IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
JULIUS LIPP, )
)
Plaintiff, )
)
v. )
) C.A. No. 2026-0493-DH
MIXEDBREAD AI, INC., )
)
Defendant. )
)
)
)
)
)
REPORT
Report: August 10, 2026
Date Submitted: June 24, 2026
William Burton, Brittany M. Giusini, Gabriella Mouriz, BARNES &
THORNBURG; Prasanth Chennakesavan, TUFFAHA CHENNAKESAVAN
MANDLEKAR LLP ; Attorneys for Petitioner.
Sean T. O’Kelly, O’KELLY & ROURKE, LLC; Jeffrey T. Lindgren, VASQUEZ BENISEK & LINDGREN LLP; Attorneys for Respondent.
HUME, IV, M.
Once again, parties meet on the well-worn turf of the advancement battlefield.
But these parties ask me to tread upon a new plot. The company dismissed a
founding member who then filed suit against the company for terminating him
without cause. The company counterclaimed and asserted affirmative defenses.
Accordingly, the member sought advancement. In response and in an effort to end
the member’s advancement, the company dismissed the counterclaims and amended
the four affirmative defenses that triggered advancement. But are the member’s
response to affirmative defenses advanceable? And, if advanceable, what must the
company do to end that advancement? In this fact-specific exercise, I hold that
responses to affirmative defenses are advanceable when they implicate the member’s
conduct in his official capacity. I also hold that the company’s interrogatory
responses can limit indemnification when they are a clear representation that the
company will not bring advanceable litigation against the member.
1
I. BACKGROUND 1
A. The Parties
Plaintiff Julius Lipp (“Lipp”) was one of Defendant Mixedbread AI, Inc.’s
(“Mixedbread”) founders. 2 Lipp also served as Chief Technology Officer (“CTO”)
and as one of three members of the Board of Directors (“Board”). 3 Lipp served as
an officer and employee under an employment agreement (the “Employment
Agreement”).4 Mixedbread is a Delaware corporation with its principal place of
business in California. 5
1
The facts are drawn from pleadings and other documents of record. Unless otherwise noted, pleadings, along with associated declarations and exhibits, are cited by reference to items docketed in C.A. No. 2026-0493-DH (“D.I.”). Citations are to: Verified Petition of Julius Lipp v. Mixedbread AI, Inc., D.I. 1 (“Pet.”); Respondent Mixedbread AI, Inc.’s Answer to Verified Petition for Advancement, D.I. 10 (“Ans.”); Petitioner’s Brief in Support of Motion for Summary Judgment, D.I. 15 (“POB”); Respondent’s Brief in Support of Cross Motion for Summary Judgment, D.I. 14 (“ROB”); Petitioner’s Brief in Opposition to Motion for Summary Judgment, D.I. 18 (“PAB”); Respondent’s Answering Brief in Opposition to Cross Motion for Summary Judgment, D.I. 19 (“RAB”); and the Draft Summary Judgment Hearing Transcript (“Tr.”).
2
Pet. ¶ 2.
3
Id.
4
Id.
5
Id. at ¶ 9.
2
B. The Employment Agreement and Bylaws
In May 2025, Lipp and Mixedbread entered into the Employment Agreement
that permitted Mixedbread to terminate Lipp for cause at any time. 6 “Cause” was
defined as follows:
“Cause” shall mean the occurrence of any of the following: (1)
Employee’s continuous failure to substantially perform Employee’s
duties hereunder; (2) Employee’s theft, fraud, dishonesty or breach of
fiduciary duty as relates to the Company’s business or property; (3)
Employee’s material failure to abide by applicable codes of conduct or
policies or engagement in moral turpitude or conduct which is
materially injurious to the Company monetarily or otherwise.
Mixedbread also adopted Bylaws that include indemnification and advancement
provisions for directors and officers. The indemnification section reads:
6.1 Indemnification Of Directors And Officers
The corporation shall, to the maximum extent and in the manner
permitted by the Delaware General Corporation Law, indemnify each
of its directors and officers against expenses (including attorneys’ fees),
judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with any proceeding, arising by
reason of the fact that such person is or was an agent of the corporation.
For purposes of this Section 6.1, a “director” or “officer” of the
corporation includes any person (a) who is or was a director or officer
of the corporation, (b) who is or was serving at the request of the
corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, or (c) who was a director or
officer of a corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor
corporation.
6
Pet., Ex. B.
3
The advancement section reads:
6.3 Payment Of Expenses In Advance
Expenses incurred in defending any action or proceeding for which
indemnification is required pursuant to Section 6.1 or for which
indemnification is permitted pursuant to Section 6.2 following
authorization thereof by the Board of Directors shall be paid by the
corporation in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by or on behalf of the
indemnified party to repay such amount if it shall ultimately be
determined by final judicial decision from which there is no further
right to appeal that the indemnified party is not entitled to be
indemnified as authorized in this Article VI.
C. Lipp’s Termination and the California Litigation
On June 30, 2025, Mixedbread terminated Lipp as an officer and employee.7
On September 29, Lipp and Julius Lipp Holding, UG, a German Limited Liability
Company (the “LLC”) filed suit against Mixedbread in the Northern District of
California (“California Action”).8 The LLC, managed by Lipp, holds 4.5 million
shares of Mixedbread common stock. 9 The California Action included five claimsa breach of contract claim by Lipp against Mixedbread for terminating him without
7
Id. at ¶ 17.
8
Id. at Ex. B.
9
Id. at Ex. B, ¶¶ 1–2.
4
cause in violation of the Employment Agreement, and four additional claims brought
by the LLC against Mixedbread.10
Mixedbread filed an Answer in the California Action on October 30 asserting
three counterclaims and sixteen affirmative defenses against Lipp. 11 Lipp answered
the counterclaims on November 20.12 On December 15, Lipp made a formal demand
for advancement under Bylaws sections 6.1 and 6.3. 13 On January 7, 2026,
Mixedbread sought an order in the California Action dismissing its counterclaims.14
A day later, the California court approved Mixedbread’s request, but Mixedbread
retained the affirmative defenses.15
Mixedbread served initial verified interrogatory responses on March 27,
2026. 16 Lipp filed this Petition on April 15. Mixedbread served amended
interrogatory responses on April 27.17 Several of these amended interrogatory
responses pertained to the affirmative defenses. Related to the Third Affirmative
10
Id. at Ex. B.
11
Id. at Ex. C. Only four of the sixteen affirmative defenses are at issue here. 12
Id. at ¶ 23.
13
Id. at ¶ 28.
14
Id. at ¶ 24.
15
Id. The parties agree that the affirmative defenses for consideration by the Court in this advancement case are the Third, Fourth, Tenth, and Twelfth Affirmative Defenses. 16
Id. at ¶ 26.
17
POB, Decl. Ex. 9.
5
Defense, Mixedbread’s amended interrogatory response conceded that it “does not
contend Lipp violated his fiduciary duties as a basis for terminating Lipp for
cause.”18 It contended that the grounds to terminate Lipp included disparaging the
Mixedbread’s CEO in front of its officers, directors, employees, and outside
investors, creating a toxic work environment, and not fulfilling his role as Chief
Technology Officer. 19
Mixedbread’s amended interrogatory responses purported to withdraw the
Fourth and Twelfth Affirmative Defenses. 20 For the Tenth Affirmative Defense,
Mixedbread’s amended interrogatory response professed to waive all prior
arguments about whether Lipp’s “conduct, statements, and acquiescence, waived,
ratified, or are estopped from asserting the alleged claims.” 21 In its stead,
Mixedbread argued that Lipp should be estopped from arguing in contradiction to a
statement on his visa application that his CTO employment was “at will.”22 The
California court set an April 9 deadline for the parties to seek leave to amend their
18
Id. at Resp. to Rog. 4.
19
Id. at Mixedbread further clarified in its Answer in this case that it would “not seek to establish cause through any alleged breach of Lipp’s fiduciary duties and disloyalty” but would focus on Lipp’s disparagement of Mixedbread’s CEO, development of a toxic work environment, and “failure to do his job.” Ans. ¶¶ 21(a), 24.
20
POB, Decl. Ex. 9, Resp. to Rog. 5, 10.
21
Id. at Resp. to Rog. 9.
22
Id.
6
pleadings. 23 Mixedbread did not modify or amend its affirmative defenses in its
pleadings consistent with the amended interrogatory responses. Mixedbread
reserves the right to modify the interrogatory responses. 24
D. Procedural Posture
Lipp filed a Verified Petition for Advancement on April 15, 2026.25
Mixedbread filed its Answer on April 27. 26 The parties cross-moved for
summary judgment. 27 The Court heard oral argument on the cross-motions
for summary judgment on June 24. 28
II. ANALYSIS
A. Standard of Review
Under Court of Chancery Rule 56(h), “[w]here the parties have filed cross
motions for summary judgment and have not presented argument to the Court that
there is an issue of fact material to the disposition of either motion, the Court shall
deem the motions to be the equivalent of a stipulation for decision on the merits
based on the record submitted with the motions.” Here, the parties have cross-moved
23
Id. at 20.
24
Id.
25
D.I. 1.
26
D.I. 10.
27
D.I. 14, 15.
28
D.I. 23.
7
for summary judgment, and neither has argued that there is any issue of material fact
that would prevent the Court from deciding the motions as a matter of law based on
the record that has been submitted. “Accordingly, the Court will decide the parties'
cross-motions as a matter of law based on that record.” Camden-Wyoming Sewer &
Water Auth. v. Town of Camden, 2017 WL 4119045, at *4 (Del. Ch. Sep. 18, 2017).
The parties present two central questions. First, in the context of the Bylaws
Section 6.3, what is “defending” an action or proceeding? Second, when does an
affirmative defense trigger advancement?
B. Offensive Claims Are Not Advanceable
Under Delaware law, public policy counsels “assuring key corporate
personnel that the corporation will bear the risks resulting from performance of their
duties on the grounds that such a policy best encourages responsible persons to
occupy positions of business trust, so Delaware courts have read indemnification
contracts to provide coverage when that is reasonable.” DeLucca v. KKAT Mgmt.
LLC, 2006 WL 224058, at *7 (Del. Ch. Jan. 23, 2006). Generally, offensive
litigation is not advanceable. See Mooney v. Echo Therapeutics, Inc., 2015 WL
3413272, at *11 (Del. Ch. May 28, 2015); Krauss v. 180 Life Scis. Corp., 2022 WL
665323, at *9 (Del. Ch. Mar. 7, 2022). There is no dispute that Mixedbread’s
counterclaims triggered advancement. Mixedbread dismissed those counterclaims.
8
I focus then on whether the affirmative defenses triggered advanceable responses by
Lipp under the Bylaws.
C. The Bylaws Limit Advanceable Claims to Those “Defending” an
Action or Proceeding.
The Bylaws allow for “expenses incurred in defending any action or
proceeding for which indemnification is required.”29 The term “defending” is not
defined in the Bylaws. Our Courts have found that defending in the advancement
context “has a broad meaning.” Citadel Hldng. Corp. v. Roven, 603 A.2d 818, 824
n.7 (Del. 1992) (“Defense. That which is offered and alleged by the party proceeded
against in an action or suit, as a reason in law or fact why the plaintiff should not
recover or establish what he seeks. That which is put forward to diminish plaintiff's
cause of action or defeat recovery. Evidence offered by accused to defeat criminal
charge.”) (quoting Defense, BLACK'S LAW DICTIONARY (5th ed.1979)). In Citadel,
the Delaware Supreme Court affirmed the Superior Court’s decision advancing costs
to the indemnitee for affirmative defenses filed against the indemnitor. Citadel, 603
A.2d at 824. “Under both the statute and the Agreement, the corporation's obligation
to pay expenses is subject to a reasonableness requirement.” Id. at 823.
29
§ 6.3.
9
D. Mixedbread’s Counterclaims Triggered Advancement, and Its
Dismissal of the Counterclaims with Prejudice Ended Lipp’s Right to
Advancement for Them.
Mixedbread filed three counterclaims against Lipp in the California Action on
October 30, 2025.30 The counterclaims alleged that Lipp violated the employment
agreement by misusing confidential information, breached his fiduciary duty by
misusing confidential information and disparaging Mixedbread and its leadership,
and for a judicial declaration regarding Lipp’s termination. 31 On December 29,
Mixedbread and Lipp stipulated to dismiss the counterclaims and the California
Court dismissed the counterclaims with prejudice on January 8, 2026.32 Under our
jurisprudence, when the counterclaims were dismissed, the threat of litigation ended
and with it Lipp’s further right to advancement for the counterclaims. See Carr v.
Glob. Payments, Inc., 2019 WL 6726214, at *7 (Del. Ch. Dec. 11, 2019); Duthie v.
CorSolutions Med., Inc., 2009 WL 1743650, at *2–3 (Del. Ch. June 16, 2009);
Centrella v. Avantor, 2024 WL 3249274, at *15–16 (Del. Ch. July 1, 2024).
30
Ans. ¶ 22.
31
Id.
32
Id. at ¶ 24.
10
E. Mixedbread’s Affirmative Defenses May Trigger an Advanceable
Response.
The counterclaims were gone, but the affirmative defenses remained. So we
return to Citadel. But the facts in Citadel are inapposite here. There, Citadel sued
its director, Roven, in federal court. In response, Roven filed counterclaims and
affirmative defenses. The Citadel Court adopted a “broad reading” of the contract
term “in defense.” 603 A.2d at 824. It held that, “In this light, it seems clear that
affirmative defenses are offered as a reason in law or fact why the plaintiff should
not recover.” Id. (internal quotations omitted). As the Court held, affirmative
defenses were advanceable under the indemnity agreement Roven signed with
Citadel.
The facts before me differ markedly. Here, Lipp filed suit against
Mixedbread. That is non-covered offensive litigation. Mixedbread initially filed
counterclaims. There is no dispute between the parties that Lipp’s responses to those
counterclaims are covered advancement expenses. Mixedbread also filed the
affirmative defenses at issue here. Lipp seeks advancement for defending the
affirmative defenses. While the general analysis of Citadel is helpful, its facts are
inapplicable here. More useful is this Court’s decision in Paolino v. Mace Sec. Int’l,
Inc., 985 A.2d 392 (Del. Ch. 2009). There, the company sought to categorize the
indemnitee’s role by his position in the case caption. Id. at 400. The company
argued that if the indemnitee was “suing”, then he was not eligible for advancement
11
for responding to counterclaims and affirmative defenses. Id. The Court rejected a
narrowly defined view of “defending” and adopted a claim-by-claim assessment to
determine advancement eligibility. Id.
With some helpful law from Citadel and Paolino but non-analogous facts
from Citadel, we go back to the drawing board. Both sides urge me to rely on
different aspects of this Court’s decision in Mooney v. Echo Therapeutics in
determining whether a plaintiff-indemnitee like Lipp is covered when countering
affirmative defenses set forth by a defendant-indemnitor like Mixedbread.33 2015
WL 3413272 (Del. Ch. May 28, 2015). In Mooney, Echo Therapeutics (“Echo”)
terminated Mooney, its CEO and Chairman of the Board of Directors, for alleged
cause. Id. at *1. Mooney filed suit against Echo for breach of their employment
agreement and other claims. Id. Echo filed an Answer including counterclaims and
affirmative defenses, incorporating allegations of misconduct. Id. Echo filed an
amended answer removing the allegations of misconduct in the amended
counterclaims and affirmative defenses, with intent to cut off Mooney’s
advancement claim. Id. at *2. The Court dubbed this “Mooney I.” Mooney filed a
second action against Echo for wrongful use of civil proceedings in the Mooney I
case to “vindicate his reputation.” Id. The Court referred to this as “Mooney II.”
33
As readers will no doubt recognize, parties’ mutual reliance on the same case can be both boon and bane.
12
The Court’s Mooney I ruling granted advancement for affirmative defenses.
Lipp urges me to track the holding in Mooney I. The Court held:
I know of no case squarely holding that affirmative defenses can trigger
a corporation’s advancement obligations. I am convinced, however,
that the policies underlying advancement justify the payment of fees
when an officer defends against affirmative defenses that implicate his
performance as a corporate official, much in the same way the assertion
of counterclaims by a corporation can require advancement.
Id. at *10. The Court supplemented this reasoning with Echo’s interrogatory
responses. As the Court found, the interrogatory responses focused the affirmative
defenses on Mooney’s conduct in his official capacity:
The gist of the Amended Affirmative Defenses is that relief for any
harm allegedly suffered by Dr. Mooney is barred by his own breach of
his Employment Agreement. The interrogatory responses, however,
flesh out the import of these affirmative defenses. They state that:
Dr. Mooney’s violation of company policies approved by the Board
governing business entertainment (expenses should be modest),
contracts and agreements (all contracts and agreements must be in
writing and approved as to form by the General Counsel), confidential
information (maintained as confidential and not disclosed without an
appropriate (meaning written) non-disclosure agreement) and
workplace harassment constituted breaches of the employment
agreement.
Id. Conversely, Mixedbread urges me to follow the holding in Mooney II. In
Mooney II, the Court denied Mooney’s request for advancement in the case he filed
for wrongful use of civil proceedings. Mixedbread suggests that I follow this portion
of the Court’s rationale:
13
If the term defending were construed more broadly, advancement
would have the potential to become an unfettered license enabling
disgruntled former officers and directors to litigate at the Company’s
expense. Vindicating one’s reputation may serve important personal
objectives, but that does not mean that filing an offensive lawsuit
qualifies as “defending,” within the meaning of 8 Del. C. § 145, against
claims asserted by reason of the fact that one was an officer or director.
Id. at *11.
Mooney, of course, approvingly cites this Court’s decision in Fillip v.
Centerstone Linen Services, LLC. 2013 WL 6671663 (Del. Ch. Dec. 11, 2013).
Fillip was the manager and CEO of Centerstone. Id. at *2. Fillip’s employment
agreement with Centerstone provided for a severance package if he resigned for
“good reason.” Id. Fillip resigned, arguably, for “good reason” and Centerstone
refused to provide severance. Id. Fillip filed suit for breach of the employment
agreement. Id. Centerstone counterclaimed alleging Fillip breached his fiduciary
duties and the employment agreement. Id. Centerstone also asserted affirmative
defenses that Fillip’s claims were “barred by the doctrine of unclean hands and his
own breaches of the Employment Agreement and the LLC Agreement.” Id. at *3.
Fillip sought advancement to defend the counterclaims and some of the affirmative
defenses. Id. at *3–4. Centerstone responded by amending the counterclaims to
remove the fiduciary breach allegations with the intent to avoid advancement. Id.
The Court aptly narrowed the affirmative defense question to “whether a manager
or officer is entitled to advancement for affirmative defenses asserted against him.”
14
Id. at *12 (emphasis in original). To answer this, the Court focused on the text of
the LLC agreement coupled with the relevant subsection of our LLC Act. Article
3.7 of the LLC Agreement set the bounds of Fillip’s advancement rights to include,
“all costs, losses, liabilities, and damages whatsoever paid or incurred . . . in the
performance of [a manager’s or officer’s] duties in such capacity . . . to the fullest
extent permitted by the [LLC Act].” Id. Because Centerstone was an LLC, Title 6
Section 18-108 of the LLC Act was invoked. That statute allows an LLC to permit
advancement, “from and against any and all claims and demands whatsoever.” Id.
(quoting 6 Del. C. § 18-108). With these immensely broad advancement rights as
backdrop, the Court held that Fillip was entitled to advancement to resist the
affirmative defenses asserting that he breached his fiduciary duties to the
corporation, rationalizing that Fillip was entitled to protect his future employment
interests from these downstream impacts. Id. For certain, the advancement rights
available in the LLC context, and specifically in Fillip, are broader than those
available here. That said, Fillip and Mooney I suggest that in limited circumstances,
an indemnitee’s resistance to affirmative defenses may trigger advancement
obligations.
Turning to the parties’ tug-of-war over the Mooney decision, Mooney I’s
holding is most applicable here. In Mooney II, Mooney filed offensive litigation
focused on Echo’s misuse of the system in Mooney I. While arguably triggered by
15
Mooney’s overall effort to “vindicate his reputation,” it was a standalone action.
Mooney was not defending against the counterclaims asserted by Echo. By contrast,
in Mooney I, Mooney filed for breach of the employment contract, Echo
counterclaimed and asserted affirmative defenses. The parties’ actions were
identical here. Lipp sued Mixedbread for breach of the employment contract,
Mixedbread counterclaimed, and asserted affirmative defenses. The parties do not
dispute that Mixedbread’s October 30 counterclaim filing triggered advancement
obligations related to those counterclaims.34
The question then becomes whether a response to the affirmative defenses
triggers advancement. As originally asserted in the Third, Fourth, Tenth, and
Twelfth Affirmative Defenses, advancement is triggered. Mixedbread’s Bylaws
Section 6.3 provide advancement for “Expenses incurred in defending any action or
proceeding . . . .” I adopt the same broad view of defense that our Courts had in
Citadel, Fillip, and Mooney I. Thus, I look to whether the affirmative defenses
“implicate his performance as a corporate official.” Mooney, 2015 WL 3413272, at
*10. Although as originally constructed, the affirmative defenses encoiled Lipp’s
34
Tr. 04:16–19 (“So here's where there is no dispute between Mixedbread and Mr. Lipp. There is no dispute that their counterclaims, as asserted on October 30th of 2025, triggered advancement.”)
16
role as CTO, there was one more twist: Mixedbread filed amended interrogatory
responses that purported to halt Lipp’s advancement rights.
F. Mixedbread Adequately Disclaimed Three of the Four Affirmative
Defenses.
Having determined that Mixedbread’s affirmative defenses could require
responses that may trigger advancement rights, one issue remains: whether
Mixedbread’s amended interrogatory responses disclaiming the four relevant
affirmative defenses were sufficient to end advancement. On April 27, Mixedbread
amended its interrogatory responses in the California Action, allegedly affecting the
Third, Fourth, Tenth, and Twelfth affirmative defenses.35 The amended
interrogatory responses disclaimed the Fourth and Twelfth Affirmative Defenses
entirely. 36 The amended interrogatory responses purported to replace the prior
fiduciary breach in the Tenth Affirmative Defense with an estoppel argument that
Lipp could not contradict his statement on a visa application that his employment
was “at will.”37 Finally, Mixedbread’s amended interrogatory response for the Third
Affirmative Defense removed an allegation of breach of fiduciary duty and replaced
it with “grounds to terminate Lipp included disparaging the Mixedbread’s CEO in
35
POB, Decl. Ex. 9.
36
Id. at Resp. to Rogs. 5, 10.
37
Id. at Resp. to Rog. 9.
17
front of its officers, directors, employees, and outside investors, creating a toxic
work environment, and not fulfilling his role as Chief Technology Officer.”38
For the Fourth, Tenth, and Twelfth Affirmative Defenses, I find that
Mixedbread’s amended interrogatory responses were sufficient to terminate Lipp’s
advancement. Lipp focuses on this Court’s holdings in Carr, Duthie and Centrella.
In Mooney I, the Court found that the interrogatory responses guided the
approach to the affirmative defenses. So too here. But the interrogatory responses
here constrain rather clarify Mixedbread’s strategy. This Court has terminated
advancement claims when parties have been precluded from proceeding by judicial
estoppel or have affirmed that they will no longer proceed in any forum against the
party seeking advancement. See Carr, 2019 WL 6726214, at *8 (“Here, the
Defendants have removed the entire confidentiality cause of action and any
indication of reliance upon it, and have agreed to forgo pursuit of such a claim now
or later, in a manner that raises a judicial estoppel against such an action in the
future.”); Duthie, 2009 WL 1743650, at *3 (“Because no threat now exists, the
Plaintiffs’ defamation claims are no longer a direct response to, nor a negation of,
any claims against them.”).
38
Id. at Resp. to Rog. 4.
18
In Carr, the company sued Carr, its Chairman and CEO, and he sought
advancement. 2019 WL 6726214, at *1–2. After the Court initially granted
advancement, the company amended its claims in an effort terminate it. Id. at *3.
The company asked the Court to revisit its ruling in light of the amendments. Id.
This Court noted that parties can end their advancement responsibilities, but the
Court considered these with a skeptical eye because, “This Court, having found—
over the Defendants’ protests—a right to advancement, ought be wary of artful
attempts at pleading around such a right. The ‘mere relabeling’ of claims will not
support modification when the underlying litigation remains substantially the same.”
Id. at *4 (internal citations omitted). This Court found that under the Merger
Agreement, Carr was entitled to advancement “for legal actions involving an
attribute or duty as a corporate officer or director.” Id. at *6. Vice Chancellor
Glasscock summed up the test succinctly: “amendment can eliminate advancement
obligations, but only if the amendment and the amending party’s representations
alter the claim in a manner that assures the Court the plaintiff will not face litigation
that triggers advancement obligations.” Id. at *8. He cautioned that “the Court must
be vigilant in review for artful pleading, and ensure that cosmetic changes to
pleadings do not defeat vested contract rights.” Id. The Court denied further
advancement to Carr, finding that the company’s amendments “substantially”
altered its breach of contract claim against Carr. Id.
19
In Centrella, the company sued Centrella and Centrella sought advancement.
As the Court found, the company sued Centrella by reason of the fact of his
employment. Centrella, 2024 WL 3249274, at *12–15. The company argued that
it cut off Centrella’s advancement rights when it dismissed claims against him. Id.
at *15. The Centrella Court noted that the company was equivocal about
permanently dismissing claims. Id. at *16. The company “repeatedly refused to
agree not to reassert certain claims” and at oral argument refused to give a release.
Id. Centrella held for the indemnitee because the indemnitor refused to make any
definitive representation to not bring further advanceable litigation. Id. at *17
(contrasting Duthie’s reliance on preclusive statements to not bring further
advanceable claims with indemnitor’s equivocations in Centrella).
Not so here. I find that Mixedbread’s interrogatory responses fundamentally
altered its affirmative defenses. It foreclosed itself from making the pre-amended
interrogatory arguments. Mixedbread disclaimed its Fourth and Twelfth affirmative
defenses completely in their amended interrogatory responses. Mixedbread’s
amended interrogatory response to the Tenth affirmative defense changed the
allegation to prevent Lipp from arguing contrary to a statement on a visa application
that his employment was “at will.” This has nothing to do with his role and specific
duties as CTO. Instead, it is connected to Lipp’s generic status as an employee.
20
The interrogatory response for the Third affirmative defense is different.
There, it affirmed that it did not contend that Lipp’s termination was based on a
violation of his fiduciary duties. 39 At the same time, the interrogatory maintained
that part of the cause for Lipp’s termination was “not fulfilling his role as CTO.”40
Mixedbread cannot cut off advancement responsibility for the Third affirmative
defense when the interrogatory retains Lipp’s responsibility by reason of the fact of
his role as an officer. Mixedbread failed to fundamentally alter the Third affirmative
defense.
For certain, it would have been cleaner if Mixedbread amended the affirmative
defenses directly rather than relying on amended interrogatory responses. But
turning to the Fourth, Tenth, and Twelfth affirmative defenses, Mixedbread has done
enough to end advancement for Lipp. In this context, Mixedbread’s interrogatory
responses are judicial admissions. “Voluntary and knowing concessions of fact
made by a party during judicial proceedings (e.g., statements contained in pleadings,
stipulations, depositions, or testimony; responses to requests for admissions;
counsel's statements to the court) are termed “judicial admissions.” Merritt v. United
Parcel Serv., 956 A.2d 1196, 1201 (Del. 2008) (citing AT&T Corp. v. Lillis, 953
39
POB, Decl. Ex. 9, Resp. to Rog. 4.
40
Id.
21
A.2d 241, 257 (Del. 2008) (discussing the scope of judicial admissions by
counsel); Keller v. United States, 58 F.3d 1194, 1199 n.8 (7th Cir. 1995) ( “Judicial
admissions are formal concessions in the pleadings, or stipulations by a party or its
counsel, that are binding upon the party making them.”); Kopacz v. Day Kimball
Hosp. of Windham County, Inc., 779 A.2d 862, 867 (Conn. App. Ct. 2001) (“Judicial
admissions are voluntary and knowing concessions of fact by a party or a party's
attorney occurring during judicial proceedings.”); John B. Conomos, Inc. v. Sun Co.,
Inc., 831 A.2d 696, 712 (Pa. Super. 2003) (“Statements of fact by one party in
pleadings, stipulations, testimony, and the like, made for that party's benefit, are
termed judicial admissions.”). “[J]udicial admissions . . . are traditionally
considered conclusive and binding both upon the party against whom they operate,
and upon the court.” Merritt, 956 A.2d at 1201–02. I also note that Mixedbread
represented at oral argument that it would only pursue the affirmative defenses as
limited by the interrogatory responses. 41 There, it shared that it filed amendments
to the affirmative defenses in the California Action after the filing deadline but
offered to work with Lipp’s counsel to stipulate to the amendments.42 I find the
totality of efforts sufficient to foreclose Mixedbread’s ability to change position.
41
Tr. 62:03–70:02.
42
Id. at 62:08-15.
22
The interrogatory responses and Mixedbread’s declarations to this Court in the
filings and oral argument provide the certainty that the defendants lacked in
Centrella. While I do not speak for the California Court, I caution Mixedbread that
an attempt to resuscitate the prior affirmative defenses in that forum could reopen
advancement entitlement and exposure to potential sanctions before this Court.
G. Lipp is Entitled to Fees on Fees Proportional to Success.
I also find that Lipp is entitled to fees on fees. A prevailing plaintiff is entitled
to fees on fees in the indemnification and advancement context. Stifel Fin. Corp. v.
Cochran, 809 A.2d 555, 560–61 (Del. 2002). Lipp “prevailed in his request
for advancement, but not on all points.” Marino v. Patriot Rail Co., 131 A.3d 325,
350 (Del. Ch. 2016). Lipp is entitled to fees on fees in proportion to his success in
this matter. Id.
III. CONCLUSION
For these reasons, I find that Lipp is entitled to advancement consistent with
this Report. Lipp is also entitled to fees on fees proportional to his success. This is
a Final Report under Court of Chancery Rule 144.
/s/ David Hume, IV
David Hume, IV
Magistrate in Chancery
cc: All counsel of record (by File & ServeXpress)
23