder words and letters were written using “CID

Type 2 font.”139 He identified this font as common to support large character sets

like those in Asian languages.140 Berg resides in Thailand.141

Most compellingly, Vodde ran a side-by-side comparison with the 2020

Written Consent that demonstrated that it was the template from which the 2019

Written Consent was created. When the two documents are compared, the 2020

Written Consent is identical to the 2019 Written Consent in all respects except for

the words written using Type 2 CID font.142

This forensic match confirms that the 2020 Written Consent, which was first

created on July 9, 2020, and then provided to Berg in 2021,143 served as the template

for the 2019 Written Consent. The 2019 Written Consent is identical to the 2020

138
JX 588 (pre-flight report); see Vodde Tr. 415-16. A pre-flight report uses a proofreading
application built into Adobe Acrobat Pro that can identify font types. Id.
139
Vodde Tr. 418-19; JX 588 at 1 (“Uses CID Type 2 Font (16 matches on 2 pages)”).
Berg’s rebuttal expert, Nelson, stated that he had “no reason to doubt the results of that
Preflight report.” Nelson Tr. 471. Nelson was not asked to run a similar report. Id.
140
Vodde Tr. 417-18. Nelson agreed with this determination. Nelson Tr. 472.
141
PTO § II ¶ 16.
142
Vodde Tr. 418-20, 423-24; see also JX 588 (native file demonstrating the same).
Compare JX 300 (2020 Written Consent), with JX 588 (2019 Written Consent in native,
pre-flight format) (replacing “stock certificate” with “uncertified shares,” “Cedarhurst,
New York” with “Las Vegas, Nevada” and so on).
143
See supra notes 49-53 and accompanying text.

25
Written Consent except for the portions granting power to Berg. Thus, the 2019

Written Consent cannot be a contemporaneous document created when Tracki was

formed.144

Berg argues that the metadata—the file creation and modification dates—

prove the 2019 Written Consent was created on February 8, 2019.145 But as Vodde

demonstrated at trial, such date and time settings are easily alterable by saving them

to an SD card.146 That theoretical possibility, coupled with the blatant flaws in Berg’s

story, makes the metadata unavailing. The overwhelming weight of the evidence

suggests that the 2019 Written Consent was created for Berg’s takeover attempt and

this litigation.

2. Corporate Process

Even if I were to disregard the forensic evidence, the 2019 Documents fail to

establish Berg’s ownership of Tracki due to fundamental defects.

144
Vodde also testified that the file-level metadata of the 2019 Written Consent
demonstrates that it was likely created on a PC computer. JX 571 (metadata);
Vodde Tr. 428. Nelson agreed with this assessment. Nelson Tr. 478-79. Bar Lavi does not
own a computer, and Bienenfeld uses a Mac. But Berg uses a PC. Bar Lavi Tr. 348;
Bienenfeld Tr. 244; Berg Tr. 103.
145
Nelson Tr. 463.
146
JX 582 (video demonstration of altering a file’s metadata). Nelson testified that though
altering metadata manipulation is possible in theory, it is not easy to do in practice. Nelson
Tr. 467. But that does not make it impossible. It is possible that Berg, a self-professed
technology expert, could have done so. Berg Tr. 85-86.

26
8 Del. C. § 108 requires that, after a certificate of incorporation is filed, the

incorporator hold an organization meeting to elect directors, unless the initial

directors were named in the certificate.147 Tracki’s certificate of incorporation did

not name initial directors.148 Nor did the incorporator meet or act by written consent

to do so.149

The 2019 Written Consent that Berg relies on purports to issue all 200 shares

of Tracki to Berg and lists Bar Lavi as Tracki’s sole director.150 But that is legally

impossible; no Tracki directors were ever elected. Tracki’s failure to follow

Section 108, which is a required corporate formality, renders the 2019 Written

Consent and its accompanying stock issuance invalid.151

3. Berg’s Pattern of Conduct

Berg’s conduct after Tracki’s formation provides more reason to reject his

ownership claim.

147
8 Del. C. § 108(a).
148
Tracki Certificate of Incorporation.
149
Berg Tr. 95.
150
2019 Written Consent.
151
Under Delaware law, stock issued without proper corporate authorization is a “defective
corporate act.” 8 Del. C. § 204(h)(1); see In re CertiSign Hldg., Inc., 2015 WL 5136226,
at *4 (Del. Ch. Aug. 31, 2015) (“The Company’s outstanding stock is defective because it
was issued days before the Amended Certificate authorizing those shares was filed with
the Delaware Secretary of State.”). Although the DGCL provides mechanisms to validate
defective acts (8 Del. C. §§ 204, 205), no such ratification or judicial validation has
occurred regarding this purported issuance.

27
“If the corporation does not have a stock ledger, or if the stock ledger is

non-existent, then the Court may consider extrinsic evidence to determine stock

ownership.”152 Such extrinsic evidence may include the parties’ actions or patterns

of conduct, testimony, communications between the parties, meeting minutes, and

other documents.153 Tracki lacks a genuine stock ledger because the only version in

the record—the 2019 Stock Ledger—is fabricated.154 Thus, I look to Berg’s post-

formation conduct as extrinsic evidence.

That evidence is fatal to Berg’s ownership claim. Since the time of Tracki’s

incorporation, Berg never objected to—and affirmatively corroborated—Vestigo’s

ownership of Tracki. His confirmations of Vestigo’s ownership were made in

financial materials, legal documents, the Consulting Agreement, and purported

Tracki board minutes that resulted from Berg’s attempted takeover of Vestigo.155 At

the request of a Vestigo executive, Berg even clarified that he was not the owner of

152
Boris, 2013 WL 6331287, at *13; Rainbow Navigation, 535 A.2d at 1359 (same).
153
See, e.g., In re Numoda Corp. S’holders Litig., 2015 WL 402265, at *3 (Del. Ch.
Jan. 30, 2015) (looking to testimony, corporate records, and tax filings to determine stock
ownership), aff’d sub nom., In re Numoda Corp., 128 A.3d 991 (Del. 2015); Kalageorgi v.
Victor Kamkin, Inc., 750 A.2d 531, 539 (Del. Ch. 1999) (considering “the defendants’
pattern of conduct after the stock was issued” in resolving whether parties intended “to
authorize the issuance”), aff’d, 748 A.2d 913 (Del. 2000).
154
Boris, 2013 WL 6331287, at *14 (“It is a well-established principle of current Delaware
law that ‘[s]tock issued without authority of law is void and a nullity . . . .’” (citation
omitted)).
155
See supra notes 63, 65-66, 74-75 and accompanying text.

28
Tracki.156 His own filings in the Israeli litigation as recently as late 2024 corroborate

the same.157 Not until this litigation did Berg claim to own Tracki.

Berg’s countervailing narrative is riddled with holes. He points to his

involvement in Tracki’s formation and operations—including a founding call with

Bienenfeld,158 creating the domain name and app interface, filing the trademark, and

managing bank accounts.159 Yet none of these acts overcome Berg’s pattern of

holding out Vestigo as Tracki’s owner. Berg’s personal labor and financial

contributions are consistent with his role as Tracki’s “marketing arm.”160 He is not

“entitled” to own Tracki simply by virtue of his sweat equity, however meaningful

his efforts may have been.161

Berg attempts to salvage his claim by highlighting the defendants’ own

dubious governance practices. He argues that their “sustained course of misconduct”

156
See supra note 67 and accompanying text.
157
See supra note 79 and accompanying text. Again, Berg being “distraught” cannot
excuse these misstatements. Berg Tr. 66.
158
See supra Section I.D.
159
PTO § II ¶¶ 6-7; Berg Tr. 47-48, 50; JX 92 (email to Berg requesting the latter update
the bank account details of Tracki at various vendors).
160
Bar Lavi Tr. 343.
161
Berg Tr. 100 (“What entitled me to own Tracki is that I was the only one with skin in
the game.”).

29
compels the rejection of Vestigo’s ownership of Tracki, and he asks that I draw an

adverse inference against the defendants that he is Tracki’s sole stockholder.162

The defendants’ conduct is indeed troubling. “The DGCL contemplates, in

large part, a formal approach to corporate governance.”163 The defendants fell short

of that standard. Bienenfeld admitted at trial to routinely backdating documents,

including the 2020 Written Consent that was used to retroactively establish

Vestigo’s ownership in 2019.164 He also backdated multiple sets of bylaws, even

leading the parties to erroneously stipulate that a set of bylaws was created in March

2019.165

Yet the defendants’ corporate sloppiness and outright deceit do not win the

day for Berg. This is a Section 225 action—a summary proceeding limited to

resolving the control of Tracki. I am solely adjudicating the validity of the 2025

Written Consents, and—as a prerequisite to that determination—Berg’s stock

ownership. Berg has the burden to prove his control of Tracki; he cannot meet it.166

162
Pl.’s Post-trial Br. 44-46. I note that Berg raised this argument for the first time in the
post-trial briefing.
163
Boris, 2013 WL 6331287, at *13.
164
See supra Section I.F.
165
See supra Section I.F; Bienenfeld Tr. 234-35; see also PTO § II ¶ 10.
166
See Hockessin Cmty. Ctr., Inc. v. Swift, 59 A.3d 437, 453 (Del. 2012).

30
The defendants’ misconduct and lack of good corporate hygiene do not make Berg

Tracki’s owner.

* * *

Berg has failed to prove that he owns or controls Tracki. Consequently, he

lacked authority to issue the 2025 Written Consents, rendering them invalid and of

no legal effect. Although the lack of a post-incorporation director election prevents

me from identifying Tracki’s lawful board, I can definitively conclude that Berg is

not its sole director.

Because Berg is neither a valid stockholder nor a director of Tracki, he lacks

standing to maintain this Section 225 suit.167 The additional relief he seeks fails for

that reason and because it is collateral to determining the lawful board of Tracki.168

B. Attorneys’ Fees

Both parties seek fee-shifting. The defendants center their request on Berg’s

creation of fake corporate documents to initiate this suit.169 Berg, for his part, cites

167
See Noe v. Kropf, 2008 WL 4603577, at *3 (Del. Ch. Oct. 15, 2008) (indicating that
standing only exists for stockholders, directors, or officers whose title to office is contested
in a 225 action).
168
Simple Glob., 2021 WL 2587894, at *10 (“Generally, the court’s authority in a
Section 225 proceeding is narrow, and it should not inject issues purely collateral to the
determination of a disputed election.”).
169
Defs.’ Post-trial Br. 50-54; see also Defs.’ Pre-trial Br. 49-53.

31
discovery abuses and dishonesty from Bar Lavi and Bienenfeld.170 I consider each

side’s position in turn.

“Under the American Rule, absent express statutory language to the contrary,

each party is normally obliged to pay only his or her own attorneys’ fees, whatever

the outcome of the litigation.”171 Delaware courts “recognize[] bad faith litigation

conduct as a valid exception to that rule.”172 This exception is not “lightly”

invoked.173 The moving party must demonstrate “by clear evidence” that the

opposing party acted with subjective bad faith.174 “Although there is no single

definition of bad faith conduct, courts have found bad faith where parties have

unnecessarily prolonged or delayed litigation, falsified records or knowingly

asserted frivolous claims.”175

Berg’s conduct in prosecuting this litigation constitutes a clear case of bad

faith. His ownership claim rests on two fabricated documents—the 2019 Written

170
Pl.’s Post-trial Br. 57-63.
171
Johnston v. Arbitrium (Cayman Islands) Handels AG, 720 A.2d 542, 545 (Del. 1998).
172
Gatz Props., LLC v. Auriga Cap. Corp., 59 A.3d 1206, 1222 (Del. 2012).
173
Auriga Cap. Corp. v. Gatz Props., 40 A.3d 839, 880 (Del. Ch. 2012) (citation
omitted), aff’d, 59 A.3d 1206 (Del. 2012).
174
Shawe v. Elting, 157 A.3d 142, 150 (Del. 2017).
175
Arbitrium, 720 A.2d at 545-46.

32
Consent and 2019 Stock Ledger.176 By offering the 2019 Documents as genuine,

Berg sought to perpetrate a fraud on this court.

Berg compounded this duplicity by insisting that I entertain a “secret pact”

designed to hide his ownership. The very premise of this pact—that his status as a

crime victim years ago necessitated shielding his involvement from the public in the

event of a hypothetical public offering—defies common sense. Even if Berg’s name

carried negative implications for Tracki, it strains credulity to imagine that he would

paper himself out of his own company without keeping a single confidential

document protecting his stake. Such a pact would have involved years of

misrepresentations, some of which might amount to criminal conduct.177 Not only

is there no credible evidence corroborating this implausible arrangement, but Berg’s

own representations to the Israeli court contradict it.178

Berg points the finger at the defendants’ own litigation misconduct, including

frequent theory shifts and the obstruction of an orderly discovery process. 179 He

cites Court of Chancery Rule 37 as an “independent basis” for shifting fees.180 That

176
See Reagan v. Randell, 2002 WL 1402233, at *5 (Del. Ch. June 21, 2002) (shifting fees
where a litigant “forged [a] document for the purpose of usurping power from a majority
shareholder and, in furtherance of that scheme, perpetrated a fraud on this Court by relying
on that forgery in litigation before the Court”).
177
See supra note 122 and accompanying text.
178
See supra note 79 and accompanying text.
179
Pl.’s Post-trial Br. 61.
180
Id.

33
rule is not the appropriate vehicle for fee-shifting here.181 The “[a]buse of the

discovery process” can, however, provide a “basis to shift fees” under the bad faith

exception to the American Rule.182

Most of Berg’s complaints indicate that the defendants followed an

aggressive, though not bad faith, litigation strategy.183 But not all. At trial,

Bienenfeld—an attorney barred in New York and Florida—admitted to submitting

sworn affidavits to the court that made false statements about Tracki’s governance.184

Under Delaware law, “[a] person is guilty of perjury in the third degree when the

person swears falsely.”185 This is, of course, not a criminal court. Still, the fact “that

a party engaged in conduct which, on its face, would establish a prima facie case for

violating a criminal statute provides powerful evidence that the party acted in bad

faith.”186 And as an attorney, Bienenfeld is obligated to “exercise the highest

181
Rule 37 invokes a presumption of fee-shifting when a party fails to honor a discovery
request that is at odds with the high bar to shift fees under the bad faith exception to the
American Rule. See Beck v. Atl. Coast PLC, 868 A.2d 840, 851-52 (Del. Ch. 2005). When
Rule 37 has been invoked post-trial, the parties have reserved that right in pre-trial
proceedings. See Foley v. Session Corp., 345 A.3d 537, 561-62 (Del. Ch. 2025). No such
reservation occurred here.
182
Bay Cap. Fin., L.L.C. v. Barnes & Noble Educ., Inc., 2020 WL 1527784, at *11
(Del. Ch. Mar. 30, 2020), aff’d, 249 A.3d 800 (Del. 2021).
183
Pl.’s Post-trial Br. 59-60.
184
Bienenfeld Tr. 262-72; see JX 501 (Bienenfeld affidavit).
185
11 Del. C. § 1221.
186
Choupak v. Rivkin, 2015 WL 1589610, at *21 (Del. Ch. Apr. 6,
2015), aff’d, 129 A.3d 232 (Del. 2015).

34
standard of ethical conduct” so as not to “reflect adversely on the legal profession as

a whole and . . . undermine public confidence.”187

Because Berg bore the burden to prove his case, Bienenfeld’s false statements

did not affect the outcome of this action. In fact, I have declined to accept most of

Bienenfeld’s testimony. That does not excuse the defendants’ own deceit.

Bienenfeld’s sworn mistruths are inimical to the integrity of this court. To account

for the defendants’ contributions to the misconduct in this suit, I will shift only 50%

of the attorneys’ fees and costs reasonably incurred by the defendants.188

III. CONCLUSION

Judgment is entered for the defendants. The 2025 Written Consents are

invalid and without effect. Berg lacks standing to pursue this Section 225 action

because he is not a stockholder or director of Tracki. I decline, however, to grant the

defendants’ request for a declaration preserving the status quo ante. Because Tracki

never followed the statutory requirements to validly elect an initial board of

187
This is true under Delaware law as well as New York law, where Bienenfeld is admitted.
Matter of Rowe, 80 N.Y.2d 336, 340 (1992).
188
See Arbitrium, 720 A.2d at 547 (“The Court of Chancery has broad discretion in fixing
the amount of attorney[s’] fees to be awarded.”).

35
directors, there is no lawful board to recognize. My holding is therefore limited to

the finding that Berg does not own or control Tracki.

The defendants are awarded 50% of their reasonable attorneys’ fees and costs

incurred in this litigation. They must submit a Rule 88 affidavit, to which Berg will

have ten business days to respond.

The parties must thereafter confer on and submit a proposed form of final

order. Because this final post-trial decision resolves the merits of the action, the

interim status quo order is hereby dissolved. Berg’s pending motion to enforce that

order is denied as moot.189

189
Dkt. 98.
36