Court Of Chancery Explains Apportionment In Advancement Case
Not infrequently, a former director may seek to have his attorney fees advanced in two pending matters, only one of which is covered by a corporation’s advancement obligations. An example would be an SEC action coupled with a separate criminal case.
As this decision explains, if the fees are not easily apportioned between the two matters, the court will require all the fees be advanced. Of course, later when the company seeks to recover the fees, an apportionment may occur in a proceeding to decide if the director is entitled to be indemnified or must pay back those fees.