Advancement of legal fees under DGCL Section 145 is a quintessentially Delaware legal topic that has been the subject of 39 different posts over the last four years on this blog, (see list of posts here), either based on summarizing Delaware opinions on the issue or referring to discussions by others of recent developments. [This is post number 40.] Among those 39 posts was a highlight of the federal decision in U.S. v. Stein by Judge Kaplan of the Southern District of New York that dismissed claims against certain KPMG partners because the judge reasoned that prosecutors in that case, by "strong-arming" (my word) KPMG into refusing to provide advancement rights to the partners, KPMG in effect, denied the partners’ right to effective counsel under the Fifth Amendment of the U.S. Constitution. Here is my blurb on Judge Kaplan’s decision of last year. I am not aware of that same issue being addressed directly, in the same way, by courts in Delaware, but Judge Kaplan’s decision remains as a milestone to highlight how important the right to advancement is, even in civil cases where the legal fees are so astronomical that most mortals could not afford to advance the legal fees on their own to defend a case brought against them, for example, in their capacity as a director of a company.
The Wall Street Journal Law Blog writes today here about the prosecution’s recent decision not to appeal the Second Circuit’s affirmance of Judge Kaplan’s decision. A reading of Judge Kaplan’s decision and the appellate court’s affirmance should be required reading for anyone who wants a complete understanding of the full ramifications of the importance of the right to advancement and the consequences of that right being denied–where, of course, the right is established. Most Delaware cases address whether the right to advancement has been established and what the contours of that right are.