Mark Berg v. Titan Spine, Inc.

majority opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

MARK BERG, I SPINE LLC, )

STEPHEN CICHY, JEFFREY )

DUNKEL, GERARD GIRASOLE, )

M.D., MISKE INVESTMENTS, LLC, )

LIGHTHOUSE HOLDINGS II, LLC, )

ANDREW SHEPHERD, and )

THOMAS WASCHER, M.D., )

)

Plaintiffs, )

)

v. ) C.A. No. 2025-0212-LWW

)

TITAN SPINE, INC., THOMAS )

KEENE, PETER ULLRICH, M.D., )

RAGAN CHENEY, and KEVIN )

GEMAS, )

)

Defendants. )

MEMORANDUM OPINION

Date Submitted: March 9, 2026

Date Decided: June 30, 2026

Thomas A. Uebler & Adam J. Waskie, MCCOLLOM D’EMILIO SMITH UEBLER

LLC, Wilmington, Delaware; Steven Hart & Sean O’Malley, HART

MCLAUGHLIN & ELDRIDGE LLC, Chicago, Illinois; Counsel for Plaintiffs Mark Berg, I Spine LLC, Stephen Cichy, Jeffrey Dunkel, Gerard Girasole, M.D., Miske Investments, LLC, Andrew Shepherd, and Thomas Wascher, M.D.

David G. Holmes, CROSS & SIMON, LLC, Wilmington, Delaware; David R.

Marshall & Amanda M. Mills, FREDRIKSON & BYRON, P.A., Minneapolis,

Minnesota; Counsel for Defendant Titan Spine, Inc.

David B. Anthony, BERGER MCDERMOTT LLP, Wilmington, Delaware; Brooks

F. Poley & Lisa B. Ellingson, WINTHROP & WEINSTINE, P.A., Minneapolis, Minnesota; Counsel for Defendants Peter Ullrich, M.D., Ragan Cheney, and Kevin Gemas

Elena C. Norman & Jason W. Rigby, YOUNG CONAWAY STARGATT &

TAYLOR, LLP, Wilmington, Delaware; Matthew Splitek, QUARLES & BRADY

LLP, Madison, Wisconsin; Counsel for Defendant Thomas Keene

WILL, Vice Chancellor

In this action, former executives and early investors of Titan Spine, Inc. claim

they were defrauded by the company’s founders and board of directors. The

plaintiffs challenge the reduction of their contractual royalty payments and a stock

offering that allegedly concealed an impending merger.

Rather than sue in Delaware, the plaintiffs spent years litigating in Wisconsin

state court. They persisted in that forum after the defendants invoked a Delaware

forum selection clause in the merger letters of transmittal. It was not until the

Wisconsin court enforced the forum selection clause that the plaintiffs refiled here—

years after the statute of limitations expired.

The defendants move to dismiss the claims as time-barred. I agree. The

plaintiffs were on inquiry notice of their claims by 2019 but did not bring this action

until 2025. They cannot invoke the relation back doctrine because it does not apply

to the Wisconsin suit. Nor can they invoke the Delaware Savings Statute because

their delay resulted from a strategic choice to sue in the wrong forum. The

defendants’ motion to dismiss is granted.

I. BACKGROUND

The following facts are drawn from the Verified Amended Complaint

(the “Complaint”), documents incorporated by reference, and matters subject to

judicial notice.1

A. Titan Spine’s Early Growth

Defendant Titan Spine, Inc. (the “Company”) was a medical device company

that developed titanium spinal implants.2 Defendants Peter Ullrich, M.D. and Kevin

Gemas co-founded the Company in 2006.3 Ullrich served as the Company’s Chief

Executive Officer, and Gemas served as its President.4 The plaintiffs are former

executives, consultants, and investors who acquired Titan stock during the

Company’s formative years.5

Confidential Verified Am. Compl. (Dkt. 30) (“Am. Compl.”); see Freedman v. Adams, 2012 WL 1345638, at *5 (Del. Ch. Mar. 30, 2012) (“When a plaintiff expressly refers to and heavily relies upon documents in her complaint, these documents are considered to be incorporated by reference into the complaint[.]”); In re Books-A-Million, Inc. S’holders Litig., 2016 WL 5874974, at *1 (Del. Ch. Oct. 10, 2016) (explaining that the court may take judicial notice of “facts that are not subject to reasonable dispute[]” (citation omitted)), aff’d, 164 A.3d 56 (Del. 2017) (TABLE).

Am. Compl. ¶ 25. Titan Spine was a Delaware corporation with its principal place of business in Mequon, Wisconsin. Id. ¶ 15.

Id. ¶¶ 16, 18, 27.

Id. ¶ 27.

Id. ¶¶ 6-14.

Titan grew steadily over the next decade, reaching $63 million in annual

revenues by 2016.6 In 2016 and early 2017, Titan raised $15 million from Southlake

Equity Group, LLC (“SEG”)—a Texas-based private equity firm—in exchange for

a 12.3% stake in the Company.7 In connection with SEG’s investment, Titan

established a formal Board of Directors (the “Board”) composed of Ullrich, Gemas,

and defendant Thomas Keene—SEG’s managing partner.8

B. The 2008 Royalty Agreements

In 2007, plaintiff Gerard Girasole, M.D.—an orthopedic surgeon—became a

Titan consultant.9 On March 6, 2008, he and Titan executed a royalty agreement

entitling him to “royalties equal to one and one-half percent (1.5%) of Titan’s Net

Revenues from patented Girasole Inventions sold by Titan[.]”10

In October 2008, plaintiff Thomas Wascher, M.D.—a neurosurgeon and

member of Titan’s scientific advisory board—signed a substantially identical

agreement with Titan (with Girasole’s agreement, the “2008 Royalty

Id. ¶ 41.

Id. ¶¶ 17, 48.

Id. ¶ 49.

Id. ¶¶ 10, 33.

Am. Compl. Ex. A § 10.2; Am. Compl. ¶ 33.

Agreements”).11 Unlike the 1.5% royalties promised to Girasole, Wascher’s

agreement entitled him to a 1.0% royalty on net revenues from his inventions.12

Under both agreements, royalty payments would “continue so long as the

Consultant Invention [was] being sold by Titan.”13 If Titan assigned its obligations

to a third party, that third party was required to assume the agreements’ terms.14

Over the next several years, Wascher and Girasole received royalties for their

contributions to Titan’s “Endoskeleton” product lines.15

C. The nanoLOCK Royalties

In 2015, Titan launched “nanoLOCK,” a surface treatment designed to

improve bone adhesion.16 Titan applied the technology to its Endoskeleton

products.17 By late 2016, nanoLOCK became Titan’s primary revenue driver.18

On December 13, 2016, Titan’s Board passed a resolution reducing royalty

payments on products using nanoLOCK technology by 33%.19 Wascher and

Am. Compl. ¶¶ 34, 37; see Am. Compl. Ex. B.

Am. Compl. Ex. B § 10.2.

Id. § 10.5; Am. Compl. Ex. A § 10.5.

Am. Compl. Ex. A § 10.5; Am. Compl. Ex. B § 10.5.

Am. Compl. ¶¶ 36-37.

Id. ¶¶ 4, 56.

Id. ¶ 60.

Id. ¶ 56.

Id. ¶ 60.

Girasole were negatively affected by the resolution, which reduced their royalty

payments on these products to 0.67% and 1.0%, respectively.20 They had no

contemporaneous knowledge of the resolution.21

D. Early Acquisition Discussions

In 2016, Ullrich began exploring a sale of Titan.22 He solicited interest from

medical technology companies including Medtronic PLC.23 Preliminary discussions

with Medtronic began in March 2016 but did not progress at that time.24

Titan and Medtronic reengaged in October 2017.25 Titan publicly framed

these conversations as negotiations for a prospective “distribution deal.”26

Over the ensuing weeks, the parties met to discuss potential deal structures

and contingent milestone payments.27 Negotiations stalled again in January 2018

when the parties were unable to “bridge the gap between [Medtronic’s] valuation

model and [Titan’s] purchase price expectations[.]”28

Id. ¶¶ 61, 63-64.

Id.

Id. ¶ 54.

Id.

Id. ¶ 65.

Id. ¶ 67.

Id.

Id. ¶ 70.

E. The Purported IPO Preparations

During the discussions with Medtronic, Ullrich and other Titan executives

denied that the Company was for sale.29 Instead, the Board indicated to employees

and investors that Titan was pursuing an initial public offering (IPO).30

Titan took steps consistent with IPO preparations, including converting from

a Delaware limited liability company to a Delaware corporation.31 As part of this

conversion, SEG’s Class D membership units became Series A Preferred shares that

were entitled to a double return on investment if Titan were acquired.32

F. The Series B Offering

In June 2018, Ullrich met with Medtronic representatives to discuss the

potential sale.33 Conversations centered on whether Titan would receive a pending

Medicare designation, which could increase the Company’s value.34 In August,

Titan’s application was denied.35 Acquisition and pricing discussions continued.36

Id. ¶¶ 71-72.

Id. ¶ 73.

Id. ¶¶ 73-74.

Id. ¶ 74.

Id. ¶ 76.

Id. ¶¶ 70, 76-79.

Id. ¶¶ 77-78.

Id. ¶¶ 79-81.

On August 31, 2018, Titan sent stockholders—including the plaintiffs—a

confidential private placement memorandum for a $20 million offering of Series B

Preferred stock at $8.25 per share (the “Series B Offering”).37 Although the offering

was described as a means to grow Titan before an IPO, Series B shares guaranteed

a 100% return on investment above any merger consideration.38

The private placement memorandum allowed stockholders to subscribe for

shares up to their pro rata ownership interests and to request additional shares in the

event of undersubscription.39 It did not mention the negotiations with Medtronic.40

Unaware of the merger discussions, the plaintiffs either invested nominal sums or

declined to participate in the offering.41

Some acquisition rumors surfaced while the Series B offering was open.42 To

address them, Ullrich sent a September 18, 2018 memorandum to Titan employees

that stated “Titan [was] not running any processes currently to become acquired

Id. ¶ 82.

Id. ¶¶ 1, 83-84.

Id. ¶ 82.

Id. ¶¶ 86-87.

Id. ¶ 88.

Id. ¶ 89.

and/or actively seeking to be acquired.”43 Yet Ullrich continued to meet with

Medtronic in September, October, and November.44

The subscription period closed on October 31, 2018.45 A total of $17 million

was raised; over 95% of those funds came from Ullrich, two of his friends, and

SEG.46 SEG oversubscribed by $13 million, which was possible due to the

plaintiffs’ undersubscription.47

G. The Letter of Intent

On November 5, 2018, Ullrich met with Medtronic executives.48 Three days

later, Medtronic submitted a letter of intent to purchase all of Titan’s equity.49 The

parties finalized a revised letter of intent on November 12.50

When Medtronic employees traveled to Titan for due diligence, Titan

portrayed the visit as facilitating a “limited sales agency agreement.”51 Titan omitted

any mention of the letter of intent or prospective merger from its 2018 Year End

Id. ¶ 90 (emphasis removed); see also id. ¶ 89.

Id. ¶ 91.

Id. ¶ 92.

Id.

Id. ¶ 93.

Id. ¶ 95.

Id. ¶ 96.

Id. ¶ 97.

Id. ¶ 98.

Investment Letter.52 This omission concealed the impending acquisition from key

Titan employees.53

H. The Amended Royalty Agreements

In April 2019, Wascher and Girasole signed amendments to their 2008

Royalty Agreements (the “Amended Royalty Agreements”).54 They did so after

Titan informed them that the amendments were necessary to ensure their continued

receipt of royalty payments.55

The Amended Royalty Agreements specified certain products subject to

royalties and excluded others.56 They also formally ratified the reduced royalty rates

for nanoLOCK products, as established in the 2016 Board resolution.57

I. The Merger

Titan and Medtronic executed a final merger agreement on May 9, 2019.58

Titan stockholders did not learn of the acquisition until May 31, when Titan

announced the merger and distributed a notice of appraisal rights.59 The notice

Id. ¶ 100.

Id. ¶ 99.

Id. ¶¶ 101-09.

Id. ¶¶ 102-03, 108.

Id. ¶ 105; Am. Compl. Ex. C.

Am. Compl. ¶ 110.

Id. ¶ 111.

revealed that Medtronic had first expressed interest in acquiring Titan on

November 5, 2018.60

The acquisition closed a few weeks later, providing Titan stockholders with

$150 million in up-front consideration, plus up to $100 million in contingent

payments.61 Series B Preferred stockholders received $34 million from the merger,

and SEG received $30 million for its Series A Preferred stock.62 Ullrich and Keene

allegedly used their advance knowledge of the merger to reap outsized returns from

the Series B Offering.63

J. The Wisconsin Action

On July 30, 2020, former Titan employees and stockholders sued Ullrich,

Keene, Titan, and Medtronic in Wisconsin state court (the “Bryans Suit”).64 They

alleged that Titan’s Board concealed years of informal discussions with Medtronic

while engaged in a scheme to maximize personal profit.65

Id.

Id. ¶ 112.

Id.

Id. ¶ 113.

Id. ¶ 123. That case is Bryans v. Titan Spine, Inc., C.A. No. 2020CV004508 (Wis. Cir. Ct. Milwaukee Cty.).

Id.

A few months later, the plaintiffs here learned of the Bryans Suit and began

investigating their own claims.66 In March 2022, they filed a complaint in Wisconsin

state court against Titan, Keene, Ullrich, Cheney, and Gemas, advancing fraud and

misrepresentation claims in connection with the Series B Offering and the Amended

Royalty Agreements (the “Wisconsin Action”).67 On June 30, 2022, the defendants

moved for partial summary judgment based on a Delaware forum selection clause in

the letters of transmittal (“LOTs”) that the plaintiffs executed in connection with the

Medtronic merger.68 In September 2024, the Wisconsin court held that the forum

selection clause governed the plaintiffs’ claims concerning the Series B Offering.69

In March 2025, Girasole and Wascher amended their pleading to add claims

for breach of contract under the 2008 Royalty Agreements.70 A few weeks later, the

defendants sought to dismiss those claims based on the LOTs’ forum selection

clauses.71 On July 2, 2025, the Wisconsin court granted the motion, holding that the

Id. ¶¶ 124-30. The plaintiffs—all Titan stockholders—were Mark Berg, I Spine LLC, Stephen Cichy, Jeffrey Dunkel, Girasole, Miske Investments, LLC, Lighthouse Holdings II, LLC, Andrew Shepherd, and Wascher. Id. ¶¶ 6-14.

Id. ¶ 131; Am. Compl. Ex. E ¶¶ 129-662; see generally Berg v. Titan Spine, C.A. No. 2022CV001899 (Wis. Cir. Ct. Milwaukee Cty.).

Am. Compl. ¶ 131.

Id.; Am. Compl. Ex. F.

Am. Compl. ¶ 133; Am. Compl., Berg v. Titan Spine, Inc., C.A. No. 2022CV001899 (Wis. Cir. Ct. Milwaukee Cty. Mar. 24, 2025) ¶¶ 41-55.

Am. Compl. ¶ 133. The motion to dismiss was converted into a motion for summary judgment. Id.

royalty claims should also be litigated in Delaware in the interest of judicial

economy.72

K. The Delaware Action

On February 25, 2025, the plaintiffs refiled their claims regarding the Series

B Offering in this court.73 On July 14, 2025, they amended their complaint to add

claims regarding the 2008 Royalty Agreements.74

The operative amended Complaint advances twelve counts. The claims

concerning the Series B Offering are for breach of fiduciary duty (Count I), fraud

and intentional misrepresentation (Counts II and III), and strict liability

misrepresentation under Wisconsin law (Count IV) (the “Series B Claims”).75 The

plaintiffs also allege breach of contract concerning the 2008 Royalty Agreements

(Counts V and VI), as well as fraud and intentional misrepresentation (Counts VII

and VIII), negligent misrepresentation (Counts IX and X), and rescission (Counts

XI and XII) concerning the Amended Royalty Agreements (the “Royalty Claims”).76

Id.

Dkt. 1.

Dkt. 30.

Am. Compl. ¶¶ 134-88.

Id. ¶¶ 189-264.

On July 28, 2025, the defendants moved to dismiss the Complaint.77

Following briefing,78 I heard oral argument on March 9, 2026.79

II. ANALYSIS

The defendants move to dismiss the Complaint under Court of Chancery

Rule 12(b)(6) for failure to state a claim upon which relief can be granted.80 In

resolving the motion, I must “(1) accept all well pleaded factual allegations as true,

(2) accept even vague allegations as ‘well pleaded’ if they give the opposing party

notice of the claim, [and] (3) draw all reasonable inferences in favor of the nonmoving party[.]”81 I need not “accept every strained interpretation of [the plaintiffs’]

allegations”82 nor conclusory statements “unsupported by allegations of specific

Dkt. 33.

Defs.’ Opening Br. in Supp. of Mot. to Dismiss (Dkt. 36) (“Defs.’ Opening Br.”); Pls.’ Answering Br. in Opp’n to Defs.’ Mot. to Dismiss (Dkt. 41) (“Pls.’ Answering Br.”); Defs.’ Reply Br. in Supp. of Mot. to Dismiss (Dkt. 48) (“Defs.’ Reply Br.”).

Dkt. 57; see Tr. of Oral Arg. on Defs.’ Mot. to Dismiss (Dkt. 58) (“Hr’g Tr.”). 80

Ct. Ch. R. 12(b)(6).

Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldgs. LLC, 27 A.3d 531, 535 (Del. 2011) (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002)). 82

In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006) (citation omitted).

facts.”83 Dismissal is appropriate only if the plaintiffs cannot “recover under any

reasonably conceivable set of circumstances susceptible of proof.”84

I begin my analysis with the Royalty Claims before addressing the Series B

Claims. Both sets are dismissed as time-barred. Because the plaintiffs were on

inquiry notice by 2019, the three-year limitations period expired well before this

action was filed. The plaintiffs cannot successfully invoke the relation back doctrine

or the Delaware Savings Statute to excuse their delay.

A. The Royalty Claims

Girasole and Wascher allege that Titan breached the 2008 Royalty

Agreements by reducing their royalty rates, and that the defendants fraudulently

induced them to execute the Amended Royalty Agreements to ratify the reduced

rates. These claims are untimely. The plaintiffs were on inquiry notice of the alleged

breaches of contract and the purported fraud by April 2019, when they signed the

Amended Royalty Agreements and began receiving reduced payments. Because the

three-year limitations period expired in 2022, the claims at law are time-barred and

the equitable request for rescission fails for want of a viable fraud claim.

In re Lukens Inc. S’holders Litig., 757 A.2d 720, 727 (Del. Ch. 1999) (citation omitted), aff’d sub nom., Walker v. Lukens, Inc., 757 A.2d 1278 (Del. 2000) (TABLE). 84

Savor, 812 A.2d at 896-97 (citation omitted).

1. Claim Accrual

“[E]quity follows the law, and this court will apply statutes of limitations by

analogy.”85 Claims for breach of contract and for fraud are governed by a three-year

limitations period.86 The statute of limitations “starts to run when the claim accrues,

and a breach of contract claim accrues ‘at the time of breach[.]’”87 Similarly, a fraud

claim accrues “at the moment of the wrongful act[,]” meaning when the false

“representation is made.”88

For the breach of contract claims, the alleged breaches of the 2008 Royalty

Agreements began in December 2016 when the Titan Board resolved to reduce the

nanoLOCK royalty rates.89 Even assuming a continuing breach, the final alleged

breach occurred in April 2019 when Girasole and Wascher executed the Amended

In re Am. Int’l Gp., Inc., 965 A.2d 763, 812 (Del. Ch. 2009), aff’d sub nom., Tchrs.’ Ret. Sys. of La. v. PricewaterhouseCoopers LLC, 11 A.3d 228 (Del. 2011) (TABLE). 86

10 Del. C. § 8106(a); see MKE Hldgs. Ltd. v. Schwartz, 2020 WL 467937, at *12 (Del. Ch. Jan. 29, 2020); Jeter v. RevolutionWear, Inc., 2016 WL 3947951, at *9 (Del. Ch. July 19, 2016).

Pulieri v. Boardwalk Props., LLC, 2015 WL 691449, at *11 (Del. Ch. Feb. 18, 2015) (citing Whittington v. Dragon Gp. L.L.C., 2008 WL 4419075, at *5 (Del. Ch. June 6, 2008, revised Sept. 30, 2008)).

Winkelvoss Cap. Fund, LLC v. Shaw, 2019 WL 994534, at *5 (Del. Ch. Mar. 1, 2019) (citation omitted); see also Sunrise Ventures, LLC v. Rehoboth Canal Ventures, LLC, 2010 WL 363845, at *6 (Del. Ch. Jan. 27, 2010) (“The statute of limitations begins to run when a plaintiff’s claim accrues, which occurs at the moment of the wrongful act and not when the effects of the act are felt.”).

See supra notes 19-20 and accompanying text.

Royalty Agreements.90 Those amended agreements expressly “supersede[d] any

prior agreement or understanding[.]”91 For the fraud claims, the allegedly wrongful

statements about the royalty payments were made between February 15, 2019 and

April 5, 2019.92

Accordingly, the Royalty Claims accrued by April 2019 at the latest. Absent

tolling, Wascher and Girasole had until April 2022 to bring their claims.93 They did

not assert their Royalty Claims in Delaware until July 2025.94 And though they filed

fraud claims in Wisconsin in March 2022, they did not assert their breach of contract

claims in any forum until March 2025.95

Wascher and Girasole attempt to revive their claims through tolling, Court of

Chancery Rule 15(c), and the Delaware Savings Statute. None of these efforts are

fruitful.

See supra notes 54-56 and accompanying text.

Am. Compl. Ex. C § 2; Am. Compl. Ex. D § 2.

See Am. Compl. ¶¶ 205, 225 (statements made on February 15, 2019);

id. ¶¶ 207, 215, 227, 235 (correspondence dated April 1, 2019); id. ¶¶ 217, 237 (phone call on April 5, 2019).

10 Del. C. § 8106(a); see supra note 86 and accompanying text.

See supra note 73 and accompanying text.

See supra note 70 and accompanying text.

2. Tolling

The plaintiffs do not assert that a tolling doctrine applies to their fraud-based

Royalty Claims. They do, however, argue that fraudulent concealment tolled the

statute of limitations for their breach of contract claims.96 “[T]he statute of

limitations may be tolled when a defendant has fraudulently concealed from a

plaintiff the facts necessary to put him on notice of the truth.” 97 The limitations

period is tolled only until the plaintiff is on inquiry notice—that is, until “such time

that persons of ordinary intelligence and prudence would have facts sufficient to put

them on inquiry which, if pursued, would lead to the discovery of the injury.”98

The plaintiffs bear the burden of pleading that a tolling doctrine applies.99 To

demonstrate fraudulent concealment, they must allege “an affirmative act of ‘actual

artifice’ by the defendant that either prevented the plaintiff from gaining knowledge

of material facts or led the[m] away from the truth.”100 Girasole and Wascher have

not done so, failing to allege how the defendants’ conduct prevented them from

See Pls.’ Answering Br. 39, 43-45.

MKE Hldgs., 2020 WL 467937, at *12.

In re Dean Witter P’ship Litig., 1998 WL 442456, at *7 (Del. Ch. July 17, 1998) (emphasis removed), aff’d, 725 A.2d 441 (Del. 1999) (TABLE).

Am. Int’l Gp., 965 A.2d at 812 (explaining that, where the plaintiffs’ claims are “brought outside the applicable limitations period,” they must “plead facts that support the existence of . . . tolling[]”).

100

In re Tyson Foods, Inc., 919 A.2d 563, 585 (Del. Ch. 2007) (citing Ewing v. Beck, 520 A.2d 653, 667 (Del. 1987)).

discovering the purported breaches. Instead, they rely on statements by Titan

representatives acknowledging the Amended Royalty Agreements would reduce

royalty payments.101 Drawing all reasonable inferences in the plaintiffs’ favor, these

statements do not reflect “actual artifice” to conceal the royalty reductions.102

Rather, openly acknowledging the reduced rates would have put the plaintiffs on

notice.

Even if fraudulent concealment applied, Girasole and Wascher were on

inquiry notice of the reduced royalty payments by April 2019.103 Section 1(d) of the

Amended Royalty Agreements included tables making it mathematically plain that

nanoLOCK royalties were reduced by 33%.104 A cursory read of those amendments

would lead a person of “ordinary intelligence and prudence” to recognize the

reduction.105 In addition, the reduction was mathematically obvious from the

amounts of the royalty payments they received beginning in 2019.106

101

Pls.’ Answering Br. 43-45.

102

Id. at 43.

103

Am. Compl. ¶¶ 101-09.

104

Am. Compl. Ex. C § 1(d); Am. Compl. Ex. D § 1(d).

105

Dean Witter, 1998 WL 442456, at *7.

106

Am. Compl. Ex. A § 10.2; Am. Compl. Ex. B § 10.2; Am. Compl. ¶¶ 105, 109.

The same logic applies to the plaintiffs’ allegation that Titan failed to provide

required quarterly revenue reports.107 Girasole and Wascher acknowledge that they

were entitled to receive these reports under the 2008 Royalty Agreements but did

not receive them between 2016 and 2019.108 Titan’s failure to deliver the required

reports constituted an immediate, observable breach.109 Because the plaintiffs knew

they were not receiving reports as late as 2019, any claim for this breach accrued by

that time.

3. Relation Back and the Savings Statute

The plaintiffs first attempt to use Rule 15(c) to relate their 2025 breach of

contract claims back to the initial 2022 complaint in the Wisconsin Action.110 The

defendants raised the inapplicability of Rule 15(c) in their opening brief.111 But the

plaintiffs made only a passing reference to the rule in their opposition brief, invoking

107

Am. Compl. ¶¶ 193, 200.

108

See id. ¶¶ 33, 34, 193, 200; Pls.’ Answering Br. 5.

109

See Pulieri, 2015 WL 691449, at *11 (noting that a breach of contract claim accrues “at the time of breach[]” (citation omitted)); Albert v. Alex Brown Mgmt. Servs., Inc., 2005 WL 1594085, at *18 (Del. Ch. June 29, 2005) (“The law in Delaware is crystal clear that a claim accrues as soon as the wrongful act occurs. This is so because the plaintiffs were harmed as soon as the alleged wrongful acts occurred.”).

110

Ct. Ch. R. 15(c)(2) (providing that “[a]n amendment to a pleading relates back to the date of the original pleading when[] . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out— in the original pleading[]”). The plaintiffs do not rely on Rule 15(c) for their fraud claims, which were asserted in the original March 2022 Wisconsin complaint. They instead rely on the Savings Statute for those claims.

111

See Defs.’ Opening Br. 47-48.

it substantively for the first time at oral argument.112 “Issues not briefed are deemed

waived.”113

Even if the argument were not waived, it fails on the merits. First, Rule 15(c)

“only applies to the original pleading” in this court, “not to a different complaint

filed in a different court, even one based on related or identical facts.”114 Second,

even if the Wisconsin Action complaint constituted an “original pleading,” the

claims concerning the 2008 Royalty Agreements do not relate back to it.

A claim for breach of contract does not relate back if the allegations are based

upon different agreements than those addressed in the original complaint.115 The

2022 Wisconsin Action complaint alleged only fraud in connection with the Series

B Offering and the Amended Royalty Agreements.116 It did not allege a breach of

the 2008 Royalty Agreements. Claims regarding the 2008 Royalty Agreements were

112

See Pls.’ Answering Br. 53-54 (making a passing reference to Rule 15(c) as it compares to the Savings Statute); Hr’g Tr. 26.

113

Emerald P’rs v. Berlin, 726 A.2d 1215, 1224 (Del. 1999).

114

Parker v. Gadow, 893 A.2d 964, 965, 968-69 (Del. 2006) (declining to extend Superior Court Rule 15(c) to a “separate complaint filed in a different court[]”). 115

Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldgs. LLC, 2012 WL 3201139, at *18 (Del. Ch. Aug. 7, 2012) (explaining that “[a] breach of a representation in one transactionspecific contract does not ‘arise’ out of the same ‘transaction or occurrence’ as the breach of the same representation made in a different contract” (citation omitted)). 116

See Am. Compl. Ex. E ¶¶ 129-662.

left unpleaded until March 2025, when Girasole and Wascher amended their

Wisconsin complaint.117 By that point, the claims were time-barred.

The plaintiffs next invoke the Delaware Savings Statute to revive their claims

for fraud and breach of contract. 10 Del. C. § 8118 provides limited relief from the

statute of limitations where a plaintiff “has filed a timely lawsuit, but is procedurally

barred from obtaining a resolution on the merits.”118 The action must have been

“duly commenced within the time” designated in 10 Del. C. § 8106(a).119

A plaintiff cannot rely on the Savings Statute when she purposefully avoids a

Delaware forum selection clause.120 The plaintiffs knew about the Delaware forum

selection clause in the LOTs no later than June 2022, when the defendants sought

partial summary judgment on that basis in the Wisconsin Action.121 Rather than

refile in Delaware, Wascher and Girasole amended their Wisconsin complaint

117

See Am. Compl., Berg v. Titan Spine, Inc., C.A. No. 2022CV001899 (Wis. Cir. Ct. Milwaukee Cty. Mar. 24, 2025) ¶¶ 41-55.

118

Reid v. Spazio, 970 A.2d 176, 180 (Del. 2009).

119

10 Del. C. § 8118(a).

120

Tilden v. Cunningham, 2018 WL 5307706, at *15 (Del. Ch. Oct. 26, 2018) (explaining that a plaintiff’s claims were time-barred in light of a decision to file elsewhere in contravention of a Delaware forum selection clause, “because any harm [the plaintiff] . . . suffered [wa]s entirely self-inflicted[]”).

121

Am. Compl. ¶ 131. Wascher and Girasole were parties to the initial Wisconsin Complaint. See Am. Compl. Ex. E.

in 2025 to add claims about the 2008 Royalty Agreements.122 The Savings Statute

only protects a “plaintiff who, through no fault of his own, finds his cause technically

barred by the lapse of time.”123 Here, the plaintiffs’ tardiness was their own doing.

4. Rescission

Finally, the plaintiffs seek rescission of the Amended Royalty Agreements in

connection with their fraud claim.124 “Rescission is not a cause of action but a

remedy available only where facts indicate [that] equity so requires.”125 Because the

underlying fraud claim is time-barred, rescission is unavailable.126

B. The Series B Claims

The plaintiffs’ next set of claims is premised on the Series B Offering. They

allege that the offering was structured “in a manner that uniquely favored the [Series

B] shares in the event of an acquisition[.]”127 These claims are also time-barred.128

122

Am. Compl., Berg v. Titan Spine, Inc., C.A. No. 2022CV001899 (Wis. Cir. Ct. Milwaukee Cty. Mar. 24, 2025).

123

Giles v. Rodolico, 140 A.2d 263, 267 (Del. 1958).

124

Am. Compl. ¶¶ 244-64.

125

Eni Hldgs., LLC v. KBR Gp. Hldgs., LLC, 2013 WL 6186326, at *24 (Del. Ch. Nov. 27, 2013).

126

See Kors v. Carey, 158 A.2d 136, 143 (Del. Ch. 1960) (explaining that a contract was “not subject to rescission because there [wa]s no proof of fraud”); see also Norton v. Poplos, 443 A.2d 1, 4 (Del. 1982) (“[R]escission results in abrogation or ‘unmaking’ of an agreement, and attempts to return the parties to the status quo. Common grounds for rescission of a contract . . . include fraud, misrepresentation [or] mistake.”). 127

Am. Compl. ¶ 138.a.

128

Id. ¶¶ 134-88.

1. Accrual of the Delaware Law Claims

A three-year statute of limitations applies to the Series B Claims brought

under Delaware law.129 The purported “wrongful act” is the Series B Offering.130

These claims therefore accrued no later than October 31, 2018, when the

subscription period ended.131

Even if the claims were tolled for a time, the plaintiffs were put on inquiry

notice by May 31, 2019.132 On that date, Titan publicly announced the merger with

Medtronic.133 The announcement included a notice of appraisal rights stating that

Medtronic first expressed interest in acquiring Titan on November 5, 2018—just five

days after the Series B Offering closed.134

The plaintiffs assert that the merger announcement and notice of appraisal

rights did not put them on notice because they omitted to mention the earlier

129

See supra notes 85-87 and accompanying text; MKE Hldgs., 2020 WL 467937, at *12 (“The statute of limitations for both breach of contract and common law fraud is three years.”).

130

See supra notes 97-98 and accompanying text (explaining that a claim accrues at the time of the injury, and not when its harmful effects are felt).

131

Am. Compl. ¶ 92.

132

Id. ¶ 111. The Complaint states that two of the plaintiffs—Cichy and Dunkel—learned of the Medtronic negotiations even earlier, in November and December 2018. Id. ¶ 128 (alleging that Cichy “incidentally learned” of the November 2018 meeting at Medtronic’s headquarters and was told by Ullrich to “keep the matter secret[,]” and that Dunkel “had been told about Medtronic’s impending acquisition” in “late December of 2018”). 133

Id. ¶ 111.

134

Id.

negotiations or explain that the IPO was a ruse to dissuade their participation in the

Series B Offering.135 They insist they first learned of the wrongdoing in

October 2020, when the Bryans Suit was filed in Wisconsin.136 But inquiry notice

does not require actual discovery of the entire wrongful scheme; it only requires

“facts sufficient” to prompt a person of “ordinary intelligence and prudence” to

inquire further.137 The sudden announcement of a nine-figure merger—mere months

after Titan raised Series B funds for a purported IPO and denied seeking a buyer—

was a red flag. Indeed, the Complaint describes the timing of the merger relative to

the Series B Offering as “suspicious, to say the least[.]”138 A reasonably diligent

stockholder would have investigated the circumstances surrounding the Series B

Offering at that time.

Accordingly, the Delaware law claims challenging the Series B Offering

accrued by May 2019. The three-year statute of limitations expired in May 2022.

This suit was not filed until February 25, 2025, making the claims untimely.

135

Id. ¶ 113.

136

Id. ¶¶ 124-30.

137

Dean Witter, 1998 WL 442456, at *7.

138

Am. Compl. ¶ 147 (stating that the timing was “inconsistent with the possibility that [the d]efendants did not have this material information during the Series B [O]ffering[]”).

2. Accrual of the Wisconsin Law Claim

The plaintiffs’ claim for strict liability misrepresentation under Wisconsin law

concerns the September 18, 2018 memorandum sent to Titan employees that

disclaimed merger discussions.139 The defendants argue that this claim is governed

by Delaware law under the Medtronic merger agreement and the LOTs.140 I need

not resolve the choice-of-law dispute, however. Even if Wisconsin law applied, the

claim would be time-barred.

Wisconsin imposes a six-year statute of limitations on claims for strict liability

misrepresentation.141 The challenged statement was made on September 18, 2018,

and the claim accrued at that time. The plaintiffs had until September 18, 2024 to

bring their claim, but did not raise it until February 25, 2025.

3. The Savings Statute

The plaintiffs assert that their Series B Claims are timely due to the application

of the Savings Statute.142 As explained above, the Savings Statute is designed to

protect plaintiffs who, through no fault of their own, suffer a procedural defect in a

139

Am. Compl. ¶¶ 176-88.

140

See Defs.’ Reply Br. 26-27; but see Pls.’ Answering Br. 23-24.

141

See Honeycrest Farms, Inc. v. Brave Harvestore Sys., 205 Wis.2d 738, 738-39 (Wis. Ct. App. 1996) (TABLE).

142

Pls.’ Answering Br. 49.

timely filed case.143 The statute does not rescue plaintiffs who choose to file in the

wrong jurisdiction in contravention of a forum selection clause.144

The plaintiffs litigated over the Series B Offering in Wisconsin for three years.

They were on notice of the forum selection clause in the LOTs no later than

June 2022, when the defendants sought partial summary judgment on that basis.145

Even so, the plaintiffs continued to press their Series B Claims in Wisconsin until

the court ruled in the defendants’ favor.146

Under Wisconsin law, the doctrine of collateral estoppel applies where an

issue was actually litigated and essential to a valid, final judgment.147 In

September 2024, the Wisconsin court held that the LOTs were valid, enforceable

143

Giles, 140 A.2d at 267; see supra notes 118-120 and accompanying text. 144

BioVeris Corp. v. Meso Scale Diagnostics, LLC, 2017 WL 5035530, at *12 (Del. Ch. Nov. 2, 2017) (“A party cannot rely on a suit knowingly filed in the wrong forum as a basis for avoiding the application of laches.” (citation omitted)), aff’d, 202 A.3d 509 (Del. 2019) (TABLE); Huffington v. T.C. Gp., LLC, 2012 WL 1415930, at *10 (Del. Super. Apr. 18, 2012) (refusing to apply the Savings Statute where a plaintiff “decided to pay no heed to [an enforceable] forum selection clause” and instead “chose a strategy that backfired[]”); see supra notes 120-123 and accompanying text.

145

Am. Compl. ¶ 131 (stating that, on June 30, 2022, the defendants argued that a “forum selection clause contained in the [LOTs] executed by the [p]laintiffs mandated that the [Series B Claims] . . . take place in Delaware[]”).

146

Id. ¶¶ 130-31.

147

See Dostal v. Strand, 984 N.W.2d 382, 388 (Wis. 2023); see also Acierno v. New Castle Cty., 679 A.2d 455, 459 (Del. 1996) (“The ‘preclusive effect of a foreign judgment is measured by standards of the rendering forum.’” (citing Columbia Cas. Co. v. Playtex FP, Inc., 584 A.2d 1214, 1217 (Del. 1991))).

contracts supported by consideration.148 It also held that “the issues being litigated

are subject to the forum-selection clause, requiring that th[e] action be litigated in

Delaware.”149 These holdings were essential because they formed the primary

grounds for the court’s entry of partial summary judgment.150 The plaintiffs are

collaterally estopped from arguing otherwise here.

Attempting to bypass this preclusion, the plaintiffs argue that the LOTs were

procured by fraud.151 But the plaintiffs pleaded fraud solely in connection with the

Series B Offering—not the LOTs, which were sent to the plaintiffs after the merger

closed.152

The requirements for collateral estoppel under Wisconsin law are therefore

met. The plaintiffs are barred from relitigating the force and applicability of the

forum selection clause. The plaintiffs forfeited the Savings Statute’s protections

when they ignored the Delaware forum selection provision.

148

See Decision and Order, Berg v. Titan Spine, Inc., C.A. No. 2022CV001899 (Wis. Cir. Ct. Milwaukee Cty. Sept. 20, 2024).

149

Id.

150

Id.

151

Pls.’ Answering Br. 61-62; see Hr’g Tr. 7. The plaintiffs also argue that releases in the LOTs cannot waive claims for breach of fiduciary duty. See Pls.’ Answering Br. 61. Because their claims are dismissed as time-barred, I do not reach the defendants’ argument that the claims are independently barred by the releases.

152

See Am. Compl. ¶ 111; cf. Abry P’rs V, L.P. v. F&W Acq. LLC, 891 A.2d 1032, 1050 (Del. Ch. 2006) (explaining that a plaintiff must “allege the circumstances of the fraud with detail sufficient to apprise the defendant of the basis for the claim”); Ct. Ch. R. 9(b).

The plaintiffs maintain that they acted in good faith by continuing to litigate

in Wisconsin.153 That is irrelevant; they “chose not to sue in the contractually proper

forum[.]”154 There are also no extraordinary circumstances to excuse the plaintiffs’

delay in suing in the proper forum.155 Having “gambled and lost,” they cannot shift

the consequences of their strategic decisions onto the defendants.156 Any harm they

have “suffered is entirely self-inflicted.”157

III. CONCLUSION

The plaintiffs’ claims are time-barred. The defendants’ motion to dismiss is

granted, and the Complaint is dismissed with prejudice.

153

Hr’g Tr. 23-24; Am. Compl. ¶ 131 (contending that the plaintiffs, “in good faith, disagreed with [the defendants’] position”).

154

Carlyle Inv. Mgmt. L.L.C. v. Nat’l Indus. Gp. (Holding), 2012 WL 4847089, at *11 (Del. Ch. Oct. 11, 2012), aff’d, 67 A.3d 373 (Del. 2013).

155

IAC/InterActiveCorp v. O’Brien, 26 A.3d 174, 177-78 (Del. 2011) (explaining that “unusual conditions or extraordinary circumstances” may justify a decision not to apply the statute of limitations, and stating that the Court of Chancery may “exercise its discretion” to determine whether such conditions or circumstances apply, “after considering all relevant facts” (citation omitted)).

156

Tilden, 2018 WL 5307706, at *15.

157

Carlyle Inv. Mgmt., 2012 WL 4847089, at *11; see also Ney v. 3i Gp. PLC, 2025 WL 1455872, at *5 (Del. Super. May 21, 2025) (“Delaware courts . . . recognize that where a litigant disregards or strategically tries to avoid an applicable forum selection clause, the Savings Statute does not apply.”), aff’d, 351 A.3d 1003 (Del. 2025) (TABLE).

Mark Berg v. Titan Spine, Inc.

Authorities cited

Opinion · public domain