Delaware corporations are also permitted (but not required) to advance costs and expenses incurred by a corporate official in covered proceedings, provided the corporate official agrees to repay the advanced fees if it is ultimately determined that the official is not entitled to indemnification.⁶ Advancement provides a stronger protection than indemnification, as the corporate official has ongoing access to funds and does not have to cover the fees and costs. Advancement is required even when the corporation is pursuing claims against the corporate official as a result of the corporate official’s misconduct.⁷

Delaware’s strong enforcement of advancement rights, coupled with the prospect that corporate litigation is costly and the company may not recover the advanced fees, even if successful, frequently results in a company foregoing bringing claims (or quickly voluntarily dismissing claims) it would otherwise pursue against the corporate official. Advancement provisions are so potent that they can cause a company to sacrifice an otherwise strong claim, warranting careful consideration of the scope of a company’s advancement obligations. 

A Delaware corporation is also obligated to pay the attorneys’ fees incurred by a corporate official when the corporate official is successful in a lawsuit seeking indemnification (and, if applicable, advancement).⁸ This is referred to as “fees on fees,” because the fees and expenses awarded are beyond the underlying action triggering indemnification and advancement.⁹

Northeastern Aviation Corp. v. Pasternack

The Delaware Supreme Court’s decision in Pasternack is a recent example of how broadly indemnification and advancement obligations can extend under Delaware law.¹⁰ The Delaware Supreme Court affirmed the Court of Chancery’s holding that a pilot was an “agent” of a Delaware corporation and, therefore, entitled to indemnification under the corporation’s bylaws.¹¹ The reasoning in Pasternack could extend to advancement, which could have more profound consequences for Delaware corporations.

In Pasternack, the plaintiff sought indemnification under the bylaws of a Delaware-incorporated aircraft charter and management company (the Company) for legal expenses incurred in connection with his appeals.¹² The dispute underlying the indemnification proceeding arose in connection with the pilot’s participation in drug testing required under the regulations governing the Company.¹³ The pilot challenged a revocation of his certificate to fly based on this drug testing, and, in the final resolution of the case, the Court of Appeals for the D.C. Circuit reversed the revocation.¹⁴ Like many Delaware corporations, the Company’s bylaws provided for mandatory indemnification of directors, officers, employees, and agents “to the extent permitted by the [DGCL].”¹⁵

The Court of Chancery held the Company was required to indemnify the pilot because (i) he was an agent of the Company in connection with the drug testing, (ii) he took the drug test by reason of his affiliation with the Company, and (iii) he acted in good faith and in a manner, at the very least, not opposed to the best interests of the Company.¹⁶ The Court also required the Company pay the pilot “fees-on-fees.”¹⁷ On appeal, the Delaware Supreme Court affirmed the Court of Chancery’s decision.

In Pasternack, the Court of Chancery noted, Delaware courts “limit[] agency in the indemnification context to ‘only those situations when an outside contractor . . . can be said to be acting as an arm of the corporation vis-à-vis the outside world.’”¹⁸ The underlying proceeding must also result from the purported agent’s “conduct on behalf of the corporation.”¹⁹ Thus, the Court of Chancery explained, a pilot is an agent of a charter flight operator when piloting a flight, because the charter flight operator “authorizes” the pilot to “exercise operational control” and the pilot is “acting as an arm of the corporation vis-à-vis” the Company’s passengers, air traffic controllers, and ground crew.²⁰ Although the pilot in Pasternack was not piloting an aircraft at the time he was drug tested, the Court of Chancery and the Delaware Supreme Court found the pilot was still acting as an agent of the Company during the drug test because the Company instructed the pilot to report for the test. 

Lessons learned

• Indemnification and advancement are two of the most common ways in which Delaware corporations protect corporate officials from personal liability.²¹
• Rights to indemnification and advancement under Delaware law are broadly construed against the corporation. 
• Indemnification and advancement encourage qualified individuals to serve on behalf of companies “by protecting their personal financial resources from depletion by the expenses they incur during an investigation or litigation that results by reason of that service.”²²
• Advancement of fees and costs during the proceeding provides an even stronger protection than indemnification, as the corporate official has ongoing access to the funds and does not have to cover fees and costs during the entire proceeding, which could last years and be extremely expensive. 

1. See 2019 WL 5328864 (Del. Oct. 21, 2019), aff’g 2018 WL 5895827, at *11 (Del. Ch. Nov. 9, 2018).
2. See 8 Del. C. section 145(c).   
3. See 8 Del. C. sections 145(a)-(b).
4. A corporation’s power to indemnify for claims brought by or in the right of the corporation is more limited, which applies to claims on behalf of the corporation (i.e., derivative claims) or directly by the corporation (i.e., direct claims). The potential scope of indemnification under Section 145(b) is limited to expenses incurred, and does not include judgments, fines, or amounts paid in settlement.
5.  See 8 Del. C. sections 145(a)-(b). However, Delaware corporations are statutorily prohibited from providing indemnification when the corporate official acts in bad faith or otherwise knowingly violates the law. See Waltuch v. Conticommodity Servs., Inc., 88 F.3d 87, 95 (2d Cir. 1996); Levy v. Hli Operating Co., Inc., 2007 WL 2801383, at *11 (Del. Ch. May 16, 2007).
6. See 8 Del. C. section 145(e); see also Levy, 924 A.2d at 226.
7. See, e.g., Bergonzi v. Rite Aid Corp., 2003 WL 22407303, at *1 (Del. Ch. Oct. 20, 2003) (noting even where a corporate official pleaded guilty to financial-related crimes, a Delaware corporation could not cease advancing funds, as the plaintiff was still entitled to advancement until there was a “final disposition” of claims); see also Sun-Times Media Grp., Inc. v. Black, 954 A.2d 380 (Del. Ch. 2008) (explaining that under typical bylaw and charter provisions, a person is not required to repay amounts advanced to him by the corporation unless and until such person is deemed unsuccessful in a final, non-appealable determination in the underlying litigation); Dunlap v. Sunbeam Corp., 1999 WL 1261339 at *5 (Del. Ch. July 9, 1999), (a holding board could not determine a person was not entitled to indemnification and, thereby, demand repayment of advances, because the person still could be found entitled to indemnification); Hampshire Grp., Ltd. v. Kuttner, 2010 WL 2739995, at *53 (Del. Ch. July 12, 2010) (declining to address the defendant officers’ claims for indemnification until litigation was completely resolved, including resolution of anticipated appeals).
8. See Kaung v. Cole Nat. Corp., 2005 WL 3462250, at *3 (Del. Ch. Dec. 13, 2005) (citing Stifel Fin. Corp. v. Cochran, 809 A.2d 555 (Del. 2002)). Potential for “fees on fees” curtails the instances where a Delaware corporation denies indemnification and advancement to a corporate official because in most instances, the corporate official prevails, at least in part.
9. In Delaware, “a litigant’s partial success in an advancement or indemnification action leads to partial indemnification, commensurate with the extent of the victory.” See Kaung, 2005 WL 3462250, at *3 (citing Fasciana v. Elec. Data Sys., 829 A.2d 178, 178 (Del. Ch. 2003)). When a litigant is entirely unsuccessful, he is not entitled to any portion of the attorneys’ fees incurred in bringing the unsuccessful action. “Delaware corporations lack the contractual power to compensate a party for fees and expenses incurred while pursuing a failed underlying claim.” See Lieberman v. Electolytic Ozone, Inc., 2015 WL 5135460, at *7 (Del. Ch. Aug. 31, 2015).
10. See 2019 WL 5328864 (Del. Oct. 21, 2019).
11. Id.
12. See 2018 WL 5895827, at *1.
13. Id. at *1, *4.
14. Id.
15. Id.; see, e.g., Homestore, Inc. v. Tafeen, 888 A.2d 204, 206-07 (Del. 2005).
16. See Pasternack, 2018 WL 5895827, at *8-11.
17. Id. at *12.
18. Id. at *8 (quoting Fasciana, 829 A.2d at 163).
19. Id.
20. See Pasternack, 2018 WL 5895827, at *8.
21. Insurance is also a common choice. Insurance can offset the company’s indemnification and/or advancement obligations, so the insurer pays the “bill” to the corporate official.
22. See Homestore, Inc., 888 A.2d at 211.