JanCo FS 2, LLC v. ISS Facility Services, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE JANCO FS 2, LLC AND JANCO FS 3, ) LLC, ) ) C.A. No. N23C-03-005 MAA CCLD Plaintiffs, ) v. ) ) ISS FACILITY SERVICES, INC.; ISS ) C&S BUILDING MAINTENANCE ) CORPORATION; ISS TMC ) SERVICES, INC.; and ISS FACILITY ) SERVICES CALIFORNIA, INC, ) ) Defendants. ) ______________________________ ) ) ISS FACILITY SERVICES, INC.; ISS ) C.A. No. N23C-07-036-MAA CCLD C&S BUILDING MAINTENANCE ) Transferred from: CORPORATION; ISS TMC ) C.A. No. 2022-1197-SG SERVICES, INC.; and ISS FACILITY ) SERVICES CALIFORNIA, INC., ) ) Plaintiffs, ) v. ) ) JANCO FS 2, LLC; and JANCO FS ) 3, LLC ) ) Defendants. ) Submitted: April 6, 2026 Decided: June 11, 2026 SECOND POST-TRIAL OPINION ON ATTORNEYS’ FEES, COSTS, AND INTEREST 1 Robert L. Burns, Esquire, and Sandy Xu, Esquire of RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware, and Jason J. Carter, Esquire (Argued), and Austin L. Hollimon, Esquire of BONDURANT MIXSON & ELMORE, LLP, Atlanta, Georgia, and Fredric J. Bold, Jr., Esquire of GREENBERG TRAURIG, LLP, Atlanta Georgia, Attorneys for JanCo FS 2, LLC and JanCo FS 3, LLC. David J. Teklits, Esquire, and Thomas P. Will, Esquire of MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware, and Mark T. Oakes, Esquire (Argued), Ryan E. Meltzer, Esquire, and Emily D. Wolf, Esquire of NORTON ROSE FULBRIGHT US, LLP, Austin, Texas, Attorneys for Defendants ISS Facility Services, Inc., ISS C&S Building Maintenance Corporation, ISS TMC Services, Inc., and ISS Facility Services California, Inc. Adams, J. 2  I. Introduction This second post-trial opinion determines which Party, JanCo or ISS, is entitled to attorneys’ fees, litigation costs, and pre- and post-judgment interest.1 Both Parties agree that the Asset Purchase Agreement (the “APA”) governs fee shifting in this case. The applicable APA provisions, and how they affect the Parties’ rights, remains contested. The contentions of the Parties can be summarized as follows. The Parties first disagree about whether fee-shifting in this case is governed by indemnification provisions or an express fee-shifting provision. Whether the applicable provisions adopt an all-or-nothing or claim-by-claim approach to awarding attorneys’ fees and litigation costs is also in dispute. Further in dispute is what Party should be awarded attorneys’ fees and litigation costs and whether the other side’s fees and costs are reasonable. The Parties finally contest which Party is entitled to pre- and post-judgment interest. This contention includes competing views on whether the Superior Court of Delaware has authority to award compound and floating interest in this case. 1 “JanCo” refers to the plaintiffs and counterclaim-defendants JanCo FS 2, LLC and JanCo FS 3, LLC. “ISS” refers to defendants and counterclaim-plaintiffs ISS Facility Services, Inc., ISS C&S Building Maintenance Corporation, ISS TMC Services, Inc., and ISS Facility Services California, Inc. The Court refers to JanCo and ISS together as the “Parties.” 3  The Court finds: 1) the APA’s express fee-shifting provision governs the award of attorneys’ fees and litigation costs in this case; 2) the APA’s fee-shifting provision adopts an all-or-nothing approach to awarding attorneys’ fees and litigation costs; 3) ISS predominated in the litigation and is the “successful Party” under the APA’s fee-shifting provision; 4) ISS’s fees and costs are reasonable; 5) both Parties are entitled to pre- and post-judgment interest; and 6) the Superior Court of Delaware has no authority to award compound or floating interest in this case. II. Factual Background2 A. The Parties JanCo is a group of Delaware Limited Liability Companies that are subsidiaries of the Argenbright Group of companies (“Argenbright”).3 Argenbright provides “workforce solutions in human-capital intensive industries.”4 Argenbright formed JanCo in connection with the transaction at issue.5 “The ISS group of companies provides workplace and facility management services on a global scale, with locations in over forty countries and approximately 400,000 employees worldwide.”6 2 The Court only recites the factual background as necessary to resolve the issues in this opinion. For a more complete recitation of the fact, the Court refers to the Court’s first post-trial opinion in this case. D.I. 243, Janco FS2, LLC et al. v. ISS Facility Serv., Inc., et al., 355 A.3d 1009 (Del. Super. 2025) [“Post-Trial Opinion”]. 3 D.I. 202 [“Pretrial Stip.”] at 8; Post-Trial Opinion at 1. 4 Pretrial Stip. At 8; Post-Trial Opinion at 1-2. 5 Pretrial Stip. At 11; Post-Trial Opinion at 2. 6 Pretrial Stip. At 9; Post-Trial Opinion at 2. 4  B. ISS and JanCo sign the APA. In early 2020, ISS began exploring a sale of its North American single-service cleaning and janitorial-services business (“the Business”).7 The Parties signed the APA on September 20, 2021.8 The APA adopted a purchase price of $80 million, though several provisions provided mechanisms for the purchase price to be adjusted.9 The APA also included various representations and warranties made by the Parties along with additional covenants.10 C. The APA contains multiple provisions that expressly mention attorneys’ fees and litigation costs. The APA contains an explicit fee-shifting provision in Article 9.11 The provision—APA § 9.12 (“Section 9.12”)—outlines the following: If a legal action or arbitration is initiated by any Party to this Agreement against another, arising out of or relating to the alleged performance or nonperformance of any right or obligation established hereunder, or any dispute concerning the same, any and all fees, costs and expenses reasonably incurred by each successful Party or his or its legal counsel in investigating, preparing for, prosecuting, defending against, or providing evidence, producing documents or taking any other action in respect of, such action (whether or not such matter proceeds to final judgment), and in any and all appeals or petitions therefrom, shall be the joint and several obligation of and shall be paid or reimbursed by the unsuccessful Party.12 7 Post-Trial Opinion at 3; D.I. 247 [“ISS OB”] at 1. 8 Post-Trial Opinion at 6; ISS OB at 1; D.I. 248 [“JanCo OB”] at 2. 9 Post-Trial Opinion at 6-7, 10-11. 10 JX043 [“APA”] at 2-3. 11 APA § 9.12. 12 Id. 5  The APA also contains indemnification provisions in Article 7.13 APA § 7.2 (“Section 7.2”) expressly identifies “reasonable attorney’s fees and court costs” as an indemnifiable loss under certain circumstances: Subject to the provisions of this Article 7, Sellers, jointly and severally, will, from and after the Closing Date, indemnify and hold harmless Purchasers (after Closing), and their respective Subsidiaries and Affiliates and their Subsidiaries’ and Affiliates’ respective officers, directors, members, managers, employees, agents and other representatives (each of the foregoing, a “Purchaser Indemnified Person”) from and against any and all losses, liabilities, damages, deficiencies, Actions, settlements, royalties, Taxes, interest, penalties, costs and expenses, including costs of remediation, closure, monitoring, investigation, settlement, and defense and reasonable attorney’s fees and court costs (collectively, “Losses”), arising out of, in connection with, or related to: [several circumstances outlined in APA § 7.2(a)].14 APA § 7.6 (“Section 7.6”) similarly provides for recovery of “reasonable attorneys’ fees” under certain circumstances: Sellers hereby acknowledge that a breach by any Seller of any of the provisions of this Agreement, including, but not limited to, Section 5.4 and Section 5.5 herein, may cause irreparable damage to Purchasers or the Target Accounts, incapable of measurement, and that the remedy at law for such breach may be inadequate to compensate for their losses. Therefore, in the event of any such breach, Purchasers, in addition to any other rights and remedies available to them at law, in equity or otherwise, shall be entitled, at their option, without the necessity of proving actual damage or posting any bond, to temporary, preliminary and/or permanent injunctive relief against any Seller, and/or other appropriate orders to restrain such breach. If Purchasers file suit to enforce, enjoin the enforcement, interpret or determine the scope of the 13 Id. §§ 7.1-7.7. 14 Id. § 7.2(a). A nearly identical provision found in APA § 7.2(b) provides the same indemnification rights, but with Sellers and Purchasers (JanCo and ISS) reversing roles. APA § 7.2(b). 6  covenants contained herein, Purchasers shall be entitled to recover, in addition to all other damages or remedies provided for herein, Purchasers’ reasonable out-of-pocket costs incurred in prosecuting said suit, including reasonable attorneys’ fees. Purchasers’ ability to enforce their rights under this Agreement or applicable law against any Seller shall not be impaired in any way by the existence of a claim or cause of action on the part of any Seller based on, or arising out of, this Agreement or any other event or transaction.15 III. Relevant Procedural History On December 27, 2022, ISS filed a Complaint against JanCo in the Delaware Court of Chancery.16 On March 3, 2023, JanCo filed a separate Complaint against ISS in the Superior Court of Delaware.17 ISS’s Court of Chancery Complaint was later dismissed pursuant to Court of Chancery Rule 12(b)(1).18 After being granted leave to transfer its Complaint to the Complex Commercial Litigation Division, ISS filed the dismissed Complaint in Superior Court on July 7, 2023. 19 On September 26, 2023, the Court granted an order to consolidate both Superior Court actions.20 On November 7, 2023, ISS filed an Amended Complaint 15 Id. § 7.6. 16 ISS Facility Servs. Inc. v. JanCo FS 2, LLC, 2022-1197-SG; Post-Trial Opinion at 15. 17 JanCo FS 2, LLC v. ISS Facility Servs., Inc., C.A. N23C-03-005 AML CCLD; Post-Trial Opinion at 15. The case was later assigned to Judge Adams after then-Judge LeGrow became a Justice of the Supreme Court of Delaware. D.I. 65. 18 2022-1197-SG; Post-Trial Opinion at 15. 19 ISS Facility Servs., Inc. v. JanCo FS 2, LLC, C.A. N23C-07-036 MAA CCLD. 20 D.I. 104. 7 asserting five claims against JanCo.21 Approximately two weeks later, JanCo filed an Amended Complaint alleging eight claims against ISS.22 On March 29, 2024, both ISS and JanCo filed motions for summary judgment.23 The Court issued a memorandum opinion on the Parties’ motions for summary judgment (“Summary Judgment Opinion”) on August 30, 2024,24 resolving JanCo’s Counts IV-V and ISS’s Counts I-III.25 These counts were all dismissed except one: JanCo’s Count IV.26 The Court granted summary judgment for Count IV in JanCo’s favor, awarding JanCo $6,913,993.00.27 The Parties’ remaining counts survived summary judgment.28 21 D.I. 128; Post- Trial Opinion at 16. These five counts included: “(I) Breach of Contract (Failure to Provide Escrow Instructions); (II) Unjust Enrichment (in the Alternative to Count I); (III) Breach of the Implied Covenant (in the Alternative to Count I); (IV) Breach of Contract (Failure to Pay Working Capital Adjustment and Purchase Price Adjustments); and (V) Declaratory Judgment.” Post-Trial Opinion at 16. 22 D.I. 134; Post-Trial Opinion at 17. These eight counts included: “(I) Fraud/Intentional Misrepresentation; (II) Indemnification for Breaches of Representations and Warranties; (III) Breach of Transition Services Agreement; (IV) Declaratory Judgment (Declaring Escrow Funds Relating to FAA and Pima County to be Released to Purchasers); (V) Breach of Duty of Good Faith and Fair Dealing (Escrow Funds Relating to Ingram Micro); (VI) Indemnification for Excluded Liability and Breach of Representation and Warranty (Avnet); (VII) Breach of Asset Purchase Agreement (Covenant Not to Solicit); and (VIII) Intentional Interference with Contractual Relations.” Post-Trial Opinion at 17. 23 D.I. 156; D.I. 159; Opinion at 17. 24 D.I. 188 [“Summary Judgment Opinion”]. 25 Id. at 89; Post-Trial Opinion at 17. While the Court dismissed parts of ISS Count I, part of Count I survived summary judgment. Summary Judgment Opinion at 73. 26 Id. at 89. 27 Id; ISS OB at 15. 28 Summary Judgment Opinion at 89. 8  The Court held a four-day bench trial from November 18-21, 2024.29 After receiving post-trial briefs and hearing oral argument, the Court issued the Post-Trial Opinion on August 21, 2025.30 The Court ruled in favor of ISS for ISS’s Counts I, IV, and V and JanCo’s Counts I-III, VI-VIII.31 While the Court held JanCo proved the existence of a breach for its Count II, JanCo was unable to prove damages.32 All of the Parties’ claims were resolved between the Summary Judgment and Post-Trial Opinions.33 On October 13, 2025, ISS and JanCo filed competing Opening Briefs on attorneys’ fees, costs, and interest.34 On November 5, 2025, the Parties each filed Answering Briefs in opposition to the other side’s Opening Briefs.35 The Parties dispute who is entitled to attorneys’ fees, litigation costs, and interest in this case. IV. Analysis To resolve this dispute, the Court must determine: 1) which APA provisions govern the award of attorneys’ fees and litigation costs in this case; 2) whether the governing APA provisions adopt an all-or-nothing or claim-by-claim approach to awarding attorneys’ fees and costs; 3) the Party or Parties entitled to attorneys’ fees 29 D.I. 211; Post-Trial Opinion at 17. 30 See generally Post-Trial Opinion (presenting the Court’s ruling on the outstanding disputes). 31 Post-Trial Opinion; ISS OB at 14-15. 32 Post-Trial Opinion at 19-27, 47-51. 33 Summary Judgment Opinion; Post-Trial Opinion. 34 ISS OB; JanCo OB. 35 D.I. 251 [“ISS Ans. Br.”]; D.I. 252 [“JanCo Ans. Br.”]. 9 and litigation costs—based upon the applicable APA provisions and final resolution of the Parties’ claims; 4) if attorneys’ fees and litigation costs to be awarded are reasonable; 5) what pre- and post-judgment interest, if any, should be awarded; and 6) whether the Court can and should award compound and floating interest. A. APA Section 9.12 governs fee-shifting in this case. 1. The Contentions of the Parties JanCo contends the indemnification provisions in Article 7, not the fee- shifting provision in Article 9, govern the award of attorneys’ fees and litigation costs in this case.36 According to JanCo, Article 7 language reveals the Parties’ intent for indemnification provisions to be the Parties’ only available remedy for most claims resulting from the APA.37 JanCo argues the only exceptions are claims based on fraud or willful misconduct, which are exclusively governed by the fee-shifting provision found in Section 9.12.38 Because the Court determined no fraud or willful misconduct was an issue in this case, JanCo, based on its reading of the APA, reasons Section 9.12 is inapplicable to resolving the Parties’ current dispute.39 36 JanCo OB at 14-18; JanCo Ans. Br. at 4-8. 37 JanCo OB at 17; JanCo Ans. Br. at 5-8. 38 JanCo OB at 18; JanCo Ans. Br. at 5. 39 JanCo OB at 17-18; JanCo Ans. Br. at 6-8. 10  ISS reads the language of the APA differently. ISS contends Section 9.12 is a “run-of-the-mill” fee-shifting provision “expansive in both application and scope.”40 ISS argues Section 9.12 governs this dispute because Section 9.12 “applies to any legal action ‘arising out of or relating to the alleged performance or nonperformance of any right or obligation established [under the APA], or any dispute concerning the same.’”41 ISS asserts this language “unambiguously provides for first-party fee- shifting in all first-party litigation.”42 ISS rejects JanCo reading of the APA as a “self-serving argument” that “thwart[s] the normal operation of [indemnification and fee-shifting] provisions.”43 ISS contends Article 7 does not contain “clear and unequivocal language” necessary for overcoming Delaware’s strong presumption against first-party fee shifting by means of indemnity.44 ISS also argues Delaware courts will not enforce general indemnification provisions for first-party fee-shifting when parties have expressly covered the matter in another part of a contract.45 40 ISS OB at 16; ISS Ans. Br. at 3. 41 ISS OB at 16-17. 42 ISS Ans. Br. at 3-4. 43 Id. at 3. 44 Id. at 7-8. 45 Id. at 6-7. 11  2. Standard of Review “Delaware generally follows the American Rule, under which litigants are responsible for their own attorneys’ fees, regardless of the outcome of the lawsuit.”46 An exception to the American Rule is contract litigation involving a fee-shifting provision.47 “In contract litigation, where a contract contains a fee-shifting provision, [Delaware courts] will enforce that provision.”48 “Standard indemnity clauses are not presumed to apply to first-party claims. Otherwise, a typical indemnification provision would swallow the American Rule.”49 A “general indemnity contractual provision does not act as a fee-shifting provision for litigation between the contracting parties unless the language explicitly and unequivocally provides to the contrary.”50 Such language must be “expressed without ambiguity or vagueness.”51 While “there is no definitive language that must be used,”52 courts often look for references 46 Alaska Elec. Pension Fund v. Brown, 988 A.2d 412, 417 (Del. 2010) (citing Goodrich v. E.F. Hutton Grp., Inc., 681 A.2d 1039, 1044 (Del. 1996)). 47 Bako Pathology LP v. Bakotic, 288 A.3d 252, 280 (Del. 2022). 48 Id. (quoting SIGA Techs., Inc. v. PharmAthene, Inc., 67 A.3d 330, 352 (Del. 2013)). 49 Deere & Co. v. Exelon Generation Acqs., LLC, 2016 WL 6879525, at *1 (Nov. 22, 2016) (internal quotations omitted) (quoting Senior Hous. Cap., LLC v. SHP Senior Hous. Fund, LLC, 2013 WL 1955012, at *44 (Del. Ch. May 13, 2013)). 50 Gulf Aviation Servs. Grp. WLL v. Wilm. Tr. Co., 2023 WL 9118772, at *18 (Del. Super. Dec. 29, 2023) (citations omitted). 51 Four Cents Hldgs., LLC v. M&E Printing, Inc., 2025 WL 2366460, at *7 (Del. Super. Aug. 12, 2025) (citing Schneider Nat’l Carriers, Inc. v. Kuntz, 2022 WL 1222738, at *31 (Del. Super. Apr. 25, 2022)). 52 Schneider, 2022 WL 1222738, at *30 (quoting TranSched Sys. Ltd. v. Versyss Transit Sols., LLC, 2012 WL 1415466, at *2 (Del. Super. Mar. 29, 2012), superseded on other grounds by Noranda Aluminum Hldg. Corp. v. XL Ins. Am., Inc., 269 A.3d 974 (Del. 2021)). 12 to “prevailing parties”—“a hallmark term of fee-shifting provisions.”53 “Each provision is unique and must be decided under the facts of that particular case.”54 “When a contract contains both an indemnification provision and a ‘prevailing party’ provision elsewhere in the contract, the courts of this state will not construe the indemnification provision to allow first-party fee-shifting.”55 3. Analysis Delaware law is clear that first-party fee-shifting through an indemnification provision will not be permitted when a “prevailing party” provision is found elsewhere in a contract.56 The APA contains a “prevailing party” provision—though it uses the term “successful Party”—in Section 9.12.57 The Court will therefore not 53 Id. (citing TranSched, 2012 WL 1415466, at *3). 54 Id. (citing TranSched, 2012 WL 1415466, at *2). 55 Paul Elton, LLC v. Rommel Del., LLC, 2022 WL 793126, at *2 (Del. Ch. Mar. 16, 2022). 56 See Paul Elton, 2022 WL 793126, at *2 (refusing to enforce first-party fee-shifting through an indemnification provision, even though the provision expressly allowed recovery of “reasonable attorney’s fees” for claims arising from “any default, breach, violation, or nonperformance of any provision of this Lease by Tenant,” because a “prevailing party” provision was provided elsewhere in the contract); Deere, 2016 WL 6879525, at *1 (rejecting a claim for fee-shifting under an indemnification provision, which allowed recovery of losses arising out of “any breach or nonperformance of any of the covenants or agreements of [indemnitor] contained in this Agreement,” because fee-shifting language was in multiple sections of the contract). Both cases contain indemnification provisions with similar language as contained in Section 7.2(a)-(b) of the Agreement. See APA § 7.2(a)-(b) (providing “reasonable attorney’s fees and court costs” are indemnifiable when they arise out of “any breach of any representation or warranty made by any [Purchaser or Seller] in this Agreement.”). 57 APA § 9.12. Neither party contests the Court should view and interpret the terms “successful Party” and “prevailing party” as synonymous. JanCo OB at 27; ISS OB at 17-18. Black’s Law Dictionary supports the terms being interchangeable with no meaningful distinction. ISS OB at 17. Compare successful party, Black’s Law Dictionary (12th ed. 2024) with prevailing party, Black’s Law Dictionary (12th ed. 2024). 13 upend the well-established operations of indemnification and fee-shifting provisions in Delaware. Section 9.12 governs fee-shifting in this dispute.58 During post-trial argument, Counsel for JanCo argued such a finding would render APA § 7.7 (“Section 7.7”), an exclusive remedies provision, superfluous.59 Counsel reemphasized the only way to “harmonize” Sections 7.7 and 9.12 is to find “in the absence of fraud or willful misconduct, every single claim between the parties is going to be governed by the indemnity provisions, period.”60 When pressed for Delaware precedent supporting such a proposition, which contrasts with vast case law confirming Delaware’s strong presumption against fee- shifting by means of indemnity, JanCo cited In re Dura Medic Holdings, Inc. Consolidated Litigation61 and Thompson St. Capital Partners IV, L.V. v. Sonova U.S. Hearing Instruments, LLC.62 JanCo advanced these cases provide examples where 58 The Court therefore finds the provisions in APA Article 7 to be inapplicable for the award of attorneys’ fees and litigation costs in this case. 59 JanCo FS 2, LLC v. ISS Facility Servs., Inc., C.A. No. N23C-03-005 [“Tr.”] 10:23-11:2 (“ISS’s conclusion is [] you would read [Section] 7.7 out of the contract altogether.”). See APA § 7.7 (providing “[t]he rights and remedies provided in this Article 7 (including the equitable relief provided in Section 7.6) shall be the sole and exclusive rights and remedies of the Parties after the Closing Date with respect to any and all claims relating to this Agreement or the Transaction Documents, except in the case of fraud or willful misconduct, in which case the damaged party shall have all rights and remedies under this Agreement and provided by law.”). 60 Tr. 14:18-21. 61 333 A.3d 227 (Del. Ch. 2025); Tr. 126:7-11. This case was not cited in JanCo’s Answering Brief. See JanCo Ans. Br. (providing no reference to the Dura Medic decision). 62 340 A.3d 1151 (Del. 2025); Tr. 126:7-11. JanCo’s Answering Brief only cites this case once in a footnote. JanCo Ans. Br. at 7. 14 Delaware has enforced exclusive remedy provisions, and Section 7.7 should be enforced in a similar manner.63 Whether Delaware enforces exclusive remedy provisions, however, is not at issue here. At issue is whether an exclusive remedies provision is enforceable to recover attorneys’ fees and costs when an express fee-shifting provision is found elsewhere in a contract. Neither the Dura Medic decision nor the Thompson Street Capital decision address this issue or even mention an express fee-shifting provision.64 The case law JanCo relies upon to support its argument is thus inapposite and unconvincing. The Court therefore finds no conflict exists between Sections 7.7 and 9.12. The express fee-shifting provision in Section 9.12 applies to first-party claims while Section 7.7 applies to third-party claims. To read the applicable APA provisions as JanCo suggests would require the Court read language into the APA, as JanCo itself displayed in presentation materials provided to the Court.65 63 Tr. 126:7-18. 64 See Dura Medic, 333 A.3d 227; Thompson Street Capital, 340 A.3d 1151 (addressing enforcement of exclusive remedy provisions without mention of an express fee-shifting provision). 65 JanCo provided the Court with a slide deck to support its second post-trial argument. One slide contained the language of Section 9.12 with the following annotation added at the beginning: [“In the case of fraud or willful misconduct, . . .].” The Court agrees with the following sentiment Counsel for ISS expressed in response to the annotation: “I think that is [a] powerful image. They literally had to rewrite the text of 9.12 to make it do what they want it to do.”). Tr. 91:12-14. Delaware courts are prohibited from rewriting provisions while interpretating a contractual provision, and the Court will not do so here. See Cincinnati SMSA Ltd. P’ship v. Cincinnati Bell Cellular Sys. Co., 708 A.2d 989, 992 (Del. 1998) (confirming “Delaware observes the well- established general principle that (absent grounds for reformation . . .) it is not the proper role of a court to rewrite or supply omitted provisions to a written agreement”). 15  During oral argument, JanCo also argued such a finding would be inconsistent with the Court’s Post-Trial Opinion, which previously found Section 7.7 applicable to first-party claims.66 But JanCo misinterprets Delaware law and conflates distinct issues here. Many agreements contain indemnification provisions implicated by losses arising from first-party claims. These provisions, however, do not shift attorneys’ fees and costs arising from the first-party claims unless there is a clear and unequivocal articulation to do so.67 Such articulation is not present in the APA, therefore making the Court’s ruling consistent with the Post-Trial Opinion. B. Section 9.12 adopts an all-or-nothing, not claim-by-claim, approach. 1. The Contentions of the Parties. JanCo contends a plain reading of Section 9.12 permits claim-by-claim recovery.68 JanCo’s argument relies upon on a single word—each.69 JanCo asserts Section 9.12 authorizes fees for “each successful Party,” which contemplates more than one and deviates from typical “prevailing party” language commonly seen in Delaware.70 JanCo argues because the Parties are sophisticated commercial actors, 66 Tr. 123:14-18 (“[W]e know that Section 7, Article 7, the whole thing, applies to first[-]party claims. It was applied to our first[-]party claims. It was applied to their first[-]party claims.”) 67 SARN Energy LLC v. Tatra Defence Vehicle A.S., 2019 WL 6525256, at *1 (Del. Super. Oct. 31, 2019) (holding an indemnity provision failing to reflect a “clear and unequivocal” intent to shift first-party fees and costs cannot be used to shift such fees and costs). 68 JanCo Ans. Br. at 30-32. 69 Id. at 31-32. 70 Id. 16 the Court should consider the differing language when evaluating whether Section 9.12 adopts an all-or-nothing or claim-by-claim approach.71 ISS contends Section 9.12 adopts an all-or-nothing approach, and a straightforward application of Section 9.12 confirms the Court should award fees and costs to a single Party.72 ISS argues Section 9.12 lacks qualifying language permitting fees to be awarded on a claim-by-claim or other partial basis.73 In other words, ISS views Section 9.12 no differently than a typical fee-shifting provision, which is usually applied in an all-or-nothing manner. 2. Standard of Review When an agreement governs an award of costs, the Court looks solely to the agreement to determine whether costs are to be awarded on “either an all-or-nothing or a claim-by-claim basis.”74 “Absent qualifying language [ ] fees are to be awarded claim-by-claim or on some other partial basis, a contractual provision entitling the prevailing party to fees will usually be applied in an all-or-nothing manner.”75 Parties eschew a claim-by-claim approach “by failing to insert any language in the 71 Id. at 32. 72 ISS OB at 17. 73 Id. 74 Facchina Constr. Litigs., 2021 WL 1118115, at *2 (Del. Super. Mar. 24, 2021) (citing Comrie v. Enterasys Networks, Inc., 2004 WL 936505, at *1-2 (Del. Ch. Apr. 27, 2004); Knight v. Grinnage, 1997 WL 633299, at *3 (Del. Ch. Oct. 7, 1997)). 75 Navient Sols., LLC v. BPG Off. P’rs XIII Iron Hill LLC, 2023 WL 3120644, at *16 (Del. Super. Apr. 27, 2023) (internal quotations omitted) (quoting AFH Hldg. & Advisory, LLC v. Emmaus Life Scis., Inc., 2014 WL 1760935, at *2-3 (Del. Ch. Apr. 16, 2014)). 17 contract [otherwise] authorizing the court . . . to award less than “all” the prevailing party's fees . . . [when] the prevailing party [ ] achieved a less than full victory.”76 3. Analysis Section 9.12 adopts an all-or-nothing approach to fee-shifting. Section 9.12 expressly provides each successful Party shall recover “any and all fees, costs, and expenses” from applicable legal actions.77 This language, both facially and contextually, does not authorize the Court to award a successful Party anything less than all incurred fees in this litigation. Phrased differently, Section 9.12 lacks qualifying language making clear fees are to be awarded on a claim-by claim basis. The Court acknowledges the word “each” before “successful Party” signals “more than one” Party.78 But under the APA, the term “Party” does not refer to JanCo or ISS. The term “Party” specifically refers to the multiple entities comprising either JanCo or ISS.79 The APA consistently uses the term “each” to 76 Brandin v. Gottlieb, 2000 WL 1005954, at *28 (Del. Ch. July 13, 2000) (citation omitted). 77 APA § 9.12 (emphasis added). 78 Each, Merriam-Webster’s Dictionary (last accessed Apr. 13, 2026), https://www.merriam- webster.com/dictionary/each (“being one of two or more distinct individuals having similar relation and often constituting an aggregate.”). 79 The APA preamble provides JanCo 2 and JanCo 3 “are each sometimes referred to as a “Purchaser,”” while ISSFSC, ISSFS, C&S, and TMC “are each sometimes referred to as a “Seller.”” APA Preamble (emphasis added). The APA preamble also provides “[e]ach Purchaser and each Seller are referred to individually as a “Party.” Id. 18 reference these multiple entities, thus making it far less compelling the Parties deviated from typical “prevailing party” language to add “each” in Section 9.12. 80 JanCo does not address how this APA identification structure affects its interpretation of Section 9.12, nor does JanCo provided any evidence suggesting “each” was included in Section 9.12 for any purpose other than for language consistency. Without further evidence to support its position, JanCo has not proved by a preponderance of the evidence Section 9.12 adopts a claim-by-claim approach to awarding fees and costs.81 C. ISS is the “successful Party” under Section 9.12. 1. The Contentions of the Parties JanCo contends it is the “successful Party” under Section 9.12.82 JanCo argues the Court must look at the outcome of the substantive issues, not damages, when determining which party has prevailed.83 JanCo asserts such an approach reveals JanCo as the prevailing party in this case.84 JanCo also argues JanCo is entitled to fees and costs because its successful breach-of-contract claim and 80 See generally APA (using the terms “each Purchaser,” “each Seller,” and “each Party” throughout the document in accordance with the preamble). 81 From this point forward, when the Court refers to “ISS” as the “successful Party,” the Court is referring to the individual entities comprising ISS under the APA: ISSFSC, ISSFS, C&S, and TMC. When the Court uses the term “Party” outside the “successful Party” context, the term “Party” should be understood as referring to either JanCo or ISS. 82 JanCo OB at 26-30; JanCo Ans. Br. at 23-27. 83 JanCo OB at 27; JanCo Ans. Br. at 22. 84 JanCo OB at 27; JanCo Ans. Br. at 22. 19 unsuccessful tort claims relied upon the same facts.85 JanCo alternatively argues if JanCo is not the “successful Party,” neither Party would be, as the Parties split success on their respective claims.86 ISS contends, by “any metric,” ISS is the “successful Party” under Section 9.12.87 ISS argues it prevailed on the chief issues in this case, won a much higher percentage of damages sought, and successfully defended against nearly all the claims bought against ISS.88 ISS largely relies on Navient, where the court found there to be a successful party despite both sides being successful on claims.89 2. Standard of Review When faced with an all-or-nothing fee-shifting provision, “the [c]ourt analyzes the ‘predominance in the litigation’ to determine the prevailing party.”90 “To establish predominance, the party must prevail on the case’s chief issue[s].”91 Delaware courts “consider the substance of the litigation rather than the damages award[ed]” to determine whether a party is predominant in the litigation.92 85 JanCo OB at 27. The sole case relied upon by JanCo, Phyto Tech Corp. v. Givaudan SA, is from the Southern District of New York, albeit applying Delaware law. 2023 WL 1437714 (S.D.N.Y. Jan. 31, 2023). 86 Id. at 28-30; JanCo Ans. Br. at 27-30. 87 ISS OB at 17. 88 Id. at 22. 89 Id. at 20-22. 90 Navient, 2023 WL 3120644, at *16 (citing Duncan v. STTCPL, LLC, 2020 WL 829374, at *15 (Del. Super. Feb. 19, 2020). 91 Id. (quoting 2009 Caiola Fam. Tr. v. PWA, LLC, 2015 WL 6007596, at *33 (Del. Ch. Oct. 14, 2015); citing Duncan, 2020 WL 829374, at *15). 92 Donald J. Wolfe, Jr. & Michael A. Pittenger, Corporate and Commercial Practice in the Delaware Court of Chancery § 17.03[d][3], at 17-12 (2nd ed. 2022) (citing Ivize of Milwaukee, 20  In some instances, the court may decline to award fees when the court finds neither party prevailed in the litigation.93 Delaware courts have held there can be no prevailing party when parties have each won and lost chief, or equally core, issues in litigation.94 Just because parties have split success on some claims, however, does not mean the court is precluded from finding a prevailing party exists.95 3. Analysis The two chief issues in this case were 1) performance of obligations under the APA and its companion agreements (“APA-related claims”),96 and 2) tort claims.97 ISS is undisputably the prevailing party with the respect to the chief issue of tort claims. ISS successfully defended one hundred percent of the tort claims JanCo brought, with JanCo unable to demonstrate either fraud or willful misconduct.98 ISS therefore achieved full and complete victory on these claims. LLC v. Complex Litig. Support, LLC, 2009 WL 1111179, at *14 (Del. Ch. Apr. 27, 2009); W. Willow-Bay Ct., LLC v. Robino-Bay Ct. Plaza, LLC, 2009 WL 458779, at *8 (Del Ch. Feb. 23, 2009)). 93 Duncan, 2020 WL 829374, at *15; Donald J. Wolfe, Jr. & Michael A. Pittenger, Corporate and Commercial Practice in the Delaware Court of Chancery § 17.03[d][3], at 17-13 (2022) (citations omitted). 94 Duncan, 2020 WL 829374, at *16; Mrs. Fields Brand, Inc. v. Interbake Foods LLC, 2018 WL 300454, at *4 (Del. Ch. Jan. 5, 2018). 95 Navient, 2023 WL 3120644, at *17; Gottlieb, 2000 WL 1005954, at *27-28. 96 For analysis purposes, the Court considers APA-related claims to include JanCo’s Counts II-VII and ISS’s Counts I-V. 97 For analysis purposes, the Court considers tort claims to include JanCo’s Counts I and VIII. 98 Post-Trial Opinion at 36-47. In Navient, the Court found a party had won on a chief issue, in large part, because it had successfully defended against ninety percent of the damages brought against the party for that chief issue. Navient, 2023 WL 3120644, at *17. Here, ISS exceeds even that high bar with respect to JanCo’s tort claims. 21  The prevailing party on the chief issue of APA-related claims is less clear-cut. Unlike with the tort claims, neither JanCo nor ISS achieved full and complete victory on these claims.99 When the Court examines the substance of these claims, however, along with the respective outcomes of each APA-related claim, ISS is the prevailing party for this chief issue. ISS succeeded in fully defending approximately eighty-three percent of the APA-related claims brought by JanCo.100 Even when the Court considers APA- related claims JanCo fully and partially succeeded in defending against, ISS still has a higher success rate in fully defending against JanCo’s claims.101 ISS was also successful in fully or partially recovering on sixty percent of the ISS’s APA-related claims,102 while JanCo only succeeded in recovering on seventeen percent of 99 See generally Summary Judgment Opinion; Post-Trial Opinion (displaying both Parties won on APA-related claims between summary judgment and trial). 100 ISS OB at 14-15. ISS successfully defended against approximately eighty-three percent of the APA-related claims brought by JanCo by preventing recovery on five of six counts. While ISS’s percentage of successful defense for APA-related claims is slightly lower than