Anyone seeking attorneys’ fees in Delaware based on a “prevailing party clause” in an agreement–who has not been completely and unequivocally vindicated in that litigation, needs to read the Chancery court ruling in the case styled: The Mrs. Fields Brand, Inc. v. Interbake Foods LLC, C.A. No. 12201-CB (Del. Ch. Jan. 5, 2018). In essence, citing to prior Chancery decisions, the Court of Chancery explained that the standard that the court will apply to determine whether it will award fees based on a contract provision entitling a “prevailing party” to fees, will be the “predominance in the litigation” standard. 

As applied to the facts of this case, the court determined that there was no single party in the case that satisfied that standard because among multiple claims and cross-claims involved in this litigation, each party both won some and lost some. This is a useful iteration of the law on a topic of practical application in corporate and commercial litigation.

The court explained that it will not parse the results of litigation on a claim-by-claim basis to determine predominance, and in some cases, as in this one, no party can be said to prevail for purposes of the standard that applies to a claim for fees based on a “prevailing party” fee-shifting provision in an agreement.