IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
`FLAGLER HOLDINGS VI BETA,
`INC., and KENNETH SHANLEY,
`Plaintiffs,
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`AIRLINE ACCOMMODATIONS
`SOLUTIONS, LLC, and CORPAY
`TECHNOLOGIES OPERATING
`COMPANY, LLC,
`Defendants.
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`C.A. No. 2023-0050-SKR
`DEFENDANTS’ MOTION IN LIMINE NO. 1 TO PRECLUDE
`PLAINTIFFS FROM OFFERING EVIDENCE AND ARGUMENT
`REGARDING THE CALCULATION OF THE EARNOUT
`Defendants respectfully move to preclude Plaintiffs from introducing
`evidence or argument regarding the calculation of the earnout—including any
`alternative calculations thereof—because the parties agreed that all earnout-related
`accounting disputes must be resolved by an independent accountant.
`INTRODUCTION
`1. In the Asset Purchase Agreement (“APA”), the parties agreed to a
`multi-step process for adjudicating disputes over the earnout calculation, which
`culminates with the submission of any unresolved disputes to an independent
`accountant for final, binding resolution. For nearly a year, the parties engaged in
`that process exactly as intended.
`38%/,&9(56,21 EFILED
`ON OCTOBER 
`EFiled: Oct 13 2025 11:09AM EDT
`Transaction ID 77292666
`Case No. 2023-0050-SKR
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`2. Before the parties could submit their accounting disputes to the
`independent accountant for final resolution, however, Plaintiffs filed this lawsuit,
`asserting several underlying factual and legal questions that they contended “would
`be wholly inappropriate for an accountant to undertake” and speculating that the
`earnout could not be accurately calculated without discovery. Since then, the parties
`have litigated those questions extensively and engaged in exhaustive discovery.
`3. Following the completion of fact discovery, however, Plaintiffs
`disclosed that they intend to offer expert opinions at trial for the sole purpose of
`contesting Defendants’ earnout calculation and providing their own independent
`calculation of the earnout. But because all disputes over the earnout calculation must
`be resolved by the independent accountant, evidence or argument concerning
`Defendants’ calculation of the earnout and any alternative calculations thereof is
`irrelevant to the factual and legal issues the Court can decide. The Court should
`reject Plaintiffs’ attempt to shoehorn challenges to the earnout calculation into the
`upcoming trial and exclude any such evidence and argument.
`BACKGROUND
`I. The Acquisition and Asset Purchase Agreement
`4. In 2020, Defendants purchased substantially all of Hotel Connections,
`Inc.’s (“HCI”) assets for a one-time, lump-sum payment. See Verified Complaint
`(“Compl.”) ¶ 1. The parties also negotiated a potential earnout payment, which
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`depended on the net revenue earned by HCI in Id. ¶¶ 1-2, 90-107 & APA
`§ 2.8.1
`5. Specifically, the revenue for the earnout was to be calculated by
`isolating the eligible net revenue HCI earned from a list of Named Customers during
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` Id. To protect the integrity of the process, the APA included
`various post-acquisition covenants that, among other things, required Defendants to
`collect HCI’s revenue in the ordinary course and to maintain books and records that,
`in all material respects, accurately reflected HCI’s revenue. APA, §§ 2.8(j)(i)-(vii).
`6. The APA also included various revenue-reporting benchmarks for the
`earnout, culminating in Defendants’ delivery of a good-faith calculation of the final
`earned and collected revenue for the potential earnout payment (the “Purchaser
`True-Up Statement”). Id. §§ 2.8(c)-(e). If Plaintiffs disagreed with any items or
`calculations in the Purchaser True-Up Statement, then the APA required Plaintiffs
`to deliver a written notice of objection specifying the basis for their disagreement
`(the “Earnout Calculation Objection Notice”). Id. § 2.8(h).
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`1 A copy of the APA is attached as Exhibit A.
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`7. If the parties could not resolve their disputes amongst themselves, then
`they agreed to submit any remaining disputes over the items or calculations in the
`Purchaser True-Up Statement to (the “Independent
`Accountant”). Id. § 2.8(i). The APA set forth detailed procedures to enable the
`Independent Accountant to resolve the parties’ dispute and perform an independent
`“calculation of the Earnout.” Id. The APA also dictated that the “final calculation
`of the Earnout shall be” either:
`(1) as stated in the Purchaser True-Up Statement if [Defendants] fail[]
`to deliver an Earnout Calculation Objection Notice or (2) if
`[Defendants] deliver[] an Earnout Calculation Objection Notice, (x) the
`amount mutually agreed to by [Plaintiffs] and [Defendants] or (y) if any
`Earnout Disputed Item is submitted for resolution to the [Independent
`Accountant], the amount determined by the [Independent Accountant]
`computed using the line items agreed to by [Defendants] and
`[Plaintiffs] (i.e., items that are not Earnout Disputed Items) and the
`Earnout Disputed Items as resolved by the Firm.
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`Id. The parties further agreed that the Independent Accountant’s earnout calculation
`“shall be final and binding on the Parties, shall be nonappealable and may be
`enforced by a court of competent jurisdiction.” Id.
`II. The Earn
`out Dispute
`8. As required by the APA, Defendants delivered several interim revenue
`statements to Plaintiffs, which reflected that HCI’s revenue failed to meet the
`earnout threshold. See Compl. ¶¶ 139, 143. Then, on April 15, 2022, Defendants
`delivered the Purchaser True-Up Statement to Plaintiffs, which confirmed that the
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`eligible net revenue for the earnout period fell below the earnout threshold. Id. ¶
`154. Thereafter, Plaintiffs provided their Earnout Calculation Objection Notice, and
`Defendants agreed to multiple extensions of the dispute-resolution deadlines under
`the APA while the parties attempted to informally resolve their disputes. Id. ¶¶ 155-
`59.
`9. In January 2023, while the parties appeared to still be engaged in good-
`faith discussions as contemplated by the APA, Plaintiffs filed the Complaint without
`any notice. In the Complaint, Plaintiffs primarily challenged Defendants’ post-
`acquisition operation of HCI and Defendants’ conduct during the earnout dispute
`process, which Plaintiffs claimed presented “factual and legal questions [that]
`require[] examination of evidence,” which “would be wholly inappropriate for an
`accountant to undertake.” Id. ¶ 106. Plaintiffs also alleged that it would be
`“impossible” to accurately calculate the earnout without discovery because the total
`amount of eligible revenue “may only be determined through discovery, in general,
`and discovery from Named Customers, in particular.” Id. ¶ 165.
`10. Over the next two years, Plaintiffs propounded extensive discovery
`concerning the various “legal and factual questions” that Plaintiffs contended were
`beyond the reach of the Independent Accountant. Since 2023, Plaintiffs have served
`well over 100 written discovery requests, issued more than 70 third-party subpoenas,
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`and taken numerous depositions, and Defendants have produced nearly 700,000
`documents.
`11. In July 2025, Plaintiffs served the Expert Report of Richard Lee, CPA
`(the “Lee Report”). 2 In his Report, Mr. Lee purports to, among other things,
`” Lee Report ¶ 3. At his deposition, Mr.
`Lee confirmed
` See Deposition of Richard Lee at 51:14-
`52:11, 362:22-363:8.3
`ARGUMENT
`I. The Court Should Exclude Evidence and Argument Regarding the
`Earnout Calculation.
`12. Plaintiffs argued they deferred the Independent Accountant process
`because their claims about Defendants’ operation of HCI and earnout-related
`conduct presented “factual and legal questions,” the resolution of which “would be
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`2 A copy of the Lee Report is attached as Exhibit B.
`3 A copy of the relevant excerpts of Mr. Lee’s deposition transcript is attached as Exhibit
`C.
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`wholly inappropriate for an accountant to undertake.” Compl. ¶ 106. Several years
`later, however, Plaintiffs disclosed that they retained an accounting expert in this
`litigation for the sole purpose of analyzing Defendants’ earnout calculation,
`reviewing the underlying financial data, and offering their own different calculation
`of the earnout for the Court’s consideration at trial. See Lee Report; Lee Dep. 51:14-
`52:11. Under the plain language of the APA, however, consideration of that
`accounting evidence and testimony is reserved for the Independent Accountant, who
`the parties agreed would resolve all disputes concerning the items or calculations in
`the earnout. See APA §§ 2.8(i), 7.10. The Court should exclude evidence and
`argument at trial in connection with accounting disputes related to the earnout
`because such evidence and arguments are irrelevant to the issues properly before the
`Court and the relief it can ultimately award under the APA. See D.R.E. 401, 402.
`A. Resolution of Accounting Disputes Concerning the Earnout
`Calculation Is Reserved Exclusively for the Independent
`Accountant.
`13. As explained above, the parties agreed to submit all accounting disputes
`concerning the “items or calculations” in Defendants’ earnout calculation to the
`Independent Accountant for final resolution. APA §§ 2.8(h)-(i); see also Compl. ¶
`106. In doing so, the parties vested the Independent Accountant with the exclusive
`authority to consider evidence, briefing, and argument regarding the “items or
`calculations” in the earnout, and ultimately to provide “a reasonably detailed
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`explanation of its determination of each Earnout Disputed Item, and its calculation
`of the Earnout based on its resolution of the Earnout Disputed Items.” APA § 2.8(i).
`The Independent Accountant’s earnout calculation is intended to be final, binding,
`and non-appealable. Id.
`14. That the Independent Accountant has the exclusive authority to decide
`disputes over the items and calculations in the earnout is confirmed by the final
`sentence of Section 2.8 itself, which expressly states that, in the event Plaintiffs
`dispute Defendants’ earnout calculation, “the final calculation of the Earnout shall
`be” determined by the Independent Accountant unless the parties are able to resolve
`their dispute amongst themselves. Id. (emphasis added). It is further confirmed by
`the APA’s exclusive-remedies provision, through which Plaintiffs agreed to divest
`this Court of authority to adjudicate accounting disputes over the earnout calculation
`by waiving all “claims or causes of action … by contract, statute or otherwise, at law
`or in equity, for any amounts owed pursuant to the terms of this Agreement,” and
`agreeing that they “may not avoid such limitation on liability by [] seeking damages
`for breach of contract, tort or pursuant to any other theory of liability.” Id. § 7.10.
`15. As a result, Plaintiffs’ disagreements with the items and/or calculations
`in the earnout must be submitted to the Independent Accountant, and the Court lacks
`authority to decide them. See, e.g., Chi. Bridge & Iron Co. v. Westinghouse Elec.
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`Co., 166 A.3d 912, 930 (Del. 2017) (interpreting similar provision as requiring the
`parties to submit certain enumerated disputes, including disputes about the
`calculation of earnout amounts and the final earnout payment, to an independent
`auditor); Viacom Int’l, Inc. v. Winshall, 2012 WL 3249620, at *13 (Del. Ch. Aug. 9,
`2012) (“Because the amount of the 2008 Earn-Out was to be decided by the
`Resolution Accountants, the Resolution Accountants and not the court were
`entrusted to determine issues relevant to determining this core question”); Specialty
`DX Holdings, LLC v. Lab’y Corp. of Am. Holdings, 2020 WL 5088077, at *7-8 (Del.
`Super. Jan. 31, 2020) (finding that the “parties took jurisdiction away from the Court
`by contractually agreeing that an accounting firm must resolve disputes relating to
`the calculation of the earn-out”); LDC Parent, LLC v. Essential Utils ., 2021 WL
`1884847, at *1, *3-5 (Del. Super. Apr. 28, 2021) (directing the parties to submit
`dispute over post-closing price adjustment to independent accounting firm where
`agreement provided that the firm would “review [the] Agreement and the remaining
`Disputed Items for purposes of resolving the Disputed Items in accordance with [the]
`Agreement and calculating the Final Closing Adjustment Amount” and provide
`“final and binding” resolution).
`16. Despite the parties’ unambiguous agreement to submit disputes about
`the earnout to the Independent Accountant, Plaintiffs recently disclosed their
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`retention of an accountant for the purpose of offering expert accounting opinions at
`trial concerning the disputed items and calculations in Defendants’ earnout
`calculation and to offer his own calculation of the various items comprising the
`earnout calculation based on Plaintiffs’ positions on those disputed items. See Lee
`Report ¶¶ 3-5; Lee Dep. 51:14-52:11. Plaintiffs have thus made clear their intent to
`bypass the Independent Accountant process entirely by disputing the merits of
`Defendants’ calculation of the earnout at trial and asking the Court to calculate the
`earnout and award them the amount they claim to be owed under the earnout
`provision based on their preferred calculation. See id.; see also Deposition of Vivian
`Shanley at 131:3-14
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`17. As explained above, however, the resolution of all disputes concerning
`the “items or calculations” in Defendants’ Earnout calculation is reserved
`exclusively for the Independent Accountant. See APA §§ 2.8(h)-(i). This means
`that the Court lacks authority to consider Plaintiffs’ challenges to the items included
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`4 A copy of the relevant excerpts of Ms. Shanley’s deposition transcript is attached as
`Exhibit D.
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`in Defendants’ earnout calculation or to conduct—or order—a new or different
`calculation of the earnout.
`18. Thus, all evidence or argument concerning disputed items in the earnout
`calculation—including Plaintiffs’ expert’s proffered accounting opinions and
`calculations related thereto—should be excluded because it is irrelevant to the issues
`to be decided at trial and the relief this Court can award under the APA. See, e.g.,
`Hintmann v. Fred Weber, Inc. , 1998 WL 83052, at *3 (Del. Ch. Feb. 17, 1998)
`(granting motion in limine to exclude evidence that “has no bearing upon [the
`Court’s] assessment of [the key dispute] at issue in this action”); Gonsalves v.
`Straight Arrow Publ’rs, Inc. , 1996 WL 483093, at *2 (Del. Ch. Aug. 22, 1996)
`(granting motion in limine to exclude expert testimony concerning issue that “is
`legally irrelevant to the issue posed by this suit.”).
`B. Plaintiffs Cannot Sidestep the Independent Accountant Process
`by Masking Their Earnout Dispute in Equitable Claims.
`19. Plaintiffs may argue that their disputes about the earnout fall beyond
`the Independent Accountant’s purview because Plaintiffs purport to assert claims for
`specific performance of the APA and other equitable relief under Section 8.8 of the
`APA—as opposed to direct challenges to Defendants’ earnout calculation—and
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`therefore fall outside of the parties’ delegation to the Independent Accountant. 5
`That argument elevates form over substance and should be rejected.
`20. To be sure, Plaintiffs have asserted certain declaratory judgment claims
`regarding Defendants’ post-acquisition operation of HCI that, at least on the surface,
`appear to raise legal and factual questions untethered to items and calculations in the
`earnout that the parties have committed to the Independent Accountant. See Compl.
`¶ 106. But Plaintiffs don’t stop there. Instead, they also ask the Court to award
`“equitable” relief in the form of a new earnout calculation and, ultimately, an order
`awarding Plaintiffs the earnout payment itself. See id. ¶¶ 203, 206, 214, 217 (seeking
`a judgment ordering “specific performance” of the earnout provisions, recalculation
`of the earnout, and an award of damages in the supposed amount of the earnout
`payment). This is further evidenced by the fact that Plaintiffs’ lone expert is an
`accountant who was retained specifically to “
`” of the earnout and the earnout, thereby
`evidencing Plaintiffs’ intent to dispute the merits of Defendants’ underlying earnout
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`5 Interestingly, Plaintiffs subsequently waived their claims for specific performance and
`confirmed their position that “monetary relief (rather than specific performance) is the
`appropriate form of relief to remedy [Defendants’] breaches of the APA.” See Pls.’ Br.
`Supp. Mot. J. Pleadings (Dkt. 65) at 6 n.9.
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`calculation at trial and ask the Court to conduct a new earnout calculation under the
`guise of “equitable” relief. See Lee Report ¶ 3; Lee Dep. 51:14-52:11.
`21. To the extent that the ultimate “equitable” relief Plaintiffs are seeking
`rests upon their disagreement about what should be included in the earnout
`calculation and how that calculation ultimately should be made, those are accounting
`disputes concerning the items or calculations in Defendants’ earnout calculation that
`are contractually delegated to the Independent Accountant for resolution. See APA
`§ 2.8(i); see also Stone v. Nationstar Mortg. LLC , 2020 WL 4037337, at *8 (Del.
`Ch. July 6, 2020) (rejecting plaintiff’s attempt to “render the dispute resolution
`mechanism in [the agreement] meaningless” by “rais[ing] legal issues and seek[ing]
`equitable relief beyond the scope of the Independent Accountant’s authority,” which
`“elevates form over substance” because the claims “all involve accounting
`methodology issues that fall squarely within an accounting firm’s expertise”).
`22. This holds true even though Plaintiffs attempt to bootstrap their request
`for earnout-related relief to their other “equitable” claims concerning Defendants’
`operation of HCI and other non-accounting issues. In similar contexts, Delaware
`courts have consistently “rejected contractual parties’ efforts to plead around the
`scope of a third-party decision-maker’s authority by couching delegable disputes in
`questions of law.” Stone, 2020 WL 4037337, at *8 & n.72 (collecting cases).
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`Indeed, as this Court has observed, “[i]f a party to the Purchase Agreement were
`permitted to cry breach of contract and seek specific performance when confronted
`with the very category of disputes contractually delegated to the Independent
`Accountant, the Independent Accountant’s role would be rendered illusory at best.”
`Id. at *9; see also Windy City Invs. Holdings, LLC v. Teachers Ins. & Annuity Ass’n
`of Am., 2019 WL 2339932, at *9 (Del. Ch. May 31, 2019) (“If Counts II and III
`requested an order compelling TIAA to include a specific calculated amount or
`figure in the Earn-Out amount, they would infringe on the Referee’s jurisdiction to
`determine the ‘disputed items or calculations’”).
`23. In sum, the nature of the earnout-related relief sought by Plaintiffs in
`their Complaint and Plaintiffs’ recent disclosure of an accounting expert retained
`only to opine on the earnout calculation evidence Plaintiffs’ intent to ask this Court
`to resolve disputes over—and award relief arising from—Defendants’ earnout
`calculation. Resolution of all such accounting disputes has been committed to the
`exclusive province of the Independent Accountant. Therefore, because this Court
`can neither adjudicate Plaintiffs’ challenges to Defendants’ earnout calculation nor
`award relief related to that calculation, any evidence or argument concerning the
`Earnout calculation is irrelevant and should be excluded at trial. See Hintmann, 1998
`WL 83052, at *3; Gonsalves, 1996 WL 483093, at *2.
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`CONCLUSION
`Defendants respectfully request that the Court grant this motion in limine and
`exclude Plaintiffs from introducing evidence and argument concerning the earnout
`calculation at trial, including any alternative calculations thereof.
`OF COUNSEL:
`Robert R. Long
`Alexandra S. Peurach
`Blake M. Simon
`Christopher J. Kelleher
`Lauren M. Funk
`Alston & Bird LLP
`1201 West Peachtree Street
`Atlanta, GA 30309
`404-881-7000
`October 3, 2025
`MORRIS, NICHOLS, ARSHT &
`TUNNELL LLP
`/s/ Lauren K. Neal
`Lauren K. Neal (#5940)
`Sara Carnahan (#7175)
`1201 North Market Street
`Wilmington, DE 19801
`(302) 658-9200
`lneal@morrisnichols.com
`scarnahan@morrisnichols.com
`Attorneys for Defendants Airline
`Accommodations Solutions, LLC and
`Corpay Technologies Operating
`Company, LLC
`Words: 2,976 /3,000
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