CHARLES KIM v. SYK BIOSCIENCES LLC & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-616

CHARLES KIM

vs.

SYK BIOSCIENCES LLC & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Dr. Charles Kim, appeals from a Superior

Court judgment dismissing his eight-count complaint on the

ground that the forum selection clauses (FSCs) in his employment

agreements with the defendants SYK Biosciences LLC (SYK) and

Pulsethera, Inc. (P-Inc.) require the case to be filed in

Delaware. On appeal, Kim argues that the FSCs do not apply to

all of his claims or to those defendants who are not parties to

his agreements with SYK and P-Inc. We vacate so much of the

judgment as dismissed Kim's Massachusetts statutory claims, but

we otherwise affirm the judgment.

1Pulsethera Corp., Pulsethera, Inc., Leon Frances Hebert,
Jr., Michael Mansour, Ji-Xin Cheng, and Steven Qian.
Background. We recite certain essential facts as alleged

in Kim's verified first amended complaint (the operative

complaint). Kim is a chemist and scientist living in Boston.

The defendant SYK was a startup biotechnology company that

operated in Boston until its dissolution in 2023, and the

defendants Leon F. Hebert, Jr., and Michael Mansour are

Massachusetts residents who are principals of SYK and who

exercised significant managerial control over SYK at all

relevant times. The defendants P-Inc. and Pulsethera Corp. (P-

Corp.) are startup medical device companies based in Boston.

The defendants Ji-Xin Cheng and Steven Qian are Massachusetts

residents who, along with Hebert and Mansour, are principals of

P-Corp. and exercised significant managerial control over P-

Corp. at all relevant times. The complaint often refers to P-

Inc. and P-Corp. collectively and interchangeably as

"Pulsethera," and we do the same, except where necessary to

distinguish one from the other.

1. SYK agreement. On December 8, 2021, Kim signed a

"consulting agreement" with SYK to work as a scientist. The SYK

agreement was for a term of twelve months, "unless there is an

earlier termination or extension as provided herein," but it did

not include any further provision regarding extensions. The SYK

agreement provided for payment to Kim at a rate of $200 per hour

2
plus expenses, contained an acknowledgment that he was an

independent contractor, and included a Delaware choice of law

clause and an FSC providing that "any dispute under this

[a]greement that cannot be settled by the [p]arties shall be

decided in the [F]ederal or a [S]tate court of the State of

Delaware."

In November 2022, Kim reminded Hebert that the SYK

agreement would be expiring soon and requested an extension.

Hebert stated that he would send paperwork to extend the

agreement, but he did not do so. Kim alleges that the SYK

agreement expired on December 8, 2022. Later that December, Kim

again asked Hebert to extend the SYK agreement, and to backdate

the extension to account for work Kim had done since the

expiration. Once again, Hebert did not do so, and so in

February 2023, Kim asked Hebert and Mansour to "sign a follow-on

contract for SYK that covers work from December 9, 2022 and

onward. This would cover the work we've been doing to prepare

formulations for the baboon studies." Once again, no extension

paperwork was sent. At least as to the work he performed in

December 2022, Kim alleges that he made the "reasonable

assumption that his work for the [d]efendant companies would be

paid at the rate of $200 per hour, as provided by, inter alia,

the [a]greements." Further, SYK, Hebert, and Mansour knew that

3
Kim continued to perform work for SYK following the agreement's

expiration date.

SYK did not pay Kim for the work he did between November

2022 and February 2023 -- including thirty-seven hours before

the asserted expiration date and fifty-nine and one-half hours

after that date -- and did not reimburse him for a software

expense he incurred after the expiration date. In an exchange

of electronic mail messages in February and March 2023, Hebert

acknowledged the delay in paying Kim "the amount due," and

stated that he (Hebert) would speak or had spoken to his

investor in an effort to obtain payment to Kim, but the payments

were never made.

2. P-Inc. agreement. In the meantime, on September 23,

2022, after discussions with Hebert and Mansour, Kim had signed

an agreement with P-Inc. to work as a scientist, on terms

essentially identical to those in the SYK agreement. The P-Inc.

agreement also included a choice of law clause and an FSC

identical to those in the SYK agreement. Despite P-Inc.'s being

the agreement's signatory, Kim alleges that he was working for

both P-Inc. and P-Corp. -- i.e., that they were his "joint

employers" -- because the sole payment he received from either

entity was from P-Corp. He asserts that the two entities were

indifferent to maintaining any material distinction between

4
themselves. Kim received no payment for the work he performed

for Pulsethera from December 7-31, 2022.

3. The claims. The operative complaint asserted eight

claims, four of which were asserted against all defendants.

Count one claimed that Kim was an employee but was misclassified

as an independent contractor in violation of G. L. c. 149,

§ 148B. Count two claimed violations of the Wage Act, G. L.

c. 149, § 148. Count three asserted a quantum meruit claim and

count four asserted an unjust enrichment claim; both counts

focused on the defendants' failure to pay Kim for the work he

performed.

Of the remaining claims, count five asserted that

Pulsethera, Hebert, and Mansour, despite never intending to pay

Kim for work he would do for Pulsethera, fraudulently induced

Kim to enter the P-Inc. agreement and to perform such work.

Count six asserted that SYK, Pulsethera, Hebert, and Mansour,

while both agreements were in effect, made false and misleading

statements to Kim regarding their intention to pay him for the

work he was doing for SYK and Pulsethera. Count seven asserted

a promissory estoppel claim against SYK, Pulsethera, Hebert, and

Mansour, alleging that Kim performed work for them in reasonable

reliance on their promises to pay him. Finally, count eight

asserted a conspiracy claim against all defendants, alleging an

5
unlawful combination to (among other things) obtain Kim's work

without paying him. Notably, Kim did not assert any breach of

contract claims.2

On the defendants' motion to dismiss under Mass. R. Civ. P.

12 (b) (6), 365 Mass. 754 (1974), based on the Delaware forum

selection clauses in the SYK and P-Inc. agreements, a judge

dismissed all claims against all defendants. Kim now appeals.

Discussion. In an appeal of a judgment dismissing a

complaint based on an FSC, "we take the facts alleged in the

complaint to be true and draw all reasonable inferences

favorable to the plaintiff." Boland v. George S. May Int'l Co.,

81 Mass. App. Ct. 817, 818 n.4 (2012). We review the dismissal

de novo. See Casavant v. Norwegian Cruise Line, Ltd., 63 Mass.

App. Ct. 785, 792-793 (2005), cert. denied, 546 U.S. 1173

(2006). This case turns largely on the interpretation of the

FSCs. Under the agreements' Delaware choice of law clauses,

Delaware law generally controls the interpretation of the FSCs.

See Jacobson v. Mailboxes Etc. U.S.A., Inc., 419 Mass. 572, 575

2 Although we do not rely on the point, Kim's unexplained
decision not to assert these seemingly available and
straightforwardly applicable claims (for uncompensated work
during the term of the contracts) raises concerns of
inappropriate "artful pleading" that should not be allowed to
defeat an FSC (quotation and citation omitted). Ashall Homes
Ltd. v. ROK Entertainment Group Inc., 992 A.2d 1239, 1252 n.33
(Del. Ch. 2010)

6
(1995) (considering enforceability, effect, and construction of

FSC in light of law of jurisdiction specified in choice of law

clause). See also Ashall Homes Ltd. v. ROK Entertainment Group

Inc., 992 A.2d 1239, 1245 (Del. Ch. 2010). Yet the parties do

not point to any significant, settled difference between how

Delaware and Massachusetts interpret FSCs, and the parties cite

a mixture of Delaware and Massachusetts cases in support of

their various arguments. We will do the same.

Kim raises three main arguments: (1) the FSCs do not apply

to the claims against SYK for work done after what Kim argues

was the expiration of the SYK agreement; (2) the FSCs cannot be

enforced by those defendants who are not parties to his

contracts with SYK or P-Inc; and (3) it was error to dismiss the

entire complaint where the FSCs applied only to some claims

against some defendants.3 Significantly, however, Kim's third

argument, after incorporating his first two arguments, asserts

only that his claims for misclassification and nonpayment of

wages "are statutory in nature and exist independently of the

contract terms" and thus are not covered by the FSCs. We choose

to address that last point first.

3 Kim also makes a fourth argument: that enforcing the FSCs
as to the Wage Act claims would violate Massachusetts public
policy. Because we conclude infra that the FSCs do not apply to
the Wage Act claims in any event, we need not and do not reach
the public policy argument.

7
1. Statutory claims. Counts one and two allege violations

of the independent contractor statute, G. L. c. 149, § 148B, and

the Wage Act, G. L. c. 149, § 148. We are not persuaded that

either of these claims is subject to the FSCs. We begin by

recognizing that the FSCs here are quite narrow, applying only

to "any dispute under" the agreements. This contrasts with

cases in which an FSC applied to, for example, "any and all

disputes arising out of this [a]greement or the employment

relationship created thereby," Melia v. Zenhire, Inc., 462 Mass.

164, 166 (2012); "[a]ny dispute arising out of or concerning" an

agreement, Baby Furniture Warehouse Store, Inc. v. Meubles D & F

Ltee, 75 Mass. App. Ct. 27, 28 (2009); or "any and all claims,

disputes or controversies whatsoever arising from or in

connection with this [c]ontract and the transportation furnished

hereunder," Casavant, 63 Mass. App. Ct. at 788 n.7. See Ingres

Corp. v. CA, Inc., 8 A.3d 1143, 1145 (Del. 2010) (FSC applied to

"any action or proceeding in respect of any claim directly

arising out of or related to this [a]greement, whether in tort

or contract or at law or in equity" [emphasis omitted]). We

interpret the FSCs according to their terms. See Baby Furniture

Warehouse Store, Inc., supra at 30.

a. Misclassification claims. Under G. L. c. 149, § 148B,

a worker has a right to be treated as an employee, unless the

8
worker's performance of services meets the independent

contractor criteria set forth in that statute. This is a right

arising under the statute, not under the agreement for services.

Although "contractual language" may be "a starting point for

assessing how a worker ought to be classified," it is not

controlling. Machado v. System4 LLC, 471 Mass. 204, 214 (2015).

Here, the SYK and P-Inc. agreements provide that Kim was an

independent contractor. Thus Kim's statutory claim to being an

employee, far from being "under" or governed by the agreements,

is a dispute over whether the statute supersedes the agreements.

We are aware that a misclassification dispute may fall within a

broadly worded arbitration clause like the one at issue in

Machado, which encompassed any claims "arising out of or related

to . . . the franchise agreement . . . [the franchisor's]

relationship with the franchisee, or . . . the operation of the

franchised business." Id. at 206. See generally National

Indus. Group v. Carlyle, 67 A.3d 373, 384 n.41 (Del. 2013)

(arbitration clause is analogous to FSC). Here, however, the

FSCs are far narrower, and the misclassification dispute raised

by count one does not fall "under" the agreements.

b. Wage Act claims. We reach the same conclusion

regarding the Wage Act claims of count two, through which Kim

asserts rights not under the agreements but instead under G. L.

9
c. 149, § 148. Although his right to receive compensation

itself may arise under the agreements, his right under the Wage

Act involves a different right: the right to timely receipt of

compensation. The statute "generally requires that all public

and private employers in the Commonwealth pay their employees'

wages no more than seven days after the end of the pay period in

which the wages were earned." Parris v. Sheriff of Suffolk

County, 93 Mass. App. Ct. 864, 864–865 (2018). "The purpose of

G. L. c. 149, § 148, is to prevent the evil of the 'unreasonable

detention of wages [by employers]'" (citations omitted). Id. at

867. The "statute creates an independent statutory right that

can be enforced judicially even when a collective bargaining

agreement addresses the subject matter of compensation"

(citation omitted), id. at 869, and even when that agreement

contains a grievance and arbitration clause, id. at 870-871 &

n.10. We think that similar logic extends to an FSC that

narrowly applies to disputes "under" an agreement. See National

Indus. Group, 67 A.3d 373, 384 n.41. The FSC governs claims to

enforce the payment provision of the agreement, but it does not

govern claims to enforce the prompt payment provision of the

statute.4

The result might be different if the FSC were phrased more
4

broadly to include Wage Act claims, as cases from the analogous
arbitration clause context suggest. See Machado, 471 Mass. at

10
Here, moreover, the Wage Act and the agreements conflict.

The Wage Act generally requires payment within seven days,

whereas both the SYK and P-Inc. agreements specify that Kim

"will be paid monthly in arrears, payable within thirty (30)

days of submission of appropriate invoices." Kim's Wage Act

claim plainly falls "under" the Wage Act. Importantly, that

statute includes an anti-waiver provision, stating that "[n]o

person shall by a special contract with an employee or by any

other means exempt himself from this section." G. L. c. 149,

§ 148, sixth par. "[W]aiver of Wage Act protections is strongly

disfavored." Parris, 93 Mass. App. Ct. at 867. Therefore,

Kim's Wage Act claim, much like his misclassification claim, is

not one "under" the agreements; rather, it involves a dispute

over whether the statute's requirements supersede the

agreements.

Because we conclude that the FSCs do not apply to Kim's two

statutory claims in any event, we need not address the extent to

which, as to those claims, the FSCs may be enforced by non-

206, 216-218 (Wage Act claims arbitrable under clause mandating
arbitration of "virtually all claims arising out of the
franchise relationship"); Dixon v. Perry & Slesnick, P.C., 75
Mass. App. Ct. 271, 271-272 (2009) (arbitration clause
applicable to "[a]ll disagreements and controversies arising
with respect to this [a]greement, or with respect to its
application to circumstances not clearly set forth in this
[a]greement" includes Wage Act claim).

11
parties to the agreements, or enforced with respect to the time

after the claimed expiration of the SYK agreement. Rather,

insofar as the judgment dismissed the statutory claims (counts

one and two), we vacate the judgment as to all defendants and

time periods.

2. Work performed after SYK agreement's expiration. Kim

alleges that SYK failed to pay him for the work he performed

from November 8, 2022, through February 7, 2023, which includes

thirty-seven hours of work before, and fifty-nine and one-half

hours of work after, what he asserts was the SYK agreement's

expiration date, December 8, 2022. Notably, however, none of

the six remaining claims5 pleaded in the complaint differentiates

between the two time periods or purports to apply to one period

but not the other.6 Kim nevertheless argues that, even if that

5 We exclude from this discussion the two statutory claims,
which we have concluded are not subject to the FSCs.

6 Kim's brief hints that his quantum meruit and unjust
enrichment claims "are premised on the absence of an explicit
contract." To the extent he means that those claims apply only
to that period after the asserted expiration of the SYK
agreement, and are thus wholly outside of the FSC, Delaware law
appears to be to the contrary. See Ashall Homes Ltd., 992 A.2d
at 1252 (although contract's FSC was limited to claims "arising
hereunder," court interpreted it as also applying to "claims not
based on the contract containing the clause if those claims grow
out of the contractual relationship" [quotation and citation
omitted]). Where SYK failed to pay Kim for the work done just
before the agreement's asserted expiration, and then continued
not to pay Kim for apparently related work done just after that
expiration, we think the Delaware courts would treat even those

12
portion of each claim seeking recovery for work done before the

agreement's asserted expiration is subject to the FSC, the

portion of each claim seeking recovery for work done after the

agreement's expiration is not, precisely because the agreement,

including its FSC, was no longer in effect.

We are not persuaded that the claims can be sliced so

thinly. The FSC applies not merely to claims but to "any

dispute under" the SYK agreement (emphasis added). Here,

although Kim's complaint asserts the legal conclusion that the

SYK agreement had expired, some of his factual allegations

suggest the existence of a dispute over that issue.

Specifically, the complaint alleges that Kim asked Hebert to

extend the agreement, to which Hebert replied that he would send

paperwork to do so (although Hebert failed to follow through).

The complaint alleges that even after the asserted expiration

date, Kim continued to work, making the "reasonable assumption

that his work . . . would be paid at the rate of $200 per hour,

as provided by, inter alia, the [a]greements." The complaint

alleges that the defendants knew Kim was continuing to work and

that Kim continued to request an extension, backdated to cover

the work he had done since the asserted expiration. Hebert

claims or theories applicable solely to post-expiration work as
claims "grow[ing] out of the contractual relationship." Id.

13
assured Kim that he (Hebert) was working to "transfer the amount

due" to Kim.

More significantly, the defendants, too, suggest a dispute

regarding whether the agreement expired. In response to what

the defendants purport to construe as Kim's allegation that

Hebert "verbally agreed to extend [the] contract," the

defendants concede that SYK's actions of "accepting work

following November 8, 2022 and receiving the monthly reports

that were alleged to have been sent by [Kim]"7 can be viewed as

an implicit waiver of the agreement's "written terms regarding

extension."8 Regardless of whether the defendants'

interpretation of Kim's position is reasonable, we take the

defendants at their word as to their own position: despite the

absence of a written extension, they view the SYK agreement as

having been extended to cover the period after December 8, 2022,

in which Kim alleges he performed work for SYK but was not paid.

7 We construe this as referring to the complaint's
allegation that "Kim provided written, monthly reporting of his
hours worked and expense incurred on SYK Biosciences' behalf in
a timely fashion."

8 As discussed earlier, the SYK agreement was for a term of
twelve months, "unless there is an earlier termination or
extension as provided herein," but it did not include any
further provision regarding extensions. The agreement also
provided that any amendment thereto, or any waiver of any
provision thereof, must be in writing.

14
The defendants have deliberately and repeatedly made this and

similar assertions in order to support their argument that the

SYK agreement, including its FSC, remained in effect.9 Because

Kim, in contrast, asserts that the agreement expired, there is a

"dispute under th[e] [a]greement" about whether it remained in

effect, and that dispute is subject to the FSC. See Ashall

Homes Ltd., 992 A.2d at 1247 ("interpretation of the

[agreements'] termination provision and application of the

doctrine of contractual waiver are issues for the court

identified in the [FSC] to decide"). Otherwise put, we rely on

the defendants' characterization of their position as evincing a

dispute under the agreement, to which we conclude the FSC

applies, and we expect the defendants to adhere to that position

9 Their brief portrays Hebert's statement that he would send
extension paperwork as "apparently verbally agree[ing] to extend
the contract," and as "implying a verbal agreement to extend the
[a]greement." Kim suggests that, because the defendants did not
take this position in the Superior Court, they may not do so on
appeal. See Carey v. New England Organ Bank, 446 Mass. 270, 285
(2006). That rule, however, applies to "issues not raised by a
losing party in the trial court" (emphasis added). Adoption of
Mary, 414 Mass. 705, 712 (1993). "It is well established that,
on appeal, we may consider any ground apparent on the record
that supports the result reached in the lower court" (emphasis
added). Gabbidon v. King, 414 Mass. 685, 686 (1993). Although
we take the complaint's factual allegations as true and draw all
reasonable inferences therefrom in Kim's favor, see Boland, 81
Mass. App. Ct. at 818 n.4, his assertion that the agreement
terminated is a conclusion of law, which we are not bound to
accept, particularly where the defendants assert otherwise.

15
if Kim commences litigation in Delaware. See Bay State Gas Co.

v. Department of Pub. Utils., 459 Mass. 807, 818 (2011)

(discussing judicial estoppel).

Although Kim cites other cases holding an FSC inapplicable

to claims arising after termination of the relevant contract,

those cases do not govern here. Even putting aside that the

FSCs in those cases were worded differently than the SYK FSC,

none of those cases involved a dispute over whether the contract

was in effect at the time the claims arose.10 See, e.g., In re

AstroPower Liquidating Trust, 335 B.R. 309, 328 (Bankr. D. Del.

2005); Bay State Anesthesia, Inc. vs. Mallinckrodt, Inc., U.S.

Dist. Ct., No. CIV.A. 02-11174RWZ (D. Mass. Dec. 6, 2002);

Mobilificio San Giacomo S.p.A vs. Stoffi, U.S. Dist. Ct., No.

C.A. 96-415-SLR (D. Del. Jan. 29, 1998).

Moreover, none of those cases involved, let alone approved,

the approach that Kim asks us to adopt here: to divide a single

claim into pretermination and posttermination segments, so that,

notwithstanding an FSC's applicability to the pretermination

segment, at least the posttermination segment could be litigated

instead in the plaintiff's chosen forum. To be sure, where

10The same is true of the cases cited by Kim holding an FSC
inapplicable to claims arising before the formation of the
relevant contract. See, e.g., Bulwer vs. EchoNous, Inc., U.S.
Dist. Ct., No. 23-CV-11097-ADB (D. Mass. Mar. 29, 2024).

16
"[t]he greater focus of [a] plaintiff['s] claims" is on conduct

preceding the term of a contract containing an FSC, a "judge

should not enforce the [FSC] by banishing contract enforcement

claims to [the specified forum] for separate treatment."

Jacobson v. Mailboxes Etc. U.S.A., Inc., 419 Mass. 572, 579

(1995).11 But in Jacobson, the precontractual claims were based

on different legal theories than the contractual claims, i.e.,

"precontract misrepresentations and for fraud in the inducement"

as distinct from "claims of breach of contract and their tort-

related alter egos."12 Id. at 578, 579. Jacobson did not

approve splitting a single contract-related claim based on a

single legal theory (e.g., fraud, or promissory estoppel) into

two segments according to whether the monetary injury occurred

during or after the contract term and then deciding, based on

the relative amounts of time or money at issue, which segment

was the "greater focus" for purposes of determining whether to

11We assume arguendo that Jacobson could also apply to a
case in which various claims arose either during or after the
term of a contract, and, in order to decide whether an FSC
governed where the case as a whole should be litigated, a court
might be called on to determine which set of claims was the
greater focus of the complaint.

12At oral argument Kim disclaimed the position that his
fraudulent inducement claim arose prior to the formation of the
agreements and therefore was not governed by the FSCs.

17
enforce an FSC as to part or all of the claim.13 Id. at 579. We

have found no decision extending Jacobson to produce the result

Kim seeks, and we decline to do so ourselves.

3. Claims asserted against nonparties. Kim contends that

the FSCs are not enforceable by those defendants who are not

parties to the agreements, and thus that his claims against

those defendants should not have been dismissed. Under Delaware

law, however, a nonsignatory to an agreement that includes an

FSC may enforce the FSC if the nonsignatory is "closely related

to one of the signatories such that the non-party's enforcement

of the clause is foreseeable by virtue of the relationship

between the signatory and the party sought to be bound"

(citation omitted).14 Ashall Homes Ltd., 992 A.2d at 1249. The

13Such a determination might require extensive preliminary
litigation that could undermine the purpose of the FSC.

14Kim suggests that Massachusetts law is to the contrary;
he relies on a decision stating, "We have found no Massachusetts
case enforcing a forum selection clause or a limitations clause
against a nonsignatory to the contract." Ajemian v. Yahoo!,
Inc., 83 Mass. App. Ct. 565, 577 (2013), S.C., 478 Mass. 169
(2017), cert. denied sub nom. Oath Holdings, Inc. v. Ajemian,
584 U.S. 910 (2018). The statement is only marginally relevant
because here, nonsignatories are enforcing the FSC against the
signatory, Kim -- not the converse. Moreover, Kim's brief omits
the very next sentence of Ajemian, which stated: "However,
courts in other jurisdictions have generally accepted that
nonsignatory third parties can be bound where the nonparty is
sufficiently closely related to a signatory that it is
foreseeable that the nonsignatory will be bound." Ajemian,
supra at 577. Cf. Landry v. Transworld Sys. Inc., 485 Mass.
334, 339 (2020) (acknowledging "six theories under which a

18
foreseeability analysis has been applied to the precise

circumstance presented here: "when non-signatory defendants

sought to enforce [an FSC], and the signatory plaintiffs sought

to avoid it by arguing the non-signatory defendants lacked

standing under the contract." Sustainability Partners LLC vs.

Jacobs, Del. Ch., No. CV 2019-0742-SG (June 11, 2020). Thus we

reject Kim's argument.15

We first address whether the defendant P-Corp. may enforce

the FSC contained in the agreement signed by P-Inc. Kim himself

alleges a close relationship between the two entities. He

asserts that when Hebert and Mansour asked him to work for

"Pulsethera," they "did not draw any distinction between [P-

Corp.] and [P-Inc.]; instead, they referenced 'Pulsethera.'"

Kim does the same throughout his complaint. He further asserts

that he was working for both P-Inc. and P-Corp. -- i.e., that

they were his "joint employers" -- because the sole payment he

received from either entity was from P-Corp. He points to the

nonsignatory may enforce a contract, such as an arbitration
agreement, against a signatory").

15In arguing to the contrary, Kim mistakenly relies on a
separate passage of Sustainability Partners LLC, under which a
nonsignatory who receives a "direct benefit" from an agreement
may be bound by the agreement's FSC. See Sustainability
Partners LLC, supra. The foreseeability and direct benefit
analyses are distinct, and either one may support application of
an FSC to a nonsignatory. See id.

19
"apparent indifference shown by the Pulsethera entities in

maintaining any material distinction between themselves." In

these circumstances, it was entirely foreseeable to Kim that, in

the event he sued P-Corp. on claims related to his agreement

with P-Inc., P-Corp. would seek to invoke the FSC. See Ashall

Homes Ltd., 992 A.2d at 1249. P-Corp. may thus enforce the FSC.

Next we address the individual defendants. Hebert and

Mansour are alleged to be principals of and to have exercised

significant managerial control over SYK. Hebert, Mansour,

Cheng, and Qian are alleged to be principals of and to have

exercised significant managerial control over P-Corp. Further,

under the heading, "Individual Defendants Not Entitled to

Protection of Corporate Veil," Kim alleges that:

"there has been a confused intermingling of activity of [P-
Corp.], [P-Inc.], and SYK Biosciences, for the purposes of
engaging in a common fraudulent enterprise with substantial
disregard of the separate nature of the corporate entities,
or at least serious ambiguity about the manner and capacity
in which these corporations and their respective
representatives are acting" (emphasis added).

Once again, in light of these allegations, it was entirely

foreseeable to Kim that, in the event he sued any of the four

individual defendants on claims related to his agreements with

SYK or P-Inc., those individuals would seek to invoke the FSCs.

This case is much like Ashall Homes Ltd., where corporate

officers and directors, sued for their actions related to an

20
agreement entered by the corporation and containing an FSC, were

entitled to enforce that FSC. See Ashall Homes Ltd., 992 A.2d

at 1249. Accordingly, the individual defendants here may

enforce the FSCs.16

Conclusion. We vacate so much of the judgment as dismissed

counts one and two of the verified first amended complaint, and

we remand the case for further proceedings on those counts. The

judgment is otherwise affirmed.

So ordered.

By the Court (Sacks,
Hodgens & Toone, JJ.17),

Clerk

Entered: April 15, 2026.

16In arguing that the individual defendants' status as
principals of signatories is insufficient to allow them to
enforce the FSCs, Kim errs in relying on Golden vs. ShootProof
Holdings, LP, Del. Ch., No. 2022-0434-MTZ (Feb. 28, 2023).
There, a plaintiff, invoking a foreseeability theory, sought to
enforce an FSC against defendant LLC officers who were
nonsignatories to the defendant LLC's agreement with the
plaintiff. Id. The court refused. Id., reasoning in part that
the case was not within the rule that foreseeability could
support FSC enforcement "where a nonsignatory defendant seeks to
enforce [an FSC] against a signatory plaintiff" (emphasis
added). See Sustainability Partners LLC, Del. Ch., No. CV 2019-
0742-SG (June 11, 2020). Kim's case, in contrast, fits squarely
within that rule.

17 The panelists are listed in order of seniority.

21