EFiled: Oct 30 2025 03:43PM EDT
`Transaction ID 77489872
`Case No. 2025-1136-MTZ
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`TABLE OF CONTENTS
`TABLE OF AUTHORITIES .......................................................................................iii
`PRELIMINARY STATEMENT....................................................................................1
`NATURE AND STAGE OF THE PROCEEDINGS.....................................................5
`STATEMENT OF FACTS ............................................................................................7
`I. The New York Litigation ........................................................................7
`II. This Action ............................................................................................11
`ARGUMENT...............................................................................................................12
`I. The Court Should Not Grant the Anti-Suit Injunction Because of the
`McWane Doctrine ..................................................................................13
`A. McWane Applies Because the Separation Agreement Does Not
`Contain a Forum Selection Clause ............................................14
`B. The New York court is Capable of Doing Prompt and Complete
`Justice .........................................................................................18
`C. The New York Action is First-Filed...........................................20
`D. The New York Action Involves the Same Parties and Issues ..20
`II. Plaintiffs Are Likely to Fail on the Merits ..........................................21
`A. Plaintiffs Have Not Established Personal Jurisdiction in This
`Action ..........................................................................................21
`B. Plaintiffs Are Not Reasonably Likely to Win on The Merits ...22
`III. The Anti-Suit Injunction Motion Should Be Denied Because of
`Plaintiffs’ Undue Delay.........................................................................23
`IV. Plaintiffs Have Failed to Identify any Irreparable Harm...................26
`V. The Balance of the Equities Favors Bartasi........................................27
`CONCLUSION ...........................................................................................................29
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`iii
`TABLE OF AUTHORITIES
`Page(s)
`Cases
`Azurix Corp. v. Synagro Techs., Inc.,
`2000 WL 193117 (Del. Ch. Feb. 3, 2000) ........................................................18
`B/E Aerospace, Inc. v. J.A. Reinhardt Holdings, LLC,
`2020 WL 4195762 (Del. Super. Ct. July 21, 2020) .........................................22
`Civic Ass’n of Surrey Park v. Riegel,
`2023 WL 6976700 ............................................................................................18
`CNL-AB LLC v. Eastern Property Fund I SPE (MS REF) LLC,
`2011 WL 353529 (Del. Ch. Jan. 28, 2011) .................................................23-24
`In re Coinmint, LLC,
`261 A.3d 867 (Del. Ch. 2021)...........................................................................24
`Dura Pharms., Inc. v. Scandipharm, Inc.,
`713 A.2d 925 (Del. Ch. 1998)...............................................................18, 19, 20
`Emps. Ins. of Wausau v. First State Orthopedics, P.A.,
`312 A.3d 597 (Del. 2024) ............................................................................22-23
`FP UC Holdings, LLC v. Hamilton,
`2020 WL 1492783 (Del. Ch. Mar. 27, 2020)..............................................27, 28
`Household Int’l, Inc. v. Eljer Indus., Inc.,
`1993 WL 133065 (Del. Ch. Apr. 22, 1993) .................................................17-18
`Ingres Corp. v. CA, Inc.,
`8 A.3d 1143 (Del. 2010)....................................................................................13
`LG Elecs., Inc. v. InterDigital Commc’ns., Inc.,
`114 A.3d 1246 (Del. 2015)................................................................................13
`Lisa, S.A. v. Mayorga,
`993 A.2d 1042 (Del. 2010)................................................................................27
`In re Massey Energy Co.,
`2011 WL 2176479 (Del. Ch. May 31, 2011) ....................................................12
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`McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co.,
`263 A.2d 281 (Del. 1970) ..........................................................................passim
`Multi–Fineline Electronix, Inc. v. WBL Corp. Ltd.,
`2007 WL 431050 (Del. Ch. Feb. 2, 2007) ........................................................23
`Next Level Ventures, LLC v. AVID USA Techs. LLC,
`2023 WL 3141054 (Del. Ch. Mar. 16, 2023)....................................................21
`Pentwater Cap. Mgmt. LP v. Kaz,
`2022 WL 1052347 (Del. Ch. Apr. 8, 2022) ................................................12, 27
`Sagarra Inversiones, S.L. v. Cementos Portland Valderrivas, S.A.,
`2011 WL 3371493 (Del. Ch. Aug. 5, 2011)......................................................13
`SPay, Inc. v. Stack Media, Inc.,
`2021 WL 11091 (Del. Ch. Mar. 23, 2021)........................................................12
`Third Ave. Trust v. MBIA Ins. Corp.,
`2009 WL 3465985 (Del. Ch. Oct. 28, 2009)...............................................17, 19
`Statutes
`10 Del. C. § 3104 .........................................................................................................21
`10 Del. C. § 3114 ...................................................................................................21, 22
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`1
`Defendant Gina Bartasi respectfully submits this brief in opposition to
`plaintiffs Perceptive Advisors, LLC (“Perceptive”), Perceptive Credit Opportunities
`Fund IV, LP, and Ellen Hukkelhoven’s (collectively, the “Perceptive Group”) Motion
`for a Preliminary Anti-Suit Injunction, D.I. 1, as joined by Kindbody, Inc. (the
`“Company”) and the remaining plaintiffs (collectively, with the Company, the
`“Kindbody Group”), and in support of her motion to dismiss or stay this action. D.I.
`26. The Perceptive Group and Kindbody Group are referred to collectively as the
`“Plaintiffs.”
`PRELIMINARY STATEMENT
`Bartasi has been litigating in New York against Perceptive since May 2025.
`The gravamen of her complaint there is that her Separation Agreement, and the
`releases contained in it, are void. That is a question of New York law. The
`Separation Agreement chooses New York law and is full of other references to New
`York law. The Separation Agreement does not select a Delaware forum, does not
`choose Delaware law and does not otherwise imply that Delaware courts will decide
`matters relating to that agreement. An anti-suit injunction would pull a set of New
`York legal issues out of a New York court and into Delaware before the New York
`court even has the opportunity to determine its own scope of jurisdiction. Plaintiffs’
`motion should be denied.
`If there were any doubt about the limited scope of the New York Action,
`Bartasi offered a stipulation on October 17, 2025, that commits Bartasi to litigating
`only claims in New York that the New York court determines fall within its
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`jurisdiction. D.I. 42. If and when, and only if and when, the New York court voids
`the release in the Separation Agreement to allow Bartasi to bring underlying breach
`of fiduciary duty claims, then Bartasi has re-affirmed that she will comply with any
`applicable Delaware forum selection provisions. Id.
`Plaintiffs say two triggers require Bartasi to litigate her Separation
`Agreement claims in Delaware instead of New York where she has been litigating
`for months: 1) the “forum selection clauses require Bartasi to bring the claims she
`asserted in New York related to the Series E Financing in Delaware,” and 2)
`Bartasi’s claims fall within the scope of internal affairs. Mot. ¶¶ 2-3. If these
`triggers were tripped, they were tripped in May, not October when Plaintiffs finally
`moved for an anti-suit injunction.
`Both the Perceptive Group and the Kindbody Group knew that the New York
`Action, as filed in May, concerned Bartasi’s Separation Agreement and her
`allegations of economic coercion surrounding her departure during the events
`related to the Series E Financing. That did not change in October. After Bartasi
`filed the New York Action, Perceptive demanded indemnification from the Company
`under the credit agreement. Bartasi Aff. ¶ 10. The trigger for that indemnification
`right is similar to the trigger Plaintiffs now say requires Bartasi to only litigate in
`Delaware.
`In the credit agreement, the Company agreed to indemnify the Perceptive
`Group for the defense of any action “relating to … the Transactions,” which includes
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`the Series E Financing.1 Compl., Ex. 12. The Company’s rights were affected by the
`New York Action long before Bartasi named the Company as a defendant and known
`to be affected. To the extent the Perceptive Group was demanding the Company
`indemnify them to defend a case in New York on its merits, the conclusion the
`Company’s rights were in play is unmistakable. But even if there had been no
`indemnity demand, both the Perceptive Group and the Kindbody Group knew
`Bartasi was making claims related to the Series E Financing from May to October.
`If the internal affairs trigger was tripped, it was likewise tripped in May and
`both the Perceptive Group and the Kindbody Group knew it, but did nothing. On
`May 1, 2025, Bartasi’s counsel sent Kindbody’s counsel a draft complaint for the
`New York Action naming Kindbody and Perceptive as defendants. The cover letter
`(not sent under any equivalent to D.R.E. 408) and the draft complaint both
`described the claims as involving breaches of fiduciary duty. Ex. A (highlighting
`references to fiduciary duty).
`A Kindbody representative then contacted Bartasi directly and asked her to
`remove the Company as a party. Bartasi Aff. ¶ 5. Bartasi ultimately removed the
`Company as a defendant, but she continued to describe her complaint as involving
`breaches of fiduciary duties. The filed May 30 New York Complaint attached hereto
`1 This abbreviated conclusion is the result of following the daisy chain of embedded
`definitions of the following capitalized terms in Exhibit 12 to the Complaint: Transactions,
`which encompasses the Agreement and Loan Documents and “all other transactions
`contemplated thereby”, which include the Warrant Certificates, which contemplate the
`transactions contemplated by Amendment No. 3, which contemplate, as Exhibit B thereto,
`the Series E Financing term sheet.
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`as Exhibit B highlights the references to fiduciary duties. Perceptive moved to
`dismiss in New York and consistently characterized the claims as involving
`breaches of fiduciary duty, which, by Plaintiffs’ lights in this action would be claims
`under the internal affairs doctrine. Ex. C (highlighted in the same manner). That
`did not change in October.
`In this action, on October 15, 2025, Bartasi requested documents and
`communications from May to October about the New York Action or the Delaware
`forum selection provisions to explore laches, waiver and acquiescence surrounding
`the knowledge of both the Perceptive Group and the Kindbody Group. See Exs. F-I.
`Plaintiffs have not produced a single document. There are clearly responsive, non-
`privileged communications between the Perceptive Group and Kindbody Group
`relating to the indemnification demand and other matters. It is understandable
`that, given the time constraints, Plaintiffs were unable to conduct a comprehensive
`search; it is not understandable that Plaintiffs were not able to locate and produce
`a single document.
`Plaintiffs’ request for an emergency anti-suit injunction should fail because
`both the Perceptive Group and the Kindbody Group were aware of their alleged
`rights to enforce the Delaware forum selection provisions from May 2025 to October
`2025 and determined not to do so until October. The request should be denied for
`independent reasons as well. The New York court is capable of deciding its own
`jurisdiction. While styled as breach of fiduciary duty, the substance of what Bartasi
`seeks in New York arises from her claim that the Separation Agreement is void.
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`And she has committed herself to only litigating Separation Agreement issues in
`New York. D.I. 42. The Court should deny Plaintiffs’ motion for an anti-suit
`injunction and instead grant Defendant’s motion to dismiss or stay.
`NATURE AND STAGE OF THE PROCEEDINGS
`On May 30, 2025, Bartasi sued Perceptive in the Supreme Court of the State
`of New York. Bartasi alleged Perceptive breached its fiduciary duty to Bartasi by
`economically coercing her and employing wrongful means to force her to resign her
`CEO position with Kindbody and diminish her longstanding preferred equity rights.
`Bartasi thus alleged her Separation Agreement, including the release it contained,
`was void under New York law. See Ex. B ¶ 54.
`On August 18, 2025, Perceptive Advisors moved to dismiss the New York
`complaint and recognized that New York law applied to the salient issue: the
`enforceability of the Separation Agreement. See Ex. C, p. 14 (“Under New York
`law—which governs the Separation Agreement . . .”). Perceptive failed to raise as a
`defense, or even discuss, any forum selection clause. Perceptive consistently
`referred to the claims as being breach of fiduciary duty claims and argued, on the
`merits, that Bartasi’s claims should be dismissed.
`On October 1, 2025, Bartasi amended her complaint to add defendants
`Perceptive Credit Opportunities Fund IV, LP, KBI Services, Inc. (d/b/a Kindbody)
`(“Kindbody”), Linda Mintz, Ellen Hukkelhoven, Kathy Harris, Theresa Sexton,
`Rivka Friedman and Tara Comonte. Compl. Ex. 7; Ex. D (redline of May 30 NY
`Complaint to October 1 NY Complaint). Bartasi alleged the defendants in the New
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`York Action violated their duty of loyalty and employed wrongful economic coercion
`to force Bartasi to sign a release that significantly diminished her equity stake, as
`well as sixteen other minority shareholders, in order to enrich themselves. Compl.
`Ex. 7,¶¶ 81-82. Bartasi requested financial compensation and that the release she
`signed should be declared voidable. See id.
`On October 3, 2025, Bartasi moved for preliminary relief and requested the
`New York court to enjoin until
`the Court has determined the merits of her claims. Compl. Ex. 8, ¶ 59.
`On October 6, 2025, Plaintiffs filed the Verified Complaint in this Court.
`D.I. 1. Bartasi had filed her complaint in New York in May, but for the first time,
`Perceptive Advisors and the other Plaintiffs here argued the Purchase Agreement,
`Voting Agreement, and Support Agreement contained forum selection clauses
`requiring the parties to litigate disputes in Delaware. Plaintiffs alleged Bartasi
`breached these agreements, requested specific performance of the forum selection
`clauses, and a declaratory judgment declaring the parties must litigate in Delaware.
`Id.
`Also on October 6, 2025, Plaintiffs filed a Motion for a Preliminary Anti-Suit
`Injunction, requesting this Court bar Bartasi from pursuing her claims against
`Plaintiffs in New York. Plaintiffs also filed a Motion to Expedite. D.I. 1.
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`STATEMENT OF FACTS
`I. The New York Litigation
`On May 30, 2025, Bartasi filed an action in New York Supreme Court
`captioned Gina Bartasi v. Perceptive Advisors, LLC., et al., Index No. 653314/2025
`(N.Y. Sup. Ct.) (the “New York Action”). Ex. B.; Compl. Ex. 14.
`On May 1, 2025, before Bartasi filed the complaint in the New York Action,
`her counsel sent it to the Company (not under any equivalent to D.R.E. 408). Ex. A
`(letter from Bartasi counsel to Company). At the time, the complaint named both
`Perceptive and the Company as defendants. Bartasi Aff. ¶ 4.
`After the complaint in the New York Action was sent to the Company, a
`representative of the Company contacted Bartasi and asked her to remove the
`Company as a defendant to the New York Action in light of various personal
`relationships she had with people at the Company. Based on her experience at the
`Company, Bartasi believes the representative of the Company would not have
`contacted her without direction from the Board or at least Linda Mintz. Given this
`contact, it is clear that the Company was aware of the New York Action and its
`allegations even before the New York Action was filed. Bartasi Aff. ¶ 5.
`Bartasi ultimately removed the Company as a defendant from the complaint
`before filing the New York Action on May 30, 2025. The allegations of the complaint
`filed in the New York Action otherwise did not materially change between the time
`it was sent to the Company and when it was filed on May 30, 2025. Bartasi Aff. ¶ 4;
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`Ex. A (letter from Bartasi’s counsel to Company). A redline of the complaint sent to
`the Company on May 1, 2025, and the version filed is attached as Exhibit E.
`Throughout the proceedings in the New York Action, Perceptive
`characterized the claims in the New York Action as being claims for breach of
`fiduciary duty, including through a memorandum of law in support of their motion
`to dismiss the New York Action. These were materially the same claims and
`allegations that were sent to the Company before the New York Action was filed.
`Bartasi Aff. ¶ 4; Ex. C (motion to dismiss in New York). The cover letter Bartasi’s
`counsel sent the Company on May 1, 2025, and all versions of the New York
`complaint have characterized the claims in New York as involving breach of
`fiduciary duty claims. Ex. A.
`Bartasi is aware that after she filed the New York Action, Perceptive or its
`affiliates communicated with the Company and requested that the Company notify
`the Company’s D&O insurer of the New York Action. Bartasi Aff. ¶ 8.
`Bartasi is also aware that after Perceptive communicated its request to the
`Company, the Company and Perceptive or its affiliates had further communications
`about the request to notify the D&O insurer about the request. Bartasi Aff. ¶ 9.
`Bartasi is also aware that after she filed the New York Action, Perceptive or
`its affiliates communicated with the Company and informed the Company that the
`Company was obligated to indemnify Perceptive for defending the New York Action
`and, therefore, the Company was aware the New York Action was being litigated in
`New York. Bartasi Aff. ¶ 10.
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`The amended Credit Agreement between Perceptive and the Company
`entered into in connection with the events alleged in the complaint in the New York
`Action provides that the Company will indemnify Perceptive for any costs and
`expenses incurred relating to the Transactions contemplated, which includes the
`Series E financing. Compl. Ex. 12. Section 14.03(b)(ii), provides that:
`Each Obligor, jointly and severally, hereby
`indemnifies the Agent, each Lender, each of their
`respective successors, transferees and assigns and each of
`their respective Affiliates, directors, officers, employees,
`attorneys, agents, advisors and controlling parties (each,
`an “Indemnified Party”) from and against, and agrees to
`hold them harmless against, any and all Claims and
`Losses of any kind (including reasonable fees and
`disbursements of counsel), joint or several, that may be
`incurred by or asserted or awarded against any
`Indemnified Party, in each case arising out of or in
`connection with or relating to any investigation, litigation
`or proceeding (each, a “Proceeding”) or the preparation
`of any defense with respect thereto arising out of or in
`connection with or relating to this Agreement or any of
`the other Loan Documents or the Transactions or any use
`made or proposed to be made with the proceeds of the
`Loans, whether or not such Proceeding is brought by any
`Obligor, any of its Subsidiaries, any of its shareholders or
`creditors, an Indemnified Party or any other Person, or an
`Indemnified Party is otherwise a party thereto, and
`whether or not any of the conditions precedent set forth
`in Section 6 are satisfied or the other transactions
`contemplated by this Agreement are consummated,
`except to the extent such Claim or Loss is found in a final,
`non-appealable judgment by a court of competent
`jurisdiction to have resulted from such Indemnified
`Party’s gross negligence or willful misconduct.
`Compl. Ex. 12 (p. 101 of the internal pagination; p. 122 of the pdf exhibit). The
`Company is an Obligor and Perceptive is an Indemnified Party. The Company
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`agrees to indemnify for actions related to the “Transactions,” which, through the
`chain of definitions noted above, encompasses the Series E Financing transaction.
`Bartasi’s understanding is that Perceptive notified the Company of the New
`York Action pursuant to the amended Credit Agreement, that she had sued
`Perceptive in the New York Action and Perceptive made a claim for indemnification
`relating to the New York Action. Bartasi Aff. ¶ 12.
`Based on Bartasi’s experience at the Company, including on its board of
`directors and her experience interacting with representatives of Perceptive, Bartasi
`believes Ellen Hukkelhoven of Perceptive would have participated in the
`communications on behalf of Perceptive and that the other members of the
`Company’s board of directors, Tara Comonte, Rivka Friedman, Kathy Harris, Linda
`Mintz and Theresa Sexton would be made aware of the fact that Perceptive was
`making a claim for indemnification and requesting the Company notify its D&O
`carrier of the New York Action. Bartasi Aff. ¶ 13. To date, the Perceptive Plaintiffs
`have not located and produced a single responsive, non-privileged document. For
`their part, the Kindbody Plaintiffs refused to even search.
`On October 1, 2025, Bartasi amended her complaint in New York. She added
`defendants, but the gravamen of her complaint remained the same: under New York
`law, her Separation Agreement was void and unenforceable along with the release
`contained in that agreement. A redline of the complaint filed on May 30, 2025
`compared to the version filed on October 1, 2025, is attached as Exhibit D.
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`II. This Action
`The Perceptive Group filed this action seeking an anti-suit injunction and
`was quickly joined by the Kindbody Group. The complaint in this action claims that
`the filing of the amended complaint on October 1, 2025 and the October 3, 2025
`request for an injunction in New York triggered Bartasi’s obligation to litigate in
`Delaware.
`On October 15, 2025, Bartasi served discovery requests consisting of three
`interrogatories and two requests for production. Plaintiffs’ responses are attached
`hereto as Exhibits F (Perceptive RFP Response), G (Kindbody RFP Response), H
`(Perceptive Interrogatory Response) and I (Kindbody Interrogatory Response). The
`Kindbody Group flatly refused to conduct any search for documents. The Perceptive
`Group claimed to have conducted a search but located no documents responsive,
`non-privileged documents.
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`ARGUMENT
`A preliminary injunction may be granted only where the movant has shown:
`(1) a reasonable probability of success on the merits; (2) an imminent threat of
`irreparable injury; and (3) that the balance of equities tips in favor of granting the
`requested relief. In re Massey Energy Co., 2011 WL 2176479, at *17 (Del. Ch. May
`31, 2011).
`There are additional, substantial hurdles for a plaintiff to obtain an anti-suit
`injunction. “Anti-suit injunctions . . . are disfavored, for reasons of comity. . . . [They]
`‘should be entered sparingly,’ and ‘only where there is clear evidence of the
`threatened irreparable harm, equity supports the injunction, the relief will be
`effective, and comity has been fully exercised.’” Pentwater Cap. Mgmt. LP v. Kaz,
`2022 WL 1052347, at *4 (Del. Ch. Apr. 8, 2022) (quoting Conduent State Healthcare,
`LLC v. ACE Am. Ins. Co., 2022 WL 414597, at *2 (Del. Ch. Feb. 10, 2022)). The
`Court will not grant an anti-suit injunction based on a forum selection clause unless
`“the language selected makes it absolutely clear the parties believed that [this]
`court should forever be the only forum for resolving a dispute.” SPay, Inc. v. Stack
`Media, Inc., 2021 WL 11091, at *2 (Del. Ch. Mar. 23, 2021) (quoting Eisenbud v.
`Omnitech Corp. Sols, Inc., 1996 WL 162245, at *2 (Del. Ch. Mar. 21, 1996)).
`Plaintiffs have not met their burden. The Separation Agreement contains no
`such “absolutely clear” forum selection provision selecting Delaware. To the
`contrary, in responding to Plaintiffs’ request for a preliminary injunction Bartasi
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`shows that this action should be dismissed or stayed in favor of the New York
`Action.
`I. The Court Should Not Grant the Anti-Suit Injunction Because of the
`McWane Doctrine
`McWane is the proper framework when a forum selection clause does not
`dictate Delaware jurisdiction. See Ingres Corp. v. CA, Inc., 8 A.3d 1143, 1145
`(Del. 2010) (holding that McWane is the default common law). Under the McWane
`doctrine, the Court has discretion to stay litigation and should exercise its
`discretion “freely” to grant a stay where, as here, “there is a prior action pending
`elsewhere, in a court capable of doing prompt and complete justice, involving the
`same parties and the same issues[.]” McWane Cast Iron Pipe Corp. v. McDowell-
`Wellman Eng’g Co., 263 A.2d 281, 283 (Del. 1970). The McWane doctrine “avoid[s]
`the wasteful duplication of time, effort, and expense that occurs when” litigation on
`the same subject proceeds in more than one jurisdiction. Id.; see LG Elecs., Inc. v.
`InterDigital Commc’ns., Inc., 114 A.3d 1246, 1252 (Del. 2015). It also avoids the risk
`“of inconsistent and conflicting rulings and judgments.” McWane, 263 A.2d at 283.
`“In applying the McWane factors, the Court must consider the following: (1) is there
`an earlier-filed action pending in another jurisdiction related to the Delaware
`action; (2) does that other action involve the same parties and the same issues; and
`(3) is the foreign court capable of doing prompt and complete justice.” Sagarra
`Inversiones, S.L. v. Cementos Portland Valderrivas, S.A., 2011 WL 3371493, at *6-
`7 (Del. Ch. Aug. 5, 2011) (citation omitted). These factors support denial of the
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`motion for anti-suit injunction and dismissal or stay of this action in favor of the
`New York Action.
`A. McWane Applies Because the Separation Agreement Does Not
`Contain a Forum Selection Clause
`Bartasi initiated the New York Action to resolve an issue arising solely out
`of and relating to the Separation Agreement, its enforceability. The Separation
`Agreement has no forum selection clause and contains a New York choice of law
`provision. Compl. Ex. 6, § 22.
`The choice of law provision in the Separation Agreement explicitly separates
`itself from other agreements, including those the Plaintiffs now say dictate a
`Delaware forum: “For purposes of clarity, the Support and Standstill Agreement,
`your equity agreements, your Indemnification Agreement and other applicable
`referenced agreements in this Agreement shall be construed and interpreted in
`accordance with the terms of those agreements, respectively.” Compl. Ex. 6, § 22.
`Plaintiffs’ argument assumes that any dispute occurring after the Series E
`Financing somehow “relates to” those transactional agreements indefinitely. But
`the Purchase Agreement, Voting Agreement, and Support and Standstill
`Agreements governed the parties’ rights and obligations in connection with
`consummating the Series E Financing, a transaction that has long-since closed. The
`present dispute instead arises from the Separation Agreement, which governs
`Bartasi’s departure and contains its own New York choice of law provision. The
`rights at issue today are the rights Bartasi was coerced to relinquish when she
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`signed that New York employment document, not the pre-closing rights already
`exercised under the Series E Financing agreements.
`Further underscoring Plaintiffs’ intent, Section 7 of the Separation
`Agreement —the “Release” provision—lists numerous New York employment
`related statutes, including the New York State Human Rights Law, the New York
`Executive Law, the New York Civil Practice Law and Rules, the New York Judiciary
`Law, the New York Labor Law, the New York Civil Rights Law, the New York
`Administrative Code, the New York City Human Rights Law, among others. Compl.
`Ex. 6, § 7. These New York statutory references confirm that the Separation
`Agreement is an employment document governed by New York law, not a Delaware
`corporate instrument, and that disputes over its enforceability are properly for the
`New York courts.
`Furthermore, the Separation Agreement was drafted by the Company and its
`counsel. The Company therefore had every opportunity to include a Delaware forum
`selection clause, as it did in its other corporate documents. Instead, it selected New
`York law, enumerated New York employment statutes, and omitted any reference
`to Delaware. Plaintiffs cannot now rewrite their own contract to import a Delaware
`forum they chose to exclude.
`In the Motion to Dismiss filed in New York, Perceptive admitted that New
`York law applies to the dispute. Ex. C, p. 14 (“Under New York law—which governs
`the Separation Agreement . . .”). This is important because the choice of law is
`necessarily tethered to the forum provisions in the various agreements. The
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`agreements Plaintiffs cite for a forum selection provision all choose Delaware law.
`By recognizing New York law applied to the New York Action, the Perceptive Group
`recognized the Separation Agreement controlled. It is undisputed the Separation
`Agreement contains no forum selection provision selecting Delaware, let alone one
`that is “absolutely clear” as Plaintiffs need to show to obtain an anti-suit injunction.
`Bartasi’s request in the New York Action is for the court to determine
`whether the Separation Agreement is valid under New York law, an issue
`Perceptive previously agreed was governed by New York law. To avoid doubt, on
`October 17, 2025, Bartasi proposed a stipulation (the “Proposed Stipulation”) with
`Plaintiffs pursuant to which Bartasi would only litigate this New York law issue
`not governed by a forum selection clause in New York. Bartasi committed to
`litigating only the “(i) validity, enforceability, voidness, or rescission (or similar
`doctrines) of the Separation Agreement by and between Kindbody, Inc. and Gina
`Bartasi, dated as of December 19, 2024 and related employment law issues; (ii) any
`damages flowing from the matters within the scope of the foregoing clause (i)” in
`the New York Action.
`She further proposed to stipulate that “if the Separation Agreement and the
`release therein is found by the New York Supreme Court invalid, unenforceable,
`void or subject to rescission under New York law such that Bartasi is not prohibited
`from making underlying claims that would otherwise have been subject to the
`release contained in the Separation Agreement and such underlying claims fall
`within the scope of an applicable forum selection provision choosing a Delaware
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`forum, then Bartasi shall comply with such forum selection provisions and may not
`bring an action to enforce such underlying claims in any forum other than
`Delaware.” D.I. 42, Ex. B.
`Plaintiffs could similarly propose to agree that the New York court may
`declare the Separation Agreement void and then seek to ensure that any subsequent
`claims relating to the Series E Financing are litigated in the appropriate forum.
`This potential procedural maneuver only reinforces why the New York court,
`already applying New York law to the Separation Agreement, should be permitted
`to determine its own jurisdiction and the agreement’s enforceability in the first
`instance. There is no justification for this Court to intervene preemptively.
`The claims that Bartasi is seeking to pursue in the New York Action are
`simply whether the Separation Agreement is enforceable and which relief is directly
`related to such determination. Bartasi is not bringing an internal affairs breach of
`fiduciary duty claim. She is arguing the breach of those duties was the factual
`predicate of the resulting economic duress which rendered the Separation
`Agreement unenforceable under New York law.
`Determinations such as whether the Separation Agreement is void or merely
`voidable—that is, whether it ever created enforceable obligations in the first place—
`is a question governed by New York law. Determining whether that contract ever
`came into legal existence is a threshold issue for the New York court.
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`B. The New York court is Capable of Doing Prompt and Complete
`Justice
`As a matter of com