Case 3:20-cv-07363-WHO Document 97 Filed 12/27/21 Page 1 of 12
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`MARK SHIN,
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`Plaintiff,
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`v.
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`ICON FOUNDATION,
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`Defendant.
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`Case No. 20-cv-07363-WHO
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`ORDER DENYING MOTION TO
`DISMISS COUNTERCLAIM
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`Re: Dkt. No. 77
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`Plaintiff Mark Shin moves to dismiss a class action counterclaim filed by defendant ICON
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`Foundation (“ICON”), arguing that ICON’s claims of money had and received, unjust enrichment,
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`and restitution, and declaratory relief, are insufficiently pleaded or barred as a matter of law. The
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`motion to dismiss is GRANTED in part and DENIED in part, with leave to amend. ICON has
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`failed to sufficiently plead ownership of the cryptocurrency tokens at issue, as required for its
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`money had and received claim. But the unique circumstances here support unjust enrichment as
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`an appropriate cause of action—as pleaded, Shin knowingly took advantage of a software defect to
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`arrogate to himself over 13 million ICX tokens, to the detriment of others in the ICON
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`Community. ICON’s claim for declaratory relief may also proceed, as it offers a remedy—the
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`destruction of the currency at issue—distinct from the surviving substantive claim.
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`BACKGROUND
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`This appears to be a case of first impression, involving the ownership of cryptocurrency.
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`The parties agree that Shin used a software glitch to create the cryptocurrency at issue. They
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`disagree, however, as to who lawfully possesses it and what legal standards should apply.
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`The ICON Network hosts a “delegated proof of stake” blockchain protocol, which allows
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`for the creation and transaction of a cryptocurrency called “ICX.” Countercl. [Dkt. No. 69-1] ¶¶ 1,
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`Northern District of California
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`United States District Court
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`Case 3:20-cv-07363-WHO Document 97 Filed 12/27/21 Page 2 of 12
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`17. The ICON Network is decentralized—it is “not controlled or maintained by any single entity,
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`but exists simultaneously on computers all over the world.”1 Id. at ¶ 13. All ICX holders have a
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`say in the ICON Network’s operation and governance, in part by selecting delegates (called
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`“Public Representatives” or “P-Reps”) to “serve in a governance role and to validate Network
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`transactions.” Id. at ¶¶ 17-20. There are currently 143 P-Reps, however only the top 22 “Main P-
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`Reps” validate transactions and govern the ICON Network, including the proposal and approval of
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`any material software updates. Id. at ¶¶ 19-20. The ICON Network also has a publicly available
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`constitution that outlines its guiding and operating principles for “ICONists”—those who
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`participate in the ICON Network. Id. at ¶ 21.
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`In order to select delegates, ICX holders “stake” and “delegate” their tokens as votes. Id.
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`at ¶ 18. To encourage ICX holders to participate in this process, the ICON Network rewards users
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`who stake their tokens. Id. at ¶ 22. ICX holders “receive staking rewards based on the amount of
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`ICX they have staked for as long as it remains staked.” Id. The Network sends the reward scores
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`to the ICX holder’s “wallet,” which the holder can then redeem for ICX. Id. at ¶ 25. A user can
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`redeem a reward score of 1,000 for 1 ICX. Id. However, ICX holders do not earn rewards for
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`unstaking their tokens. Id. at ¶ 22.
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`On August 22, 2020, the Main P-Reps approved a software update (“Revision 9”) to the
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`ICON Network. Id. at ¶ 28. Despite pre-release testing, the update contained a software defect
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`that allowed users to generate and receive an “amount of tokens equal to the number of tokens that
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`the user was attempting to unstake.” Id. at ¶¶ 29-30.
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`The same day that the Revision 9 update was released, Shin attempted to unstake 25,000 of
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`his ICX tokens to redelegate them from one P-Rep to another. Id. at ¶ 31. Because of the glitch,
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`he immediately received 25,000 tokens instead. Id. Shin repeated the process and, “in a matter of
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`hours,” had received almost 14 million new ICX tokens. Id. at ¶¶ 33-34. At the time, each token
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`1 The party in this suit, the ICON Foundation, “was formed to develop and support the ICON
`Network.” Countercl. at ¶ 7. The ICON Foundation is the largest holder of ICX tokens, owning
`about 10% of the total supply. Id. What ICON refers to as the “ICON Community” is broader,
`consisting of “owners of ICX, software developers, vendors . . . municipal governments, financial
`institutions, small and medium-sized businesses and universities, among others.” See id. at ¶ 13.
`2
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`Northern District of California
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`United States District Court
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`Case 3:20-cv-07363-WHO Document 97 Filed 12/27/21 Page 3 of 12
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`was worth about 65 cents, meaning the total haul was worth nearly $9 million. Id. at ¶ 35. Its
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`value today is more than $21 million. Id.
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`Members of the ICON Community attempted to recover the ICX at issue from Shin, but he
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`refused to return it. See id. at ¶ 47. ICON contends that Shin funneled the ICX tokens to third-
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`party exchanges, relatives, and acquaintances “in an effort to put them beyond the reach of the
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`Network.” Id. at ¶¶ 41-42.
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`Shin filed suit on October 20, 2020, seeking declaratory judgment that he owned the ICX
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`tokens at issue and alleging claims of conversion, trespass to chattel, and prima facie tort against
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`the ICON Foundation. Dkt. No. 1. After two rounds of motions to dismiss, his case has narrowed
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`to claims of conversion and trespass to chattel. See Dkt. No. 68.
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`On August 23, 2021, ICON filed a class action counterclaim against Shin, bringing two
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`causes of action: money had and received, unjust enrichment, and restitution; and declaratory
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`relief. See Dkt. No. 69-1. Shin filed this motion to dismiss on September 20, 2021. 2 Dkt. No. 77.
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`I heard arguments from both parties on December 1, 2021.
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`LEGAL STANDARD
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`Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint
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`if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to
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`dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its
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`face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible
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`when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the
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`defendant is liable for the misconduct alleged.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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`(citation omitted). There must be “more than a sheer possibility that a defendant has acted
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`2 Shin alternatively argued that I should strike the class allegations in ICON’s counterclaim, along
`with references to an ongoing criminal case related to the events described here. See Mot. to
`Dismiss (“MTD”) [Dkt. No. 77] 21-24. This motion is DENIED in part and GRANTED in part.
`Motions to strike are “generally disfavored because they are often used as delaying tactics and
`because of the limited importance of pleadings in federal practice.” Rosales v. Citibank, 133 F.
`Supp. 2d 1177, 1180 (N.D. Cal. 2001). Shin’s arguments about whether the proposed class is
`contrary to ICON’s theory of the case or whether the requisite commonality or typicality exist will
`be more thoroughly and better addressed on a motion for class certification. I will, however, strike
`from the counterclaim paragraph 49, which is unnecessary to the allegations at hand.
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`Northern District of California
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`United States District Court
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`Case 3:20-cv-07363-WHO Document 97 Filed 12/27/21 Page 4 of 12
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`unlawfully.” Id. While courts do not require “heightened fact pleading of specifics,” a plaintiff
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`must allege facts sufficient to “raise a right to relief above the speculative level.” See Twombly,
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`550 U.S. at 555, 570.
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`In deciding whether the plaintiff has stated a claim upon which relief can be granted, the
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`court accepts his allegations as true and draws all reasonable inferences in his favor. See Usher v.
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`City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to
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`accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or
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`unreasonable inferences.” See In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
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`If the court dismisses the complaint, it “should grant leave to amend even if no request to
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`amend the pleading was made, unless it determines that the pleading could not possibly be cured
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`by the allegation of other facts.” See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In
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`making this determination, the court should consider factors such as “the presence or absence of
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`undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous
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`amendments, undue prejudice to the opposing party and futility of the proposed amendment.” See
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`Moore v. Kayport Package Express, 885 F.2d 531, 538 (9th Cir. 1989).
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`DISCUSSION
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`As a preliminary matter, although ICON pleaded its first cause of action as “money had
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`and received / unjust enrichment / restitution,” the parties treated money had and received and
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`unjust enrichment as separate claims in their briefing and at oral argument. See Countercl. at 20-
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`21. I also treat them as separate claims, primarily because after accepting ICON’s allegations as
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`true and drawing all reasonable inferences in its favor, one better fits the unique facts and
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`circumstances at hand.
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`I.
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`UNJUST ENRICHMENT
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`Unjust enrichment, “which is synonymous with ‘restitution,’” describes the theory that “a
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`defendant has been unjustly conferred a benefit through mistake, fraud, coercion, or request.”
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`Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015) (citations omitted). “When
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`a plaintiff alleges unjust enrichment, a court may construe the cause of action as a quasi-contract
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`claim seeking restitution.” Id. (citation omitted). This is a form of equitable relief, which is “not
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`appropriate where an adequate remedy exists at law.” Schroeder v. United States, 569 F.3d 956,
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`963 (9th Cir. 2009). Unjust enrichment “applies where plaintiffs, while having no enforceable
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`contract, nonetheless have conferred a benefit on defendant which defendant has knowingly
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`accepted under circumstances that make it inequitable for the defendant to retain the benefit
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`without paying for its value.” Hernandez v. Lopez, 180 Cal. App. 4th 932, 938 (2009). The
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`elements of a claim of unjust enrichment are: “(1) receipt of a benefit and (2) unjust retention of
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`the benefit at the expense of another.” Epic Games, Inc. v. Apple Inc., --- F. Supp. 3d ----, 2021
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`WL 4128925, at *125 (N.D. Cal. 2021).
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`Courts disagree as to whether unjust enrichment is a standalone claim under California
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`law. See, e.g., Abuelhawa v. Santa Clara Univ., 529 F. Supp. 3d 1059, 1070 (N.D. Cal. 2021)
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`(“California does not recognize a separate cause of action for unjust enrichment.”); Brooks v.
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`Thomson Reuters Corp., No. 21-CV-01418-EMC, 2021 WL 3621837, at *11-12 (N.D. Cal. Aug.
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`16, 2021) (“Plaintiffs can raise a standalone unjust enrichment claim.”). However, the Ninth
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`Circuit has allowed a claim for unjust enrichment “as an independent cause of action or as a quasi-
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`contract claim for restitution.” ESG Cap. Partners, LP v. Stratos, 828 F.3d 1023, 1038 (9th Cir.
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`2016). The California Supreme Court decided similarly in Hartford Cas. Ins. Co. v. J.R. Mktg.,
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`LLC, 61 Cal. 4th 988 (2015), when it allowed an independent claim for unjust enrichment to
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`proceed. (The Ninth Circuit recognized the “clarification” of Hartford when reversing the
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`dismissal of a claim for unjust enrichment in Bruton v. Gerber Prods. Co., 703 Fed. App’x 468,
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`470 (9th Cir. 2017)—an unpublished but still persuasive opinion). Taken together, these cases
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`allow unjust enrichment as a separate cause of action.
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`Moreover, given the novelty of the issues at hand, unjust enrichment is an appropriate
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`cause of action here. ICON has not sufficiently pleaded another claim that would provide an
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`adequate legal remedy, nor have the parties suggested a cause of action that better fits these facts.
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`Notably, there is no breach of contract claim. Although Shin argued in his papers that ICON
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`pleaded the existence of an enforceable contract, referencing the ICON constitution, the parties
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`agreed at oral argument that there is no such contract between Shin and the ICON Foundation.
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`See MTD at 15-16; see also Tr. of Dec. 1, 2021, Proceedings [Dkt. No. 92] 3-5 (“[T]he
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`Foundation doesn’t contend that it entered into a contract with Mr. Shin.”) (“There is no contract
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`that binds the parties.”). This argument is supported by an inherent quality of the ICON Network:
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`its decentralized nature. As ICON’s counsel conceded at oral argument, even if the constitution
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`could be construed as a valid contract, it is unclear whether the ICON Foundation would be “in a
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`position to enforce the constitution because this is a decentralized network.” See Tr. at 4:22-24.
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`As argued thus far, an equitable cause of action best fits the unique case at hand.
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`The question, then, is whether ICON has sufficiently pleaded the elements of a claim for
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`unjust enrichment.
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`The benefit is clear: ICON alleges that Shin received almost 14 million new ICX tokens
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`with an estimated value at the time of nearly $9 million. See Countercl. at ¶¶ 4, 33-35. Shin does
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`not contest this—his arguments related to “benefit” are raised in the context of the money had and
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`received claim, which focuses on a benefit to the plaintiff, not the defendant. See MTD at 9.
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`ICON has also adequately pleaded that Shin unjustly retained this benefit at the expense of
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`the ICON Community. ICON alleges that by minting millions of new ICX tokens, Shin
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`“materially diluted the value of tokens” held by the ICON Community at the time. Countercl. at
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`¶¶ 3, 44. Specifically, it argues that “Shin gained value for himself by misappropriating over 13
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`million tokens, and arrogated value to himself from the other members of the ICON Community
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`by causing the value of their tokens to decrease.” Id. at ¶ 44. But for Shin’s actions, ICON
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`contends, the present-day value of ICX would be “even higher” than the current estimate of $21
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`million. Id. at ¶ 2.
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`Shin’s strongest response was made with respect to the money had and received claim, but
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`it also applies here. ICON has alleged that third-party exchanges froze approximately 6.7 million
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`of the ICX tokens at issue, and that the federal government has seized $15 million in assets
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`including “Exploited ICX or other crypto or fiat currency that Shin acquired with the Exploited
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`ICX.”3 See Id. at ¶¶ 46, 48. Shin argues that he “cannot have been enriched when the money he
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`received has been frozen by ICON and third parties and seized by the federal government.” Reply
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`3 ICON described the ICX at issue—meaning the tokens minted and acquired by Shin—as the
`“Exploited ICX.” See Countercl. at ¶ 1.
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`Case 3:20-cv-07363-WHO Document 97 Filed 12/27/21 Page 7 of 12
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`[Dkt. No. 84] 10:7-9.
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`His point is not persuasive. First, even if a “significant portion” of the ICX tokens was
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`frozen or seized, that does not necessarily account for the entire amount of tokens that Shin
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`acquired, nor the proceeds that purportedly resulted. See Countercl. at ¶¶ 46. For example, Shin
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`allegedly transferred at least 100,000 ICX tokens to his father and another 125,000 to an
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`acquaintance. See id. at ¶ 42. There is no indication from the counterclaim, as pleaded, that those
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`tokens have been recovered. See id. Based on the face of the counterclaim, it is plausible that
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`Shin retained at least some amount of the ICX tokens at issue or related proceeds. ICON alleges
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`this in its opposition, when it asserts that at least some of the tokens were “not transferred to third-
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`party exchanges and . . . remain in wallets [Shin] holds or controls.” See Oppo. [Dkt. No. 82]
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`16:14-15.
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`Moreover, if a defendant could avoid a claim of unjust enrichment—or any claims sounded
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`in the principle—simply by funneling the improperly obtained benefit elsewhere, then such claims
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`would be rendered toothless. That is the precise allegation against Shin, that he went to “extreme
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`lengths to transfer, convert, and launder the Exploited ICX in an effort to put them beyond the
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`reach of the [ICON] Network” and “to retain as much as possible of the Exploited ICX and the
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`proceeds therefrom.” See Countercl. at ¶¶ 41, 43. The same is true if the government seizes the
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`benefit at issue. In a criminal context, a bank robber cannot avoid conviction simply because the
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`federal government has seized the money that he purportedly stole, or because he gave that money
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`to a friend. Commonsense compels a similar conclusion here.
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`For these reasons, ICON has sufficiently pleaded a claim of unjust enrichment, at least at
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`this stage of the litigation. Shin’s motion to dismiss is thus DENIED on this claim.
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`II. MONEY HAD AND RECEIVED
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`To prove a claim for money had and received, a plaintiff must show: (1) the defendant
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`received money that was intended to be used for the plaintiff’s benefit; (2) the money was not used
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`for the plaintiff’s benefit; and (3) the defendant has not given the money to the plaintiff. English
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`& Sons, Inc. v. Straw Hat Rests., Inc., 176 F. Supp. 3d 904, 926 (N.D. Cal. 2016). “The claim is
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`viable wherever one person has received money which belongs to another, and which in equity
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`and good conscience should be paid over to the latter.” Id. (internal quotation marks and citation
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`omitted).
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`The distinction between a claim for money had and received and one for unjust
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`enrichment, as I see it, is that the former requires one person to receive money “which belongs to
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`another.” See id. This infuses an element of possession that ultimately sinks ICON’s claim.
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`Shin argues that ICON’s claim for money had and received fails because ICON failed to
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`plausibly allege that the ICX tokens at issue belonged to the ICON Community and instead made
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`only conclusory assertions about ownership. MTD at 9:17-28. He further contends that ICON
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`cannot show the “three primary indicia of ownership of personal property:” title, possession, and
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`control. See id. at 10:7-20 (citing 73 C.J.S. Property § 43 (2021)). Shin argues that members of
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`the ICON Community do not have title to newly generated ICX tokens, because title is reflected
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`on the blockchain and the ICX at issue were “first assigned by the blockchain to the person who
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`minted the ICX.” Id. at 10:9-11. Next, Shin asserts that members of the ICON Community do not
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`possess newly generated ICX, as it is “unclear what it would even mean to possess ICX before it
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`comes into existence.” Id. at 10:12-13. Finally, Shin contends that ICON Community members
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`cannot control newly generated ICX, as the tokens are first delivered to whomever staked the ICX.
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`Id. at 10:18-20.
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`ICON does not dispute that title, possession, and control are the primary indicators of
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`ownership. See Oppo. at 5:6-13. Instead, it contends that the ICX at issue “are a unique,
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`intangible asset that does not lend itself to the traditional concepts of title, possession, and control
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`upon creation.” Id. at 5:7-9. ICON also argues that the counterclaim includes “detailed, non-
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`conclusory factual allegations regarding how and why the Network generates new tokens.” Id. at
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`4:16-22 (citing Countercl. at ¶¶ 26, 39).
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`But ownership is central to a claim for money had and received. See English & Sons, 176
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`F. Supp. at 926 (“The claim is viable wherever one person has received money which belongs to
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`another.”) (emphasis added). I agree that the unique nature of ICX raises legitimate questions
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`about the applicable law. See Order Granting in Part and Denying in Part Mot. to Dismiss
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`(“Second MTD Order”) [Dkt. No. 68] 8:16-17 (“It is clear that the parties strongly dispute . . .
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`whether common law principles should apply in this unique context.”). However, ICON has
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`proffered no other standard by which to evaluate ownership of the ICX at issue. Without more, its
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`argument that all ICX, including the tokens at issue, “belongs” to the ICON Community is
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`conclusory. ICON argues that new tokens are first generated onto the ICON network—not a
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`user’s or staker’s computer—and “belong to the entire ICON Community, including all current
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`holders of ICX” before they are delivered to a user’s wallet. See Countercl. at ¶¶ 26, 39. But this
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`does not address with specificity the traditional notions of title, possession, or control that
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`determine whether property in fact “belongs” to someone. Nor does ICON provide another
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`standard by which to measure ownership. Without more, ICON’s claim of money had and
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`received is too conclusory to proceed.
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`ICON’s claim of money had and received is therefore DISMISSED with leave to amend.4
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`4 I disagree with Shin’s argument that judicial estoppel bars ICON’s allegations that the ICX
`tokens belong to the ICON Community and that those statements contradict prior judicial
`admissions. Shin argues that ICON’s point contradicts those it made in a previous round of
`motions, where ICON argued that “Shin did not take someone else’s property in the traditional
`sense” and that the harm arose from the dilution of the value of ICON user’s tokens. MTD at
`13:3-6 (citing Dkt. No. 63 at 3). But ICON’s position is not “clearly inconsistent” with the prior
`statements, nor were the latter “deliberate, clear, and unequivocal.” See New Hampshire v. Maine,
`532 U.S. 742, 750 (2001) (stating that for judicial estoppel to apply, “a party’s later position must
`be clearly inconsistent with its earlier position.”); In re Twitter, Inc. Secs. Litig., No. 16-CV-
`05314-JST, 2020 WL 5904407, at *1 (N.D. Cal. Oct. 6, 2020) (holding that judicial admissions
`“must be deliberate, clear, and unequivocal.”). First, Shin’s purported acts could have diluted the
`value of other ICX tokens and resulted in the taking of tokens owned by the ICON Community.
`Moreover, ICON’s counsel only asserted that the ICX at issue did not belong to the ICON
`Foundation, rather than the ICON Community. See Tr. of April 28, 2021, Proceedings [Dkt. No.
`56] 16:23-17:5 (“It’s certainly not our position that those 14 million ICX belong to the
`Foundation. They don’t. . . . We don’t contend that those tokens belong to us. They belong to the
`ICON community in general.”).
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`Case 3:20-cv-07363-WHO Document 97 Filed 12/27/21 Page 10 of 12
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`III. DECLARATORY RELIEF
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`A court “may declare the rights and other legal relations of any interested party seeking
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`such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). The
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`Ninth Circuit has set forth two criteria in determining whether declaratory judgment is
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`appropriate: (1) “when the judgment will serve a useful purpose in clarifying and settling the legal
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`relations in issue;” and (2) “when it will terminate and afford relief from the uncertainty,
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`insecurity, and controversy giving rise to the proceeding.” McGraw-Edison Co. v. Preformed Line
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`Prods. Co., 362 F.2d 339, 342 (9th Cir. 1966) (citation omitted). “The existence of another
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`adequate remedy does not preclude a declaratory judgment that is otherwise appropriate.” Fed. R.
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`Civ. P. 57. But “the availability of other adequate remedies may make declaratory relief
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`inappropriate,” as would be declaratory relief that is “needlessly duplicative” of the damages or
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`relief requested under the substantive claims. See Tech. & Intell. Prop. Strategies Grp. PC v.
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`Fthenakis, No. C-11-2373-MEJ, 2011 WL 3501690, at *10 (N.D. Cal. Aug. 10, 2011) (internal
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`citation omitted).
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`ICON seeks a declaration that:
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`(1) the ICX at issue was generated as a result of a mistake;
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`(2) Shin took undue advantage of an unintended malfunction in the Revision 9
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`update generating the ICX at issue;
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`(3) Principles of equity and good conscience require the return and/or destruction
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`of the ICX at issue;
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`(4) Shin holds any proceeds or assets acquired with the ICX at issue in constructive
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`trust for the benefit of the class; and
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`(5) Shin should be ordered to return for the benefit of the class any proceeds or
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`assets acquired with the ICX at issue or, alternatively, the ICX at issue should
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`be destroyed.
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`Countercl. at ¶ 64.
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`Case 3:20-cv-07363-WHO Document 97 Filed 12/27/21 Page 11 of 12
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`Shin argues that this claim is needlessly duplicative for two reasons. First, he asserts that
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`the first two proposed declarations do not clarify the parties’ relations nor resolve any controversy,
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`instead only duplicating ICON’s unjust enrichment claim. See MTD at 7:21-27. Next, Shin
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`contends that the remaining three declarations “merely ask the Court to declare that ICON is
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`entitled to other remedies it seeks,” rendering them unnecessary. Id. at 8:3-15.
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`In response, ICON argues that its claim for declaratory relief offers an alternative remedy
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`from the other claim: the destruction of some of the ICX tokens at issue. Oppo. at 16:11-23. This,
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`ICON contends, “provides this Court with the discretion needed to fashion appropriate relief in an
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`action involving a new and novel form of property.” Id. at 16:19-21.
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`I will allow the claim for declaratory relief to proceed. ICON is correct that it offers a
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`distinct remedy in the form of destroying some of the ICX at issue. The availability of another
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`remedy is particularly important in a case like this, which involves novel forms of property and
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`related legal issues. As this litigation continues to take shape, I see the value in preserving flexible
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`remedies for whenever it might be resolved. Allowing the claim for declaratory judgment to move
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`forward helps do that, providing another avenue to “terminate and afford relief from the
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`uncertainty, insecurity, and controversy giving rise to the proceeding.” See McGraw-Edison Co.,
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`362 F.2d at 342.
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`ICON’s claim for declaratory relief is unlike Shin’s, which I earlier dismissed as
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`needlessly duplicative.5 See Order Granting Mot. to Dismiss (“First MTD Order”) [Dkt. No. 57]
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`20-21. Shin sought declaratory judgment that “the ICX tokens issued on August 22, 2020, are his
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`property and that he is entitled to exercise his property interests in the ICX tokens that he had
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`accumulated prior to that date, and in the other types of tokens that he had acquired before and
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`after that date.” FAC [Dkt. No. 28] ¶ 119. Shin later argued that his proposed declaratory relief
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`was distinct from the relief sought in his other claims, because he could not recover “damages for
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`the harm that would ensue if, post-judgment, ICON continues to claim his lack of ownership or
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`continues to take steps to interfere with his rights of ownership.” See Oppo. to ICON’s MTD
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`5 Although I granted Shin leave to amend his claim for declaratory relief, he did not include the
`claim in his Second Amended Complaint. See First MTD Order at 21; SAC [Dkt. No. 58] 27-29.
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`Case 3:20-cv-07363-WHO Document 97 Filed 12/27/21 Page 12 of 12
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`[Dkt. No. 45] 8. But Shin’s purported ownership of the ICX tokens would necessarily be decided
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`in the adjudication of both his conversion and trespass to chattels claims, rendering any such
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`declaratory judgment needlessly duplicative. A declaratory judgment asserting Shin’s ownership
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`offers no greater clarity or settlement of the rights between the parties than would a decision on
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`these substantive claims.
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`Accordingly, Shin’s motion to dismiss ICON’s claim for declaratory relief is DENIED.
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`For the above reasons, Shin’s motion to dismiss ICON’s counterclaim is GRANTED in
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`CONCLUSION
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`part and DENIED in part, with leave to amend. The claim for unjust enrichment and restitution, as
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`well as declaratory relief, may proceed.
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`IT IS SO ORDERED.
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`Dated: December 27, 2021
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`William H. Orrick
`United States District Judge
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