OLIVER AND COMPANY, et al. v. DR. RONALD ZAMBER, et al.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

OLIVER AND COMPANY, et al., )

)

Plaintiffs, )

)

vs. ) Case No. 4:25-cv-00132-MTS

)

DR. RONALD ZAMBER, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on three Motions filed by Defendant Dr. Ronald Zamber,

Defendant Robert Grenley, and Defendant Visionary Fund Manager, LLC (together,

“Defendants”): (1) their Motion to Strike the Third Amended Complaint, Doc. [187]; (2) their

Motion to Dismiss Plaintiffs’ Fraud Claims, Doc. [201]; and (3) their Motion for Judgment on the

Pleadings as to Plaintiffs’ Fiduciary Duty Claims, Doc. [190]. The Motions are fully briefed and

ready for decision. See Docs. [198], [200], [215]. For the reasons that follow, the Court will deny

all three.

I. Factual Background1

Visionary Private Equity Group I, LP is a Missouri limited partnership marketed as

Visionary Private Equity Group (“VPEG” or “the Fund”). Doc. [177] ¶ 1. Defendant Dr. Ronald

Zamber (“Zamber”) is its Chairman, Senior Managing Director, and Founding Partner. Id. ¶ 28.

1 Because the Court will decline to strike Plaintiffs’ Third Amended Complaint (“TAC”), the Court accepts as true the

facts alleged therein for purposes of these Motions. See Saterdalen v. Spencer, 725 F.3d 838, 840 (8th Cir. 2013).

The Court properly considers the documents attached thereto. See Quinn v. Ocwen Fed. Bank FSB, 470 F.3d 1240,

1244 (8th Cir. 2006) (“[A] court ruling on a motion to dismiss under Rule 12(b)(6) may consider material attached to

the complaint.”); see also Gorog v. Best Buy Co., 760 F.3d 787, 791 (8th Cir. 2014) (“[D]ocuments necessarily

embraced by the complaint are not matters outside the pleading.”).

Defendant Robert Grenley (“Grenley”) is its Director of Capital Development, id. ¶ 29, and

Defendant Michael Cosby (“Cosby”) served as its Senior Managing Director and General Counsel

until his resignation, id. ¶ 30.2 Defendant Visionary Fund Manager, LLC (“VFM”), holds “the

power to manage and direct the Portfolio Investments in the Fund,” Doc. [177-4] at 6, and its sole

members are Zamber and Cosby. Doc. [177] ¶ 27. VPEG is advertised as “a private equity group

that invests in early stage, high growth companies that have strong management teams and the

potential for significant upside.” Id. ¶ 34. VPEG represents that it is managed by a team “of highly

respected professionals with a unique blend of private equity, investment banking, legal, medical,

oil & gas, internet technology and operating experience that play an active role ensuring that [its]

portfolio companies have a sound operating and capital strategy.” Id. ¶ 35.

Plaintiffs are a subset of limited partners who have invested roughly $11 million in VPEG.

Id. ¶ 4. Limited partners like Plaintiffs invest in the Fund via subscription agreements, which

entitle them to one limited partnership share for each dollar contributed. Id. ¶ 39.3 Plaintiffs made

their initial investments from 2018 through 2023, id. ¶ 137, based on the Individual Defendants’

“representations regarding their experience in the private equity space, investment banking, legal,

medical, oil & gas, and internet technology spaces.” Id. ¶¶ 4, 38. In reality, the Individual

Defendants lack such skills and experience. Id. ¶¶ 35–36. In addition, Zamber and Grenley

induced further investments from Plaintiffs, acquired short-term loans, and retained Plaintiffs’

initial investments by touting VPEG’s financial health and making “frequent statements that

additional distributions were forthcoming soon.” Id. ¶ 45. The Individual Defendants also made

2 The Court refers to Zamber, Grenley, and Cosby, together, as the “Individual Defendants.”

3 Plaintiffs allege that “at some time no later than 2023 and continuing into 2024, at the behest of the Individual

Defendants, VPEG began offering units at a $0.67/unit price . . . instead of the $1.00/unit purchase price offered to

most investors” for the Individual Defendants’ “own benefit” and to “cover for [their] misconduct.” Doc. [177] ¶¶ 72–

73.

statements that “grossly exaggerated the performance of various portfolio companies and the

Fund,” and those statements “were intended to cause Plaintiffs to continue to invest in and lend

money to VPEG.” Id. ¶ 96.

For example, during a September 2022 meeting in South Bend, Indiana, Zamber and

Grenley represented that “there was no debt at the Fund level,” and “falsely stated that a

distribution was forthcoming” at the end of that year. Id. ¶ 46. Similarly, Zamber and Grenley

made a presentation at the Plaintiffs’ annual trustee board meeting in March 2023 and “asserted

that a distribution was ‘right around the corner,’ to be made within the next six to nine months.”

Id. ¶ 47. Following each of these meetings, Zamber and Grenley solicited short-term loans from

Plaintiffs, stating that “VPEG would use to invest in the Fund and for expenses.” Id. ¶ 40, 46–47.

Instead, the Individual Defendants paid at least a portion of the loan amounts to themselves. Id.

¶ 40. Further, Zamber and Grenley insisted that these loans would be repaid shortly, but the loans

remain unpaid. Id. ¶¶ 46–47. In March 2024, the Individual Defendants prepared investor

presentations stating that VPEG had paid $5.8 million dollars to limited partners via prior

distributions. Id. ¶ 48.4 Mere months later, in June 2024, a subsequent investor presentation

explained that the Fund had paid $9.1 million in distributions. Doc. [177] ¶ 48, 7.5

Notwithstanding the $3.3 million disparity, certain Plaintiffs received “their only distributions in

September 2021 totaling $310,011.00.” Id. ¶ 44.

4 The Limited Partnership Agreement (“LPA”) contemplates distributions paid to limited partners. These payments

may be made at the general partner’s discretion, Doc. [177-4] at 9, “in proportion to the [limited partners’] respective

Memorandum Accounts,” Doc. [177] ¶ 43, which track the accrual of each limited partner’s unreturned capital

contributions, Doc. [177-4] at 25.

5 A $9 million distribution amount is apparently reflected in VPEG’s 2021 tax return. Doc. [177] ¶ 9.

The LPA requires VPEG’s officers to “keep or cause to be kept complete and appropriate

records and books of account” documenting the Fund’s “operations, business and affairs.” Doc.

[177-4] at 11. According to the LPA, these records “shall be subject to an annual audit by an

independent certified public accountant.” Id. “[A]ll such books and records shall be available for

inspection and copying at the reasonable request . . . of any Partner.” Id. Contrary to those

provisions, the Individual Defendants “never permitted an annual audit,” Doc. [177] ¶ 53, and

since 2021, the Individual Defendants have refused access to VPEG’s financials, id. ¶ 56.

Plaintiffs have repeatedly requested audited financial statements for the Fund to no avail. Id. ¶ 58–

59.

Plaintiffs allege that the Individual Defendants have withheld this information to conceal

their misconduct and mismanagement of VPEG, id. ¶¶ 2, 56, including the fact that, from 2020

until the present, the Individual Defendants have appropriated over $7 million of VPEG funds to

pay themselves. Id. ¶ 3.6 Payments have also been made to “people with whom Zamber had

personal relationships [but] . . . provide no services to the Fund.” Id. ¶ 78. And VPEG funds have

been used to cover unrelated business expenses, specifically $30,000 to cover payroll and other

expenditures at Zamber’s eye clinic. Id. ¶ 80. Zamber and Cosby approved, authorized, and

executed each of these improper payments. Id.

The Individual Defendants “have also failed to report” that several of the Fund’s portfolio

companies are struggling or defunct. Id. ¶ 74. For example, Pop Gourmet has “failed to pay its

employees and vendors among other bills,” and its assets were recently noticed for a sheriff sale,

id. ¶ 76, but the promotional materials that the Individual Defendants prepared tell a much different

story. See Doc. [177-1] at 11 (projecting a $2.8 million dollar revenue in 2024 and a $5.8 million

6 Zamber has received over $5.2 million, Cosby has received over $1 million, and Grenley has received over $800,000.

Id. ¶ 3.

dollar revenue in 2025). Visionary Media Group, the largest holding in VPEG’s portfolio, has had

many of its advisors, contractors, and vendors resign or stop services because of non-payment

totaling hundreds of thousands of dollars. Id. ¶ 81. In addition, VPEG has invested over $5 million

in Navitus Energy Group, but upon information and belief, Plaintiffs allege that the entity has sold

several oil wells backing VPEG’s investment. Id. ¶ 82–83.

Nor have the Individual Defendants reported VPEG’s own corporate woes. VPEG has

failed to pay its rent for its corporate office. Id. ¶ 86. VPEG has also failed to pay its contractors,

some of whom “have reported that they are owed anywhere from $65,000 to $150,000” in backpay

and expenses. Id. ¶ 87. And VPEG is listed as the debtor related to a lien filed by Wolters Kluwer

Lien Solutions on November 12, 2024. Id. ¶ 85. The security pledged as collateral for VPEG’s

obligation includes all its assets as of the enforcement date of the security instrument. Doc. [177-6]

at 4. Yet again, promotional materials prepared by the Individual Defendants paint a much

different picture, including $11.8 million in capital raised during an eighteen-month period from

2023 to 2024. See Doc. [177-1] at 5 (explaining that the Fund “attracted $6.2 million in additional

capital in 2023” and saw its “annualized 2023 [Assets Under Management] appreciate by 21.8%

on a Mark-to-Market basis”); Doc. [177-2] (claiming VPEG acquired $5.4 million in new capital

during the first half of 2024).

II. Procedural History

Plaintiffs initiated this action on January 31, 2025. Doc. [1]. By April 02, 2025, Plaintiffs

had amended their Complaint twice-over, Docs. [10], [12], sought and received expedited

discovery, Doc. [39], and filed a Motion seeking the appointment of a Receiver pendente lite, Doc.

[47]. Soon after, Defendants entered their appearance and moved to dismiss for lack of subject-

matter jurisdiction. The Court ordered expedited briefing and held a consolidated hearing on April

28, 2025. Based on the parties’ written submissions and the evidence presented, the Court

dismissed Plaintiffs’ derivative claims without prejudice,7 exercised diversity jurisdiction over

Plaintiffs’ direct claims, and appointed Jason Buhlinger as Receiver over the Fund. Doc. [88] at

23, 2025 WL 1580288, at *11. On June 24, 2025, Defendant VFM appealed the Court’s

appointment of Receiver Buhlinger to the U.S. Court of Appeals for the Eighth Circuit. Doc.

[100].

The next day, the Defendants Zamber, Grenley, and VFM filed a Motion to Dismiss the

action for failure to join Visionary PE GP I, LLC (“GP LLC”)—designated as VPEG’s sole

General Partner—as an indispensable party. Doc. [104]; see Doc. [177-4] at 4. GP LLC filed a

corresponding Motion to Intervene as matter of right. Doc. [94]. The Court held a hearing and

denied both Motions on August 04, 2025.8 During the hearing, Plaintiffs represented that the

Court’s prior dismissal of their derivative claims “change[d] some of the relief that [Plaintiffs] can

and will seek” in this matter. Doc. [170] at 43. Plaintiffs also indicated their desire to add claims

for fraud. Id. Accordingly, the Court granted Plaintiffs leave to file a Third Amended Complaint

to clarify the relief sought and add their desired claims. Id. During the hearing, none of the

Defendants objected to the Court’s grant of leave.

GP LLC appealed the denial of its Motion to Intervene on August 20, 2025. Doc. [162].

The Eighth Circuit has consolidated both VFM and GP LLC’s interlocutory appeals, and they

remain pending. Clerk Order Consolidating Appeals, Oliver & Co. v. Visionary Fund Manager,

7 Because a corporate entity is the real party in interest to a derivative claim, and because a limited partnership’s

citizenship is equivalent to citizenship of its limited partners for purposes of subject-matter jurisdiction, the Court

concluded that it could not exercise diversity jurisdiction over Plaintiffs’ derivative claims because VPEG and

Plaintiffs have identical states of citizenship. Doc. [88] at 14–15, 2025 WL 1580288, at *6–7.

8 The Court concluded that it could provide meaningful relief between the present parties. Doc. [170] at 54. The

Court also found that GP LLC’s interests were adequately represented by the named Defendants because Zamber and

Cosby are its sole members, id. at 55–56. Accordingly, GP LLC was neither a necessary party under Federal Rule of

Civil Procedure 19, nor an appropriate intervenor under Rule 24, id. at 57.

LLC, No. 25-2269 (8th Cir. Sep. 23, 2025). On September 05, 2025, Plaintiffs filed their Third

Amended Complaint (“TAC”), which asserts four counts: (1) Breach of Fiduciary Duty against all

Defendants; (2) Fraudulent Inducement against all Defendants; (3) Negligent Misrepresentation

against all Defendants; and (4) a claim for an Accounting against Zamber, Grenley, and Cosby.

Plaintiffs seek a wide variety of relief, including compensatory damages, punitive damages,

attorney’s fees and costs, injunctive relief, including removal of the Individual Defendants from

their roles in the Fund and the appointment of a receiver to manage the fund pendente lite and on

a permanent basis, an order for an accounting, and “disgorgement of all compensation or other

funds paid to Defendants by the Fund.” Doc. [177] at 30–31.

Now, Defendants seek to strike the TAC, arguing that the ongoing interlocutory appeals

prohibit an amended complaint. Doc. [187] at 5–6. Subject to their Motion to Strike, Defendants

move to dismiss Plaintiffs’ fraud claims on the ground that they are inadequately pleaded. Doc.

[201] ¶¶ 3–4. Defendants also move for judgment on the pleadings as to Plaintiffs’ fiduciary-duty

claims because certain exculpation provisions in the LPA preclude them. Doc. [191] at 4. The

Court addresses each of these items in turn.

III. Discussion

A. Defendants’ Motion to Strike the TAC

Defendants argue that the Court must strike Plaintiffs’ TAC because it impermissibly

“alter[s] the status of the interlocutory appeals in this case.” Doc. [188] at 5. More specifically,

by removing VPEG as a nominal party listed in the caption and deleting the now-dismissed

derivative claims, Defendants contend that the TAC displaces several jurisdictional arguments that

VFM has raised before the Eighth Circuit. Id. at 4. Plaintiffs disagree, arguing that “the TAC does

nothing to disturb or affect the issues that [Visionary Fund Manager, LLC] has raised on appeal.”

Doc. [198] at 4. The Court concludes that Plaintiffs have the better part of the argument.

The filing of a notice of appeal is a matter of “jurisdictional significance” because it

“confers jurisdiction on the court of appeals and divests the district court [of] its control over those

aspects of the case involved in the appeal.” Liddell by Liddell v. Bd. of Educ. of City of St. Louis,

73 F.3d 819, 822 (8th Cir. 1996) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56,

58 (1982)). But district courts retain jurisdiction “with respect to any matter not involved in the

appeal.” Janousek v. Doyle, 313 F.2d 916, 920 (8th Cir. 1963) (per curiam); accord Plotkin v.

Pac. Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982) (“[I]t is firmly established that an appeal

from an interlocutory order does not divest the trial court of jurisdiction to continue with other

phases of the case.” (citing Ex parte Nat’l Enameling & Stamping Co., 201 U.S. 156, 162 (1906))).

Here, Defendants fail to show that the TAC has any material overlap with the aspects of

the case that are now before the Eighth Circuit. VFM has appealed the Court’s appointment of

Receiver Buhlinger pursuant to 28 U.S.C. § 1292(a)(2), which provides appellate jurisdiction over

“orders appointing receivers.” The key question in VFM’s interlocutory appeal, then, is whether

the Court abused its discretion when appointing Receiver Buhlinger in this matter. See Morgan

Stanley Smith Barney LLC v. Johnson, 952 F.3d 978, 981 (8th Cir. 2020) (standard of review).

Nothing in the TAC interferes with or disturbs VFM’s appeal because the TAC in no way relates

to the Court’s analysis of the record, its consideration of the relevant factors, and its determination

that the extraordinary circumstances in this case warranted Mr. Buhlinger’s appointment. Doc.

[88] at 17–22, 2025 WL 1580288, at *8–11.

Further, Defendants’ argument that the TAC “moots” certain jurisdictional arguments on

appeal, Doc. [188] at 4, is incorrect. True, the TAC removes mention of VPEG as a nominal party

in the case, and it deletes Plaintiffs’ now-dismissed derivative claims. But neither circumstance

prevents Defendant VFM from arguing—and the Eighth Circuit from later finding—that VPEG is

a diversity-destroying, real party in interest to this lawsuit based on the nature of Plaintiffs’ direct

claims and the corresponding relief that Plaintiffs have sought. See, e.g., Cent. Rsrv. Life of N.

Am. Ins. Co. v. Struve, 852 F.2d 1158, 1161 n.5 (9th Cir. 1988) (concluding that an unnamed

defendant was a real party in interest that rendered diversity jurisdiction “unavailable as a basis

for federal jurisdiction”). Indeed, Defendants’ argument ignores the well-settled principle that a

court’s assessment of its own jurisdiction is not tethered to the operative complaint. See Herden

v. United States, 726 F.3d 1042, 1046 (8th Cir. 2013) (en banc) (explaining that courts “may look

outside the pleadings to determine the threshold question of jurisdiction”).

One loose end remains, whether the TAC impermissibly overlaps with or effects GP LLC’s

intervention-related appeal.9 When ruling on a Motion to Intervene, “a court focuses its

intervention analysis on the underlying pleadings.” Nat’l Parks Conservation Ass’n v. U.S. E.P.A.,

759 F.3d 969, 974 (8th Cir. 2014). It “should assume the plaintiff will receive the relief it seeks

and, from that assumption, assess the sufficiency of the prospective intervenor’s motion.” Id. at

973. On appeal, a district court’s “intervention determinations” are reviewed de novo. Id. at 974.

Here, even though the TAC alters some of the relief Plaintiffs seek in this case, compare Doc. [12]

at 32–33 (Second Amended Complaint), with Doc. [177] at 30–31 (TAC), GP LLC’s appeal does

not prohibit these changes, given the specific “intervention determinations” that are under

appellate review, Nat’l Parks, 759 F.3d at 974. Whatever the relief sought in this lawsuit and

whatever the interests implicated as a result, the Court denied GP LLC’s Motion to Intervene

9 Defendants make no specific argument on this score, but the Court properly addresses this jurisdictional matter on

its own. See Mires v. United States, 466 F.3d 1208, 1211 (10th Cir. 2006) (“A federal court must, in every case and

at every stage of the proceeding, satisfy itself as to its own jurisdiction.” (citation modified)).

because its interests are adequately protected by the named Defendants. Doc. [170] at 55–56

(concluding based on the factual record that Zamber and Cosby are the sole members of GP LLC).

Thus, the TAC does not interfere with the specific “aspects of the case involved in the appeal.”

Liddell, 73 F.3d at 822.10 Therefore, for all these reasons, the Court will deny Defendants’ Motion

to Strike, and the TAC remains the operative Complaint in this matter.

B. Defendants’ Motion to Dismiss Plaintiffs’ Fraud Claims

The Court proceeds to consider Defendants’ Motion to Dismiss, which argues that the fraud

allegations in the TAC fail to meet the pleading requirements of Federal Rule of Civil Procedure

9(b). Doc. [201]. Accordingly, Defendants seek dismissal of Plaintiffs fraud claims pursuant to

Rule 12(b)(6). Id. To survive such a motion, “a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Glick v. W. Power Sports,

Inc., 944 F.3d 714, 717 (8th Cir. 2019). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. “[T]he complaint should be read as a whole, not parsed piece by

piece to determine whether each allegation, in isolation, is plausible.” Braden v. Wal-Mart Stores,

588 F.3d 585, 594 (8th Cir. 2009). When undertaking this analysis, the Court accepts the

Complaint’s well-pleaded facts as true and draws all reasonable inferences in Plaintiffs’ favor.

Davis v. Wash. Univ. in St. Louis, 960 F.3d 478, 483 (8th Cir. 2020).

Rule 9(b) imposes a “heightened pleading standard” for fraud claims. Summerhill v.

Terminix, Inc., 637 F.3d 877, 880 (8th Cir. 2011) (“[A]llegations of fraud . . . must be pleaded

10 Defendants’ cited cases are distinguishable because, in each one, the interlocutory appeal was taken from the denial

of an immunity-premised motion to dismiss. In those instances, each interlocutory appeal was based on whether the

allegations in the original complaint entitled a government-officer defendant to immunity from suit, so both district

courts lacked jurisdiction to accept an amended complaint that changed those allegations while the appeals were

pending. Compare Wooten v. Roach, 964 F.3d 395, 403 (5th Cir. 2020) (prosecutorial and official immunity), with

May v. Sheahan, 226 F.3d 876, 879–80 (7th Cir. 2000) (qualified immunity).

with particularity.” (citation omitted)). To comply, the pleading must include details such as “the

time, place, and content of the defendant’s false representations, as well as the details of the

defendant’s fraudulent acts, including when the acts occurred, who engaged in them, and what was

obtained as a result.” United States ex rel. Joshi v. St. Luke’s Hosp. Inc., 441 F.3d 552, 556 (8th

Cir. 2006). Put another way, the complaint must allege the “who, what, where, when, and how”

of the alleged fraud. Ascente Bus. Consulting, LLC v. DR myCommerce, 9 F.4th 839, 845 (8th Cir.

2021). “When the facts constituting the fraud are peculiarly within the opposing party’s

knowledge, however, such allegations may be pleaded on information and belief.” Ambassador

Press, Inc. v. Durst Image Tech. U.S., LLC, 949 F.3d 417, 421 (8th Cir. 2020). The “critical

inquiry” is whether the allegations supply a defendant with “enough information to adequately

respond and prepare a defense.” Id.11

The Court concludes that the factual allegations in the TAC are sufficient under Rule 9(b).

To be sure, some of Plaintiffs’ allegations describe Defendants’ wrongdoing in general terms. See,

e.g., Doc. [177] ¶ 2, 45. But the TAC also contains specific factual allegations that, taken as a

whole, adequately particularize Defendants’ alleged fraud. See id. ¶¶ 36–38; 46–47; 54–55, 59,

62–63 (describing how Zamber, Grenley, and Cosby—both individually and when acting on behalf

of VFM—made specific verbal and written statements that falsely exaggerated the performance of

VPEG’s portfolio companies, misstated VPEG’s debts, and lied about the impending nature12 of

11 Under Missouri law, a fraud claim has nine essential elements: (1) a representation; (2) its falsity; (3) its materiality;

(4) the speaker’s knowledge of its falsity, or ignorance of its truth; (5) the speaker’s intent that it should be acted on

by the person and in the manner reasonably contemplated; (6) the hearer’s ignorance of the falsity of the

representation; (7) the hearer’s reliance on the representation being true; (8) the hearer’s right to rely thereon; and (9)

the hearer’s consequent and proximately caused injury. Trimble v. Pracna, 167 S.W.3d 706, 712 n.5 (Mo. banc 2005).

12 A defendant is liable for representations of future acts or events when plaintiff proves “that the defendant actually

knew, when making the representation as to a future event or act, that the representation was false.” Stevens v. Markirk

Constr., Inc., 454 S.W.3d 875, 881–82 (Mo. banc 2015).

forthcoming distributions). Plaintiffs also allege that Cosby, at Zamber’s direction, prepared

incomplete financial records that failed to show13 the amount of various liabilities related to VPEG,

the status of VPEG’s portfolio investments, and payments made for the benefit of the Individual

Defendants. See id. ¶¶ 53–56, 59; see also OrthoAccel Techs., Inc. v. Devicix, LLC, 0:15-cv-1503-

DWF-TNL, 2015 WL 4563134, at *3 (D. Minn. July 29, 2015) (finding Rule 9(b) satisfied where

plaintiff “identifie[d] specific statements made by” a corporate officer); Solvay Pharms., Inc. v.

Glob. Pharms., 298 F. Supp. 2d 880, 886 (D. Minn. 2004) (denying motion to dismiss where

plaintiff specified misleading statements in promotional materials). And Plaintiffs have alleged

specific portfolio-company and VPEG-related shortcomings that the Individual Defendants failed

to disclose or otherwise report. Id. ¶¶ 76, 78, 80–81, 83, 85–89.

Plaintiffs allege that these material misrepresentations and omissions occurred (1) during

a September 2022 meeting with the Plaintiffs in South Bend, Indiana, Doc. [177] ¶ 46; (2) during

a March 2023 meeting in Austin, Texas, id. ¶ 47; (3) within March and June 2024 investor

presentations prepared by the Individual Defendants, id. ¶ 48; and (4) within incomplete financial

statements provided to the Plaintiffs in July 2024, id. ¶ 59. Further, Plaintiffs allege that Zamber,

Grenley, and Cosby’s misstatements and omissions caused Plaintiffs to invest in VPEG to the tune

of $11 million and provide specific short-term loans to VPEG. Id. ¶¶ 38, 40, 111–112. According

to the TAC, these values are specified in corresponding promissory notes and subscription

agreements that the Plaintiffs executed. See id. ¶¶ 39–40; see also, e.g., Doc. [177-3] at 20 (setting

forth a January 2023 investment of $55,000). And, by virtue of the Individual Defendants’ level

of control over VPEG, and their superior knowledge of the Fund’s investment practices, id. ¶¶ 94–

95, the TAC’s factual allegations plausibly show that Plaintiffs reasonably relied on Zamber,

13 “[S]ilence or nondisclosure of a material fact” can form the basis of a fraud claim when the omission is “used as an

inducement to another.” Andes v. Albano, 853 S.W.2d 936, 943 (Mo. banc 1993) (Limbaugh, J.)

Grenley, and Cosby’s material misrepresentations and omissions. See Murphy v. Springfield, 794

S.W.2d 275, 288 (Mo. Ct. App. 1990) (explaining that the test for reasonable reliance in a fraud

case is whether plaintiff used “ordinary care” when relying on defendant’s representation).

Taken together, these allegations adequately describe the “who, what, where, when, and

how” of Plaintiffs’ fraud claims. Ascente, 9 F.4th at 845. The TAC enumerates (1) which of the

Individual Defendants allegedly made material misrepresentations and omissions; (2) what

misrepresentations and omissions were made; (3) when, where, and in what context they were

made; (4) how the misrepresentations and omissions induced Plaintiffs; and (5) what injuries were

proximately caused. Rule 9(b) does not require further particulars or specifics under the

circumstances. See United States ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251,

1259 (D.C. Cir. 2004) (joined by Roberts, J.) (explaining that “Rule 9(b) does not require plaintiffs

to allege every fact pertaining to every instance of fraud when a scheme spans several years”); see

also Fed. R. Civ. P. 9(b) (providing that “the conditions of a person’s mind may be alleged

generally”); Lewey v. Vi-Jon, Inc., 4:11-cv-1341-JAR, 2012 WL 1859031, at *3 (E.D. Mo. May

22, 2012) (observing that Rule 9(b)’s requirements are relaxed “when the facts constituting the

fraud are peculiarly within the opposing party’s knowledge” (quoting Drobnak v. Andersen Corp.,

561 F.3d 778, 783 (8th Cir. 2009))). In sum, Plaintiffs’ allegations provide Defendants with

sufficient notice “to adequately respond and prepare a defense.” Ambassador Press, 949 F.3d at

421. Therefore, the Court will deny Defendants’ Motion to Dismiss.14

14 Because Plaintiffs do not assert any claims under federal securities laws, Defendants’ arguments related to the

Private Securities Litigation Reform Act (“PSLRA”), Doc. [202] at 4–7, are unavailing, see, e.g., Dorsey v. Portfolio

Equities, Inc., 540 F.3d 333, 341 (5th Cir. 2008) (“[T]he PSLRA’s stricter scienter requirement does not apply to

state-law fraud claims.”); see also 15 U.S.C. § 77z-2(c)(1) (providing that the PSLRA’s safe harbor provision applies

“in any private action arising under this subchapter” (emphasis added)).

C. Motion for Judgment on the Pleadings as to Plaintiffs’ Claims for Breach

of Fiduciary Duty

The Court next considers Defendants’ Motion for Judgment on the Pleadings. Doc.

[190]. Such relief is appropriate when, after “accepting all facts pled by the nonmoving party as

true and drawing all reasonable inferences from the facts in favor of the nonmoving party, the

movant has clearly established that no material issue of fact remains and that the movant is entitled

to judgment as a matter of law.” Schnuck Markets, Inc. v. First Data Merch. Servs. Corp., 852

F.3d 732, 737 (8th Cir. 2017). Defendants argue that the LPA’s exculpation provision precludes

Plaintiffs’ breach of fiduciary duty claims. Doc. [191] at 4. The Court does not agree.

Defendants assert that the “LPA controls the rights and obligations of the general and

limited partners of Visionary Private Equity Group I LLC [sic],” id. at 2, and they contend that

“Missouri’s Limited Liability Company Act . . . grants limited liability companies the power to

effectively limit or define the scope of fiduciary duties imposed upon an LLC’s members and

managers,” id. at 2 (citing Mo. Rev. Stat. §§ 347.010–347.187). Thus, so the argument goes, the

LPA limits liability here because it “abrogates common law fiduciary duties and sets contractual

standards for performance” for any action or inaction taken on behalf of the Fund, unless it is

“determined by a final non-appealable order . . . to have been primarily caused by the fraud, gross

negligence, or criminal intent of the person claiming exculpation.” Id. at 3; Doc. [177-4] at 7.

As an initial matter, Defendants’ premise is flawed for the simple reason that the Fund is a

limited partnership, not a limited liability company, so the Missouri Limited Liability Company

Act cannot provide a basis for their present argument. See Doc. [177-4] at 1 (establishing VPEG

as “a Missouri Limited Partnership”); cf. 25 Philip G. Louis, Jr., Missouri Practice Series, Business

Organizations § 1.2 (2d ed.) (noting that “there are substantial differences between a corporation,

a partnership, a limited partnership, a registered limited liability partnership, and a limited liability

company”). But even after construing Defendants’ argument through the lens of Missouri

partnership law, see Ebest v. Bruce, 734 S.W.2d 915, 921 (Mo. Ct. App. 1987) (explaining that

the duties of general partners and limited partners are delineated by the “limited partnership

agreement, the Uniform Limited Partnership Law . . . and by reference [to] the Uniform Partnership

Law”), neither the LPA nor its exculpation clause bars Plaintiffs’ fiduciary-duty claims as a matter

of law.15

The fiduciary duties that general partners owe to their limited partners primarily arise out

of the nature of their relationship to one another as well as statutory law. See A.G. Edwards &

Sons, Inc. v. Drew, 978 S.W.2d 386, 394 (Mo. Ct. App. 1998) (Russell, J.) (acknowledging that

fiduciary duties “may arise as a matter of law by virtue of the parties’ relationship”); Ebest, 734

S.W.2d at 922 (“[G]eneral partners are charged by statute and case law with a high fiduciary duty.

Where a general partner of a limited partnership acts with complete control he stands in the same

position to the limited partners as a trustee . . . to a trust.”). That a limited partnership agreement

exists between them does not, as a matter of law, abrogate these duties. See Turner v. Ferguson,

149 F.3d 821, 823 (8th Cir. 1998) (recognizing that a general-partner defendant “owed . . . a

fiduciary duty to his limited partners under the terms of [the applicable] partnership agreement and

also under Missouri law”). Nor does the specific exculpation clause at issue entitle Defendants to

their desired relief. By its terms, the clause does not prohibit liability arising out of “fraud, gross

negligence, or criminal intent.” Doc. [177-4] at 7; see Green Street 2900 Invs. v. St. Louis

Woodworks, Inc., 654 S.W.3d 380, 388 (Mo. Ct. App. 2022) (“It is a court’s duty to give effect to

15 Given the factual allegations in the TAC—and the Court’s factual findings elsewhere—Plaintiffs have demonstrated

that the Individual Defendants, especially Zamber and Cosby, exercise sufficient control over GP LLC and have

engaged in sufficient misconduct such that GP LLC’s fiduciary duties may plausibly be imputed onto them. See, e.g.,

Doc. [177] ¶¶ 94–95; Doc. [88] at 3 n.2; see also NTD I, LLC v. Alliant Asset Mgmt. Co., 337 F. Supp. 3d 877, 887

(E.D. Mo. 2018) (applying Missouri law and setting forth circumstances when the fiduciary duties of a corporate-

entity general partner may be imputed to an individual director).

the plain and ordinary meaning of contractual terms when possible.”). And here, as discussed

above, Plaintiffs’ allegations plausibly support a finding of fraud. See, e.g., Doc. [177] ¶¶ 37; 54-

55, 59, 62-63. In addition, Plaintiffs have plausibly alleged grossly negligent, if not willful,

misconduct on the part of Defendants. See, e.g., Doc. [177] ¶¶ 97–104; see also Sale v. Slitz, 998

S.W.2d 159, 164 (Mo. Ct. App. 1999) (“A limitation of liability provision within a contract is

ineffective in a cause of action where the conduct is willful and wanton.”). Therefore, for all these

reasons, the Court will deny Defendants’ Motion for Judgment on the Pleadings.

IV. Conclusion

The Court will deny Defendants’ Motion to Strike because the TAC does not violate the

jurisdictional divestiture rule related the ongoing interlocutory appeals. The Court will also deny

Defendants’ Motion to Dismiss because the factual allegations in the TAC satisfy the specification

requirements of Federal Rule of Civil Procedure 9(b). And the Court will deny Defendants’

Motion for Judgment on the Pleadings because the LPA does not bar liability for fraudulent,

grossly negligent, or criminal conduct, which Plaintiffs have plausibly alleged.

Accordingly,

IT IS HEREBY ORDERED that Defendant Dr. Ronald Zamber, Defendant Robert

Grenley, and Defendant Visionary Fund Manager, LLC’s Motion to Strike the Third Amended

Complaint, Doc. [187], is DENIED.

IT IS FURTHER ORDERED that Defendant Dr. Ronald Zamber, Defendant Robert

Grenley, and Defendant Visionary Fund Manager, LLC’s Motion to Dismiss Plaintiffs’ Fraud

Claims, Doc. [201], is DENIED.

IT IS FURTHER ORDERED that Defendant Dr. Ronald Zamber, Defendant Robert

Grenley, and Defendant Visionary Fund Manager, LLC’s Motion for Judgment on the Pleadings,

Doc. [190], is DENIED.

IT IS FINALLY ORDERED that Defendant Dr. Ronald Zamber, Defendant Robert

Grenley, and Defendant Visionary Fund Manager, LLC, shall have the prescribed time to respond

to Plaintiffs’ Third Amended Complaint. See Fed. R. Civ. 15(a)(3).

Dated this 16th day of March 2026.

tue

UNITED STATES DISTRICT JUDGE

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