LASTER, Vice Chancellor
Plaintiff Gary O. Marino seeks advancements of fees and expenses from defendant Patriot Rail Company LLC (the "Company"). The parties have cross-moved for summary judgment. Marino's motion is granted. The Company's motion is denied.
The facts are drawn from the affidavits and supporting documents that the parties submitted in connection with their motions for summary judgment. The parties agreed in their briefs and at oral argument that there were no disputes of material fact that would affect the outcome. Pursuant to Court of Chancery Rule 56(h), the cross-motions therefore became "the equivalent of a stipulation for decision on the merits based on the record submitted with the motions." Ct. Ch. R. 56(h).
From 2004 until June 18, 2012, Marino served as Chairman, President, and CEO of the Company. He indirectly owned 23.75% of its equity. Patriot Rail Holdings LLC ("Parent") owned all of the stock of the Company. Patriot Rail LLC ("Grandparent") owned all of the member interests of Parent. Patriot Equity LLC ("Great-Grandparent") owned 23.75% of the member interests of Grandparent and served as its managing member. Marino owned 100% of Great-Grandparent.
Marino previously owned another 25.5% of Grandparent, which he held either directly or through Great-Grandparent. At some point, he transferred those interests to the Marino Family Dynasty Trust for no consideration. Together, Marino and the Marino Family Dynasty Trust owned nearly 60% of the member interests in Grandparent (23.75% + 25.5% = 59.25%).
The Company operates short-line and regional freight railroads throughout North America. The Company remained a Delaware corporation until May 1, 2013, when it converted into an LLC. The conversion did not affect its liabilities or obligations. See 8 Del. C. § 266(e).
Non-party Sierra Railroad Company provides railroad-related services. At various points, Marino discussed the possibility of the Company acquiring Sierra with Sierra's management team. As part of those discussions, the Company and Sierra entered into a non-disclosure agreement dated September 29, 2005.
Sierra had a contract with McClellan Business Park to provide rail switching services (the "Switching Contract"). It was scheduled to expire on February 29, 2008. In 2007, as part of the periodic discussions about a business combination, Sierra provided the Company with confidential information about the Switching Contract. At the time, Sierra was negotiating with McClellan to extend the Switching Contract. To reassure McClellan that Sierra had an industry partner that could back Sierra in fulfilling an extended agreement, Sierra took Marino and other Company employees to meet with McClellan representatives.
McClellan decided not to extend the Switching Contract and instead issued a request for proposals. Both Sierra and the Company submitted bids. In January 2008, McClellan awarded the contract to the Company.
In March 2008, Sierra sued the Company in the United States District Court for the Eastern District of California (the "California Court"). Sierra's complaint included claims for breach of the non-disclosure agreement, misappropriation of trade secrets, and interference with prospective business relationships.
Later in March 2008, the Company and Sierra entered into a letter of intent for an asset purchase. Sierra dismissed its claims without prejudice the same day. But negotiations broke down, and the deal did not close.
On December 31, 2008, the Company filed suit against Sierra in the California Court for breaching the letter of intent. Sierra filed counterclaims, including the claims it previously had dismissed without prejudice, plus a new claim that the Company had breached the letter of intent. This decision refers to the proceedings in the California Court as the "Underlying Action."
In February 2009, Sierra filed an amended pleading that sought to add Parent, Grandparent, and Great-Grandparent to the litigation. Sierra did not serve Parent or Great-Grandparent. The Company and Grandparent filed answers. Parent and Great-Grandparent did not appear.
In 2012, while the Underlying Action was pending, Patriot Funding LLC (the "Buyer") purchased 100% of the Company's stock from Parent (the "Stock Sale"). The transaction was governed by a stock purchase agreement dated May 4, 2012 (the "Stock Purchase Agreement" or "SPA"). The Stock Sale closed on June 18, 2012. Effective upon closing, Marino resigned from all of his positions with the Company.
Buyer paid Parent $230 million for the stock of the Company. Not surprisingly, the parties to the Stock Sale bargained over the Underlying Action and allocated the risk of an adverse outcome in the Stock Purchase Agreement. The Stock Purchase Agreement created a special indemnification procedure for claims related to the Underlying Action, secured by an escrow fund of $20 million. See SPA
Over the course of three distributions, Parent transferred $112.6 million of net sale proceeds to the investors in Grandparent (collectively, the "Fund Transfers"). The first transfer occurred on the date the Stock Sale closed. The second happened on February 6, 2013. The third happened on August 1, 2013. According to Sierra, Marino and the Marino Dynasty Trust received approximately $48 million.
In the ordinary course, each distribution would have been made from Parent to Grandparent, then Grandparent would have distributed the funds to its investors. Sierra alleges Parent used different mechanisms to transfer funds to Marino, the Marino Dynasty Trust, and other investors in Grandparent because Grandparent was a defendant in the Underlying Action and Marino did not want the funds flowing through its accounts.
In March 2013, Sierra moved for leave to serve Parent and Great-Grandparent with its claims and bring them into the case as parties. Sierra argued that it needed Parent and Great-Grandparent in the case to protect its ability to collect on a potential judgment.
In June 2013, the Company represented to the California Court that it would not take any steps to render itself judgment-proof. Relying on the Company's representations, the California Court denied Sierra's motion. The California Court observed that, if necessary, Sierra could "move post trial to substitute appropriate parties to effect judgment." Dkt. 28, Ex. at 9.
The Underlying Action proceeded to trial. On March 28, 2014, a jury awarded compensatory damages of $22.3 million in favor of Sierra and against the Company and Grandparent. On May 1, the jury awarded punitive damages of $16.2 million in favor of Sierra and against the Company, plus $1.2 million in favor of Sierra and against Grandparent. On October 23, the California Court awarded additional exemplary damages of $13.1 million in favor of Sierra and against the Company. The California Court did not award additional exemplary damages against Grandparent because it had "no ability to pay." Id. at 11. This decision refers to these awards collectively as the "California Judgment."
On July 6, 2015, Sierra moved to amend the California Judgment to add Marino, Parent, and Great-Grandparent as judgment debtors. On January 14, 2016, Sierra filed its amended motion (the "Post-Judgment Motion"). Sierra contended that the Post-Judgment Motion was necessary because the Company and Grandparent had rendered themselves judgment proof. According to Sierra, during the bulk of the Underlying Action, the Company and Grandparent had a combined net worth that ranged from $118 million to $171 million. By the time of trial however, the Company and Grandparent had reduced their combined net worth to only $1.3 million.
To add Marino, Parent, and Great-Grandparent as judgment debtors, Sierra relied on Section 187 of the California Code of Civil Procedure:
Cal.Civ.Proc.Code § 187. California decisions have interpreted Section 187 to confer on a trial court the general equitable power to amend a judgment to add additional debtors who were alter egos of parties already liable under the judgment and who controlled the litigation that resulted in the judgment.
The California Court has not yet ruled on the Post-Judgment Motion. Consistent with cases applying Section 187, Sierra argues in the Post-Judgment Motion that Marino should be added as a judgment debtor because (i) he was involved in the conduct that gave rise to the California Judgment, (ii) he controlled the Company before the Stock Sale, (iii) he deprived the Company of assets that it could use to pay the California Judgment, and (iv) he directed the Company's defense in the Underlying Action.
By letter dated July 30, 2015, Marino's counsel asked the Company to advance the fees and expenses that Marino would incur to oppose the Post-Judgment Motion. Marino's counsel regarded the Post-Judgment Motion as a continuation of Sierra's claims in the Underlying Action, which meant that the Post-Judgment Motion related to actions that Marino had taken while an officer and director of the Company.
The Company saw things differently. By letter dated August 7, 2015, the Company took the position that the Post-Judgment Motion focused primarily on the Fund Transfers, which took place when Marino was no longer an officer or director of the Company.
On October 13, 2015, Marino commenced this action. He sought advancements of attorneys' fees and expenses for the claims asserted against him in the Post-Judgment Motion. He also sought fees on fees to the extent he was successful in this action. The Company answered, and the parties cross-moved for summary judgment.
Article VIII of the Company's certificate of incorporation states: "This Corporation shall indemnify and shall advance expenses on behalf of its officers and directors to the fullest extent permitted by law in existence either now or hereafter." Through this provision, the Company bound itself to "advance expenses on behalf of" Marino in his capacity as one "of its officers and directors." Once the Stock Sale closed, however, Marino resigned from his positions with the Company and ceased to be an officer or director.
No one disputes that if Marino had been sued by reason of his status as an officer or director while he was serving as an officer or director, then the Company would have been obligated to provide advancements. The dispute is about whether Article VIII continues to cover Marino for the same types of claims now that he has ceased to be an officer or director. Marino contends that he remains covered for claims challenging the propriety of actions he took while serving an officer and a director. The Company contends that his coverage terminated when he ceased to be an officer or a director.
Because the Company's charter contemplates advancement "to the fullest extent permitted by law," the answer turns on the language of the indemnification and advancement statute. 8 Del. C. § 145. Three subsections of Section 145 carry particular significance: (i) Section 145(e), which authorizes advancements, (ii) Section 145(j), which addresses the extent to which a covered person's indemnification and advancement rights for actions taken during the person's period of service continue after the person has ceased to serve, and (iii) Section 145(f), which limits a corporation's ability to cause a covered person's rights to terminate after the person has served in reliance upon them.
Section 145(e) of the Delaware General Corporation Law (the "DGCL") confers permissive authority on Delaware corporations to grant advancements.
8 Del. C. § 145(e).
Like other sections of Delaware law that confer specific powers on an entity,
In framing the scope of the statutory authority for advancements, Section 145(e) distinguishes between "an officer or director of the corporation" and "former directors and officers or other employees and agents of the corporation or by persons serving at the request of the corporation as directors, officers, employees or agents of another [entity]." For "an officer or director of the corporation," Section 145(e) authorizes the corporation to provide advancements "upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this section." For other persons, Section 145(e) authorizes the corporation to provide advancements "upon such terms and conditions, if any, as the corporation deems appropriate."
The Company makes much of this distinction, which it says demonstrates that the unqualified term "officers and directors" only means currently serving officers and directors. Based on this reading, the Company interprets its charter provision as granting advancement rights only to individuals who are currently serving as officers and directors at the time of the litigation. As the Company sees it, once those individuals ceased to be officers and directors, they became former officers and directors and no longer had indemnification or advancement rights. Marino understands the provision differently. He believes that he was covered while serving as an officer and director, and that he continues to have coverage for the time during which he served as an officer and director. His coverage may have terminated prospectively, because from that point on he was a former officer and director, but it did not disappear retrospectively
Section 145 addresses this issue, but the answer is not found in Section 145(e). Two other subsections speak to whether existing indemnification and advancement rights continue after an individual has ceased to serve. Section 145(j) addresses the continuation question directly and provides that the rights continue unless the governing provision stated expressly that they would terminate. See Part II.B, infra. Section 145(f) addresses the related issue of whether a corporation can cause a director or officer's coverage to terminate, after the individual has served in reliance on it, by amending or altering the governing provisions. See Part II.C, infra.
History teaches that Section 145(e) singles out current officers and directors in its first sentence for a different reason. During the 1967 revision to the DGCL, which birthed Section 145(e) substantially in its modern form,
It made particular sense for the drafters to strive for a statutory safe harbor for advancements to current officers and directors, because a Court of Chancery decision from 1962 had questioned how current directors could advance themselves funds "before final disposition of [the] action." Essential Enters. Corp. v. Dorsey Corp., 182 A.2d 647, 653 (Del. Ch. 1962) (Seitz, C.). Professor Ernest L. Folk, III, who was the reporter for the 1967 revision, explained that Section 145(e) responded in
The drafters of the 1967 revision sought to eliminate uncertainty by having the first sentence of Section 145(e) specifically authorize a corporation to provide advancements to then-serving directors and officers conditioned solely on an unsecured undertaking. The sentence arguably represented a legislative determination that advancing litigation expenses to current officers or directors on that basis was entirely fair.
By contrast, there was no need for similar concern about granting advancements to former officers and directors or to other persons. Granting advancements to them was not an interested transaction. Absent additional facts that would implicate a higher standard of review, the decision to provide advancements would be protected by the business judgment rule. The second sentence of Section 145(e) therefore provided that a corporation could provide advancements to those individuals on terms the corporation "deems appropriate," i.e., in the board's business judgment.
The problem that the drafters sought to solve explains the superficially counterintuitive structure of Section 145(e). Read literally, the statute requires more before a corporation can provide advancements to "an officer or director of the corporation" (because the first sentence requires an undertaking) than it does for "former directors and officers" (where the statute permits the corporation to provide advancements on whatever terms it "deems appropriate"). The drafters took this approach because they were trying to establish a legitimizing norm for granting advancements to current directors and officers, so they needed to say where the floor was. Advancements to others did not raise conflict issues, so the drafters could leave the decision entirely to the board of directors.
As Delaware law has developed, the courts have largely harmonized the two sections. Decisions have recognized that a corporation can require more than just an undertaking before providing advancements to "an officer or director,"
Post-1967 decisions by the Delaware Supreme Court also rendered untenable the strong-form contention that a statutory grant of authority necessarily foreclosed fiduciary review. Perhaps most famously, the Delaware Supreme Court explained in 1971 that "inequitable action does not become permissible simply because it is legally possible." Schnell v. Chris-Craft Indus., Inc., 285 A.2d 437, 439 (Del.1971). In an arguably more significant albeit less heralded decision, the Delaware Supreme Court held in 1979 that Section 144 only addressed the statutory validity of an interested transaction; it did not foreclose fiduciary review.
Section 145(j) addresses what happens when an individual who is protected by indemnification or advancement rights while serving in a covered capacity ceases to serve in that capacity. It states:
8 Del. C. § 145(j) (the "Continuation Clause"). Unlike Section 145(e), which is a permissive grant of authority that a corporation can make mandatory, the Continuation Clause is a mandatory provision that requires an explicit opt-out ("unless otherwise provided when authorized or ratified").
The Continuation Clause establishes a default rule that indemnification and advancement rights "shall . . . continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person." Moreover, the provision contemplates not only continuation for a living individual who has "ceased to be a director, officer, employee, or agent," but also continuation for the benefit of the heirs, executors, and administrators of an individual who has, in all senses, "ceased to be." Far from implying that the rights to indemnification and advancement that protect a current director or officer cease when the individual leaves office and becomes a former director and officer, the Continuation Clause says exactly the opposite: Unless the right specifically stated otherwise when the coverage was authorized or ratified, the protection continues.
Section 145(j) was not part of the 1967 revisions to the DGCL. The General Assembly added this section in 1986 in the post-Van Gorkom statutory package that included charter-based exculpation under Section 102(b)(7).
Before the 1986 amendments, Section 145(f) included a statement to the effect that indemnification rights "shall . . . continue as to a person who has ceased to be a director, officer, employee or agent." But Section 145(f) more prominently addressed the degree to which indemnification rights under or granted pursuant to the statute were non-exclusive, which had been a matter of considerable interest from 1967 onward.
The plain and mandatory language of Section 145(j) now states that when a person has served in a covered capacity and made decisions or taken actions that implicate indemnification or advancement rights, then the coverage that person received in that capacity "shall . . . continue" unless the original grant of rights "otherwise provided." This means that if a person serves as a director and makes a decision, and if that person would be entitled to receive advancements in litigation over that decision while serving as a director, then that person's rights to advancements "shall . . . continue" after that person "has ceased to be a director." Put differently, if the person is sued over the decision after that person "has ceased to be a director," the person is still entitled to advancements because the rights that the person had when serving "shall continue."
Under the Continuation Clause, the only way that a covered person loses coverage after having "ceased to be a director" is if the source of the coverage "otherwise provided when authorized or ratified." For example, an advancement right would terminate upon cessation of service if it said during the time when the director took the challenged action that "a director shall receive mandatory advancements while serving as a director, but will no longer receive mandatory advancements after having ceased to be a director."
By making clear that the operative scope of coverage is what existed "when authorized or ratified," Section 145(f) focuses on the protection in effect during the covered person's period of service, In this
Section 145(a) is illustrative. In authorizing indemnification for third party actions, it states:
8 Del. C. § 145(a) (emphasis added). In this provision, the phrase "is or was" does not create a distinction based on the individual's capacity at the time of suit. Precisely the contrary, the phrase eliminates that issue by authorizing indemnification in either case ("is or was") and shifting the focus to the individual's capacity at the time of the events giving rise to the suit. For purposes of statutory authority, capacity at the time of suit is irrelevant. The statute instead turns on whether the individual became involved in the litigation "by reason of" the individual's service in a covered capacity. Consistent with the Continuation Clause, Section 145(a) grants authority to a corporation to indemnify a person who "is or was" a director for actions that they took while a director. The "was" compliments the default rule of the Continuation Clause, which states that unless the indemnification or advancement right specifies otherwise, coverage for actions taken while in a covered capacity continues after the person "has ceased" to serve in the covered capacity.
Parallel usages of "is or was" appear in Section 145(b), which authorizes indemnification for actions by or in the right of the corporation. Id. § 145(b). To the same effect, other parts of Section 145 prominently encompass "present or former" directors, officers, employees, or agents.
The third informative subsection is Section 145(f), which addresses whether a corporation can alter or eliminate the indemnification or advancement coverage that the corporation provided to an individual while serving in a covered capacity after that individual has served in reliance upon it. This scenario involves a more extreme variant of the continuation issue. Instead of addressing whether a covered person's rights presumptively continue, Section 145(f) answers the more serious question of whether a corporation can cause those rights not to continue by altering or eliminating them.
In its present incarnation, the relevant part of Section 145(f) states:
Id. § 145(f) (the "No Termination Clause"). The General Assembly added this language to Section 145(f) in 2009, prompted by a decision which held that a covered person's advancement rights did not vest through service and did not presumptively continue to provide coverage for actions taken during the period of service after the director became a "former," thereby enabling a corporation to eliminate a director's coverage for past service. See Schoon v. Troy Corp., 948 A.2d 1157, 1168 (Del. Ch.2008), superseded by statute, 77 Del. Laws Ch. 14, § 3 (2009).
The Schoon case involved a claim for advancements by William J. Bohnen, who had served as a director of Troy Corporation until he resigned in February 2005. During his time as a director, the relevant provision of Troy's bylaws stated: "[T]he Corporation shall pay the expenses incurred by any present or former director." Id. at 1165. Another section of Troy's bylaws tracked the Continuation Clause and provided as follows:
Id. at 1166.
After Bohnen resigned, the Troy board of directors amended the bylaws to remove the word "former." The board accomplished this by striking the phrase "the Corporation shall pay the expenses incurred by any present or former director" and replacing it with the following language: "Losses reasonably incurred by a director or officer in defending any threatened or pending Proceeding . . . shall be
Troy subsequently filed a plenary action against Bohnen in which Troy alleged that Bohnen had breached his fiduciary duties while serving as a director. Bohnen demanded that Troy advance his legal fees. Troy refused, arguing that Bohnen was now a former director and that its bylaws no longer provided advancements to former directors.
In the ensuing litigation over Bohnen's advancement rights, the trial court held that Bohnen did not have a right to advancements. The decision interpreted the amended bylaw as limiting advancements to directors and officers who were serving in office at the time suit was filed. Because the amendment eliminated a right Bohnen previously had enjoyed, the court considered whether Bohnen's rights had vested at the time of the amendment. The court held that a director's advancement rights did not vest until suit was filed, and thus a board could change a director's rights at any time before that point. The court read the continuation provision of the bylaws and the Continuation Clause in Section 145 as only contemplating continuation of advancement and indemnification rights after a lawsuit was filed. Under this reading, Bohnen's right to advancement right had not yet vested at the time of the amendment, so the board could eliminate it without Bohnen's consent.
The Schoon case settled before the Delaware Supreme Court could hear the appeal, but the trial court decision was "promptly overturned by the Delaware General Assembly." Andrew M. Johnston, Amy L. Simmerman & Jeffrey M. Gorris, Recent Delaware Law Developments in Advancement and Indemnification: An Analytical Guide, 6 N.Y.U. J.L. & Bus. 81, 113 (2009). The synopsis to the amendment stated that the No Termination Clause "adopt[ed] a default rule different than the approach articulated in [Schoon.]" Del. H.B. 19, 145th Gen. Assem. syn. § 3 (2009).
In that vein, the No Termination Clause started from a different premise than the Schoon decision. The decision posited that a covered person's rights did not vest until the filing of litigation and hence could be altered or eliminated at any point before then. The No Termination Clause chose a different point in time for vesting by providing that indemnification and advancement rights "shall not be eliminated or impaired by an amendment to the certificate of incorporation or the bylaws after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought." The statutory language recognizes that a covered person serves in a covered capacity in reliance on the indemnification and advancement rights that the corporation has provided, establishing a contractual relationship. As a matter of black letter contract law, the covered person's service provides the consideration necessary to form a binding contract. See Restatement (Second) of Contracts § 53 (1981). Because the individual's rights vest at that point, they cannot be amended retroactively unless the original grant of protection specifically contemplated the possibility of after-the-fact amendment.
The No Termination Clause also started from a different premise than the Schoon decision on another key issue. The Schoon decision analyzed advancement and indemnification rights based on the individual's capacity at the time of suit, which enabled the court to conclude that the rights had been terminated. By specifying
To illustrate the changes worked by Section 145(j), an analogy to insurance law may be helpful. Under the rejected Schoon approach, indemnification and advancement rights would have operated in a manner analogous to claims-made coverage. Under the post-amendment approach, indemnification and advancement rights operate like occurrence-based insurance coverage.
Section 145(e), the Continuation Clause, and the No Termination Clause thus establish a framework in which (i) a corporation can grant mandatory advancement rights to directors and officers that provide coverage conditioned solely on an undertaking (Section 145(e)), (ii) those rights presumptively continue to provide coverage for actions the individuals took during their period of service even after the individuals have ceased to serve (Section 145(j)), and (iii) those rights presumptively cannot be altered or eliminated after they have exposed themselves to potential suit by serving on the corporation's behalf (Section 145(f)). This structure implements the public policy foundation for advancement and indemnification rights, which is to "encourage capable men [and women] to serve as corporate directors, secure in the knowledge that expenses incurred by them in upholding their honesty and integrity as directors will be borne by the corporation they serve."
The public policy foundation for advancement and indemnification rights has
Reddy v. Elec. Data Sys. Corp., 2002 WL 1358761, at *5-6 (Del. Ch. June 18, 2002) (footnote omitted).
As human beings, the directors serving when a lawsuit is filed have a natural inclination to deny advancement to former directors and officers if they perceive those individuals as having harmed the corporation. Mandatory indemnification and advancement rights address this concern, but if those rights presumptively ceased when an individual stopped serving as a director or officer (contra the Continuation Clause), then former directors and officers again would face significant risk. If a corporation could alter or terminate a director or officer's indemnification or advancement rights after service but before litigation was filed (contra the No Termination Clause), then the exposure would be greater. By establishing a statutory presumption of continuing coverage for actions taken during the period of service, the Continuation Clause and the No Termination Clause ensure that the public policy interest prevails, unless the individuals know when they choose to serve that their rights will terminate or can be cut off later.
Under the statutory framework as I understand it, the Company's charter conferred indemnification and advancement rights on Marino that work as follows. When Marino agreed to serve in a covered capacity, he became entitled to receive mandatory indemnification and advancements to the fullest extent of Delaware law. That coverage was part of the consideration that the Company offered in exchange for his service. Through service, his coverage vested.
Marino's continuing coverage is retrospective, not prospective. The coverage only covers Marino for his period of service as an officer and director and protects him against lawsuits brought "by reason of" his service.
Although the coverage that the Company provided to Marino vested as a result of his service, the coverage did not ripen into an enforceable right until triggered by a covered claim. The point at which a covered claim triggers an enforceable right is different for advancement and indemnification.
Marino's mandatory advancement right ripened upon the existence of the covered claim. For these purposes, a covered claim is not limited to actual litigation.
More than the existence of a covered claim is necessary to cause Marino's
Determining whether and to what degree Marino is entitled to advancements requires applying the preceding framework to the Underlying Action. Marino only seeks advancements for defending against the Post-Judgment Motion. He has not sought advancements for any expenses incurred defending against earlier phases of the Underlying Action. The scope of an individual's advancement rights normally turns on the pleadings in the underlying litigation that trigger the advancement right.
The analysis of the Post-Judgment Motion in turn requires distinguishing between (i) portions of the Post-Judgment Motion in which Marino is being pursued by reason of his service as a director and officer of the Company and actions he took in those capacities and (ii) portions of the Post-Judgment Motion relating to Marino's actions after he resigned. Marino is entitled to advancement for the former. He is not entitled to advancement for the latter. See Charney, 2015 WL 5313769, at *6-7.
Recall that the Post-Judgment Motion relies on Section 187 of the California Code, which states:
Cal.Civ.Proc.Code § 187. To add a post-judgment debtor under Section 187, the movant must show "(1) that the new party be the alter ego of the old party and (2) that the new party had controlled the litigation, thereby having had the opportunity to litigate, in order to satisfy due process concerns." Katzir's Floor & Home Design, Inc. v. M-MLS.com, 394 F.3d 1143, 1148 (9th Cir.2004) (quotation marks omitted); accord Mesler v. Bragg Mgmt. Co., 39 Cal.3d 290, 216 Cal.Rptr. 443, 702 P.2d 601, 612 (1985) (en banc) (requiring the
The Post-Judgment Motion focuses in large part on action that Marino took in a covered capacity while serving as a director and officer of the Company, but it also involves some conduct that took place after Marino resigned from his positions with the Company. In the Post-Judgment Motion, Sierra states that "Marino personally participated in the conduct underlying the judgment." Dkt. 28, Ex. at 25. Sierra supports this assertion with the following:
Id. at 26 (citations and formatting omitted). These assertions depend on Marino exercising corporate authority as an officer of the Company and involve covered conduct. Cf. Charney, 2015 WL 5313769, at *6-7.
Sierra also contends in the Post-Judgment Motion that Marino received confidential information from Sierra in his capacity as the Company's CEO, then caused the Company to use Sierra's confidential information to bid in response to and win McClellan's request for proposal. This is covered conduct. See LiveOps, 903 A.2d at 326 (finding causal connection requirement satisfied where former officer allegedly misappropriated the corporation's trade secrets while a director).
The Post-Judgment Motion similarly implicates covered conduct by arguing that Parent and Great-Grandparent were alter egos of the Company before the Stock Sale, during Marino's time as the Company's Chairman and CEO. See Dkt. 28, Ex. at 1. In support of that argument, Sierra claims that:
Id. at 19-22. Without expressing a view on whether allegations of this type would be sufficient to establish alter ego liability, which is an issue for the California Court, these contentions necessarily invoke Marino's corporate authority as the senior officer of the Company.
A separate aspect of the Post-Judgment Motion, however, rests only partially on Marino's conduct in a covered capacity. Sierra argues that Section 187 permits a party to be added as a judgment debtor when the party participated in the litigation that gave rise to the judgment.
A final aspect of the Post-Judgment Motion does not involve covered conduct. The Pre-Judgment Motion asserts that Marino engaged in the Fund Transfers to defraud Sierra. Sierra further alleges that Marino caused the Company and Grandparent to represent to the California Court that "there would be no shifting or moving of assets to avoid judgment," then contradicted that representation by effecting the Fund Transfers. Id. at 23. These representations were made in June 2013, after the Stock Sale closed and Marino resigned from all positions with the Company. Likewise, the Fund Transfers occurred after the Stock Sale closed. The Company never received any funds. Parent sold the Company's stock to Buyer, and Parent received the money. Marino did not exercise Company authority in connection with any of these actions, and he is not entitled to advancements for defending this aspect of the Post-Judgment Motion.
Marino is thus entitled to some but not all of the fees and expenses that he has and will incur defending against the Post-Judgment Motion. To implement this ruling, the parties shall proceed as follows:
1. Before the fifth calendar day of each month, Marino's counsel will submit an advancement demand for fees and expenses incurred during the previous month. Any fees or expenses not included in the demand are deemed waived. The advancement demand will include the following:
2. Before the tenth calendar day of the month, the Company's counsel will respond to the advancement demand in writing. The response shall identify each specific time entry or expense to which the Company objects and explain the nature of the objection. The senior member of the Delaware bar representing the Company shall certify
3. The Company shall pay the undisputed amount contemporaneously with the response. If the Company disputes more than 50% of the amount sought in any advancement demand, the Company shall pay 50% of the amount sought and Marino's counsel shall hold the amount exceeding the undisputed amount in its escrow account pending resolution of the dispute regarding such portion.
4. Before the fifteenth calendar day of each month, Marino's counsel will reply to the advancement response in writing and provide supporting information and authority.
5. Before the twentieth calendar day of the month, the senior members of the Delaware bar representing each side will meet, in person, and confer regarding any disputed amounts. Any additional advancements that results from the meet-and-confer session will be paid with the next month's payment of undisputed amounts.
6. Not more frequently than quarterly, Marino may file an application pursuant to Court of Chancery Rule 88 seeking a ruling on the disputed amounts. Briefing shall consist of a motion, an opposition filed within fifteen days of the motion, and a reply filed within ten days of the opposition. Marino and the Company shall not raise any new arguments not previously raised with the other side in the applicable demand, response, reply, or meet-and-confer. Marino and the Company only shall cite authorities identified in writing in the applicable demand, response, or reply. The court will determine if a hearing is warranted.
7. If the court grants an application in whole or part, then pre-judgment interest is due on the adjudicated amount from the date of the applicable advancement demand.
8. If the court grants an application in whole or part, then in parallel with the next advancement demand, Marino may demand indemnification for the fees and expenses incurred in connection with the granted application, proportionate to the extent of success achieved. The parties shall address the indemnification demand in the same manner as the advancement demand. Except in connection with a successful application, Marino shall not seek or receive advancement or indemnification for time spent preparing invoices and advancement demands, addressing responses, or conferring regarding advancement requests.
Because Marino succeeded in part on the merits of his claim for advancements, he is entitled to an award of fees and expenses proportionate to his success. See 8 Del. C. § 145(c); Stifel Fin. Corp. v. Cochran, 809 A.2d 555, 561 (Del.2002); Fasciana v. Elec. Data Sys. Corp., 829 A.2d 178, 183 (Del. Ch.2003) (Strine, V.C.). Delaware corporations "remain free to tailor their indemnification bylaws to exclude `fees on fee's,' if that is a desirable goal." Stifel, 809 A.2d at 561-62. The charter provision in this case does not exclude fees on fees.
Marino's motion for summary judgment is granted. The Company's motion is denied.
This does not mean that statutory structure is irrelevant to fiduciary review. "To the contrary, the structure and statutory rubric. . . are highly influential to courts shaping the common law of corporations." Pure Res., 808 A.2d at 434.
Commentators who have discussed the operation of indemnification and advancement rights after the General Assembly's response to Schoon have described the point of vesting as combining both service and an event that later leads to litigation. See 1 David A. Drexler et al., Delaware Corporation Law and Practice § 16.04, at 16-23 (Supp. 2012) ("[U]nder the current default rule, the right to advancement vests at the time of the act or omission giving rise to such right."); Mark A. Sargent & Dennis R. Honabach, D & O Liability Handbook § DE:2 (2015) ("[The amendment to Section 145(f)] effectively provides that a director or officers [sic] right to indemnification or advancement under a corporate bylaw vests at the occurrence of the act or omission that is the subject of the . . . action, suit or proceeding unless the bylaw expressly provides otherwise. . . . Most commentators believe the court erred in Schoon and predict that should another bylaw amendment case arise, the courts would effectively apply the new provision retroactively."); 1 Welch et al., Folk on the Delaware General Corporation Law § 145.08, at 4-421-22 n.116 (6th ed. 2015) ("The 2009 amendment effectively overruled the default position of some earlier cases holding that a director's right to advancement does not vest when the director takes office, and that rights could be eliminated where there was no evidence that the corporation was contemplating claims against the director at the time of the amendment.").
Because indemnification and advancement rights are triggered by actions, suits, and proceedings, there necessarily will be an event that gives rise later to litigation. Whether a particular act or omission will give rise to litigation often cannot not be known at the time of the act. It seems more straightforward to me, therefore, to speak of vesting through service. The statutory reference to the act or omission is nevertheless helpful in emphasizing that the scope of the operative right is determined at that point. It also makes clear that rights can be changed for prospective periods of service, but not for past periods of service, unless the right that previously governed that past period of service "otherwise provided when authorized or ratified."
