Ellerton et al v. Sefton Resources Inc., et al

Filing 109

RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Nina Y. Wang on 12/29/16. The Court recommends that 84 MOTION to Dismiss filed by John J. Ellerton be DENIED; that 93 MOTION for Summary Judgment filed by S efton Resources Inc. be GRANTED; 75 MOTION for Sanctions filed by Sefton Resources Inc. be DENIED AS MOOT, and that the court DISMISS Mr. Ellerton's three remaining claims WITH PREJUDICE. Additionally, the Court ORDERS that 89 MOTION for Sanctions Under FRCP 37(d) filed by Sefton Resources Inc. is GRANTED IN PART AND DENIED IN PART. The Clerk of the Court is directed to mail Mr. Ellerton a copy of this Recommendation and Order at his address of record: John J. Ellerton, 2724 Puuhoolai Street, Kihei Maui, Hawaii 96753. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4, # 5 Attachment 5) (nmarb, )

Bateman v. JAB Wireless, Not Reported in F.Supp.3d (2015)
2015 WL 4077923

2015 WL 4077923
Only the Westlaw citation is currently available.
United States District Court,
D. Utah,
Central Division.
Kyle BATEMAN, et al., Plaintiffs,
v.
JAB WIRELESS, Defendant.
No. 2:14–cv–147–RJS.
|
Signed July 6, 2015.
Attorneys and Law Firms
Cole S. Cannon, Austin J. Hepworth, The Cannon Law
Group PLLC, Salt Lake City, UT, for Plaintiffs.
Mark O. Morris, Snell & Wilmer, Richard Eric Shelton,
Salt Lake City, UT, Sara Cantrick Van Deusen, Burns
Figa & Will PC, Greenwood Village, CO, for Defendant.

MEMORANDUM DECISION AND ORDER
ROBERT J. SHELBY, District Judge.
*1 Plaintiffs are a group of former shareholders in Digis,
LLC that includes individuals, corporations, a law firm,
an LLC, and an individual retirement account. Digis
merged with Defendant JAB Wireless in 2006. Plaintiffs
allege that, during the course of the merger, JAB Wireless
breached the parties' Share Purchase Agreement and made
material misrepresentations and omissions that resulted in
Digis receiving less consideration than warranted under
the contract.
JAB Wireless moves to dismiss Plaintiffs' Second
Amended Complaint, arguing that Plaintiffs have failed
to assert viable causes of action. The court first offers
a brief background, drawing on and assuming the truth
of the factual allegations in Plaintiffs' Second Amended
Complaint, and then analyzes JAB Wireless's arguments.

BACKGROUND 1

In 2006, JAB Wireless and Digis entered into a Share
Purchase Agreement. The contract required JAB Wireless
to acquire Digis in a two-part transaction. First, JAB
Wireless was obligated to purchase a 51% interest in Digis.
JAB Wireless did so, and held the 51% interest in Class A
Digis shares. Plaintiffs held the remaining 49% interest in
Class B Digis shares. Second, JAB Wireless was obligated
to purchase Plaintiffs' remaining 49% interest in Digis
upon Plaintiffs' demand.
In February 2008, Plaintiffs made their demand that
JAB Wireless complete the second phase of the purchase.
Pursuant to the Share Purchase Agreement, JAB Wireless
was required to purchase the remaining 49% interest
in Digis based on the value of the company, which
was calculated to be $5,530,500. JAB Wireless paid a
portion of the purchase price with cash in the amount
of $1,618,000. JAB Wireless was to pay the remaining
portion—$3,912,500—by issuing shares of its own stock
to Plaintiffs. In other words, Plaintiffs were to receive JAB
Wireless shares valued at $3,912,500 in total.
To determine how many shares to issue, the parties first
needed to determine the value of the JAB Wireless shares.
The Share Purchase Agreement provided that the shares
of JAB Wireless's common stock would be valued at the
lower of $2.50 per share or any price lower than $2.50 at
which JAB Wireless sold any shares to a third party in the
time period between the execution of the Share Purchase
Agreement and the acquisition of the remaining 49%
interest. The lower the per-share price, the more shares
would be issued to pay for the remaining portion of the
purchase price ($3,912,500). For example, if JAB Wireless
issued shares to a third party for $2.00 per share, the shares
issued to Plaintiffs in connection with the purchase of their
remaining 49% interest in Digis would be valued at $2.00
per share rather than $2.50 per share, meaning Plaintiffs
would receive more JAB Wireless shares.
In September 2007, JAB Wireless circulated a draft
disclosure memorandum containing information related
to the acquisition of the 49% interest. Between September
2007 and March 2009, Plaintiffs received at least seven
different drafts of the memorandum. Plaintiffs made
their formal demand for JAB Wireless to purchase the
remaining 49% Digis interest in February 2008 based
on the information in the September 2007 disclosure
memorandum. Over a year later, in March 2009, JAB
Wireless acquired Plaintiffs' 49% Digis interest.

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*2 Plaintiffs allege that JAB Wireless issued shares of its
stock to third parties for less than $2.50 per share after
Plaintiffs made their demand but before the acquisition
was final (i.e., between February 2008 and March 2009).
In November 2008, JAB Wireless issued 14,000 shares of
its Series C preferred stock to ABRY (a private equity
investment firm) and John Koo (JAB Wireless's chief
operating officer). Plaintiffs allege that ABRY and Mr.
Koo acquired the shares for less than $2.50 per share.
Plaintiffs also allege that JAB Wireless concealed and
made misrepresentations concerning the ABRY–Koo pershare price.
After the ABRY–Koo transaction, Paul Lambert (a Digis
shareholder) began communicating with JAB Wireless
about the share price. Mr. Lambert spoke with Jeff
Kohler (a founder and board member of JAB Wireless),
who represented that the ABRY–Koo shares were valued
at $3.50 to $3.75 per share. Mr. Kohler also used the
term “nominal” to describe the price of the ABRY–
Koo shares. Plaintiffs allege that Mr. Kohler led Mr.
Lambert to believe that ABRY and Mr. Koo paid at least
$3.50 per share, plus a nominal fee. Mr. Lambert also
communicated with Jim Vaughn (the CEO and Chairman
of the JAB Wireless Board of Directors), who stated that
no shares had been issued to a third party for less than
$2.50 per share.
The communications between Mr. Lambert and JAB
Wireless employees occurred between November 2008 and
March 2009. On March 20, 2009, JAB Wireless provided
Plaintiffs with an updated disclosure memorandum.
The memorandum stated that JAB Wireless had issued
warrants to ABRY and Mr. Koo for “a nominal
exercise price” and that ABRY and Mr. Koo “have
the opportunity to acquire a substantial percentage of
JAB's Common Stock by paying only nominal additional
consideration.” Plaintiffs allege that, based on their
previous communications with JAB Wireless employees,
they understood that the term “nominal” “referred to
a value of greater than $2.50/share.” The memorandum
also confirmed that the price of the shares issued to
Plaintiffs would be calculated in accordance with the
Share Purchase Agreement (the lesser of $2.50 or any
lower price at which shares were issued to a third party
between the execution of the Share Purchase Agreement
and the March 2009 acquisition). Plaintiffs do not allege
that they further investigated the per-share price after

receiving the disclosure memorandum. On March 31,
2009, the transaction closed and JAB Wireless acquired
the remaining Digis shares.
Plaintiffs allege that they received JAB Wireless shares
valued at $2.50 per share, even though JAB Wireless
issued shares for less than $2.50 per share to ABRY and
Mr. Koo. Plaintiffs claim that they were entitled to more
JAB Wireless shares than they received based on a lower
per-share price. ABRY eventually sold millions of shares
to a third party, which generated a profit of at least $1.755
per share. Plaintiffs aver that they did not discover that
ABRY and Mr. Koo received shares for less than $2.50 per
share until October 2013, when JAB Wireless circulated
shareholder payout calculations in advance of a potential
merger. After further investigation between October 2013
and February 2014, Plaintiffs sued JAB Wireless. In
their Second Amended Complaint, Plaintiffs bring several
causes of action: breach of contract, breach of fiduciary
duty, fraudulent nondisclosure, misrepresentation, breach
of covenant of good faith and fair dealing, and violation
of federal securities laws.

ANALYSIS
I. Legal Standard
*3 To survive a 12(b)(6) motion to dismiss, a plaintiff
must “state a claim upon which relief can be granted,” 2
meaning the complaint must allege “enough factual
matter, taken as true, to make his ‘claim to relief ...
plausible on its face.’ “ 3 The court “accept[s] all wellpleaded facts as true and view[s] them in the light
most favorable to the plaintiff,” 4 but will not accept
as true “legal conclusions” or “[t]hreadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements.” 5

II. Contract Claims
JAB Wireless argues that Plaintiffs' breach of contract
claim is barred by novation. Novation has four
requirements: “(1) a previous valid contract; (2) agreement
between the parties to abide by the new contract; (3) a
valid new contract; and (4) extinguishment of the old
contract by substitution of the new one.” 6

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When the parties closed their transaction pursuant to
the Share Purchase Agreement, they entered into a
Merger Agreement. The Merger Agreement contained an
integration clause:
(k)
Entire
Agreement.
This
Agreement, together with all
exhibits and schedules hereto,
constitutes the entire agreement
and understanding of the parties
with respect to the subject matter
hereof and supersedes any and all
prior negotiations, correspondence,
agreements, understandings duties
or obligations between the parties
with respect to the subject matter
hereof.
JAB Wireless contends that the Merger Agreement was an
independent, enforceable contract that extinguished the
parties' obligations under the Share Purchase Agreement.
This may be so. However, on a Rule 12(b)(6) motion,
the court is generally limited to the factual allegations
in the complaint. 7 JAB Wireless urges the court to
dismiss the contract claims at the pleading stage based
on the integration clause in the Merger Agreement, a
document that is not mentioned in the Second Amended
Complaint. What's more, JAB Wireless has neither moved
for summary judgment under Rule 56 nor asked the court
to convert its Rule 12(b)(6) motion to a Rule 56 motion. 8
Also, Plaintiffs have not had a reasonable opportunity to
present rebuttal evidence, as Rule 12(d) requires. 9 In view
of the Rule 12(b)(6) standard, the court will not reach the
novation issue unless or until the Merger Agreement is
presented as part of the factual record in a manner that
affords Plaintiffs a meaningful opportunity to respond.
The court notes that Plaintiffs attached a draft of the
Merger Agreement to their Second Amended Complaint.
The draft Merger Agreement contains an identical
integration provision as the signed copy that JAB Wireless
submitted with its papers. Courts often consider certain
documents outside the pleadings at this stage, including
“matters incorporated by reference or integral to the
claim, items subject to judicial notice, matters of public
record, orders, items appearing in the record of the case,
and exhibits attached to the complaint whose authenticity
is unquestioned.” 10 Here, the court declines to consider
the draft Merger Agreement because it is not the final,

fully executed copy. Further, the document is an exhibit
to an exhibit (i.e., the disclosure memorandum), and is
not mentioned in the Second Amended Complaint. It is
not the subject of any of Plaintiffs' claims, and it does
not appear that Plaintiffs intended to incorporate the
document into their pleading.
*4 Along with its novation defense, JAB Wireless moves
to dismiss the contract claims on two additional grounds.
First, JAB Wireless contends that the contract claims
are untimely and therefore barred by the statute of
limitations. This argument rests, at least in part, on a
choice-of-law provision in the Share Purchase Agreement,
which JAB Wireless contends implicates Colorado
statutes of limitations. Second, JAB Wireless argues that
the breach of contract and breach of implied covenant
claims are duplicative under Colorado law. There are
factual questions surrounding JAB Wireless's novation
argument that bear on the validity and enforceability
of the Share Purchase Agreement and its choice-of-law
provision. Therefore, the court declines to evaluate JAB
Wireless's statute-of-limitations and duplicative-claims
defenses without first ensuring that, based on the factual
record, the Share Purchase Agreement remains a binding
contract.

III. Breach of Fiduciary Duty
JAB Wireless argues that Plaintiffs' claim for breach of
fiduciary duty cannot stand because a corporation does
not owe a fiduciary duty to its shareholders. Plaintiffs
contend such a duty exists in Utah law, and that Colorado
law should similarly apply. 11
The burden here rests with Plaintiffs to show that they
have stated a cognizable claim. 12 Yet, they have directed
the court to no Utah or Colorado authority recognizing
a fiduciary relationship between a corporation and its
shareholders. Plaintiffs assert that the Utah Court of
Appeals recognized such a duty in Bingham Consolidation
Co. v. Groesbeck. 13 However, the corporation's duty in
that case arose from its status as a majority shareholder
in a different corporation. 14 The existence of a fiduciary
relationship between a majority shareholder and minority
shareholders is not a remarkable proposition. 15 And it is
not the same thing as a fiduciary relationship between a
corporation and its own shareholders.

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Other courts have considered and rejected the position
urged by Plaintiffs. For example, the Sixth Circuit has
held:
Liability for breach of the directors'
fiduciary obligation could not
possibly run against the corporation
itself, for this would create
the absurdity of satisfying the
shareholders' claims against the
directors from the corporation,
which is owned by the shareholders.
There is not, and could not
conceptually be any authority that
a corporation as an entity has a
fiduciary duty to its shareholders. 16

citizen of this state who has held the cause of action from
the time it accrued.” 21
The parties have not squarely briefed the issue of which
state's statute of limitations applies to the fraud claim
in view of Utah's borrowing statute. Regardless of
which statute applies, the court cannot determine the
applicability of either state's statute of limitations in the
absence of a factual record. Both Colorado and Utah
have a three-year statute of limitations for fraud. 22 In
Colorado, a fraud claim does not accrue until the “deceit
is discovered or should have been discovered by the
exercise of reasonable diligence.” 23 In Utah, a fraud claim
does not accrue until “discovery by the aggrieved party

Similarly, the Fourth Circuit noted that it “doubts that a
shareholder can maintain an action for breach of fiduciary

of the facts constituting fraud or mistake.” 24 Further,
discovery occurs in Utah when the plaintiff obtains actual
knowledge of the fraud or when “by reasonable diligence
and inquiry [the plaintiff] should know the relevant facts

duty directly against the corporation itself.” 17

of the fraud perpetrated against [the plaintiff].” 25

In the absence of controlling authority, the court declines
to recognize a fiduciary relationship between Plaintiffs

The court previously dismissed Plaintiffs' First Amended
Complaint without prejudice because Plaintiffs failed
to allege any facts that demonstrated Plaintiffs made
any meaningful investigation after receiving the March
20, 2009 disclosure memorandum, which disclosed that
JAB Wireless had issued shares to third parties for
a “nominal exercise price.” In their Second Amended
Complaint, Plaintiffs still do not allege that they
investigated the meaning of “nominal exercise price”
after receiving the disclosure memorandum and before
finalizing the purchase of the remaining 49% interest
in Digis (i.e., between March 20, 2009 and March 31,
2009). However, Plaintiffs added a number of allegations
concerning Mr. Lambert's communications with JAB
Wireless representatives prior to receiving the disclosure
memorandum. Plaintiffs allege that Mr. Lambert asked
about the “nominal” price and that Mr. Kohler led
him to believe that JAB Wireless issued shares for at
least $3.50 per share, plus a nominal fee. In other
words, Mr. Lambert understood, based on JAB Wireless's
representations, that the nominal fee was in addition to
the $3.50 per-share price. Plaintiffs argue that they had
no reason to further investigate the term “nominal” in
the disclosure memorandum because they had already
thoroughly investigated the term's meaning in discussions
with JAB Wireless after receiving earlier drafts of the
disclosure memorandum.

and JAB Wireless under Colorado or Utah law. 18
Plaintiffs have failed to state a cognizable fiduciary duty
claim and it is therefore dismissed. 19

IV. State Statute of Limitations
*5 JAB Wireless contends that the statute of limitations
bars Plaintiffs' contract, breach of fiduciary duty claims,
and fraud claims. As stated, the court declines to reach
the contract choice-of-law issue (including determination
of the applicable statute of limitations) before determining
whether the Share Purchase Agreement is valid. Also, the
breach of fiduciary duty claim fails for the independent
reasons stated above. That leaves the court to address the
question whether Plaintiffs' common law fraud claim is
untimely as a matter of law.
Generally, Utah statutes of limitations govern Utah
lawsuits. 20 The exception to this rule is found in Utah's
borrowing statute, codified at Utah Code § 78B–2–103,
which states, “A cause of action which arises in another
jurisdiction, and which is not actionable in the other
jurisdiction by reason of the lapse of time, may not be
pursued in this state, unless the cause of action is held by a

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*6 All said, the application of both states' discovery rules
turns on questions of undeveloped facts. In the absence of
a factual record, the court cannot determine at this stage
whether the discovery rule applies.

VI. Federal Securities Laws
A. Statute of Limitations
Plaintiffs allege that JAB Wireless violated Section 10(b)
of the Securities and Exchange Act of 1934 and SEC
Rule 10b–5. The statute of limitations applying to those
provisions, codified at 28 U.S.C. § 1658, limits actions
to the earlier of two years after “discovery of facts
constituting the violation” or five years after the violation
occurred. 26 JAB Wireless contends that Plaintiffs' claim
falls outside the two-year period. “[T]he limitations period
does not begin to run until the plaintiff thereafter
discovers or a reasonably diligent plaintiff would have
discovered ‘the facts constituting the violation,’ including
scienter—irrespective of whether the actual plaintiff
undertook a reasonably diligent investigation.” 27 Like
the state statutes of limitations, the federal statute depends
on questions of fact that are not often suited to address at
the motion-to-dismiss stage. 28 Plaintiffs allege that they
investigated the meaning of “nominal” before receiving
the disclosure memorandum and did not believe it was
necessary to conduct further investigation based on
the prior representations from JAB Wireless employees.
Without clear and undisputed facts, the court cannot
determine at this stage whether Plaintiffs conducted a
reasonably diligent investigation.

B. PSLRA Pleading Standard
To prove a claim under Section 10(b) and Rule 10b–5, a
plaintiff must prove that the defendant:
(1)
made
a
material
misrepresentation or omission; (2)
with scienter; (3) in connection with
the purchase or sale of a security;
(4) upon which the plaintiff relied;
(5) that the plaintiff suffered an
economic loss; and (6) that the
material misrepresentation was the
cause of that loss. 29

A plaintiff also must meet the pleading standard set out
in the Private Securities Litigation Reform Act (PSLRA),
which requires a plaintiff to (1) specify in the complaint
“each statement alleged to have been misleading, the
reason or reasons why the statement is misleading” 30 and
(2) “state with particularity [in the complaint] facts giving
rise to a strong inference that the defendant acted with the
required state of mind.” 31
JAB Wireless contends that Plaintiffs have failed to
meet the PSLRA pleading standard. The court disagrees.
First, Plaintiffs allege that Mr. Kohler told Mr. Lambert
that the ABRY–Koo price per share was at least $3.50.
Also, Plaintiffs allege that Mr. Vaughn assured Mr.
Lambert that JAB Wireless did not issue any shares
to third parties for less than $2.50 per share. Plaintiffs
allege that these statements were false because the
ABRY–Koo price per share was below $2.50. Second,
Plaintiffs have alleged with particularity facts that give
rise to a strong inference of scienter. Scienter means “a
mental state embracing intent to deceive, manipulate,
or defraud.” 32 Further, “[t]o qualify as ‘strong’ ..., an
inference of scienter must be more than merely plausible or
reasonable—it must be cogent and at least as compelling
as any opposing inference of nonfraudulent intent.” 33
Plaintiffs allege that JAB Wireless representatives made
misstatements about share prices on multiple occasions.
Put simply, Plaintiffs allege that Mr. Kohler and Mr.
Vaughn lied about a discrete, material fact. Plaintiffs
additionally allege that JAB Wireless representatives
made multiple misrepresentations to induce Plaintiffs
to stop investigating the share price and to accept the
$2.50 valuation. Based on Plaintiffs' well-pled allegations,
the inference of scienter is at least as strong as the
opposite inference that both Mr. Kohler and Mr. Vaughn
were simply mistaken or misspoke on several occasions.
Thus, Plaintiffs' securities-fraud claim meets the PSLRA
pleading standard.

CONCLUSION
*7 For the reasons stated, the court GRANTS IN PART
AND DENIES IN PART JAB Wireless's Motion to
Dismiss (Dkt.38). Plaintiffs' breach of fiduciary duty claim
is DISMISSED WITH PREJUDICE.
SO ORDERED.

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All Citations
Not Reported in F.Supp.3d, 2015 WL 4077923

Footnotes

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

18
19

20
21
22
23
24
25

At the motion-to-dismiss stage, the court assumes the truth of Plaintiffs' well-pled factual allegations.
Fed.R.Civ.P. 12(b)(6).
Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir.2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Jordan–Arapahoe, LLP v. Bd. Of Cnty. Comm'rs, 633 F.3d 1022, 1025 (10th Cir.2011) (quoting Beedle v. Wilson, 422
F.3d 1059, 1063 (10th Cir.2005)).
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
Phoenix Power Partners, L.P. v. Colo. Pub. Utilities Comm'n, 952 P.2d 359, 364 (Colo.1998).
See Fed.R.Civ.P. 12(d).
See id.
Fed.R.Civ.P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given
a reasonable opportunity to present all the material that is pertinent to the motion.”).
5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed.2004).
To the extent Plaintiffs request leave, in their Memorandum in Opposition to Defendant's Motion to Dismiss, to amend
their complaint to name individual directors of JAB Wireless as parties, Local Rule 7–1(b)(1)(A) states, “No motion ...
may be included in a response or reply memorandum. Such motions must be made in a separate document.”
Fed.R.Civ.P. 12(b)(6); Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir.2008) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
105 P.3d 365 (Utah Ct.App.2004).
Id. at 371.
See id.; McMullin v. Beran, 765 A.2d 910, 920 (Del.2000); Van Schaack Holdings, Ltd. v. Van Schaack, 867 P.2d 892,
897–99 (Colo.1994); Nash v. Craigco, Inc., 585 P.2d 775, 776 (Utah 1978).
Radol v. Thomas, 772 F.2d 244, 258 (6th Cir.1985).
Schupp v. Jump! Information Techs., 65 F. App'x 450, 454 (4th Cir.2003); see also Johnston v. Wilbourn, 760 F.Supp.
578, 590 (S.D.Miss.1991) (“It is well established that a corporation owes no fiduciary duty to its shareholders nor can it
be held vicariously liable for the alleged breaches of its officers and directors.”); Onex Food Servs., Inc. v. Grieser, No.
93 CIV. 0278(DC), 1996 WL 103975, at *7 (S.D.N.Y. Mar.11, 1996); Burcham v. Unison Bancorp, Inc., 276 Kan. 393,
77 P.3d 130, 147 (Kan.2003).
Cf. Taylor v. Phelan, 9 F.3d 882, 887 (10th Cir.1993) (“As a federal court, we are generally reticent to expand state law
without clear guidance from its highest court....”).
At the hearing on the motion, Plaintiffs asserted for the first time that their claim is against JAB Wireless as a majority
shareholder of Digis. This argument is untimely and unsupported by the Second Amended Complaint and Plaintiffs'
briefing. Further, JAB Wireless did not have a meaningful opportunity to respond to the argument. To determine whether a
plaintiff has stated a cognizable claim, the court construes the plaintiff's complaint-not eleventh-hour recharacterizations
of the complaint.
Fin. Bancorp, Inc. v. Pingree & Dahle, Inc., 880 P.2d 14, 16 (Utah Ct.App.1994). Even assuming the Share Purchase
Agreement were valid, the fraud claims are separate from the contract claims for purposes of the statute of limitations,
and therefore are not subject to the choice-of-law provision in the Share Purchase Agreement.
U.C.A. § 78B–2–103.
C.R.S. § 13–80–101(c); U.C.A. § 78B–2–305(3).
C.R.S. § 13–80–108(3).
U.C.A. § 78B–2–305(3).
Colosimo v. Roman Catholic Bishop, 156 P.3d 806, 811 (Utah 2007) (citation and internal quotation marks omitted); see
also Russell Packard Dev., Inc. v. Carson, 108 P.3d 741, 746 (Utah 2005).

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26
27
28
29
30
31
32
33

28 U.S.C. § 1658(b)(1)-(2).
Merck & Co. v. Reynolds, 559 U.S. 633, 653, 130 S.Ct. 1784, 176 L.Ed.2d 582 (2010).
See Fogle v. Slack, 419 F. App'x 860, 865 (10th Cir.2011); Decker v. Korth, 219 F.2d 732, 740 (10th Cir.1955); Hamilton
v. District of Columbia, 852 F.Supp.2d 139, 146 (D.D.C.2012); In re Global Crossing, Ltd. Sec. Litig., 313 F.Supp.2d
189, 204 (S.D.N.Y.2003).
In re Williams Sec. Litig.—WCG Subclass, 558 F.3d 1130, 1136 (10th Cir.2009) (citing Stoneridge Inv. Partners, LLC v.
Scientific—Atlanta, Inc., 552 U.S. 148, 156, 128 S.Ct. 761, 169 L.Ed.2d 627 (2008)).
15 U.S.C. § 78u–4(b)(1)(B).
Id. at § 78u–4(b)(2)(A).
Ernst & Ernst v. Hochfelder, 425 U.S. 185, 218 n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976).
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 314, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007).

End of Document

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