Griffis v. Decision Logic Buyer, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MARK D. GRIFFIS, )
)
Plaintiff/Counterclaim )
Defendant, )
)
v. ) C.A. No. N25C-10-249 CLS
)
DECISION LOGIC BUYER, INC., )
)
Defendant/Counterclaim )
Plaintiff. )

Date Submitted: December 18, 2025
Date Decided: March 30, 2026

Upon Consideration of the Plaintiff’s Motion to Dismiss.
GRANTED.

MEMORANDUM OPINION

Travis S. Hunter, Esquire of RICHARDS, LAYTON & FINGER, P.A., Attorney for
Mark D. Griffis.

Jarrett W. Horowitz, Esquire of CONNOLLY GALLAGHER LLP, Attorney for
Decision Logic Buyer, Inc.

SCOTT, J.
This case arises from a contract dispute concerning the Plaintiff and

Counterclaim-Defendant’s refusal to release escrow funds to indemnify Defendant

and Counterclaim-Plaintiff as provided by a purchase agreement. Before the Court

is Plaintiff and Counterclaim-Defendant’s Motion to Dismiss Counts II and III of

Defendant and Counterclaim-Plaintiff’s Counterclaim under Superior Court Civil

Rule 12(b)(6). For the following reasons, the motion is GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND
I. The Parties

Plaintiff and Counterclaim-Defendant, Mark D. Griffis (“Griffis”), is a

resident of Nebraska.1

Defendant and Counterclaim-Plaintiff, Decision Logic Buyer, Inc. (“Decision

Logic”), is a Delaware corporation with its principal place of business in Nebraska.2

II. The Purchase Agreement and Escrow Agreement
This matter stems from a Unit Purchase Agreement (“UPA”) entered into by

Griffis and Decision Logic on February 28, 2025.3 Under the UPA, Decision Logic

agreed to purchase Knowledge Management Systems, LLC (the “Company”) from

Griffis for $23 million.4

1
Compl. ¶ 5, D.I. 1.
2
Id. ¶ 6.
3
Id. ¶ 1; Mark Griffis’ Mot. to Dismiss Counts II and III of Def.’s Countercls., Ex. A (“UPA”),
D.I. 11 (“MTD”).
4
Compl. ¶ 1; Decision Logic Buyer, Inc.’s Answ. and Affirmative Defenses to Compl. and
Countercls. ¶ 8, D.I. 6 (“Countercl.”).
During negotiations for the UPA, Decision Logic alleges that it was concerned

about the Company’s pre-closing tax liability given that Griffis “failed for years to

register, collect, and remit state sales taxes in multiple states where [the Company]

had sales tax nexus[.]”5 Decision Logic alleges that Griffis was aware of the

Company’s potential tax liability and agreed that the issues “required resolution.”6

Indeed, in March 2023, the Company’s President and Chief Operating Officer,

Amanda Woolege, purportedly informed Griffis that it would be in the Company’s

best interests to file Voluntary Disclosure Agreements (“VDAs”) “for previous tax

non-compliance.”7

To address Decision Logic’s concerns, Section 5.3 of the UPA contains a

provision requiring Griffis to “indemnify and hold harmless the Buyer . . . from and

against any and all Losses[,]” including taxes imposed on the Company during the

Pre-Closing Period.8 Because Decision Logic remained responsible for Post-

Closing tax liabilities, it was required to inform Griffis of any “notice of . . . pending

or threatened federal, state, local, or foreign tax audits or assessments with respect

to the Company related to any Pre-Closing Tax Period[.]”9

5
Countercl. ¶¶ 9, 13.
6
Id. ¶¶ 10–14.
7
Id. ¶ 11.
8
Id. ¶ 15; UPA at 46.
9
UPA at 47.
Further, Section 5.3(c)(ii) gives Griffis “the right to control and resolve any

Tax claim relating to any taxable period that ends on or before the Closing Date at

the Seller’s cost and expense” unless Decision Logic “shall have the right, at its own

expense, to participate in, and consult with [Griffis] regarding any such Tax claim.”10

The UPA gives Decision Logic the right to control and resolve any Tax claim where:

(1) it “agreed in writing to forgo any indemnification under [the UPA] with respect

to such issue[,]” or (2) “where [Griffis] has failed to ‘assume control in accordance

with [the Tax Control provision of the UPA . . . provided, prior to any settlement or

compromise, [Decision Logic] shall obtain [Griffis’s] written consent, which shall

not be unreasonably withheld, conditioned, or delayed.”11

Consequently, in connection with the UPA, the parties executed an Escrow

Agreement, whereby Griffis agreed to place $500,000 in an Escrow Account as “a

simple path [for Decision Logic] to recover indemnifiable sales tax liabilities[.]”12

“In the event Buyer requests indemnification, funds are to be released after the

execution of a ‘Joint Instruction’ from the parties.”13

10
UPA at 48.
11
Compl. ¶ 12; UPA at 48.
12
Id. ¶ 9; Counterclaim ¶¶ 8, 16; UPA Ex. B (“Escrow Agreement”).
13
Compl. ¶ 9.
III. Decision Logic Incurs Pre-Closing Tax Liability

In April 2025, Woolege gave Griffis an “engagement letter from a sales tax

compliance vendor, which detailed specific steps that would be taken by the

Company to address the state tax noncompliance, including obtaining VDAs in Ohio

Tennessee, and Texas.”14 In June 2025, Woolege also provided Griffis with an

estimate of the potential tax liability in Tennessee.15 Decision Logic alleges that

Griffis was “apprised . . . of the ongoing state tax issues, the remediation process,

the VDAs, and amounts” owed for noncompliance.16

The VDAs were executed and by September 2025, Decision Logic paid

$171,666.20 in sales tax noncompliance and fees to Ohio and Tennessee during the

Pre-Closing Period to bring the Company’s state taxes for 2025 current.17 Decision

Logic also anticipates an additional payment of about $200,000 to Texas.18 Griffis

allegedly did not intervene or disagree with the taxes before Decision Logic incurred

the liability for sales taxes in Ohio and Tennessee.19 Therefore, on September 15,

2025, Decision Logic requested a Joint Instruction from Griffis to release

14
Countercl. ¶ 21.
15
Id. ¶ 22.
16
Id. ¶ 23.
17
Id. ¶¶ 18–19.
18
Id. ¶¶ 19–20.
19
Id. ¶ 24.
$171,666.20 from the Escrow Account for indemnifiable Pre-Closing Period tax

liability.20

IV. Griffis Refuses to Execute the Joint Instruction

On October 1, 2025, Griffis informed Decision Logic that he would not

execute the Joint Instruction because Decision Logic forfeited its right to

indemnification by unilaterally negotiating the VDAs in violation of Section

5.3(c)(ii) of the UPA and waived its right by failing to properly notify Griffis under

Section 5.3(c)(i) of the UPA.21 Griffis also asserts that the computations of tax

liability in the VDAs were incorrect and included Post-Closing tax liabilities.22

Decision Logic disagrees, claiming that “the UPA did not require it to take any

further steps to secure Griffis’s cooperation with indemnification[.]”23

To address the “discrepancies in the computations of the VDAs[,]” Griffis

emailed Buyer’s board members to discuss.24 Members of Decision Logic’s board

set a meeting for October 24, 2025, to address Griffis’s concerns.25 The meeting

never happened, however, as Griffis filed a Complaint against Decision Logic “mere

hours before the meeting was set to take place.”26 Decision Logic alleges that Griffis

20
Id. ¶ 25.
21
Id. ¶ 26; Compl. ¶ 15.
22
Compl. ¶¶ 15–18.
23
Countercl. ¶ 27.
24
Compl. ¶ 16; Countercl. ¶ 28.
25
Countercl. ¶ 28.
26
Id. ¶ 28.
not only violated the UPA, but that the refusal to execute the Joint Instruction

constitutes bad faith.27

V. Procedural History

On October 24, 2025, Griffis filed the Complaint underlying the present

motion, seeking declaratory judgment and alleging that Decision Logic breached the

UPA.28 On November 14, 2025, Decision Logic filed its Answer and Counterclaims,

denying that it breached the UPA and asserted the following counterclaims: breach

of contract, breach of the implied covenant of good faith and fair dealing, and

declaratory judgment.29

On December 4, 2025, Griffis filed a Motion to Dismiss Decision Logic’s

claims for breach of the implied covenant and declaratory judgment.30 Decision

Logic filed a Response in opposition on December 18, 2025.31 The matter is now

ripe for decision.

STANDARD OF REVIEW
Upon a motion to dismiss under Superior Court Civil Rule 12(b)(6), the Court

(i) accepts all well-pled factual allegations as true, (ii) accepts even vague allegations

as well-pled if they give the opposing party notice of the claim, (iii) draws all

27
Id. ¶ 29.
28
See generally Compl.
29
See generally Countercl.
30
See generally MTD.
31
See generally Def.’s Resp. to Pl.’s Mot. to Dismiss Count II and III of Def.’s Countercls., D.I.
15 (“Def.’s Resp.”).
reasonable inferences in favor of the non-moving party, and (iv) only dismisses a

case where the plaintiff would not be entitled to recover under any reasonably

conceivable set of circumstances.32 The Court does not, however, accept

“conclusory allegations that lack specific supporting factual allegations.” 33 But “it

is appropriate . . . to give the pleader the benefit of all reasonable inferences that can

be drawn from the pleading.”34 Generally, when considering a Rule 12(b)(6) motion

to dismiss, the Court “may not consider matters outside the complaint” 35 unless the

documents “are integral to or incorporated by reference[.]”36

DISCUSSION
Griffis seeks dismissal of Counts II and III of Decision Logic’s Counterclaim.

First, he argues that Decision Logic fails to state a claim for breach of the implied

covenant of good faith and fair dealing because the UPA expressly covers Decision

Logic’s “ability to enter VDAs with local tax authorities and Mr. Griffis’s duty to

execute a joint instruction.”37 Decision Logic concedes that the UPA expressly

grants Griffis discretion, but claims that Delaware law permits a claim for the

32
ET Aggregator, LLC v. PFJE AssetCo Holdings LLC, 2023 WL 8535181, at *6 (Del. Super.
Dec. 8, 2023); see also World Energy Ventures, LLC v. Northwind Gulf Coast LLC, 2015 WL
6772638, at *6 (Del. Super. Nov. 2, 2015).
33
ET Aggregator, LLC, 2023 WL 8535181, at *6 (quoting Ramunno v. Crawley, 705 A.2d 1029,
1034 (Del. 1998)).
34
TrueBlue Inc. v. Leeds Equity Partners IV, LP, 2015 WL 5968726, at *2 (Del. Super. Sept. 25,
2015) (internal quotation marks omitted).
35
ET Aggregator, LLC, 2023 WL 8535181, at *6 (quoting Super. Ct. Civ. R. 12(b)).
36
Id. at *6 (quoting In re Santa Fe Pac. Corp. S’Holder Litig., 669 A.2d 59, 70 (Del. 1995)).
37
MTD at 3.
implied covenant where the contract “omits standards governing [such]

discretion.”38

Second, Griffis avers that declaratory judgment is “overripe” because it

“serves no independent purpose aside from restating Decision Logic’s breach of

contract claim.”39 On the other hand, Decision Logic proffers that the claim is

necessary to “trigger escrow disbursement absent a joint instruction, and to avoid

serial litigation over recurring pre-closing tax liabilities.”40

I. The Counterclaim Fails to Identify a Contractual Gap Such that
the Covenant of Good Faith and Fair Dealing Applies
Griffis argues that dismissal is appropriate on Decision Logic’s counterclaim

for breach of the implied covenant because the UPA expressly covers the conduct at

issue. The implied covenant of good faith and fair dealing is inherent in all

contracts41 and “‘best understood as a way of implying terms in the agreement,’

whether employed to analyze unanticipated developments or to fill gaps in the

contract’s provisions.”42 The implied covenant “does not establish a free-floating

38
Def.’s Resp. at 3.
39
MTD at 6.
40
Def.’s Resp. at 5.
41
Merrill v. Crothall-American Inc., 606 A.2d 96, 101 (Del. 1992) (citing Blish v. Thompson
Automatic Arms Corp., 64 A.2d 581, 597 (Del. 1948)).
42
Dunlap v. State Farm Fire & Cas. Co., 878 A.2d 434, 441 (Del. 2005) (citing E.I. DuPont de
Nemours & Co. v. Pressman, 679 A.2d 436, 443 (Del. 1996); Glenfed Fin. Corp., Commercial
Fin. Div. v. Penick Corp., 647 A.2d 852, 858 (Del. 1994)).
requirement that a party act in some morally commendable sense,” nor does it

“require that a party have acted in subjective good faith.”43

The implied covenant only applies when the underlying contract is “truly

silent” on the issue.44 “The covenant does not allow for judicial rewriting of

contracts, ‘[p]arties have a right to enter into good and bad contracts, the law

enforces both.’”45 Thus, “[i]t does not apply when the contract addresses the conduct

at issue.”46 The party claiming the covenant has been breached bears the burden to

identify the contractual gap.47

Decision Logic’s counterclaim for breach of the implied covenant alleges that

the “UPA implies, but does not expressly include, a term that Griffis will not exercise

his discretion to sign a joint instruction in bad faith to deny Decision Logic the

bargained-for fruits of the UPA, i.e., indemnification.”48 The Court disagrees.

43
Allen v. El Paso Pipeline GP Co., L.L.C., 113 A.3d 167, 182–83 (Del. Ch. 2014) (citing
Gerber v. Enter. Pros. Holdings, LLC, 67 A.3d 400, 418 (Del. 2013); ASB Allegiance Real
Estate Fund v. Scion Breckenridge Managing Member, LLC, 50 A.3d 434, 442, 444 (Del. Ch.
2012)).
44
Oxbow Carbon & Mins. Holdings, Inc. v. Crestview-Oxbow Acquisition, LLC, 202 A.3d 482,
507 (Del. 2019) (quoting Allied Capital Corp. v. GC-Sun Holdings, L.P., 910 A.2d 1020, 1033
(Del. Ch. 2006)) (internal quotation marks omitted).
45
I Am Athlete, LLC v. IM EnMotive, LLC, 2024 WL 4904685, at *8 (Del. Super. Nov. 27, 2024)
(quoting Nemec v. Shrader, 991 A.2d 1120, 1126 (Del. 2010)).
46
Id. (quoting Nationalwide Emerging Managers, LLC v. Northpointe Holdings, LLC, 112 A.3d
878, 896 (Del. 2015)) (internal quotation marks omitted).
47
Id. (citing Miller v. HCP & Co., 2018 WL 656378, at *2 (Del. Ch. 2018), aff’d sub nom., 194
A.3d 908 (Del. 2018)).
48
Countercl. ¶ 40.
Decision Logic cites various decisions supporting its assertion that “Delaware

courts uphold implied covenant claims where . . . a contract confers discretion yet

omits standards governing its exercise.”49 While the Court agrees with Decision

Logic, the facts at bar are distinguishable from those cases given the nature of the

parties’ relationship that the UPA creates. In other words, the UPA is not

representative of a continuing business entity relationship that warrants the

application of the Baldwin Court’s holding under the facts of this case.50 Further,

the indemnification provision in Baldwin permitted indemnification “to the fullest

extent permitted by the” Delaware Limited Liability Company Act, qualified by a

determination as to whether the indemnitee acted in good faith and in the best

interests of the company.51 Therefore, it was implicit in the agreement that the

determination would not be made in bad faith.52

Here, however, Section 5.3 of the UPA is not governed by the Delaware

Limited Liability Company Act and there is a clear standard for Decision Logic’s

right to indemnification. The provisions of Section 5.3 of the UPA state the

indemnifiable losses, the control Griffis has regarding the indemnifiable losses

49
Def.’s Resp. at 3–4 (citing Baldwin v. New Wood Resources LLC, 283 A.3d 1099 (Del. 2022);
Dieckman v. Regency GP LP, 155 A.3d 358 (Del. 2017); Wilmington Leasing, Inc. v. Parrish
Leasing Co., LP, 1996 WL 560190, at *1 (Del. Ch. Sept. 25, 1996); Sheehan v. AssuredPartners,
Inc., 2020 WL 2838575, at *1 (Del. Ch. May 29, 2020)).
50
Baldwin, 283 A.3d at 1118–21.
51
Id. at 1118.
52
Id.
during the Pre-Closing Period, when Decision Logic may assume control, and

Griffis’s role and obligations if he withholds consent to Decision Logic assuming

control of a tax liability settlement or compromise during the Pre-Closing Period.

These provisions leave no room for the Court to imply additional terms governing

the same subject matter. The UPA is not truly silent on the issue of the obligations

governing the rights to indemnification and the execution of a Joint Instruction to

release the escrow funds. Accordingly, the terms of the UPA govern whether Griffis

breached the agreement.

Thus, Count II warrants dismissal.

II. The Claim for Declaratory Judgment Fails

Decision Logic’s claim for declaratory judgment fails because it is

duplicative. A declaratory judgment “is a statutory action . . . meant to provide relief

in situations where a claim is ripe but would not support an action under common-

law[.]”53 “[T]here is no need for a declaratory judgment . . . where a claimant merely

has repackaged in the language of a declaration an adequately[]pleaded affirmative

count[.]”54 Delaware courts reject a declaratory judgment claim if it is “wholly and

53
Loeffler v. MNTN, Inc., 2025 WL1256148, at *4 (Del. Super. Apr. 28, 2025) (quoting Great
Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 2014 WL 6703980, at *29 (Del.
Ch. Nov. 16, 2024)) (internal quotation marks omitted).
54
Id. (quoting Blue Cube Spinco LLC v. Dow Chem. Co., 2021 WL 4453460, at *15 (Del. Super.
Sept. 29, 2021)).
completely duplicative.”55 To survive dismissal, “a declaratory count must be

‘distinct’ from the affirmative counts in the complaint such that a decision on the

affirmative counts would not resolve the declaratory count.”56

The Court finds Griffis’s argument persuasive. The declaratory judgment

claim seeks a ruling on the same legal issue addressed in Count I—whether Decision

Logic is entitled to indemnification because Griffis violated the UPA by failing to

execute a joint instruction.57 The Court’s resolution for Count I would resolve the

declaratory judgment claim given that a finding that Griffis breached the UPA would

trigger the disbursement of the escrow funds.58 Consequently, the declaratory

judgment claim adds nothing new, it is duplicative, and dismissal is warranted.

To the extent Decision Logic avers that a declaration is necessary for

additional indemnifiable losses in the future, such a claim is speculative and not ripe

for decision. The Counterclaim does allege that Decision Logic will pay around

$200,000 to Texas in sales tax noncompliance for the Pre-Closing Period, but there

55
DuPont De Nemours, Inc. v. Hemlock Semiconductor Operations, LLC, 2024 WL 3161799,
*11 (Del. Super. June 10, 2024) (quoting IP Network Solutions, Inc. v. Nutanix, Inc., 2022 WL
369951, at *7 (Del. Super. Feb. 8, 2022)) (internal quotation marks omitted).
56
Blue Cube Spinco LLC, 2021 WL 4453460, at *15 (citing Sweetwater Point, LLC v. Kee, 2020
WL 6561567, at *12, *17 (Del. Super. Nov. 5, 2020); Trusa v. Nepo, 2017 WL 1379594, at *8
n.71 (Del. Ch. Apr. 13, 2017); Veloric v. J.G. Wentworth, Inc., 2014 WL4639217, at *20 (Del.
Ch. Sept. 18, 2014)).
57
Compare Countercl. ¶¶ 32–35 with id. ¶¶ 44–46.
58
See e.g., ESG Capital Partners II, LP v. Passport Special Opportunities Master Fund, LP,
2015 WL 9060982, at *15 (concluding that in making “the necessary determinations in the
course of resolving the claim for breach of contract[,]” declaratory judgment did “not add
anything”); Loeffler, 2025 WL 1256148, at *4–5.
are no allegations that Griffis will not execute a joint instruction for those taxes.

Moreover, the possibility that Griffis will refuse to indemnify Decision Logic for the

taxes in Texas, on its own, is too speculative to conclude that “Decision Logic will

be forced to return to court each time Griffis flouts the UPA’s indemnification

requirements.”59 “If for some currently unforeseeable reason it turns out later that

the declaratory judgment claim was not superfluous, it can be reinstated without any

prejudice” to Griffis.60

Accordingly, dismissal as to Count III is appropriate.

CONCLUSION

For the foregoing reasons, Plaintiff and Counterclaim-Defendant Mark D.

Griffis’s Motion to Dismiss is GRANTED.

IT IS SO ORDERED.

/s/ Calvin Scott
Judge Calvin L. Scott, Jr.

59
Def.’s Resp. at 6.
60
ESG Cap. Partners II, LP, 2015 WL 9060982, at *15.