CURRENT MONTH (February 2021)

Business Litigation

Delaware Supreme Court Rules That Advancement Order Related Orders Are Interlocutory Where Payment of Expenses is Still Ongoing and the Court of Chancery Retained Jurisdiction Over Future Disputes

By Jonathan M. Stemerman

In Salomon v. Kroenke Sports & Entertainment, LLC, the Delaware Court of Chancery issued an order awarding a former officer his past and future reasonable attorneys’ fees for defending an arbitration action (the “Advancement Order”) and two orders for “fees on fees” pursuant to Court of Chancery Rule 88 (the “Rule 88 Orders”).  The company initially appealed the Advancement Order, which the Delaware Supreme Court dismissed as interlocutory, as the Court of Chancery had not yet addressed the motions for the Rule 88 Order and because “under the Fitracks Order, the Court of Chancery retains jurisdiction to resolve the amounts for which Salomon demands advancement going forward.”  After the Rule 88 Orders were entered, the company again filed an appeal. 

In Kroenke Sports & Entertainment, LLC v. Salomon, No. 225, 2020 (Del. Feb. 1, 2021), the Delaware Supreme Court dismissed the appeal of all three orders as interlocutory, holding that the Advancement Order remained interlocutory because advancement of expenses is ongoing and the Court of Chancery retained jurisdiction to decide future disputes over payment of those expenses.  Similarly, the Supreme Court held that the Rule 88 Orders were also interlocutory the Court of Chancery retained jurisdiction to resolve any further disputes and then issue a final order. Accordingly, the Supreme Court found that the appeal was interlocutory and dismissed it for lack of jurisdiction.

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