The Delaware Court of Chancery explained the reasoning for a specific award of attorneys’ fees based on a post-trial decision earlier this year, highlighted on these pages, that discussed the basis for awarding fees in a case involving breach of fiduciary duty, breach of a restrictive covenant, and related breaches.  Arxada Holdings NA Inc. v. Harvey, C.A. No. 2024-0771-JTL, Order (Del. Ch. March 13, 2026)

Highlights

  • The exercise of its discretion to determine the reasonableness of an award of attorneys’ fees does not require the court to review every time entry or disbursement. Order at 1. (citation to case law omitted). See Rule 1.5(a).
  • Nor does it require the court to judge the appropriateness of a decision to file a particular motion or pursue a particular argument or litigation tactic. Id.
  • The court found the number of hours spent to be reasonable in light of the work done, and noted that the litigation conduct of the defendant added to the amount of time required. Order at 2.
  • The court determined that the hourly rate was reasonable. The Order does not reveal the hourly rate, but from other filings in the case, we estimated that the hourly rate for partners included four digits.
  • The court declined to second-guess the staffing decisions, such as the argument that too many partners were working on the case, while observing that partners can often do certain tasks more quickly and efficiently than an associate. Id. (citation omitted).
  • Refusing to examine specific time entries, the court deferred to the “judgement call” of counsel and that a sufficient monitoring mechanism is the client who initially reviews the bill while not being guaranteed that fees will be shifted. Order at 2-3 (citations omitted).
  • Rejecting the argument that fees should not be awarded for motions that were not successful, the court reasoned that: “A party cannot expect to win on everything. Litigating a case involves a number of intertwined decisions.” Order at 3. (citation omitted.)

Contract-based rights to advancement of an LLC’s general counsel, that would otherwise have been honored, were denied based on the equitable doctrine of unclean hands, in a recent Delaware Court of Chancery opinion styled In Re Care One LLC Advancement Litigation, C.A. Cons. No. 2025-1286-NAC (Del. Ch. Sept. 24, 2026).

Basic Factual Background

Although the facts of this case are somewhat sui generis–and not likely to be replicated in many other case– the decision is still noteworthy for a few reasons:

(i) some types of errant behavior that might not play a role in an analysis by other courts of the underlying relief requested can be fatal in Chancery to what might otherwise be a successful claim;

(ii) the officer who had a contractual right to advancement in this matter was the general counsel of the company and that role imposed greater obligations than would apply to a non-lawyer. For example, the court cited to authority to explain that lawyers have a fiduciary duty to their client–in this case the LLC. The court did not focus on a related nuance: a lawyer’s fiduciary duty to a client is independent of the potential elimination of other fiduciary duties that might be allowable in an LLC agreement.

The substantive law of advancement was not the dispositive factor in this case, but a few aspects of the court’s treatment of advancement law are notable.

Waiver Required to Repeal Vested Advancement Rights

First, the court noted that even if the constitutive documents of a company are amended to reduce advancement rights, those rights cannot be terminated if they are already triggered. The court discussed that a voluntary waiver would be required to eliminate rights that may have vested before any amendments to a governing document could reduce those rights.

Lawyer Cannot Mislead a Client–Then Blame the Client for Not Reading Agreement

Second, though not limited to advancement law, noteworthy is the court’s analysis of the case law holding that a person will not be relieved of the consequences of an agreement that she signs–but does not read. However, there was a twist in this case. The officer whose advancement was denied, the general counsel, was told by the CEO to amend the LLC agreement to make sure that only the CEO, and nobody else, had advancement rights. He failed to follow his client’s instructions, for the lawyer’s personal benefit, and misled the client about the documents he gave the client to sign.

Breach of Lawyer’s Duty to Client Trumps Advancement Rights

Contrary to the client’s emphatic instructions on this issue, the general counsel still included advancement rights for himself in the amended agreement–without telling the client the amended document still gave the lawyer advancement rights. Waivers would have terminated those rights. The CEO, who also owned a majority of the company, insisted repeatedly that he wanted to be the only one in the company to have advancement rights under the amended agreement.

The court observed that if the lawyer followed his client’s instructions, and explained that waivers would be required to prevent future advancement rights to anyone other the CEO, the general counsel would likely have been fired if he refused to sign a waiver. His choice was to leave the company or follow the client’s instructions–but the lawyer took a different path.

Unclean Hands Barred Enforcement of Advancement Rights

The key is that if the lawyer were to have followed his client’s instructions, he would not have had the advancement rights ostensibly provided to him in the agreement he prepared–contrary to the client’s explicit instructions. In sum, the lawyer misled, or failed to fully disclose to, the client the dispositive details about the contents of the amended agreement. It was a breach of the lawyer’s fiduciary duty: (i) to mislead the client; and (ii) contrary to his client’s instructions, to prepare an agreement that created a personal benefit for the lawyer to the detriment of his client, the company.

The unclean hands doctrine barred him from trying to enforce that agreement against the client to obtain advancement rights.

For the last 30 years, I have been writing an ethics column for the national publication of The American Inns of Court called The Bencher. My latest column is about a recent lawsuit filed by the U.S. Department of Justice against the District of Columbia Office of Disciplinary Counsel for the weaponization of that office against government lawyers working for the current presidential administration.

The lawsuit also compares the draconian penalty sought against the author of a draft internal memo that was never finalized and never intended for anything other than confidential internal discussion, with the drastically disparate treatment of a government lawyer in a prior administration who pled guilty to a felony.

The substantive arguments in the complaint include that the state bar authorities cannot use the legal ethics enforcement machinery to control the Executive Branch of the federal government and that the President’s constitutionally required immunity would be meaningless if Executive Branch attorneys engaged in confidential internal deliberations for purposes of providing legal advice to the President could be targeted by partisan prosecutors.

The latest episode of the Delaware Corporate Litigation Insights Podcast features M&A deal lawyer Michael Platner, who discusses when deals go bad and the most common provisions of an agreement that are often litigated, such as: earnouts, indemnification, and allegations of misrepresentations. These cases are common fare in the Delaware Court of Chancery and the Delaware Superior Court’s Complex Commercial Litigation Division.

It can be helpful for litigators to hear insights about the genesis of these cases and how the disputes originate. To paraphrase an insight from Michael: an earnout provision may be described in some instances as a disagreement about the price of the deal that the parties agree to litigate later.

Few corporate law scholars have the familiarity with all three of the titular subjects to write about their intersection, and fewer still have written about the overlapping comparisons of all three. But the inestimable Professor Stephen Bainbridge, a favorite of this blog, has contributed to that scholarship in his prior publications. For those interested, we link to the good professor’s recent contributions to this fascinating discussion.

Bonus. As another example of his scholarly versatility, the same professor recently wrote about the SEC’s proposal to repeal the shareholder proposal rule.

The Delaware Law School and the Delaware Journal of Corporate Law reprise the annual lecture on corporate law named after my father. Details follow.

The Delaware Law School is pleased to invite you to the 41st Annual Francis G. Pileggi Distinguished Lecture in Law, presented by the Delaware Journal of Corporate Law. This year’s lecture will be held on Friday, November 13th, with two session options available. Registration is open and required. Full details are included in the flyer below.

We welcome you to share this invitation with your colleagues and professional networks. 

REGISTER HERE!!

**One CLE credit will be offered for Delaware, Pennsylvania, and New Jersey. 

In a short post-trial letter ruling, the Court of Chancery awarded damages for spoliation of evidence in ATG Capital Opportunity Funds LP v. Lane, C.A. No. 2026-0477-LWW (Del. Ch. Sept. 2, 2026). The record showed that a principal of plaintiff ATG failed to preserve relevant data on his mobile device. The prior post-trial decision on the merits did not rule on a motion seeking spoliation sanctions but explained that the requested adverse inference would not affect the outcome, nor would raising the burden of proof change the court’s analysis—so those requested remedies were moot. But because the spoliating party was not blameless, the court analyzed what other appropriate sanction was warranted.

Applicable Law

Court of Chancery Rule 37(e) authorizes sanctions when ESI should have been preserved in reasonable anticipation of litigation but is lost because the party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery. In such cases, “upon finding prejudice to another party from the loss of ESI, the court may order measures no greater than necessary to cure the prejudice.” Id. (citations omitted).

The court explained that the date when a duty to preserve arises is both a fact-specific and context-specific inquiry. Namely: “[a]n affirmative duty to preserve evidence attaches upon the discovery of facts and circumstances that would lead to a conclusion that litigation is imminent or should otherwise be expected,” and it attaches even before litigation has commenced “when a party should have known that the evidence may be relevant to future litigation.” Letter Ruling at 5-6 (citations omitted).

The court found that a principal of the plaintiff communicated using an ephemeral messaging app called Signal, as well as WhatsApp “with the auto-delete function enabled”—over two weeks after receiving a formal litigation-hold notice from counsel. He affirmatively turned on the WhatsApp auto-delete function while communicating with another board nominee—four days after the duty to preserve attached.

The court held that “leaving auto-delete enabled during this period was at least negligent. Failing to disable it after receiving the litigation hold was at least reckless. Affirmatively turning it on with litigation growing increasingly likely evidences an intentional disregard for [the party’s] preservation obligations.” Id. at 7 (citations omitted).

Highlights of Court’s Legal Analysis

The court reasoned that: “[t]o impose monetary sanctions, I need only find that [the party] had a duty to preserve evidence and breached that duty.” Id. (citation omitted). The court rejected the argument that substitute discovery eliminated any prejudice from the lost communications because it “ignores the financial burden it imposed, and that the discovery was an incomplete substitute for contemporaneous messages.” Id.

The court concluded that the proportionate remedy required for the court to cure the prejudice in this matter was “reasonable attorneys’ fees and expenses incurred in connection with [the opposing party’s] motion for spoliation sanctions and pursuit of supplemental discovery to compensate for the lost evidence.” Id. at 8. (citation omitted).

Takeaway

Motions for spoliation are very fact-specific and context-specific. The court will apply a measured and proportionate response depending on the prejudice that results from spoliation. There is no “one size fits all” remedy for all cases.

This overview was prepared by Rae Ra, a corporate litigation associate in the Delaware office of Lewis Brisbois.

The Court of Chancery recently emphasized again the plaintiff-friendly standard for advancement, rejecting JP Morgan’s objections to approximately $21 million in disputed fees and expenses.

In Javice v. JPMorgan Chase Bank, N.A., et al., C.A. No. 2022-1179-CDW (Transcript)(July 2, 2026)(“Transcript Ruling”) (deciding the same issue for C.A. No. 2023-0040-CDW), Magistrate Christian Douglas Wright held that, absent a showing of clear abuse, the Court will not conclude that counsel’s certifications were made in bad faith nor engage in a line-by-line analysis of whether expenses and fees are reasonable.

Rather, it remains well-established that the reasonableness of fees advanced is addressed at a later stage.

JPMorgan has appealed this Magistrate decision to ask a Vice Chancellor to pause the ruling requiring it to advance more than $20 million in disputed legal fees based in part on the argument that if it is later determined to have been improvidently paid, the bank will not be able to recoup the funds.

Factual Background

Both Javice and Amar each brought suit for advancement against JP Morgan in relation to their respective criminal proceedings, and the Court in March 2023 held that the two plaintiffs were entitled to advancement. Tr. Ruling at 5-6.

Over time, JP Morgan began to object more and more to requests for advancement. For November 2025, it refused to pay over 95 percent of the amount invoiced. Id. at 9. JP Morgan “justified its withholdings over 2025 because it asserted that the invoices included improper expense reimbursements—notably, for items such as gummy bears and a birthday cake—and that the invoices reflected impossible or implausible duplicative time entries, among a litany of similar objections.” Id.

Analysis

The Court, however, rejected those arguments, citing to the standard that the “court generally defers to a receiving party’s counsel’s good faith certification” absent an “evidentiary burden that is described as ‘clear abuse’ and ‘unmistakably unreasonable.’” id. at 13, which “approxima[ted] the most difficult burden of proof used in American law—beyond reasonable doubt.” Id. at 15.

The Court further commented:

In short, the words we use for the system we now have in place for advancement requires good faith in the preparation and submission of advancement demands. It doesn’t require perfection. It tolerates mistakes. It tolerates negligence. It even tolerates gross negligence, as long as counsel’s certification is made in good faith.

Id. at 16.

And based on this standard, the Court held, for the instant case: “JPMorgan hasn’t put forward sufficient evidence to persuade me that the fees and expenses . . . are so unmistakably unreasonable that they can only be the product of dishonest purpose, moral obliquity, furtive design, or ill will” such that the Court “must conclude that counsel’s certifications were made in bad faith.” Id. at 19.

For litigators, this decision offers practical and specific tips for asserting (or objecting to) advancement rights:

  • When opposing advancement, it’s a good idea to submit one’s own counsel’s invoices for comparison. The Court pointed out JPMorgan’s own invoices “would have been a helpful reference in a record grasping for comparisons,” id. at 22, before delving into, by way of example, the more than 2,500 hours billed by JPMorgan’s counsel in the Spirit Airlines bankruptcy case. Id. at 23. The Court noted that “JPMorgan’s refusal to provide its invoices was self-defeating and leads me to infer the invoices wouldn’t have favored JPMorgan here . . . The next time I ask for invoices, please hand them over.” Id. at 25.
  • Trying to argue for reasonableness of “total” spending won’t move the needle. “There isn’t some hypothetical outer limit on what any particular case should cost.” Id. at 27. “Delaware law doesn’t impose bright-line limits for total spend or, for that matter, spending within any particular category of work that is typically done in litigation.” Id. at 46.
  • The Court will not conduct a “granular level of review” over staffing decisions, number of timekeepers, minor billing errors, clerical work, specialist work, rate increases, Tide pens, gummy bears, and the like, at the advancement stage. Id. at 34-44, 47-58.
  • The reasonableness of fees and expenses can be hammered out at the indemnification stage, not at the advancement stage. See id. at 13, 38, 42.
  • Make sure to follow deadlines. The Court will not be “persuaded ‘we were really busy’ constitutes inadvertence” for missing deadlines for seeking advancement. Id. at 40.

In sum, advancement is warranted absent a showing of clear abuse and unreasonableness that would defeat a counsel’s good faith certification. This decision serves as a reminder of the high threshold that must be met before fees, in this context and at this procedural posture, may be challenged.  

In an episode of my Delaware Corporate Litigation Insights Podcast, we discuss with Delaware litigator Sean Bellew a recent Delaware Court of Chancery decision that addresses the prevention doctrine in contract law. When properly applied, it may excuse a party’s nonperformance when the other side prevents it from fulfilling its contractual obligations.

It’s only ten minutes long. Enjoy it.

I was delighted this week to receive a courtesy copy of the newest contribution, in hardback, to corporate law scholarship by Stephen Radin as an update to his iconic four-volume treatise on the Business Judgment Rule. It features a Foreword by former Delaware Chief Justice E. Norman Veasey.

What a challenge to do a short overview on a blog of a 1,500-page deep dive into a complex bedrock tenet of corporate law, with its discussion of countless seminal decisions and more recent court opinions that address the many facets of this keystone of corporate governance. I encourage anyone interested in this area of law to include this important tool in their toolbox.

In this short blog post I only attempt to whet the appetite of those interested in this topic.  

Highlights

  • The book begins with the basics, including the role of Delaware in corporate governance and the importance of the internal affairs doctrine.
  • The book provides a primer on the business judgment rule and examines the fiduciary duties of care and loyalty, as well as the Section 102(b)(7) exculpation.
  • The treatise includes a discussion of the amendment in 2025 to Section 144 and its new and heightened business judgment rule presumption.
  • Copious citations support an analysis of the effect of the presumption, when the presumption is not rebutted, when it is irrebuttable—supplemented by examples of how to rebut the presumption.
  • True to its title, the court discusses the role of the BJR in derivative litigation, including the demand requirement: demand excused and demand refused,
  • Although cases in other states are addressed, the focus is on Delaware law and the seminal Delaware cases, as well as more recent cases that discuss the multi-faceted aspects of demand futility and the challenge to proceed with derivative litigation when demand is refused.
  • The final chapter deals with special litigation committees and restoration of board control if a stockholder satisfies the demand requirement.

In the chapter that provides a primer on the Business Judgment Rule, the author begins with the introductory statement that:

Corporate law ‘starts with the bedrock principle’—codified in Section 141(a) of the General Corporations Law—that ‘the business and affairs of any corporation . . . should be managed by or under the direction of a board of directors.’ ‘Directors, rather than shareholders, manage the business and affairs of the corporation.’ . . . This ‘bedrock statutory principle of director primacy’ is ‘the centerpiece of Delaware law’ and the ‘cornerstone of Delaware’s board-centric regime.’ (citations omitted.)

Consistent with this bedrock principle, ‘for its entire history, our corporate law has tried to insulate the good faith decisions of disinterested corporate directors from judicial second-guessing.’ ‘The Business Judgment Rule embodies that policy judgment,’ is ‘at the foundation’ and ‘at the core of Delaware corporate law’ . . . (citations omitted.)

Treatise at 25-26.

The publisher is Wolters Kluwer 1-800-638-8437.