KBranch v. BS13 Menu Buyer - Summary Judgment Opinion

I N THE SUPE RIOR COURT O F THE STATE O F DEL AWARE) KBRANCH, INC., LEON CH EN,) and TINA CHE N,)) Plaintiffs/Counterc laim) Defendants,)) v.) C.A. No. N23C- 10 -0 21 P AW CCL D) BSI3 MENU BU YER INC.,)) Defendant/Counterc laim) Plaintiff.) Submitted: Octo ber 27, 2025 Decided: Januar y 30, 2026 MEMORA N DUM OPI N IO N Upon Plainti ffs’ Motion for S ummary Judg ment; DE N IE D. Upon Defenda nt’s Motion for Summa ry Judgmen t; GRA N TED in part a nd DE N IED in part. Kurt M. He yman, Esq.; Gillian L. Andr ews, Esq.; Denise S. Kraft, Esq.; and Elizabeth A. DeFelice, Esq., of Heyman Enerio Gattuso & Hirzel L LP; Sc ott Lesowitz Esq., of Lesowi tz Gebelin LLP; Attorneys fo r Plain tiffs. Ryan D. Stottmann, Esq.; and Cassandra Baddorf, Esq., of Morris, Nichols, Arsht & Tunnell LLP; Jordan D. Weiss, Esq.; Samuel J. Rubin, Esq.; Lindsay Hoyle, Esq.; and Collin M. Gr ier, Esq., of Goodwin Pr octor LLP, Attorney s for Defe ndant. WI N STO N, J.

2 I. I N TRODUCTIO N This dispute involves th e buyer and s ellers of an online food ordering management company, centering on th e release of approximately held in escrow to cover pot ential indemnificati on claims related t o the purchase o f the company. The sellers sued, alleging that the buyer is wrongfully w ithholding the escrowed funds and has no valid right to indemnificat ion under the purchase agreement. The sellers claim that this withhol ding constitutes a breach of the purchase agreement and seek declaratory judgment affirming that the buyer has no right to indem n ification. The buyer has counterclaimed, asserting that the s ellers intentionall y misrepresented t heir complia nce with a settleme nt agreement i nvolving a non -party search engine compa n y, which the buyer alle ges constitutes both breach of contract and fraud. T he buyer also seeks declaratory judgment affirming its right to indemnificati on. Both parties have filed motions for summary judgment on their respective claims and against the c l aims of the opposing party.

3 II. FACTUAL A N D PRO CEDURAL B ACKGRO U N D In January 2022, Plaintiff s KBranc h, Le on Chen, an d Tina Chen 1 (colle ctivel y “Sellers”) s old Kydia In c., now known as “ BeyondMenu” to Defendant BSI3 Menu Buyer, Inc. (“Buyer ”). 2 An Equity Purchase Agreement (“Purchase Agreement”) governed this transaction. 3 As part o f the Purchase Agreement, Buyer and Sellers agreed to escrow to cover certain indemnity claims th at Buyer may have against Seller s (“Escrow Agreement”). 4 In a letter dated July 17, 2023, Buyer’s counsel sent Sel lers a notice of indemnity claim (the “Notice”) informing Sel lers t hat Buyer would be withholding the escro w f unds to cover B uyer ’s claims against Se llers. 5 The c laims Buye r asserted in the N o tice largely fa l l into two cat egories. 1 Because L eon Chen and Tina Chen share a surname (as husband and wife), the Court will refer to them both by their first names o nly to avoid conf u sion. No disrespect or fa miliarit y is intende d. 2 D.I. 210 (hereinafter “Pls.’ Op. Br.”) at 1 -2; D.I. 193 (hereinaf ter “Def.’s Op. Br.) at 16; D.I. 1 (h ereinafter “Compl.”) Ex. 1. The Court will ref er to the pre -transaction company under Sellers’ management as “Kydia” and the post -transaction company under Buyer’s mana g ement as “Be yondMenu.” T his is the case even t hough the company changed its name from Kydia to BeyondMenu shortly before the transaction. Se e Com pl. ¶¶ 2- 3. 3 Compl. Ex. 1 (hereinafter “P urchase Agreement”). 4 Purchase Agree ment at § 2.4(c); see Compl. Ex 2. 5 Compl. Ex. 3.

4 First, the “Google Claims,” regard ing Sellers’ alleged noncompliance with a settlement agreement (the “Settlement Agreement”) between Google and Kydia. 6 The lawsuit that culminate d with the execution of the Settlement Agreement concerned Google’s allegations th at Kydia falsely represented an affi liation with Google to deceive business owners and convince them to give Kydia unauthorized control over the ir G oogle Business Pr ofiles (“GBP”). 7 A GBP is a sort of virtual business card t hat appears when a Google user searches for a business. 8 It contains key information about a business, such as its hours, locat ion, revie ws, and l inks to i ts websi te and me nu. 9 GBPs can be ma naged by businesses directly, or businesse s can outsource manageme n t of their G BPs to third parties, like Kydia. 10 Companies like Kydia can use a tool called GBP API to manage multip le business li stings. 11 6 Compl. Ex. 4 (he reinafter “Set tlement A greement”). 7 Complaint, G oogle LLC v. Kydia Inc., No. 5: 18- cv - 030 47 -NC (N.D. Cal), Dkt. No. 1 (May 22, 2018). At the time of the lawsuit, the Google Business Profile product was referred to as “Google My Business.” The Settlement Agreement refers to the same. The Court refers to t he product as G oogle Business Profile because that is what the pr oduct is call ed today, an d that is how both partie s refer to it in briefing. 8 Co mpl. ¶ 40; De f.’s Op. Br. 5. 9 Compl. ¶ 40; De f.’s Op. Br. 5. 10 See generally Def.’s Op. Br. Ex. 5. 11 See generally Def.’s Op. Br. Ex. 6.

5 As part of the Settlement Agreement, Kydia agreed to 12 These include the GBP API terms of service 13 an d the GBP third-party policies (collectively, the “Terms of Service” or “GBP TOS”). 14 Buyer alleges that Kydia failed to comply, and that its failure cons tituted Sellers’ breach of the Purchase Agreement. 15 This breach caused e xtensive losses, in part because G oogle suspended Buyer’s access to the GBP API because of Sel lers’ cond uct. 16 In t he Purchase Agreement, Sellers w arranted that Kydia was not “i n material violation, breach, or default of any [] Mat erial Contract.” 17 The Pur ch ase Agreement defined a Materia l Contract in relevan t part as “ any Contract relating to the settlement of any l itigation... wi th outstanding nonmonetary obligations of [Kydia].” 18 Both Buyer and Sellers agree that the Settlement Agreement is a Material Con tract as defined b y the Purcha se Agreeme nt. 19 12 Settlement Agre ement § 4(b). 13 Def.’s Op. Br., E x. 6. 14 Def.’s Op. Br., E x. 5. 15 Def.’s Op. Br. 1 0 - 14; Id. 21 - 31. 16 Def.’s Op. Br. 2; Id. 18 - 20; I d. 35 - 37. 17 Purchase Agree ment § 4.13(b)(i ii). 18 Purchase Agree ment § 4.13(a)(x iii). 19 Pls.’ Op. Br. 31 (“ The Settlement Agr eement is a Material Contract w ithin Schedule 4.13(a)(xiii) ”); Def.’s Op. Br. 22 (“ Kydia was in material breac h of the Settlement Agreement —a “Materia l Contract.”).

6 Second, the “Tax Claims,” regard ing Sellers’ alleged nonpayment of Illinoi s state ta xes. 20 The Tax Cla ims rel ate t o certa in pre-transaction tax obligations K ydia owed to the State of Illinois. Sellers note the State of Illinois h as o ffered a settlement to BeyondMenu regarding these liabiliti es, and Sellers have agreed to pay their proportionate s hare. 21 Sellers sued Bu yer seeking a release of the escrowed funds, arguing that Buyer’s indemnification claims are wit hout merit. 22 Specifically, Sellers brings one count of breach of contract for breaching the Escrow Agreem ent by refusing to release the e s crowed funds. 23 Sellers also s eeks declara tory jud gment that B uyer has no right to in demnificatio n and that Se l lers are enti tled to the es crowed fu nds. 24 Buyer countercl aimed, alleg ing that Sellers breached the Purchase Agreement by misrepresenting that Sellers were in c ompliance with the Settlemen t Agreement. 25 It also seeks a declaratory judgment that Buyer is entitled to indemnificat ion. 26 Finally, it brings an action for fra ud, claim i ng that Sellers knew of their non - 20 Compl. Ex. 3. 21 Pls.’ Op. Br. 41; Pls.’ Op. Br. Ex. 5 5. 22 See generally C ompl. 23 Compl. ¶¶ 71- 77. 24 Compl. ¶¶ 78- 82. 25 D.I. 11 (hereinaf ter “Ans. and Co unterclaims ”) ¶¶ 65 - 71. 26 Ans. an d Countercla ims ¶¶ 72- 74.

7 compliance with the Settlement Agreeme nt and induced Buyer to pay an inflated price to acquire B eyondMenu. 27 I II. STA N DARD O F REVIEW Summary judgme nt i s ap propriate “when t he [record] sh ow [s] that there is no genuine issue as to any material fact, and [] the moving party is entitled to a judgment as a matter of law.” 28 The moving party bears the burden of demonstrating the undisputed facts entitle it to judgment as a matter of law. 29 “ When the mov i ng party sustains the in itial burde n of showing t he nonexistenc e of any material issues of fact, the burden shi fts to the non -moving party to substa ntiate its adverse claim by showing that there are material issues o f fact in dispute. ” 30 “ If the facts permit reasonable persons to d raw from them but one inference, the question is ripe for summary judgment. ” 31 Summary judgment will not be granted, however, “if, upon an examina tion of all the fact s, it seems desirable to in quire th oroughly into t hem in order to clarify t he applicatio n of the law t o the circums tances.” 32 27 Ans. an d Countercla ims ¶¶ 75- 79. 28 Super. Ct. Civ. R. 56(c). 29 Moore v. Sizemo re, 405 A.2d 67 9, 680 (Del. 1 979). 30 Brzoska v. Olson, 668 A.2d 1 355, 1364 (Del. 1995) (citing Moo re, 405 A.2d 679, 680). 31 Brzo ska, 668 A.2d at 1364 (citing Wootten v. Kiger, 226 A.2d 238 (Del. Super. 1967)). 32 Ebersole v. L owengrub, 180 A.2d 467, 46 8-69 (Del. 1962).

8 When the p arties have filed cross-motions for summary judgm ent, as is the case for some of the claim s here, “the s tandard for summar y ju dgment is not altered.” 33 If “neither party argues the exist ence of a genuine issue of material fact, ‘the Court shall deem the motions to be the equivalent of a stipulation for decision on the merits based on the record submitted with the[m].’” 34 However, even wher e cross- motions are filed, if “a n issue of materia l fact e xists, summary judgment is n ot appropriate.” 35 IV. A N AL YSIS A. B UYER IS E N TITLED TO SUMMAR Y JUDGME N T AS TO O N LY THE T AX C LAIMS. S ELLERS ARE E N TITLED TO SUMMARY JUDGME N T AS TO O N LY THE DUPLICATE LISTI N G ALLEGATIO N. O THER WISE, N EITHER B UYER N OR S ELL ER S ARE E N TITLED TO SUMMARY JUDGME N T O N C OU N TS I A N D II OF B UYER ’ S C OU N TERCL AIMS A N D C OU N TS I A N D II OF S ELLERS C LAIMS. As previously mentioned, there are two sets of indemnity claims — the Tax Claims and Google Claims. Beca use Sellers have agreed to pay their propor tionate share of the Illinois tax liabilities, Sellers contend the Tax C l aims are moot. 36 While 33 Capano v. Lockwood, 2013 WL 2724634, at *2 (Del. Super. May 31, 2013) (quoting Total Care P hysicians, P.A. v. O ’ Ha ra, 798 A.2d 1043, 1050 (Del. Super. 2001)) (internal quotation marks omitted). 34 Radulski v. Liberty Mut. Fire Ins. Co., 2020 WL 8676027, at *4 (D el. Super. O ct. 28, 2020) (quoti ng Del. Super. C t. Civ. R. 56(h)). 35 Motors Liquid. Co. DIP Lenders Tr. v. Allianz In s. Co., 2017 WL 2495417, at *5 (Del. Super. June 8, 2017) (citing Comet S ys., Inc. S'holders’ A gent v. M IVA, Inc., 980 A.2d 10 24, 1029 (Del. Ch. Oct. 22, 2008)). 36 Pls.’ Op. Br. 41.

9 Buyer appeared to have dropped the Tax Claims — omitting them from its brief in support of summary judgment and its reply brief — Buyer clarified at oral argument that Leo n has n ot yet satisfied the claim. 37 Counsel for Sellers, however, state d th at payment for the Tax Clams “ will co me out of the escro w funds. There ’ s no disagreement as to that. And that should hopefully happen promptly.” 38 To the extent the y rem ain un satisfied, Buyer is e n titled t o summ ary j udgment a s to the Tax Claims. Turning to the Google Claims, Buyer alleges Sellers b reache d the Purchase Agreement in six main ways: (1) engaging in prohibite d “farming” p ractices; (2) operating an automated scr ipt to prevent business owners from cha nging their GBP; (3) causing GBP menu and reservation links t o poi nt to a third -party ordering page without the consent o f th e business owner; (4) failing t o i mpleme nt a c ode of conduct; (5) maintaining a source code which violated a G oogle policy to retain API data for no more than 30 days; and (6) improperly creating duplicate listings. 39 Buyer only moved for summary judgment on the first two alleged violations — 37 D.I. 263 5:1- 13. 38 Id. 42:1 - 21. 39 As a n aside, Buyer had also argued a n a dditional way that Se llers had violated the Settlement Agreement, which is by faili ng to reta in certain acknow ledgements before obtaining control of clients’ GBPs. However, this allegation was w ithdrawn. See D.I. 51 and 5 2.

10 related to the farming practices and automated script. 40 Sellers moved for summary judgment regarding all violations arguing Buyer fails to support each alleged violation with any a dmissible evidenc e. After a caref ul review of the fac tual issues, record evidence, and conclusions that can be drawn from the evi dence, summary judgment is granted o nly as to the D uplicate Lis t ing Allega tion. 1. T HE FARMI N G ALLEGATIO N S The parties do not dispute t he details of Google’s GBP verification process t o determine whether a GBP user is, in fact, the owner o f the business associated with that profile. 41 When someone s eeks to control or edit a G BP, Google will send a postcard c ontaining a numeric code to the business’s a ddress. 42 If the user i s i ndeed 40 D.I. 230 (herei nafter “Def.’s Repl y Br. ”) n.68. 41 Compare Pls.’ Op. Br. 55 (“Kyd ia’s prima ry method o f obtai ning contr ol of GB P listings... was to go through t he PI N ve rification process. U nder th is pr o cess, Kydia would request control of the GBP, and eventually Google would mail a secret PIN to the restaurant ’s physical address. K ydia could not obtain control of the GBP unless some one from the restaurant provided Kydia with tha t PIN”) with Def.’s O p. Br. 5-6; I d. 10 (“Google requires that a resta u rant undergo verification to claim/change its GBP account. One method of verification is for Google t o send a PIN c ode o n a postcard t o t he p hysical restaurant address that the restaurant can enter onto Google’s website” and “ Kydia took advantage o f this method to ‘ farm ’ or ‘ hijack ’ resta urants ’ GBP so that Kydia c ould link Kydia’s web site to the GBP [.] ”). 42 Def.’s Op. Br. 5 -6 (c iting https://support.google.co m/business/a nswer/7107242).

11 the b usiness owner, they will receive the postcard and enter the code on Google’s website. 43 If the code i s correct, the u ser will gai n access to t he GBP. 44 Farming is alleged to be t he practice of gaining control over a business’s GBP by: (1) soliciting the post- card from Google to be sent to the bu siness’s addres s; (2) calling the business owner and asking them to read the code o ver t he phone; and then (3) enter ing the c ode to take control of their GBP. 45 Google requires t hird-party GBP managers “t o be transparen t with info rmation that affect s” the decisi on to grant management s tatus to a th ird part y and to “cl aim and man age a Busi ness Profile only if [they] obtained the business owner’s ex press consent a s required by the applicabl e law[.]” 46 Further, Google prohibits third -party managers from making false and misleading claims in s eeking to g ain control o f a business’s GBP, including “[m]isreprese nt[ing] as Google.” 47 Buyer alleges that Sellers were not transparent in conducting their farmin g operations. For example, Buyer contend s that Kydia sales agents called restaurant owners a nd read a script which referre d to Kydia’s supp osed G oogle p romotion and 43 Id. 44 Id. 45 See generally Def.’s Op. Br. 10 - 13. 46 Def.’s Op. Br. E x. 5. 47 Id.

12 encouraged the owner t o give Kydia the PIN code to activate the promotion. 48 The script appears in Skype conversations between Daisy Lao, a sales ag ent at Kydia, and Leon. 49 Sellers re spond that there is no evidence the s cript was actually used, and that there is evidence suggesting the s cript was not created at Leon’s direction, and cite to another thread of S kype messages sent by Lao that su ggest Kydia customer service representatives used a different script provided by a call center supervisor. 50 The y also p oint t o t h e fact that in the Skype threads bet ween L ao and Leon containing t he script, Leon ma d e no refere nce to the scr ipt and did n ot acknowled ge it. 51 As further evidence of Kydia’s alleged improper farming practices Buyer points to several sources, many of which Sellers argue are inadmissible hearsay. Besides the evidence of the alleged s cript, these include: (1) an affidavit from Lao; 52 (2) summary re ports of “PIN tasks” s heets; 53 (3) Skype messages regarding customer 48 Def.’s Op. Br. 1 1. 49 Def.’s Op. Br. E x. 13. 50 Pls.’ Op. Br. 55 - 56; Pls.’ Op. Br. Ex. 67. 51 Pls.’ Op. Br. 55 - 56. 52 Def.’s Op. Br. Ex. 12. Sellers argue this is inadmissible hearsay because Buyer did not ma ke Lao available for a deposition, and she will not t estify at t rial. See D.I. 239 (hereinafter “Pl s.’ Reply Br.”) at 12 - 13. 53 Def.’s Reply Br. Exs. 4 -7. Sellers argue that this is inadmissible hear s ay becaus e none of Buyer’s witnesses h ave firsthand knowledge about the sheets. See Pls.’ Reply Br. 13.

13 complaints about Kydia/Be yondMenu sending PINs; 54 (4) testi mony from Kydia customer service lea d G race Lee regardi ng the compla ints; 55 (5) emails from Google regarding Google s hutting down BeyondMen u’s acces s to the GBP API; 56 (6) a BeyondMenu board meeting summary that mentions Leon describing Kydia’s lack of proper controls to comply with Google policies and the Settlement Agreeme nt; 57 and (7) Buyer’s w itnesses’ under s tandings of Buye r’s interna l investigat ion. 58 While the C ourt ma y not c onsider ina d missible e v idence in ruling on a m otion for summar y ju dgment, 59 the p rimary purpose of a m o tion for s ummary judgment i s not to analyze the admissibility of evidence parties submit before trial. Indeed, our 54 Def.’s Op. Br. Exs. 14 - 17. Sellers argue this is inadmissible hearsay within hearsay and that none of Buyer’s witnesses have firsthand k nowledge of the complaints. See Pl s.’ Reply Br. 1 4. 55 Def.’s O p. Br. E x. 10. Sell ers ar gue this is inadm issible hearsay because Lee lack s firsthand kno wledge ab out the com plaints. See Pls.’ Reply Br. 1 4. 56 Def.’s Op. Br. Exs. 27 and 3 4. Sellers argue that these emails do not satisfy t he business records exception and that the ir rel iability and relevance is in quest ion because the API suspension occurred after the transaction. See Pls.’ Reply Br. 15 - 17. 57 Def.’s Op. Br. Ex. 30. Sellers argue this i s not admissible as a busines s record or adopted admission because Buyer offered no evidence t o satisfy the elements for records of a regularly conducted acti vity and that the not es were circulated two months after t he meeting. See Pl s.’ Reply Br. 17. 58 Def.’s R eply Br. 11 -13. Sellers ar gue this is not admissible because the witnesse s do not have personal understandings of the investigati on and lack firsthand knowledge. See Pl s.’ Reply Br. 1 7 - 18. 59 See Deutsche Bank Tr. Co. Americas v. Royal S urplus Lines Ins. Co., 2012 WL 2898478, at *10 (Del. Super. July 12, 20 12).

14 Supreme Court demands that on a mo tion for summary judgment, “a tr i al court shall not w eigh the evidence o r resolve conflicts presented by pretrial discovery.” 60 The Court can determine whether a genuine issue of mater ial fact exists regard ing this allegation witho ut weighin g in on the a dmissibility o f the dis puted evidence. This is b ecause Buyer p roffers undisputedly admissible evidence of Kydia’s improper farm ing which creates a genuine i ssue of material fact. First, although Seller’s contend that the deposition testimony of former K ydia Chi ef T echnolog y Officer Fan Li does not support the Buyer ’ s cont ent ion s, they do not challenge its admissibility. 61 In h is deposition, Li testified that ” 62 Buyer contends tha t completing “ pin tasks” is how Kydia referred to farmin g interna lly. 63 Sellers 60 AeroGlobal Capital Mgmt., LLC v. Cirr us Indus., Inc., 871 A.2d 428, 444 (Del. 2005). 61 See Pl s.’ Reply Br. 18. 62 Def.’s Op. Br. E x. 9 160:1 8 - 23. 63 Def.’s Op. Br. 10 -11 (citing the Li deposition testimony and wr iting that completing pin t asks “ mean[s] tha t a Kydia employee would re quest for G oogle [to] send a GBP PIN code to the resta urant. Then, a Kydia s ales agent would call the restaurant a nd read a script — wr itten a t Mr. Ch en’s direction — that was designed to convince the re staurant to provide t he PIN co de.”).

15 acknowledge Kydia’s practice of requesting PINs from restaurants, but deny that this process violated the Term s of Service. 64 Second, BeyondMenu’s Head of Finance, Ryan Cunningham testified that BeyondMenu’ s internal in vestigation unc overed Kydia’s farming proce ss: Beyond Menu would send out physical postcards with t he pin co des necessary to gain access to Google Business Profile to thousands o f restaurants and upon receipt of those postcards, there was specific s ales and suppor t agent s on t he Beyon d Menu t eam that would then cal l these restaurants ... to reach out to them and say, Hey, did y ou receive this code from Beyond Menu? And then t hey would u se false and misleading scripts to allude to things like, We are partnered with Google to get you a special dis count o r we can b ring you more orders if y ou sign up, we’ll help you rank better on Goo gle if you just give m e this pin co de. 65 Third, Kevin Wils on, a current BeyondMe nu employee and for mer Google employee, testif ied to his knowledge of Kydia, and now - BeyondMenu’s practice of requesting ownership of GBP listings without permission from the restaurants. 66 Finally, Buyer argues L eon’s Skype records confirm that Chen directed the s ales 64 Pls.’ Op. Br. 49 - 50. 65 Def.’s Op. Br., Ex. 3 at 86:1 - 17. I t is u nclear to the Co urt how in volve d Cunningham was in the internal investigation. He testifies that he “was not the lead, but [that he] w as aware of the actions that were going on.” Buyer’s Reply Br. Ex. 2, 16:15- 16. However, on several occasions, he also referred to the internal investigation committee’s activity in the first person. Seller’s Op. Br. Ex 3, 114 - 115. The exte nt to which Cunning ham can credibly t estify as to the investigation committee’s conduct is an issue of his credibility. “If the matter depends to any material extent upon a determination of credibility, summary judgme nt is inappropria te.” Cerberus Int ’ l, Ltd. v. Apollo Mgmt., L.P., 794 A.2d 1141, 1150 (Del. 2002). 66 Def.’s Reply Br., Ex. 3 at 6 5:5 - 16.

16 team, when farming, no t to seek permission from restaurant owners “for Chinese restaurants.” 67 Accordingly, there is ev idence in the recor d from w hich a rat ional trier of fact could find that Kydia engaged in improper farming. 68 Because these facts are disputed, howeve r, summar y judgment i s denied as to t his allega t ion. 2. T HE AUT OMATED SC RIPT ALL EGATIO N S The next w ay in which Buyer contends Sellers violated the Settlement Agreement is through o perating an automated sc ript to prevent b usiness owners from changing their GBP. 69 The crux of this allegation is that Kydia maintained a script of code that would automatically detect changes made to GBP website links, and revert any changes made. Kydia does not dispute that its GBP API code had a script that would “ check to see if the website links w ere no longer set to Kydia w ebsite s 67 Def.’s Op. Br., E x. 13 at 4. 68 Further, there is a genuine dispute o f mater ial fact as to whether Kydia violate d the Terms of Servic e by causin g Google to send the PIN before contacting the restaurant whe n Kydia had previously controlle d that restaurant’s GBP. Sellers contend that in these instances, “the restauran t previ ously pr ovided Kydia permission to co ntrol the re s taurant’s GBP [and] the TOS do no t explicitly state that a third- party must obtain “express consent” twice[.] Pls.’ Reply Br. at 51. At oral argument, Sellers also argued they had express c onsent bec ause “they h ad the w ritte n consents required under the settlement agre ement.” D.I. 263 54:7 -14. Buy er, on the other hand, contests that Sel lers are ef fectivel y arguing that they ha d implied consent, and i nsist “[t]he TOS require express (not implied) consent.” Def.’s Reply Br. 18- 21. 69 Def.’s Op. Br. 1 4.

17 for the given restaurant and change them if a pplicable.” 70 The p arties dispute whether the Terms of Service prohibit third-party GBP managers from reverting changes made by Google, ra ther than t he business owner. 71 Google’s GBP third -party policies prohibit the “ [a] uto -revert ing of Google updates and suggested edits. ” 72 It goes on to explain that “[t]o ensure that the most accurate information is published for merchan ts an d users, Goo gle uses ma ny different sources of data, including user -generated content and other third-party data. ” 73 The GBP API terms of s ervice also prohib it “automat ically revert[ing] changes made by Goo gle. ” 74 Drawing all reasonable inferences i n Buyer’s favor, there is a possibilit y that Seller s breached the Settlement Agreement b ecause there is a genuine of material fact regarding whether there is a prohibit ion on thi rd -party GBP manager s reverting c h anges made by Google, rather than the business owner. Sellers also argue that Buyer acquiesced to the script, and that it was in existence post-transaction. 75 A part y complaining o f an act acquiesces to the act when it “ (1) has full knowledge of [its] rights and all material facts and (2) remains 70 Pls.’ Op. Br. 63. 71 Compare Pls.’ O p. Br. 63 - 64 with Def.’s Reply. Br. 21 - 27. 72 Def.’s Op. Br. E x. 5 (emphasis a d ded). 73 Id (emphasis ad d ed). 74 Def.’s Op. Br. E x. 6 (emphasis a d ded). 75 Pl s.’ Op. Br. 66 - 67.

18 inactive for a considerable time, or freely gives recognition to the act, or conducts [itself] in a manner inconsistent with any subse quent repudiatio n of the act, thereby leading the other part y to belie ve that the a ct has been a p proved. ” 76 Even assumi ng that Buyer did in fact have knowledge of its rights and all material facts regarding the script, there is insufficient evidence at t his stage to conclude that Buyer conducted itself in a manner inc onsistent with subseq uent repudiation, rema ined inactive for a “considerable” time, or gave recognition to the s cript. Therefore, neither party i s entitled to s u mmary jud gment as to t his alleged violation. 3. T HE THIRD - P ARTY ORDERI N G P AGE ALLEGATIO N The next w ay in which Buyer argues Sellers violated the Settlement Agreement is by causing GBP menu and reservation links to point t o a third -party ordering page. Buyer has clarified that its conte n tion is not simply that Sellers caused the GBP links to p oint to a third -party page, but rather that Sellers did this without the consent of t he business owner. 77 This pr actice is prohi bited b y th e Terms of Service. 78 76 Tenneco Auto motive Inc. v. El Paso Co rp., 2004 WL 3217795, *12 (Del. Ch. Au g. 26, 2004). 77 Ans. and Coun terclaims ¶¶ 4 6- 47; Def.’s Reply Br. 40- 41. 78 Buyer cites to https://support.goog le.com/busine ss/answer/3 038177?hl=en #zipp y =%2Cmenu, which states that “[t]hird parties t hat manage Business Profiles on behalf of clients must notify and have the con sent of the business owner to submit a menu URL for a b usiness.”

19 As evide nce o f Selle rs engag ing in this practice Buyer points back to the evidence of farming and the au tomated script. 79 Sellers argue that, according ly, the menu link claims “ are subsumed w ithin the API-related claim.” 80 Buyer responds by asserting that “e ven if t he reason that Selle rs were in violation of the GBP [Terms of Service] is because of farmin g and the automated script, that does not absolve Sellers of th eir s eparate and distinct obligations to avoid i mproperly inserting links without the re staurant owners’ permissi on.” 81 As previously explai ned, th ere i s a genuine issue of material fact concerning Sellers ’ alleged improper farmi ng practices. Further, while i t is undisputed that Sellers c aused GBP links t o p oint to a t hird-party page, it is dispute d t h at Sellers did so without business o wners’ consent. 82 Because ther e is a genuine dispute of material fact as to this allegation summary judgment on this alleged v iolation is denie d. 79 See Buyer’s Rep l y Br. 40 - 42. 80 Pl s. ’ Op. Br. 46. 81 Def.’s Reply Br. 4 1- 42. 82 Pls.’ Reply Br. 22.

21 Settlement Agreement’s requirement that “ ” 87 sign a code of conduct. Sellers are n ot entitle d to summar y judgment as t o this alleged v iolation. 5. T HE D ATA RETE N TIO N AL LEGATIO N The next alle g ed violat i on of the Se t tlement A greement i s that Kydia maintained a source code which violated a Google policy to retain API data for no more than 30 days. Sellers argue that “Buyer points only to forthcoming testimon y of its expert,” 88 and that accordingly, th ey are entitled to summary judgment as to this allegat ion. In reply, Buyer submits an expert report prepare d by Isaac J. Pflaum, which states tha t the Kydia “system was architecturally des igned for permanen t retention of [GBP] dat a” and that its “ codebase contai ned no mechan isms for automated purging, compliance verification, or age-based data management, and included no age-based compliance chec ks to ensure data usage remained within the allowable re t ention period.” 89 Because ther e is a genuine dispute of material fact a s to w hether Kydia’s source code violated G oogle’s terms of service, Sellers are not entitled to summary judgme nt on this alleged violat ion. 87 Settlement Agre ement § 6. 88 Pls.’ Reply Br. 23. 89 Def.’s Reply Br. E x. 17 at 5.

22 6. T HE DUPL ICATE LIST I N GS A LLEGATIO N The final alleged violation is that Kydia created improper duplicate GBP listings. Neither par ty d iscusses this allege d viol ation in much detail, and the origin of the alleged violation seems to be a September 2023 ema il from Google. 90 Goog l e sent the email in response to BeyondMenu’s request for addi t ional informa tion into the reason for the A PI suspension as part of an internal i nvestig ation BeyondMenu was conduct ing. 91 The ema il notes that one of the “three m ain concer ns. . . that le d to [the] suspension [was t hat Kydia] was using the GBP AP Is to create duplicate listings, claiming to be on behalf of t he merchants but the merchants did not consent to create a new l isting whi le their curr ent ver ified profile e x ists. ” 92 Sellers argue t hat this email is inadmissible hearsay. 93 They also conten d th at, besides this email, Buyer has no evidenc e any dup licate listings were e v er created. 94 Additionally, Sellers cite to Tadepa lli’s deposition, in wh ich Sellers assert Tad epall i contends that “t he alleged duplicate listing process is not possible.” 95 But t his is not an accurate summary of what Tad epalli says. Tad epa lli was asked if he “know[s] 90 Def.’s Op. Br. Ex. 29. Not t o be confused with th e September 20 22 email from Google on a sim i lar topic, E x. 27. 91 Def. ’s Op. Br. 1 8. 92 Def. ’s Op. Br. E x. 29. 93 Pls. ’ Reply Br. 23 - 24. 94 Id. 95 Pls.’ Op. Br. 48.

23 anything about merging... the listings, once t hey’re duplicated, into one? ” 96 Tad epalli respo nds by saying “I’ve not h eard about that, I honestly don’t think that’s possible.” 97 Because the only evidence for t he “duplicat e listings” allegation is the Goo gle email, w hether sum mary j udgment should be granted on this alleged violati on depends on whether the email is inadmissible hearsay. If the email is admissible, there is a genuine dispute of material fact regarding duplicate listings. If it is not, there is no genuine dispute of ma terial fact, and Sellers shoul d be entitled to summary judgm ent. The Court fi nds that this email may not be used to prove that Kydia created improper duplicate listings because it is inadmissible hearsay. D elaware Rule of Evidence 801(c) defines hearsay as “a statement that [a non-party] declarant does not make while t estifyin g at the current trial o r h earing; and [] a party offers in evidence to prove the truth of the ma tter asserted in the s tatement. ” Here, the Google email is an out - of -co urt statement made by a non-party being o ffered for t he truth of the matter as serted. Buyer contends that the Court could consider this evidence for non - trut h purposes, arguing that “ Buyer additiona lly offers the emails with Google as non- 96 Pls.’ Op. Br. Ex. 4, 349: 16 - 18 (emphasis a dded). 97 Pls.’ Op. Br. Ex. 4, 349:19- 20.

24 hearsay for the fact that Google provided... n otice of its b elie f that BeyondMenu was in vi olation of the GBP TOS [.]” 98 However, this argum ent m ak es little sense in the context of Buyer’s claims. The email Buyer i s referring to concerns a Google employee’s explanation to Buyer about why Google h ad shut down the company’s GBP API access. 99 A statement providing Buyer “notice” of what G oogle thought justified an API suspension necessarily cannot be offered to show S ellers were on notice of Google’ s belief t hat the company was in violation of the Terms o f Service. Buyer itself insists that this email was “receive d in the ordinar y course of Buyer ’s business,” 100 as discussed below, so it is not clear what “notice” Buyer conten ds Sellers were on as a r es ult of this ema i l. Buyer fur ther conten ds tha t the business record exemption app lies becaus e the email was “received in t he ordinary course of Buyer’s business.” 101 The business records exception to the h earsay rule is f ound i n Delaware R ule of Evidenc e 803(6). To be admis sible as a business record, the record must have been (1) made at or near the t ime o f the act or event recorded; (2) made by or from information transmitted by a person with knowledge; (3) prepared and maintained in the o rdinary course of 98 Def.’s Reply Br. n. 37. 99 See Def.’s Op. Br., Ex. 29. A ll emails sent by BeyondMenu were sent post- closing, after B u yer had assume d control of the compa ny. 100 Def.’s Reply Br. n. 37 (emphasis a dded). 101 Id.

25 regularly conducted business ac tivity; (4) in the regular pr actice of the organization; (5) authen ticated by a custodian or an other qualified witness; and (6) not under circumstanc es of pre paration tha t indicate a lac k of untrust worthiness. 102 Here, there is nothing suggesting the email, sen t by a Google employee, in response to q uestions about an API suspension is a recor d sent in the ordinary cour se of business as a regular practice of Google. That the email was “received in the ordinary course of Buyer’s business” (even if true) is not relevant, because the fo cus of the business records exception is o n whether the records were created in the ordinary cour se of busine ss by the declarant. 103 Addit iona lly, the email was sent over a year after Google suspended BeyondMenu’ s API access, so the email was not made at or near the time of the event at issue. Th is also goe s to the lack of trustworthiness and reliability this ema il presents. Therefore, the Google email does not satisfy the business records exception. The only other potentially relevant exception t o th e rule ag ainst hearsa y is the residual or “catch - all ” exception. This excepti on is applica ble to statements t hat are not o therwise admissible under any other ex ception, but which have “equivalen t 102 D.R.E. 803(6). 103 Id.; See gener ally D.R.E. 803 (notin g that communications covered by 803(6) a nd every other communicati on covered by rule 803 are not excluded regard less of whether the decl arant is availa b le as a wit ness) (empha sis adde d).

26 circumstanti al guarantees of trustworth iness” to statement s covered by other exceptions. 104 “ To b e admit ted under this exception, the statement mus t satisfy three conditions: (1) the statement [must be] offered as e vidence of a mater i al fact, (2) the proponent could not f ind more probative evide nce of that fa ct by rea s onable efforts, and (3) admiss ion of the stateme n t serves t h e purposes o f the Ru les. ” 105 Even a s suming that the statement i s offered as e vidence of a ma terial fact and admission of t he statement wo uld serve the purposes of t he Rules o f Evidence, Buyer could have found more probative evidence of the fact asserted with reasonable efforts. As Sellers highl ight, Buyer could have deposed the email s ender or a 30(b)(6) witness from Google. 106 Accordin gly, there is no dispu te of material fact as to this alleged violation, because Buyer has not alleged any admissible evidence regarding duplicate listin gs. 107 Summary judgment is granted to Sellers on thi s alleged violat ion. 104 D.R.E. 807(a)(1). 105 Br own v. Liberty Mut. Ins. Co., 774 A.2d 232, 242 (D el. 2001) (interna l quotations omi tted). 106 Pls.’ Reply Br. 16. 107 T here are several exhibits in the record supplied between the parties and severa l depositions were taken. If there is admissible evidence in the record to show improper duplica te listings, Bu yer has the b urden to substantiate its claim by demonstrating that there are mater ial issues of fact in dispute. Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995) (citat ion omitted). The Court will not comb through the voluminous record for Buyer; inferences in favor t he nonmovant party must be

27 B. T HERE IS A GE N UI N E DISPUTE O F MATE RIAL FAC T AS TO THE L OSSES B UYER SU FFERED, IF A N Y. A threshold question Sellers raise is whether Buyer has suffered a “Loss” under the Purchase Agreement for i ndem nification purposes. Sellers contend that Buyer cou ld n ot ha v e po ssibly suffered a l oss as it pertains to the Settlement Agreement, because Google has not imposed any sort of p enalty upon BeyondMenu for breaching the Sett lement Agreement. 108 In other words, Sellers’ argume nt is that for a breach of the Settlement Agreement to constitute a loss entitling Buyer to indemnificati on, Go ogle m ust ha ve imp osed fi nancial liabilitie s agai nst B u yer. Sellers cite to several Delaware cases establishin g that as a general proposition, the party seeking indemnification must have suffered out - of -poc ket losses to be indemnified, ra ther than spec ulative a nd currently un known liabi lities. 109 Buyer ar gues that S ellers’ ca s elaw is i napposite because the ca s es Sel lers c i te involve different contractua l language regardin g losses, liabilities, and indemnificati on. 110 Buyer i nsists that Sellers are attempting to rewrite the scope of reasonable. JanCo FS 2, LLC v. ISS Facility Services, Inc., 2024 WL 4002825, at *23 (Del. Su per. Aug. 30, 2 024) (cita tions omitte d). 108 Pls.’ Op. Br. 32. 109 See Pls.’ Op. Br. 28 -29 (citing NSI -MI Holdings, LLC v. AMETEK, Inc., 202 3 WL 74 82590 (Del. S uper. Nov. 13, 2023); Clean Harbors, Inc. v. Union Pac. Corp., 2017 WL 117 5664 (Del. Su per. Mar. 28, 2017)). 110 Def.’s Reply Br. 3 5 - 37.

28 the Purchase Agreement’s indemnifica tion provision, which in r el evant part provides that Se l lers will i n demnify Buyer for: “[A] ny and all L osses suffered, sustai n ed, o r incurred by any Buyer Indemnified Party, resulting from, arising in connection with or related to... any breach or inaccuracy o f any of the representation s set forth in. . . Article IV [.]” 111 “Losses” is defined t o include “any Lia bilities,” 112 and the d efinition of “Liabilities” in cludes: “[A] ny and all claims, losses, damages, deficiencies, assessments, penalties, debts, liabilities, commitments, or obligations, wh ether contingent, fixed or absolute, d irect or indirect, accrued or unaccrued, asserted or unasserted, matured or unmatured, liquidated or unliquida t ed, known or u nknown, due or to bec ome due, or determined or determina ble [.]” 113 Buyer’s argument, in sum and substance, is th at the Settlemen t Agreement was a Material Contract which Sellers represented the y had complied with in Article IV of the agreement. Sellers agreed to indemnify Buyer for “Losses” sustained in connection with any b reach or inaccuracy of any of Seller’s Article IV representation s. “Losses” was defined to specifically include “Liabilities,” as defined by the agreement. And “Liabiliti es” was defined in an incredibly b roa d 111 Purchase Agreement § 7.2. The relevant representation set forth in Article IV is that Seller s were in compliance with “any Contract relat ing to the settlement of any litiga tion... with outstanding nonmonetary obligations of [Kydia].” See Purchase Agreement § 4.13(a)(xiii). 112 Purchase Agree ment § 1.1. 113 Purchase Agree ment § 1.1.

29 manner, contemplatin g all manner of claims, including those that were “unknown” “ unasserted,” or “ unliquidated.” Accordin gly, Buyer argue s that if Sel lers breac h ed, Buyer is entitle d to some amo u nt in indem nity. The question then turns to whether Buyer has suffered a liabi lity or an expense. Buyer’s primary theory of loss is that Kydia operated in violation of the Settlement Agreement and T erms of Service in ways that artificially inflated its profitability. 114 Buyer relied on the Sellers’ represent ation that they w ere in compliance with those agreements when valuing th e business. 115 In other words, Buyer believed it was purchasing a company whose profits reflected compliant operations — as Sellers had warranted — but that w as not the case. Once Buyer brought t he compa ny into c o mpliance, operations became more ex pensive a nd profits droppe d, reveali ng that Buyer h ad overpaid. 116 If t his is indeed the case, Buyer i ncurred a lo ss at the time of the transaction, measured by the difference between the price it paid and the actu al value of the company. Adam Fuller, a partner at the private equity company that controls Buyer, stated in a sworn affidavit attached to Buyer’s Motion that “ Buyer would not have purchased BeyondMe n u if it had known about Kydia ’ s noncomplia nt activities ” and 114 Def.’s Op. Br. 1; Def.’s Reply Br. 3 5. 115 Def.’s Op. Br. 33 - 37. 116 Def.’s Op. Br. 3 4 - 37; Def.’s Re ply Br. 37 - 39.

30 further tha t “[i] n cal culating a fair purchas e price f or Beyon dMenu, Bu yer wou ld not have con sidered any non-compliant ly ea rn ed revenue.” 117 This is a theory of damages Dela ware court s have previously recognize d. 118 Buyer also ar gues that it has suffere d losses in other way s to be pr oven at trial, such as costs incurr ed in remediating n oncomplianc e and the “intan gible (but quantifiable) harm as sociate d with BeyondMenu’s reduced standing with Googl e. ” 119 Sellers argue that Buyer’s financial reporting data cuts against these claims. Sellers sa y th at prio r to the API su spension, Buyer’s data showe d “dec lin es in revenue, EBITDA, o rder count, and active re staurants” and tha t there is n o mention of the A PI suspension in Beyond Menu’s qu arterly reporting da ta. 120 Th ese are disputed issues of fact. Accordi ngly, j ust as whether S ellers ’ breach is i n gen uine dispute, s o is whether Buy er suffered indemnifiable losses. Summary j udgment is denie d on this issue. 117 Def.’s Op. Br. E x. 36. 118 See Cobalt Operating, LLC v. James Crystal Enterprises, LLC, 2007 WL 2142926 (Del. Ch. July 20, 2007); Phoenix Oil Co. v. Mackenzie O il Co., 154 A. 894 (Del. 1930); Henkel Corp. v. Innovative Brands Holdings, LLC, 2013 WL 396245 (Del. C h. Jan. 31, 2 013). 119 Def.’s Op. Br. 3 8. 120 Pls.’ Reply Br. 9.

31 C. B UYER IS N OT E N TITLED TO SUMMAR Y JUDGME N T O N ITS FR AUD CLAIM. As noted, Buyer has claimed that Sellers’ misreprese ntations w ere made knowi ngly. For a plaintiff to prevail on a fraudulent misre presentation claim, she must show that “(1) defendant made a false representation, usually one of fact; (2) the defendant knew or believed that the representat ion was false, or made it with reckless indifference to the truth; (3) the defendant's false representation was intended to in duce the plaintiff to a ct or ref rain from acting; (4) the p laintiff ’ s a ction or inaction was take n in justifia ble reliance upon t he repre s entation; and (5) the plaintiff wa s damaged b y such relia nce.” 121 The key a l legedly false represe ntation at issue is that Sellers represent ed they were in compliance with the Settlement Agreement. 122 The wa ys in which Buye r alleges Sellers were n ot in co mpliance h ave been detailed above, in the context of the indemnity/ breach cl aims. That analysis is incorporated here by reference. As discussed above, whether Sellers actually were in com pliance with the Set tlement Agreement is in genuine dispute. The analysis could s top here, as a p laintiff must prove each element of fraudulent misrepresentation. Nevertheless, the Court w ill analyze the next four factor s as well. 121 Oglesby v. Co nover, 2011 WL 3568276, at *3 (D el. Super. Ma y 16, 2011). 122 Def.’s Op. Br. 3 7 - 38; Id. 27 - 30; Purchase A greement § 4.13(b)(iii).

32 To satisfy t he eleme nt of knowledge or rec k less indiff erence, Bu yer points t o the fact that Leon testified that the sales team — who w ere engaged in prohibite d farming —were “all under [his] management.” 123 It also argues that the t echnic al employees at K ydia involved in the alleged automated s cript reported directly to Leon. 124 Buyer also refers to Leon’s text conversa tions with Chris Xu, the forme r CEO o f QMenu 125 in which Leon told Xu “ ” 126 To satisfy the element of inducement, Buyer in sists Sellers understood that “had Buyer known about th e significant non -compliance, Buyer never would have entered into the Transaction — let alone paid for the Company. There is no other plausible reason for Sellers to misrepresent their compliance with the Settlement Agreement i f they did not intend to induce Buyer to enter the Purchase Agreement.” 127 While this argument may s eem conclusory, “[d] irect evidence i s no t necessary but proving motive and opportunity for inducement suffices ” to satisf y 123 Def.’s Op. Br. 27; Def.’s Op. Br. Ex. 1, 35: 13- 14. 124 Def. ’s Op. Br. 2 9; Ex. 1, 35:4 - 5. 125 QMenu is another company that had been acquired by Buyer around the same time Buyer acq uired Kydia/Bey ondMenu. See Pl.’s O p. Br. 15. 126 Def.’s Op. Br. E x. 32. 127 Def.’s Op. Br. 3 3.

33 this element. 128 Buyer co ntends that Sellers had the motive and opportunity to conceal their lack of co mpliance with the Settlement Agreement in order to inflat e the purchase pr ice. To satisfy the e l ement of justifiable reliance, Bu y er argues that it relied on the representation s when it signed the Pu rchase Agreement, that such reliance was reasonable because Buyer had a right to rely on Seller’s representations in the agreement, and that the representations were an essential p art of the transac tion. 129 And to satisfy dama g es, Buyer points back to the overpayment issue (described supra) and th e intangible losses it suffered because of the deter i oration o f the Googl e -BeyondMe nu relationship. 130 Sellers co unter by pointing to Le on’s testimony that at the time of closing, he did not believe that Sellers were making any misre presentations or false statement s in the Purchase Agreement. 131 Of course, they also dispute that a ny misrepresentati ons were ma d e at all. 132 128 Surf ’ s Up Legacy Partners, LLC v. Virgin F est, LLC, 2024 WL 1 596021, at * 17 (Del. Super. Apr. 12, 202 4). 129 Def.’s Op. Br. 3 3- 35. 130 Def.’s Op. Br. 3 5- 37. 131 Pls.’ Op. Br. Ex. 2. 84:5 -24; 98:23- 99:1. 132 See generally P ls.’ Op. Br. an d Pls.’ Reply Br.

34 It is well establishe d that “ w hen an ultimate fact to be determined is one of motive, intention or other subjective matter, summary judgment is ordinarily inappropria te.” 133 Here, at the very least Sellers’ intent is at issue, and there is a genuine dispute as to w hether or not any of the Sellers intended to defraud Buyer. Buyer is not en titled to s ummary jud gment on this claim. 133 H umanigen, Inc. v. Savant Neglected Diseases, LLC, 2021 WL 4344172, at *21 (Del. Super. Sept. 23, 2021) (quotin g LVI Gp. Invs., LLC v. NCM Gp. Hldgs., LLC, 2019 WL 736 9198, at *22 (De l. Ch. Dec. 3 1, 2019)).

35 V. CO N CLUSIO N Fo r th e abov e -menti oned reasons, there is a genuine issu e o f material fact regarding whether Sellers misrepresented their compliance the Settlemen t Agreement. However, there is no g enuine issue of material fact that Sellers must pay the outstanding tax liability to the State of Illinois. According ly, Se l ler s’ Motion for Summary J udgment as to the narrow issue of the Tax Claim s is GRA N TED. Otherwise, Seller’s Motion for Summary J udgment as to Counts I (Breac h o f Contract) and II (Declaratory Judgment) is DE N IED, except as to the “duplicate listings” a l legation. Buyer’s Motion for Summary Jud gment a s to Counts I (Breach of Contract) and II (Declaratory Judgme nt) is similarly DE N I ED. Finally, because a genuine is sue of material f act exists, Buyer’s M otion for Summary Judgment as to Count III (Frau d) is DE N IE D. IT IS SO ORDE RED. /s/ Patric ia A. Wins ton Patricia A. Win ston, Judge