Background
Amit Patel and Cindy Chen Delano founded Invictus Special Situations I GP, LLC (“Invictus GP”) and Invictus Global Management, LLC (“IGM”) in 2019 and controlled both entities at all relevant times. Invictus GP became general partner of Invictus Special Situations Master I, L.P. (the “Fund”), and IGM became its investment manager under a Management Agreement. On September 29, 2023, a supermajority of limited partners replaced them with TREO entities. IGM retained Fund-related books and records and more than $9 million connected to debtor-in-possession financing involving DeCurtis entities and Tuesday Morning Corporation.
The Fund commenced this expedited action on October 30, 2023, seeking the documents and retained funds; defendants asserted advancement counterclaims, and the Fund raised ERISA-based defenses. Discovery problems led the court to bifurcate the case. Five days before the planned January 2024 trial, defendants removed the action to federal court and did not appear for the ensuing pretrial conference. The District Court promptly remanded, finding removal untimely and meritless.
Following a February 6, 2024 trial, Vice Chancellor Cook ordered specific performance under Section 7 of the Management Agreement, while recognizing that IGM need not produce documents unrelated to the Fund. The April 17, 2024 Books and Records Order compelled “Defendants” to turn over Fund records held by IGM. A later, agreed-to Retained Funds Order implemented the ruling that IGM wrongfully withheld the funds; its operative clauses named only IGM. Although the Court of Chancery initially held that ERISA Section 1110 barred advancement, the Delaware Supreme Court resolved the interlocutory advancement appeal for defendants in April 2026. That appeal did not encompass either the Books and Records Order or the Retained Funds Order.
The Court’s Holding
The court denied all defendants’ Motion to Amend Judgments and the Motion for Leave to Supplement filed by Patel, Invictus GP, and IGM. Applying Court of Chancery Rule 54(b) through the law-of-the-case doctrine, the court required a compelling reason to revisit interlocutory rulings, such as clear error, an equitable concern preventing injustice, or an important change in circumstances.
As to the Books and Records Order, Patel, Delano, and Invictus GP argued that only IGM could be bound because only IGM signed the Management Agreement. The court acknowledged the general rule limiting contract suits to parties but held that this argument could be—and was—waived. Defendants had not raised it at trial, and their own proposed post-trial order used substantially the same “Defendants” language they now challenged. The court also noted the stipulated fact that Patel and Delano controlled IGM. The Retained Funds challenge likewise failed: the order was negotiated and agreed to without objection and, in any event, mentioned only IGM. The court distinguished Frederick-Conaway v. Baird, explaining that the present judgments were neither clearly erroneous nor materially unclear and closely tracked language submitted or accepted by the parties.
Delano’s supplemental submissions did not alter the result. The Supreme Court’s correction replacing “state-law fiduciary duty claims” with “state-law claims” did not undermine judgments outside the advancement appeal. The Fund’s document and funds claims had always rested on the Management Agreement, notwithstanding passing fiduciary-duty references in the original complaint. Finally, the court refused to vacate the Retained Funds Order and reopen discovery as a remedy for delayed advancement. Defendants had litigated with sophisticated counsel, contributed substantially to the delay, and neither sought a stay nor submitted a Rule 56(d) affidavit during summary judgment. The court also observed that the purportedly new evidence was already in the summary-judgment record and questioned the relevance of the proposed expert affidavit.
Key Takeaways
- Rule 54(b) permits revision of interlocutory orders, but law-of-the-case principles require a compelling justification.
- A non-signatory contract-liability argument can be waived; it is not invariably immune from procedural forfeiture.
- The Supreme Court’s advancement ruling and corrected wording did not reopen the separate books-and-records or retained-funds judgments.
- Delayed advancement did not justify vacating the Retained Funds Order and restarting discovery on these facts.
Why It Matters
The decision underscores that bifurcated litigation does not give parties a second opportunity to present arguments withheld during the appropriate phase, particularly where their own proposed or agreed orders used the challenged language. It also treats delayed advancement as a fact-specific problem, not an automatic basis for undoing an otherwise final merits ruling.
The court denied both motions and expressed hope that the ruling would close the trial-court merits phase of the parties’ claims and counterclaims, while leaving the remainder of the proceeding to be concluded efficiently.