Opinion

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE

In re Chapter 11

NEAR INTELLIGENCE, INC., et al.,1 Case No. 23-11962 (TMH)

Debtors.

DRIVETRAIN, LLC, as Plan

Administrator and Trustee of Near

Intelligence, Inc. et al., Litigation Trust,

Adv. Pro. No. 25-52298 (TMH)

Plaintiff,

v.

MOBILEFUSE, LLC,

Defendant.

MEMORANDUM OPINION

I. Introduction

Between May 2021 and September 2023, companies in the Near Intelligence

group wired more than $25 million to MobileFuse, LLC in sixteen transfers that the

Trustee calls the Sham Payments. On the allegations of the First Amended

Complaint (the “FAC”), the money bought nothing. The invoices behind the

1 The Debtors in these chapter 11 cases, along with the last four digits of their

federal tax identification numbers, to the extent applicable, are Near Intelligence,

Inc. (7857); Near Intelligence LLC (9004); Near North America, Inc. (9078); and

Near Intelligence Pte. Ltd. The Debtors’ headquarters is located at 100 W Walnut

St., Suite A 4, Pasadena, California 91124.

payments were calculated not by anyone at MobileFuse but by Near’s own chief

financial officer, and several were issued in the name of an entity that appears

never to have existed. Some payments traveled through a currency exchange that

exchanged no currency. MobileFuse timed the sums it legitimately owed Near so

that its money went out only after Near’s money came in. When questions loomed,

the parties papered the relationship with a data license agreement drafted in 2022,

backdated to 2020, and signed in 2022. Throughout most of this period, Near’s three

most senior officers secretly held a ten percent stake in MobileFuse through layered

offshore entities, acquired on terms that one of MobileFuse’s founders privately

called a bargain. In the scheme’s final weeks, Near’s insiders also agreed, without

explanation, to let MobileFuse extinguish a $3 million debt for half that amount.

The unraveling was swift. Near withdrew three years of financial statements,

placed the officers on leave, and filed these chapter 11 cases.

The Trustee of the litigation trust created under Near’s confirmed plan now

sues to claw back the money. The First Amended Complaint pleads thirteen counts:

claims to avoid and recover the Sham Payments and the debt settlement as

intentionally and constructively fraudulent transfers, claims for breach of two

agreements that MobileFuse simply stopped paying, a claim for unjust enrichment,

and claims to subordinate and disallow MobileFuse’s claim against the estates.

MobileFuse moves to dismiss every count. It argues that the doctrine of in pari

delicto and the Wagoner rule bar the Trustee at the threshold because Near’s own

officers ran the scheme, that the fraudulent transfer counts lack the plausibility

and particularity the rules demand, that the earliest transfers are time-barred, and

that the remaining counts fail as a matter of law.

The posture matters. Nothing in this opinion decides whether any of this

happened. On a motion to dismiss, the Court accepts the well-pleaded allegations as

true and asks only whether each count, so taken, states a claim on which the

Trustee may proceed to discovery.

The Court takes the threshold defenses first, then the avoidance counts, and

finally the contract, unjust enrichment, and claims-related counts. Neither in pari

delicto nor Wagoner bars any claim. The avoidance powers belong to the Trustee in

its own right, and whether the officers’ fraud may be imputed to Near cannot be

resolved on the face of this complaint. The intentional fraud counts are pleaded with

the particularity that Rule 9(b) requires, the contract and unjust enrichment counts

state claims under any potentially applicable law, the subordination and claim

objection counts may proceed, and no count is untimely. The constructive fraud

counts largely survive as well, with one exception. Constructive fraud is measured

transferor by transferor, and as to one transferor, non-debtor Near Holdco, the FAC

pleads the financial condition of the Near enterprise as a whole and nothing about

Near Holdco itself.

The Court therefore grants the motion as to Counts I and II to the extent

they seek to avoid transfers made by Near Holdco on a constructive fraud theory,

each without prejudice, and denies the motion in all other respects.

II. Background2

On December 8, 2023, Near Intelligence, Inc. (“Near Inc.”), Near Intelligence

LLC (“Near LLC”), Near Intelligence Pte. Ltd. (“Near Singapore”), and Near North

America, Inc. (“Near NA”) (collectively, “Near”) filed petitions under chapter 11.3

This Court confirmed Near’s plan that provided for the establishment of the Near

Intelligence Inc. et al., Litigation Trust that has the authority to bring the claims

here.4 Drivetrain, LLC (the “Trustee”) is the plan administrator and trustee of the

litigation trust.

Prior to filing for bankruptcy, Near’s corporate structure underwent

significant changes that are relevant to the claims in the FAC. First, the operations

of Near Pte. Ltd. (“Near Pte.”), a non-debtor, were moved from Singapore to

California, and its assets were transferred to Near Intelligence Holdings Inc. (“Near

Holdco”), also a non-debtor, as part of an effort to be a more attractive target for a

special purpose acquisition company (“SPAC”) transaction.5 Then, in early 2023,

Near Holdco’s interests and assets were acquired by Near Inc. and vested in Near

LLC through a de-SPAC transaction.6

2 The factual background is drawn from the allegations in the FAC, which are

accepted as true for purposes of this Motion to Dismiss. Fowler v. UPMC Shadyside,

578 F.3d 203, 210–11 (3d Cir. 2009).

3 First Am. Compl. ¶¶ 10–14 (“FAC”) [Adv. D.I. 24].

4 Id. ¶ 10.

5 Id. ¶¶ 23–24.

6 Id.

In late 2019, Near and MobileFuse, LLC (“MobileFuse”) entered into

discussions that culminated in three separate agreements: (i) an agreement for

Near to provide usage to MobileFuse in exchange for monthly minimum fees (the

“2020 Usage Agreement”); (ii) an agreement for MobileFuse to provide services to

Near (the “2020 Services Agreement”);7 and (iii) an agreement for the Near Insiders

(as hereinafter defined) to invest $2 million in MobileFuse in exchange for a ten

percent indirect stake in MobileFuse.8

Uniqequity Pte. Ltd. held the indirect stake. It was wholly owned by

Uniqequity Limited, an entity created by three different companies. The sole

shareholder of each was one of Anil Mathews, a co-founder and the Chief Executive

Officer of Near; Shobhit Shukla, a co-founder and the president of Near; or Rahul

Agarwal, the Chief Financial Officer of Near (collectively, the “Near Insiders”).9 Val

Katayev, a co-founder, former Chief Executive Officer, and managing member of

MobileFuse, considered the deal a “bargain” for Mathews, but “more strategic than

money.”10

The “go-live date” of the 2020 Usage Agreement and 2020 Services

Agreement was delayed to April 1, 2021, at which point both parties were bound by

the terms of the agreements.11 The 2020 Usage Agreement provided that the

7 The 2020 Services Agreement contains a New York choice of law provision (§ 10.3).

8 Id. ¶¶ 25–27.

9 Id. ¶¶ 4, 28.

10 Id. ¶¶ 4, 34.

11 Id. ¶ 29.

monthly minimum fees from MobileFuse to Near were “[u]p to USD 15 Million per

annum by the end of June 2021,” and “[a]t least USD 25 Million per annum

thereafter.”12 In accordance with this agreement, Near invoiced MobileFuse $1.25

million for April 2021.13 For the same month, MobileFuse’s invoice to Near was

$1.19 million, which was calculated not based on services provided by MobileFuse

under the 2020 Services Agreement, but on the amount that Near invoiced

MobileFuse.14 The invoice from MobileFuse was calculated by Agarwal, one of the

Near Insiders, not by anyone at MobileFuse.15 The payments were timed so that

MobileFuse would send its payment only after receiving the payment from Near.16

This invoice and payment pattern continued for each payment made by Near

to MobileFuse (the “Sham Payments”).17 From May 2021 to September 2023, Near

sent MobileFuse over $25 million in Sham Payments, as detailed in the table

below.18

12 Id.; Exhibit A – 2020 Usage Agreement 8 [Adv. D.I. 25.1].

13 FAC ¶ 39.

14 Id. ¶¶ 38–39.

15 Id. ¶ 40.

16 Id. ¶ 41.

17 Id. ¶¶ 38, 44, 46.

18 Id. ¶ 42.

Payor Entity Date Amount

Near Pte. May 27, 2021 $1,185,569.00

Near Pte. June 30, 2021 $1,155,880.00

Near Pte. July 26, 2021 $1,167,917.00

Near Pte. October 20, 2021 $2,765,694.00

Near Pte. January 26, 2022 $1,408,046.00

Near Holdco September 29, 2022 $1,595,040.00

Near Holdco September 29, 2022 $1,250,096.00

Near Singapore February 6, 2023 $4,295,024.00

Near Singapore February 28, 2023 $1,404,533.00

Near Singapore May 11, 202319 $1,369,349.00

Near Singapore June 15, 2023 $1,390,481.00

Near Singapore June 28, 2023 $2,500,000.00

Near Singapore June 28, 2023 $236,195.00

Near Singapore September 13, 2023 $2,500,000.00

Near Singapore September 13, 2023 $250,574.00

Near Singapore September 28, 2023 $1,195,508.00

Total $25,669,906.00

Ken Harlan, a co-founder and the Chief Executive Officer of MobileFuse, and

Matt Sessanta, the Director of Finance of MobileFuse, knew that Near’s payments

were unrelated to any services provided by MobileFuse.20 At no time did MobileFuse

transfer reasonably equivalent value, recognize a debt owing to Near, or offer

repayment for a Sham Payment.21

19 The FAC lists this date as May 11, 2021, but includes the amount in the

calculation of Sham Payments made by Near Singapore between February 6, 2023

and September 28, 2023 in the counts seeking to avoid the Sham Payments. See

FAC ¶¶ 42, 78, 83, 91, 96. This appears to be a scrivener’s error that the parties did

not address. For the purpose of this motion, the court will treat the payment as

being made in 2023.

20 Id. ¶¶ 4, 29, 36.

21 Id. ¶ 46.

Near and MobileFuse made efforts to conceal the Sham Payments. The

payment made on February 6, 2023, for example, was sent from Near to a currency

exchange that transferred the money to MobileFuse without any currency being

exchanged.22 Harlan and Sessanta also assisted the Near Insiders in concealing the

payments by limiting their communications about them to the Near Insiders.23

Additionally, Near and MobileFuse created documents with false information to

support the payments. The invoices that directed payment to MobileFuse

supposedly originated from an entity named MFX Exchange LLC that appears

never to have existed.24 In February 2022, Agarwal directed the Near legal team to

prepare an undated draft of a purported data license agreement between Near and

MobileFuse.25 Agarwal then added the date June 30, 2020, to the document before it

was eventually signed by Mathews and Harlan on March 30, 2022.26 Emails

exchanged between Harlan and Agarwal indicate that both understood that the

purpose of this agreement was to help justify the Sham Payments, even though the

agreement did not require any payments except as stated in specific orders that

never were issued.27

In the course of their relationship, Near and MobileFuse entered into two

agreements other than the 2020 Usage Agreement under which Near provided

22 Id. ¶ 53.

23 Id. ¶ 37.

24 Id. ¶ 54.

25 Id. ¶ 55.

26 Id.

27 Id.

services to MobileFuse in exchange for MobileFuse paying a fixed fee: the Near

Platform Usage Agreement dated January 1, 2022 (the “2022 Usage Agreement”)

and the Near Platform Usage Agreement dated January 1, 2023 (the “2023 Usage

Agreement”).28 Each Usage Agreement superseded its predecessor.29

In July 2023, after Near became publicly traded, the Near Insiders sold back

their MobileFuse stake.30 Shortly thereafter, on August 15, 2023, Harlan emailed

Mathews and Agarwal to give notice that MobileFuse was terminating the 2023

Usage Agreement.31 Under the terms of the 2023 Usage Agreement, MobileFuse

was required to give six months’ notice before it could terminate and, during those

six months, to continue paying its pro rata share of the $18 million annual fee.

Additionally, MobileFuse was required to pay $250,000 for each month remaining

from the date of termination until January 1, 2025.32 MobileFuse had not made any

payments toward the 2023 Usage Agreement, so, by the terms of the agreement,

MobileFuse owed Near $18 million in annual fees for 2023, $3 million in pro rata

annual fees for 2024 with a cancellation date in February 2024, and $2.5 million in

early termination fees.33 In the email, Harlan stated, “MobileFuse will clearly honor

and pay the early termination fee as outlined in the agreement.”34

28 Id. ¶¶ 47–48.

29 Id. ¶ 47.

30 Id. ¶ 59.

31 Id.

32 Id.; Exhibit C – 2023 Usage Agreement 5 [Adv. D.I. 25.3].

33 FAC ¶¶ 61–62.

34 Id. ¶¶ 61, 63.

MobileFuse had also not paid any fees to Near from September 2022 to

December 2022 and owed $6 million under the 2022 Usage Agreement.35 In

September 2023, Near sent two Sham Payments totaling $2,750,574.00 through a

currency exchange, after which MobileFuse sent $3 million to pay fees owed for

September and October 2022.36 The Near Insiders then agreed, without

explanation, that MobileFuse could extinguish its remaining $3 million debt under

the 2022 Usage Agreement by making a $1.5 million payment (the “2023 Dues

Settlement Agreement”).37 Near then paid the final Sham Payment of $1,195,508.00

through a currency exchange, and MobileFuse sent the $1.5 million payment.38 The

agreement did not purport to settle the amounts MobileFuse owed under the 2023

Usage Agreement, and MobileFuse made no payments toward those amounts.39

In October 2023, an internal investigation led to the Near Insiders being

placed on leave by the Near board of directors; Near Inc. then announced that

Near’s “previously issued financial statements . . . should not be relied upon,

including Near’s financial statements as of and for each of the years ended

December 31, 2022, 2021, and 2020 as well as [Near’s] quarterly financial

statements for the periods ended March 31, 2023 and June 30, 2023.”40

35 Id. ¶ 63.

36 Id. ¶ 64.

37 Id. ¶ 65.

38 Id. ¶ 66.

39 Id. ¶ 67.

40 Id. ¶ 68.

Near subsequently filed for bankruptcy, and Near NA listed MobileFuse’s

claim as a nonpriority claim for $724,730.42 in its schedule.41 The Trustee then

brought this adversary complaint. The FAC asserts thirteen counts against

MobileFuse:

 Count I is for the avoidance of constructively fraudulent transfers

under section 548(a)(1)(B)42 for the Sham Payments made in or after

January 2022;43

 Count II is for the avoidance of constructively fraudulent transfers

under section 544(b)(1) for all of the Sham Payment amounts;44

 Count III is for the avoidance of intentionally fraudulent transfers

under section 548(a)(1)(A) for the Sham Payments made in or after

January 2022;45

 Count IV is for the avoidance of intentionally fraudulent transfers

under section 544(b)(1) for all of the Sham Payment amounts;46

 Count V is for the recovery of the fraudulent transfers alleged in

Counts I-IV under section 550(a);47

 Count VI is for the avoidance of the 2023 Dues Settlement Agreement

as an intentionally fraudulent transfer under sections 548(a)(1)(A) and

550(a);48

 Count VII is for avoidance of the 2023 Dues Settlement Agreement as

a constructively fraudulent transfer under sections 548(a)(1)(B) and

550(a);49

41 Id. ¶ 69.

42 Unless otherwise indicated, all chapter and section references are to the

Bankruptcy Code, 11 U.S.C. §§ 101–1532.

43 FAC ¶¶ 77–81.

44 Id. ¶¶ 82–88.

45 Id. ¶¶ 89–93.

46 Id. ¶¶ 94–98.

47 Id. ¶¶ 99–101.

48 Id. ¶¶ 102–06.

49 Id. ¶¶ 107–11.

 Count VIII is for the avoidance of the 2023 Dues Settlement

Agreement as either a constructively or intentionally fraudulent

transfer under sections 544(b)(1) and 550(a);50

 Count IX is for breach of the 2022 Usage Agreement;51

 Count X is for breach of the 2023 Usage Agreement;52

 Count XI is for unjust enrichment;53

 Count XII is for the equitable subordination of MobileFuse’s claim

under section 510(c);54 and

 Count XIII is an objection to MobileFuse’s claim.55

MobileFuse has filed a motion to dismiss the Trustee’s claims56 arguing that

the Trustee’s claims are barred by the in pari delicto doctrine and the Wagoner57

rule, that the Trustee has not adequately pleaded claims for constructively or

intentionally fraudulent transfers, that certain of the fraudulent transfer claims are

time-barred, and that the Trustee has not adequately pleaded a claim for equitable

subordination.58 The Trustee argues in response that the Wagoner rule is

inapplicable in the Third Circuit, that the in pari delicto doctrine does not bar any

claims, that the FAC adequately states a claim for relief for all counts, and that the

transfers are not time-barred for the claims under which they are brought.59 The

50 Id. ¶¶ 112–18.

51 Id. ¶¶ 119–24.

52 Id. ¶¶ 125–30.

53 Id. ¶¶ 131–36.

54 Id. ¶¶ 137–42.

55 Id. ¶¶ 143–45.

56 Mot. to Dismiss Adversary Proceeding [Adv. D.I. 28].

57 Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114 (2d Cir. 1991).

58 See Mem. of Law in Supp. of Mot. to Dismiss [Adv. D.I. 29].

59 See Pl.’s Opp’n to Def.’s Mot. to Dismiss [Adv. D.I. 36].

parties additionally dispute which law applies to Counts IX through XI (the

“Common Law Claims”) and how the choice of law affects the in pari delicto

analysis. The matter has been fully briefed. The Court heard oral argument on May

27, 2026.

III. Jurisdiction and Venue

This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and

1334. Venue is proper in this district under 28 U.S.C. §§ 1408 and 1409.

IV. Legal Standard

To survive a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), made applicable to adversary proceedings through Bankruptcy Rule 7012,

“a complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’”60 In the Third Circuit, courts perform a

two-part analysis. First, the court separates the factual and legal elements of the

claim, “accept[ing] all of the complaint’s well-pleaded facts as true, but . . .

disregard[ing] any legal conclusions.”61 Next, the court determines “whether the

facts alleged in the complaint are sufficient to show that the plaintiff has a

‘plausible claim for relief.’”62 Dismissal is also appropriate where an affirmative

defense appears on the face of the complaint.63

60 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)).

61 Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009).

62 Id. at 211 (quoting Iqbal, 556 U.S. at 679).

63 Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001).

V. Analysis

A. Choice of Law

When there is no overriding federal interest, “it is well settled in this Circuit

that a bankruptcy court faced with the issue of which substantive state law to apply

to a claim for relief in an adversary proceeding applies the choice of law rules of the

forum state.”64 Courts in Delaware perform a separate choice of law analysis for

each issue.65 The issue analysis here can be split between Counts I through VIII

and XII through XIII (the “Statutory Claims”) and the Common Law Claims.

1. The Statutory Claims

The first question in a choice of law conflict is whether there is “a true

conflict between the potentially applicable bodies of law.”66 Where no such conflict

exists, there is no further need to analyze the applicable law.67 The analysis of

whether to dismiss the Statutory Claims would be the same regardless of the

governing state law. These claims are based on federal statutes and, to the degree

state law is applicable to them, the parties have not briefed any competing statutes

or other law.68 Given this lack of conflict, the choice of law analysis for these claims

64 Mull Drilling Co., Inc. v. SemCrude, L.P. (In re SemCrude, L.P.), 407 B.R. 82, 104

(Bankr. D. Del. 2009).

65 Whitwell v. Archmere Acad., Inc., 463 F. Supp. 2d 482, 485 (D. Del. 2006).

66 Huber v. Taylor, 469 F.3d 67, 74 (3d Cir. 2006) (citing On Air Entm’t Corp. v.

Nat’l Indem. Co., 210 F.3d 146, 149 (3d Cir.2000)).

67 Id.

68 Because in pari delicto and Wagoner are not applicable to these claims in any

applicable jurisdiction, see infra V.B.1, V.B.3, any differences in the application of

these doctrines do not change this analysis.

concludes here, and the Court will address both Delaware and New York law, as

those are the laws briefed for these claims.

2. The Common Law Claims

The parties have briefed a true conflict between the potentially applicable

bodies of law for the Common Law Claims. MobileFuse argues that New York law

applies and that under New York law, the adverse interest exception to the in pari

delicto doctrine is unavailable to the Trustee, while the Trustee claims that either

New Jersey or California law applies and that the adverse interest exception is

available under these laws.69 The three Common Law Claims are for breach of the

2022 Usage Agreement, breach of the 2023 Usage Agreement, and a claim for

unjust enrichment that includes actions stemming from the Usage Agreements as

well as actions unrelated to any agreement or contract.70

When parties have not effectively agreed on a choice of law to govern their

contracts or when a claim is based on unjust enrichment without a valid governing

choice of law clause, Delaware courts apply the “most significant relationship test”

to determine what law governs.71, 72 “This test requires that the court evaluate five

69 See Mem. in Supp. 12–15; Opp’n to Mot. to Dismiss 7–11, 15–17; Reply Mem. of

Law in Supp. of Mot. to Dismiss Pl.’s Am. Compl. 6–10 [Adv. D.I. 37].

70 See FAC ¶¶ 119–36.

71 RSUI Indem. Co. v. Murdock, 248 A.3d 887, 896 (Del. 2021) (quoting Liggett Grp.

Inc. v. Affiliated FM Ins. Co., 788 A.2d 134, 137 (Del. Super. Ct. 2001)); Landis v.

Sci. Mgmt. Corp., No. CIV. A. 7483, 1991 WL 19848, at *3 (Del. Ch. Feb. 15, 1991).

72 The Usage Agreements contain a Singapore choice of law clause, but neither

party argues that Singapore law applies, and the Trustee argues that it does not

because Singapore has no substantial relationship to the parties. See Opp’n to Mot.

fact-intensive factors ‘in deciding which state has the most significant

relationship.’”73 Such a test is inappropriate to undertake here, on a motion to

dismiss, where the factual record is underdeveloped.74 Because the parties

addressed New York, California, and New Jersey law, the Court will presume,

without deciding, that one of these states’ laws applies.75 The FAC survives if it

states a plausible claim for relief under any of these state laws.76

B. Neither the In Pari Delicto Doctrine nor Wagoner Bars the

Trustee’s Claims.

1. The in pari delicto doctrine does not apply to the Statutory

Claims.

“The doctrine of in pari delicto provides that a plaintiff may not assert a

claim against a defendant if the plaintiff bears fault for the claim.”77 When a cause

of action is brought by a trustee as a successor-in-interest under section 541, this

to Dismiss 8–9; Tr. of Hearing 17:14–19. Given the parties’ positions, the court

assumes, without deciding, that Singapore law does not apply.

73 B.E. Cap. Mgmt. Fund LP v. Fund.com Inc., 171 A.3d 140, 148 (Del. Ch. 2017)

(quoting Certain Underwriters at Lloyds, London v. Chemtura Corp., 160 A.3d 457,

465 (Del. 2017)).

74 See Graboff v. The Collern Firm, No. CIV.A. 10-1710, 2010 WL 4456923, at *8

(E.D. Pa. Nov. 8, 2010) (“Due to the complexity of this analysis, when confronted

with a choice of law issue at the motion to dismiss stage, courts within the Third

Circuit have concluded that it is more appropriate to address the issue at a later

stage in the proceedings.”).

75 See Zazzali v. Hirschler Fleischer, P.C., 482 B.R. 495, 517 (D. Del. 2012) (in the

absence of a choice of law determination, presuming that either of the state laws

“specifically addressed by the parties in their briefing” applied).

76 See Graboff, 2010 WL 4456923, at *8 (“[T]he Complaint will survive . . . if

Plaintiff states a claim sufficient under either Pennsylvania or Illinois law.”).

77 Off. Comm. of Unsecured Creditors v. R.F. Lafferty & Co., Inc., 267 F.3d 340, 354

(3d Cir. 2001).

bar extends to the trustee.78 Section 541 defines the bankruptcy estate as including

“‘all legal or equitable interests of the debtor in property as of the commencement’ of

bankruptcy” which, by its plain language, excludes the consideration of post-

petition events.79 For claims that are property of the estate under section 541, the

relevant question is whether the debtor could have brought the claims at the time it

filed its petition.

“However, when a trustee brings an action based on a section of the

Bankruptcy Code that does not contain limiting language such as that in § 541, a

court may consider post-petition events.”80 The Third Circuit specifically has held

that an innocent trustee’s avoidance claims are not subject to the in pari delicto

doctrine.81 Here, Counts I through VIII are all brought under such avoidance

powers. The other Statutory Claims likewise arise under specific statutes in the

Bankruptcy Code – sections 502 and 510 – and do not rely on section 541 or contain

similar limiting language. In pari delicto, therefore, does not bar any of the

Statutory Claims.82

78 Id. at 357.

79 Id. at 356–57 (quoting 11 U.S.C. § 541(a)).

80 Stanziale v. Pepper Hamilton LLP (In re Student Fin. Corp.), 335 B.R. 539, 555

(D. Del. 2005) (citing McNamara v. PFS (In re Pers. & Bus. Ins. Agency), 334 F.3d

239, 241 (3d Cir. 2003)).

81 McNamara, 334 F.3d at 245–47.

82 See Stanziale, 335 B.R. at 554 (declining to extend Lafferty to an equitable

subordination claim brought under section 510); Picard v. Avellino (In re Bernard L.

Madoff Inv. Sec. LLC), 557 B.R. 89, 127 (Bankr. S.D.N.Y. 2016) (finding that in pari

delicto did not apply to an equitable subordination claim brought under

section 510).

2. The in pari delicto doctrine does not bar the Common Law

Claims.

For the in pari delicto defense to apply, the wrongdoing must be imputed

from the corporation’s agents to the corporation itself.83 Under the adverse interest

exception, “fraudulent conduct will not be imputed if the officer’s interests were

adverse to the corporation and ‘not for the benefit of the corporation.’”84 MobileFuse

argues that the adverse interest exception is unavailable here because the FAC

does not plead it expressly,85 and, in any event, the FAC shows that Near benefited

from the scheme under New York’s narrow standard86 MobileFuse relies on New

York law holding that the exception applies only when the agents “completely

abandon” the corporation’s interest such that the corporation receives no benefit at

all.87

MobileFuse first contends that the adverse interest exception is unavailable

because the FAC does not address it on its face. Plaintiffs, however, need not

anticipate affirmative defenses and plead around them. The defendant bears the

83 Lafferty, 267 F.3d at 355.

84 Id. at 359 (quoting Waslow v. Grant Thornton L.L.P. (In re Jack Greenberg, Inc.),

212 B.R. 76, 84 (Bankr. E.D. Pa. 1997)).

85 Tr. of Hearing 20:3–8.

86 Reply 10 [Adv. D.I. 37].

87 Id. (citing Kirschner v. KPMG LLP, 938 N.E.2d 941 (N.Y. 2010); then citing Barry

v. Santander Bank, N.A. (In re Liberty State Benefits of Delaware, Inc.), 541 B.R.

219, 235 (Bankr. D. Del. 2015); and then citing Giuliano v. Ferdinand (In re Liquid

Holdings Grp., Inc.), No. 16-10202 (KG), 2018 WL 2759301, at *16 (Bankr. D. Del.

June 6, 2018)).

burden of showing the defense applies on the face of the complaint.88 On this record,

MobileFuse has not met that burden.

MobileFuse also argues that, on the face of the FAC, Near benefited here

because it allegedly received more money from MobileFuse than it paid in Sham

Payments and because the payment scheme supposedly inflated Near’s revenue,

making it a more attractive SPAC target.89 Neither contention is supported by the

FAC. The FAC alleges that MobileFuse’s payments to Near were made on account

of legitimately owed fees under the Usage Agreements and were not repayments of

the Sham Payments.90

Nor is it apparent on the face of the FAC that the Sham Payments

contributed to Near’s attractiveness to investors or materially assisted the SPAC

transaction. MobileFuse cites to paragraphs 24 through 27 of the FAC, which

describe Near’s reorganization and de-SPAC transaction and refer to a “strategic

partnership” with MobileFuse, but those paragraphs do not allege that the Sham

Payments were part of that arrangement or that they inflated reported revenue.91

On these allegations, the Court cannot conclude, as a matter of law at the pleading

stage, that Near necessarily obtained a corporate benefit from the scheme sufficient

to defeat the adverse-interest exception under New York’s narrow standard.

88 See Gomez v. Toledo, 446 U.S. 635, 640 (1980).

89 Mem. in Supp. 2, 7; Reply 2.

90 FAC ¶¶ 38, 44–51.

91 Mem. in Supp. 7; FAC ¶ 24–27.

MobileFuse also cites an indictment, but the Court cannot rely on the truth of facts

asserted in another proceeding for purposes of resolving a motion to dismiss.92

MobileFuse also relies on Augustus as a “clear and straightforward” case of

in pari delicto.93 In that case, the court held that a breach of contract claim was

barred by the related principle that “agreements made for the purpose of

perpetrating a fraud are unenforceable”94 where the only reasonable reading of the

complaint was that the contract existed solely to mislead investors about the

defendant’s commitment to fund the venture. On those allegations, the contract was

“entered into for the purpose of perpetrating a fraud and [was] therefore an illegal

contract.”95 The facts in the FAC do not lead as directly to a similar conclusion. The

FAC alleges that the Usage Agreements were performed in the ordinary course

until MobileFuse stopped paying in 2022 and that Near provided services for which

MobileFuse paid. Although the FAC supports an inference that the separate 2020

Services Agreement and the later backdated data-license agreement were used to

lend a veneer of legitimacy to the Sham Payments, it does not allege that the Usage

Agreements themselves were created for the purpose of perpetrating a fraud.

92 See S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d

410, 413 (3d Cir. 1999) (“[O]n a motion to dismiss, we may take judicial notice of

another court’s opinion—not for the truth of the facts recited therein, but for the

existence of the opinion, which is not subject to reasonable dispute over its

authenticity.”).

93 Tr. of Hearing 13:6–22; see also Mem. in Supp. 16–17.

94 Ryniker v. Washington (In re Augustus Intel., Inc.), No. 21-10744 (JTD), 2025 WL

936432, at *5 (Bankr. D. Del. Mar. 26, 2025).

95 Id. at *7.

Augustus, therefore, does not make the in pari delicto defense apparent on the face

of the FAC as to Counts IX and X.

Because MobileFuse’s in pari delicto arguments fail under even New York

law, which it contends applies and which imposes the narrowest interpretation of

the adverse interest exception, the Court need not consider whether they would

succeed under New Jersey or California law.

3. Wagoner is inapplicable.

The Wagoner rule “is related to but distinct from in pari delicto,” and

addresses the prudential standing of third parties to assert claims on behalf of

entities that participated in the alleged misconduct.96 The existence and scope of

prudential standing is a federal question.97 When faced with a federal question, this

court is bound by Third Circuit precedent regardless of what state law applies or

what contractual choice-of-law clause may exist.98

96 Ehrlich v. Com. Factors of Atlanta, 567 B.R. 684, 697–98 (N.D.N.Y. 2017).

97 See Wagoner, 944 F.2d at 118–20 (grounding the rule in the “case or controversy

requirement of the Constitution”).

98 See Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993) (quoting Coker v. Pan Am.

World Airways, Inc. (In re Pan Am. Corp.), 950 F.2d 839, 847 (2d Cir. 1991))

(“[F]ederal courts comprise a single system applying a single body of law, and no

litigant has a right to have the interpretation of one federal court rather than that

of another determine his case.”).

In Lafferty, the Third Circuit favorably cited Wagoner when analyzing the in

pari delicto doctrine, but expressly declined to adopt Wagoner’s standing analysis.99

Accordingly, the Wagoner rule does not apply to any of these claims.100

4. The Breach of Contract Claims Survive (Counts IX and X).

MobileFuse does not argue any alternative basis against Counts IX and X,

which are for breach of the 2022 and 2023 Usage Agreements, respectively. Because

neither the in pari delicto doctrine nor the Wagoner rule bars these claims, the

motion to dismiss is denied as to these claims.

C. The FAC Adequately Alleges Plausible Claims to Avoid and

Recover Constructive and Actual Fraudulent Transfers, Except as

to Constructive Fraudulent Transfers by Near Holdco (Counts I-

VIII).

1. Counts II and IV adequately allege applicable state law.

MobileFuse argues that the Trustee has failed to allege facts sufficient for a

claim under section 544 because the Trustee failed to identify the applicable state

law. However, this is not grounds to dismiss these claims so long as the Trustee has

adequately alleged facts to sustain the claim under applicable state law.101

99 Lafferty, 267 F.3d at 346 (“An analysis of standing does not include an analysis of

equitable defenses, such as in pari delicto.”).

100 Even if the Wagoner rule were applicable here, it would not apply to the

Statutory Claims. See Picard, 557 B.R. at 123 (finding that the Wagoner rule does

not apply to claims specifically conferred on a trustee by the Bankruptcy Code);

Kwok v. Despins (In re Kwok), 172 F.4th 145, 154–55 (2d Cir. 2026) (distinguishing

between personal claims, to which the Wagoner rule applies, and general claims, to

which it does not).

101 Michaelson v. Farmer (In re Appleseed’s Intermediate Holdings, LLC), 470 B.R.

289, 299–300 (D. Del. 2012) (denying a motion to dismiss “[a]lthough no applicable

law is specifically alleged in the Complaint”); UD Dissolution Liquidating Tr. v.

Sphere 3D Corp. (In re UD Dissolution Corp.), 629 B.R. 11, 40 (Bankr. D. Del. 2021)

The relevant New York and Delaware statutes are substantially similar to

the Bankruptcy Code, such that whether they state adequate claims for relief will

be discussed together except where they diverge.102

2. The Trustee has standing to avoid the alleged fraudulent

transfers.

MobileFuse argues that the Trustee lacks standing to avoid transfers made

by Near Pte. and Near Holdco because those entities are alleged transferors but are

not debtors in these cases.103 A trustee may avoid only the fraudulent transfer of an

“interest of the debtor in property.”104 When a non-debtor transfers its own

property, courts have held that the estate’s trustee lacks standing to avoid the

transfer because the debtor never held an interest in the property transferred.105 In

Crystallex, the Third Circuit similarly held that under Delaware law, which is

“nearly identical” to the Bankruptcy Code, a non-debtor subsidiary with its own

identity could not be treated as the transferor in a fraudulent transfer claim

brought on behalf of the debtor.106 The court there did not address the different

(rejecting an argument that the court should dismiss a claim under section 544

where the complaint “fail[ed] to identify any applicable state law”).

102 Kramer v. Sooklall (In re Singh), 434 B.R. 298, 311 n.5 (Bankr. E.D.N.Y. 2010)

(explaining that the only material difference between New York law and the

Bankruptcy Code as to the recovery of fraudulent transfers is the lookback period);

Crystallex Int’l Corp. v. Petroleos De Venezuela, S.A., 879 F.3d 79, 86 (3d Cir. 2018)

(“The relevant DUFTA and Bankruptcy Code provisions are nearly identical, and

Delaware courts have interpreted and applied them uniformly.”).

103 Mem. in Supp. 21.

104 11 U.S.C. §§ 544(b)(1), 548(a).

105 See Klauder v. Echo/RT Holdings, LLC, 152 A.3d 581, 2016 WL 7189917, at *2–3

(Del. Dec. 12, 2016).

106 Crystallex Int’l Corp. v. Petroleos De Venezuela, S.A., 879 F.3d 79, 85–89 (3d Cir.

2018).

situation in which the transferor later becomes a predecessor-in-interest whose

assets are acquired by the debtor.

An interest of the debtor in property encompasses ‘that property that would

have been part of the estate had it not been transferred before the commencement

of bankruptcy proceedings.’”107

That definition provides a straightforward statutory link between a

prepetition transferor and a debtor successor-in-interest: if, but for the transfer, the

property would have vested in the debtor and become estate property, the transfer

is of “an interest of the debtor in property” even though the transferor was formally

a different entity. The FAC alleges that Near Pte.’s operations and assets were

transferred to Near Holdco, and that Near Holdco’s interests and assets were then

acquired by Near Inc. and vested in Near LLC through the de-SPAC transaction. 108

Taken as true, those allegations support a plausible inference that Near LLC is a

successor-in-interest to Near Pte. and Near Holdco and that the assets transferred

to MobileFuse would have become property of Near LLC’s estate absent the

challenged transfers.

3. The FAC does not adequately allege constructive

fraudulent transfers as to transfers made by Near Holdco

but does so as to all other transfers.

Section 548 allows a trustee to avoid transfers that were made for less than

reasonably equivalent value at a time the debtor was insolvent, left the debtor with

107 Michaelson, 470 B.R. at 298 (quoting Begier v. I.R.S., 496 U.S. 53, 58 (1990)).

108 See FAC ¶ 24.

unreasonably small capital for ongoing or imminent business or transactions, or

when the debtor intended to or believed it would incur debts it would be unable to

pay as they became due.109

a. Reasonably Equivalent Value

In determining whether a debtor received reasonably equivalent value for a

transfer, courts first ask whether the debtor received any value at all.110 Once it is

determined that the debtor received some value, courts determine “whether the

debtor got roughly the value it gave.”111 Courts have held that the complaint only

needs to identify the date, amounts, and transferee of each transfer and allege that

each was made for less than reasonably equivalent value to adequately plead that

the debtor did not receive reasonably equivalent value.112

Here, in exchange for the Sham Payments, Near may have received some

value from the services provided by MobileFuse.113 MobileFuse argues that Near

also received value in the form of the payments made from MobileFuse to Near.114

109 11 U.S.C. § 548 (a)(1)(B).

110 See Mellon Bank, N.A. v. Off. Comm. Unsecured Creditors R.M.L., Inc. (In re

R.M.L., Inc.), 92 F.3d 139, 150 (3d Cir. 1996).

111 Pension Transfer Corp. v. Beneficiaries Under the Third Amend. To Fruehauf

Trailer Corp. Retirement Plan No. 003 (In re Fruehauf Trailer Corp.), 444 F.3d 203,

212–13 (3d Cir. 2006).

112 Ctr. City Healthcare, 641 B.R. at 804.

113 The FAC states that there is “no evidence” that MobileFuse ever provided

services, but stops short of alleging that no services were, in fact, ever provided.

FAC ¶ 31. Whether or not any services were actually provided, the Trustee

plausibly alleges that the Sham Payments were in excess of and calculated without

regard for the value of these services. FAC ¶¶ 29–31, 38–40.

114 See Mem. in Supp. 18.

MobileFuse does not make an argument as to what, if any, value Near gained from

the 2023 Dues Settlement Agreement in Count VII, and no such value is apparent

on the face of the FAC.115

b. Insolvency

A company is insolvent under the Bankruptcy Code when its debts exceed the

fair valuation of its property.116 To survive a motion to dismiss, the plaintiff must

allege sufficient facts, beyond conclusory statements, to support an inference of

insolvency, but need not prove them.117 Such facts need not be comprised of detailed

financial statements or analysis.118

The Trustee alleges that Near suffered losses every year and that its

liabilities exceeded the fair value of its assets from April 2021 through the petition

date, as did the liabilities of Near Pte., Near Holdco, Near Singapore, and Near Inc.

The Trustee further alleges that Near never achieved positive earnings before

interest, taxes, depreciation, and amortization at any time from April 2015 through

the petition date. According to the Trustee, by April 2021, Near’s debts exceeded its

total enterprise value, including the fair value of its assets, by $69.1 million, and its

debts continued to exceed its assets by roughly $70 million for the remainder of

2021. From July 2022 through the petition date, the Trustee alleges, Near’s debts

115 See FAC ¶ 65 (“No explanation was ever provided for this 50% discount.”).

116 See Gavin Solmonese, LLC v. Shyamsundar (In re Amcad Holdings, LLC), 579

B.R. 33, 38 (Bankr. D. Del. 2017) (quoting 11 U.S.C. § 101(32)(A)).

117 See In re Troll Commc’ns, LLC, 385 B.R. 110, 124 (Bankr. D. Del. 2008).

118 Dershaw v. Nevels (In re Swarthmore Grp., Inc.), 667 B.R. 258, 277 (Bankr. E.D.

Pa. 2025); In re Amcad Holdings, 579 B.R. at 38–39.

exceeded its fair enterprise value by more than $100 million. The Trustee also

alleges that Near’s cash generation was never sufficient to fund its operations and

pay its debts as they came due, and that Near Pte. was inadequately capitalized

and unable to pay its debts as they became due as of at least April 1, 2021.119

The FAC also generally alleges that the transfers were made while their

respective transferors were insolvent.120 However, these allegations state legal

conclusions that cannot be credited on a motion to dismiss.121

In assessing whether insolvency was adequately pleaded, it is useful to

remember the groups of entities at issue here. The FAC defines Near as being

comprised of Near Inc., Near LLC, Near NA, and Near Singapore. Of these, only

Near Singapore is alleged to be a transferor for the Sham Payments, with Near LLC

also being implicated as a successor-in-interest to the other Sham Payment

transferors—Near Pte. and Near Holdco. In the FAC, the Trustee alleges that the

2023 Dues Settlement Agreement was a transfer of value from Near Inc. to

MobileFuse.122

Near Holdco is not included under the defined term Near, and the FAC only

alleges that its liabilities, along with those of the other transferors, exceeded Near’s

assets at all relevant times. While Near LLC, which is a part of Near, is a successor-

in-interest, no conclusions can be drawn about Near Holdco based on the insolvency

119 FAC ¶¶ 71–76.

120 Id. ¶¶ 80, 85, 104, 109, 113.

121 See Ashcroft v. Iqbal, 556 U.S. 662, 680–81 (2009).

122 FAC ¶¶ 103, 106, 115, 118.

of its successor. There are no allegations regarding Near Holdco’s assets, ability to

pay debts, or other allegations that could lead to a plausible inference of its

insolvency.

Near Pte. is also not included under the defined term Near, but the FAC

includes the specific allegations that it was inadequately capitalized and unable to

pay its debts as they became due as of at least April 1, 2021, along with the

allegation that its liabilities, along with those of the other transferors, exceeded

Near’s assets at all relevant times. These allegations are adequate to lead to a

plausible inference that Near Pte. was insolvent on the dates it made the Sham

Payments.

Near Singapore and Near Inc. are both Near entities. The only specific

allegation about them is that their liabilities, along with those of the other

transferors, exceeded Near’s assets at all times. The Trustee points to PostRock123

as support for its position that the Court can infer insolvency of the individual

transferors based on the facts alleged about Near’s financial condition.124 In that

case, the court found that, for a motion to dismiss, a complaint adequately alleged

that a subsidiary debtor was insolvent when it stated that the subsidiary was

primarily liable on a borrowing base whose value exceeded the combined assets of

the combined debtors and far exceeded its own asset base by a year before the

123 Moriarty v. Klvac (In re PostRock Energy Corp.), 595 B.R. 858 (Bankr. W.D.

Okla. 2019).

124 Tr. of Hearing 36:17–37:17.

petition date.125 The debtors there maintained consolidated books; the debtors’

ledgers had proven inaccurate and unreliable; and the trustee, who was the

plaintiff, had no input in the preparation of the books, records, or ledgers.126

Although the facts are not identical, the Trustee has alleged that these transferors’

liabilities exceed the combined value of Near’s assets at all relevant times.

Moreover, the Trustee alleges that Near, as a whole, remained more than $100

million insolvent from July 2022 through the petition date, during which time

period all the transfers by debtor entities occurred. Also, the FAC alleges that the

Debtors actually withdrew three years of financial statements. The allegations,

taken together, are sufficient on a motion to dismiss for an inference that Near

Singapore and Near Inc. were insolvent.

Accordingly, Counts I and II, insofar as they rest on a constructive fraud

theory for transfers made by Near Holdco, are dismissed without prejudice.

4. The FAC adequately alleges intentional fraud.

The FAC also asserts claims to avoid alleged intentional fraudulent transfers.

Trustees may avoid transfers that the debtor made “with actual intent to hinder,

delay, or defraud any entity to which the debtor was or became, on or after the date

that such transfer was made or such obligation was incurred, indebted.”127 Claims

brought under section 548(a)(1)(A) “must meet the elevated pleading standards of

125 PostRock, 595 B.R. at 867–68.

126 Id. at 867.

127 11 U.S.C. § 548(a)(1)(A).

Federal Rule of Civil Procedure 9(b),” but these requirements “are to be interpreted

liberally where the claim is asserted by a trustee or trust.”128

Fraud need not be pleaded directly, but may be shown through

circumstantial evidence, such as “badges of fraud,” which are “circumstances so

commonly associated with fraudulent transfers that their presence gives rise to an

inference of intent.”129 The badges of fraud include:

(1) the relationship between the debtor and the

transferee; (2) consideration for the conveyance; (3)

insolvency or indebtedness of the debtor; (4) how much of

the debtor’s estate was transferred; (5) reservation of

benefits, control, or dominion by the debtor over the

property transferred; and (6) secrecy or concealment of

the transaction.130

In analyzing fraudulent intent based on the badges of fraud, courts look only

to the badges that are present and do not give weight to those that are not.131 “No

one factor or particular combination of factors is necessary to support a finding of

fraud; even a strong showing of a single factor may be enough,” but a confluence of

128 Cred. Inc. Liquidation Trust v. Uphold HQ Inc. (In re Cred Inc.), 650 B.R. 803,

834 (Bankr. D. Del. 2023) (quoting Charys Liquidating Tr. v. Growth Mgmt., LLC

(In re Charys Holding Co.), No. 08-10289, 2010 WL 2774852, at *3 (Bankr. D. Del.

July 14, 2010)), aff’d, 658 B.R. 783 (D. Del. 2024).

129 In re Swarthmore Group, 667 B.R. at 276 (quoting Alameda Rsch. Ltd. v. Giles

(In re FTX Trading Ltd.), Case No. 22-11068 (JTD), 2024 WL 4562675, at *7

(Bankr. D. Del. Oct. 23, 2024)).

130 Id.

131 Id.

several factors may provide stronger evidence of intent.132 In addition to the badges

of fraud, courts may consider other evidence of the debtor’s intent.133

The Trustee argues that it has pleaded facts supporting four badges of fraud:

(i) that Near did not receive adequate consideration for the transfer; (ii) that Near

was insolvent when the transfers were made; (iii) that the Near Insiders, who

controlled each transferor, secretly owned a stake in MobileFuse; and (iv) that the

Near Insiders attempted to conceal the transfers.134 It additionally argues that the

Court can infer the Debtors’ intent through the consequences of their actions.135

MobileFuse argues that the claims are not stated with particularity and that the

alleged scheme “make[s] no logical sense,” making the claim implausible under the

pleading standards.136

The first two badges of fraud, failure to receive reasonably equivalent value

and insolvency, are discussed in relation to constructive fraudulent transfers.137

Accordingly, the Trustee has plausibly alleged that the transferors failed to receive

reasonably equivalent value and has plausibly alleged that all the transferors other

than Near Holdco were insolvent.

132 Id. (quoting Feldman v. Lynch (In re Fitzpatrick Container Co.), 663 B.R. 648,

657 (Bankr. E.D. Pa. 2024)).

133 Carickhoff v. Wedbush Sec., Inc. (In re Live Well Fin., Inc.), 652 B.R. 699, 705

(Bankr. D. Del. 2023).

134 Opp’n to Mot. to Dismiss 25.

135 Id.

136 Reply 15–16.

137 See supra Section V.C.3.

As to the other badges, the Trustee has plausibly alleged that, for all but the

last three Sham Payments, the Near Insiders owned a ten percent interest in

MobileFuse, acquired at a discount, establishing a close relationship between the

Near Insiders and MobileFuse. The Trustee has also plausibly alleged that the

transferors made efforts to conceal the payments by presenting them as legitimate

invoices, using a currency exchange to wire payments, and creating false, backdated

agreements.138 The badges of fraud that are adequately pleaded are sufficient to

state a claim for actual fraudulent transfer.139

Additionally, the crux of the Trustee’s allegations is that the transferors paid

unowed sums to MobileFuse without receiving a benefit in kind, and a natural

consequence of such a transfer would be to deprive Near creditors of these funds.

This natural consequence supports a presumption that it was the intention of the

transferors to do so.140

MobileFuse argues that the Trustee’s allegations regarding fraudulent intent

are undercut because the Near Insiders’ gains from the alleged scheme were

negligible when compared with Near’s losses.141 This is, however, only a competing

138 FAC ¶¶ 52–55.

139 See, e.g., Forman v. Kelly Cap., LLC (In re Nat’l Serv. Indus., Inc.), No. 14-

50377, at *5 (MFW), 2015 WL 3827003 (Bankr. D. Del. June 19, 2015) (denying a

motion to dismiss a fraudulent transfer claim where three badges of fraud were

alleged).

140 See In re Sentinel Mgmt. Grp., Inc., 728 F.3d 660, 667 (7th Cir. 2013) (“‘[E]very

person is presumed to intend the natural consequences of his acts.’” (quoting In re

Danville Hotel Co., 38 F.2d 10, 21 (7th Cir. 1930))).

141 Mem. in Supp. 23–24.

argument about the intent of the transferors. The Court cannot consider this

alternative interpretation of the facts at this stage, and instead draws the

reasonable inference in the Trustee’s favor.142

5. The avoidance counts are timely.

MobileFuse next argues that the Trustee’s claims for fraudulent transfer are

untimely as to transfers that occurred prior to December 8, 2021, because claims

under section 548(a)(1) may only be made regarding transfers made no more than

two years prior to the filing of the bankruptcy petition. Here, the bankruptcy

petition was filed on December 8, 2023. However, the claims made under

section 548 do not include any transfers made before December 8, 2021. Counts I,

III, VI, and VII only include transfers made on or after January 26, 2022. The

Trustee is seeking to avoid transfers made before December 8, 2021 under section

544, which borrows the lookback period from applicable state law.143 All of the

alleged transfers fall within the four-year lookback period provided by both

Delaware and New York law.144

142 Bagic v. Univ. of Pittsburgh, 773 F. App’x 84, 88–89 (3d Cir. 2019).

143 UMB Bank, N.A. v. Sun Cap. Partners V, LP (In re LSC Wind Down, LLC), 610

B.R. 779, 785 (Bankr. D. Del. 2020); see also Sikirica v. Wettach (In re Wettach),

489 B.R. 496, 509 (Bankr. W.D. Pa. 2013) (using the Pennsylvania lookback period

for a claim under section 544), aff’d, 511 B.R. 760 (W.D. Pa. 2014), aff’d, 811 F.3d 99

(3d Cir. 2016).

144 See 6 Del. C. § 1309; N.Y. Debt. & Cred. Law § 278.

D. The FAC adequately alleges a claim for unjust enrichment.

MobileFuse argues that the unjust enrichment claim should be dismissed

because the parties’ relationship is governed by written agreements.145 Because this

argument is discussed only in a footnote, the Court need not consider it.146 However,

this argument also fails on the merits. While quasi-contractual theories of liability,

such as unjust enrichment, fail when they are based on the parties’ contractual

relationship, where the subject of the quasi-contractual relationship is different

than that of the contractual relationship or the enforceability of the contract is at

issue, the quasi-contractual claim survives.147 Here, the Trustee has plausibly

alleged that the Sham Payments were not related to any contractual relationship

between the parties.148 To the extent Count XI instead rests on conduct arising from

the Usage Agreements, the Trustee may plead unjust enrichment in the alternative

to its breach of contract claims, and the claim is not subject to dismissal at this

stage merely because a written agreement may ultimately be found to govern the

same conduct.149

145 Mem. in Supp. 17 n.5.

146 Higgins v. Bayada Home Health Care Inc., 62 F.4th 755, 763 (3d Cir. 2023)

(quoting John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d

Cir. 1997)).

147 Stanziale v. Emerson Radio Corp. (In re Home Easy, Ltd.), 672 B.R. 595, 647–48

(Bankr. D.N.J. 2025).

148 FAC ¶¶ 29–31, 40.

149 Fed. R. Civ. P. 8(d)(2), made applicable by Fed. R. Bankr. P. 7008.

E. The FAC adequately alleges claims for equitable subordination

(Count XII) and disallowance of claims (Count XIII).

To state a claim for equitable subordination under the Bankruptcy Code, the

complaint must allege that the claimant engaged in inequitable conduct that

resulted in injury to other creditors or conferred an unfair advantage on the

claimant and that the equitable subordination of the claim is not inconsistent with

the Bankruptcy Code.150 “If the misbehaving creditor is a non-insider, the plaintiff

must generally allege gross misconduct.”151 Gross misconduct is “generally that

which rises to the level of fraud, overreaching, or spoilation, or involves moral

turpitude.”152 The FAC alleges that MobileFuse engaged in fraudulent behavior,

such as assisting with concealing the Sham Payments to funnel unearned payments

from Near, which meets this standard.

The standard the Court applies turns on whether MobileFuse is an insider of

Near. The Bankruptcy Code does not count a creditor in MobileFuse’s position

among the statutory insiders of a corporate debtor,153 and the equity interest the

FAC describes runs the wrong direction to make MobileFuse an affiliate.154 It was

the Near Insiders who held an indirect stake in MobileFuse, not Near that held a

stake in MobileFuse or MobileFuse that held one in Near. The allegations

150 Citicorp Venture Cap., Ltd. v. Comm. of Creditors Holding Unsecured Claims,

160 F.3d 982, 986–87 (3d Cir. 1998).

151 Tilton v. MBIA Inc. (In re Zohar III, Corp.), 620 F. Supp. 3d 147, 152 (D. Del.

2022).

152 Off. Comm. of Unsecured Creditors v. Vagenas (In re Pack Liquidating, LLC),

No. 22-10797 (CTG), 2025 WL 2587577, at *13 (Bankr. D. Del. Sept. 5, 2025).

153 11 U.S.C. § 101(31)(B).

154 See id. § 101(2).

nonetheless raise the question whether MobileFuse should be treated as a non-

statutory insider, that is, a creditor whose dealings with the debtor were conducted

at less than arm’s length.155 The same conduct that animates the avoidance counts

bears on that question: the Near Insiders’ common control of both sides of the

transactions, their calculation of MobileFuse’s invoices, and the concealed cross-

ownership.

The Court need not resolve it. Whether a creditor is a non-statutory insider is

a fact-intensive inquiry into the character of the parties’ dealings, and the record on

a motion to dismiss is not developed enough to undertake it.156 The Court therefore

assumes, without deciding, that MobileFuse is a non-insider and applies the more

demanding gross-misconduct standard, which is the standard least favorable to the

Trustee. Because the FAC clears that higher bar, the claim survives no matter how

MobileFuse’s status is ultimately determined. If discovery establishes that

MobileFuse dealt with Near at less than arm’s length, the claim survives under the

lesser showing required of an insider. If it does not, the claim survives under the

gross-misconduct standard applied here.

MobileFuse does not argue that the conduct at issue did not result in an

injury to other creditors or confer an unfair advantage on the claimant or that

155 See Schubert v. Lucent Techs. Inc. (In re Winstar Commc’ns, Inc.), 554 F.3d 382,

396–97 (3d Cir. 2009) (treating the absence of arm’s-length dealing as the

touchstone of non-statutory insider status).

156 See supra Section V.A.2 (deferring the fact-intensive choice-of-law inquiry as

inappropriate on the pleadings).

equitable subordination would be inconsistent with the Bankruptcy Code. For the

purpose of this motion, the Trustee plausibly alleges that Near and its creditors

were harmed by the depletion of over $25 million from its estate,157 and that

equitable subordination would not be inconsistent with the Bankruptcy Code. 158

VI. Conclusion

The Court grants the motion to dismiss in part and dismisses Counts I and II

to the extent that they allege constructively fraudulent transfer regarding transfers

made by Near Holdco, without prejudice. The Court denies the motion to dismiss in

all other respects. The parties are directed to file a form of order under certification

of counsel.

Soma WA. HO

Dated: June 17, 2026

Wilmington, Delaware Thomas M. Horan

United States Bankruptcy Judge

157 FAC □ □ 38-48.

158 FAC ¥ 141.

37