COURT OF CHANCERY 

OF THE 

STATE OF DELAWARE

JOSEPH R. SLIGHTS III

VICE CHANCELLOR

417 S. State Street

Dover, Delaware 19901

Telephone: (302) 739-4397

Facsimile: (302) 739-6179

April 5, 2016

Kevin M. Coen, Esquire Richard P. Rollo, Esquire

Morris, Nichols, Arsht & Tunnell LLP Richards, Layton & Finger, P.A.

1201 North Market Street 920 North King Street 

Wilmington, DE 19801 Wilmington, DE 19801

Re: Wong v. USES Holding Corp. 

C.A. No. 11475-VCS

Date Submitted: March 11, 2016

Dear Counsel:

Pursuant to Court of Chancery Rule 59(f), Plaintiffs Felix Wong and

Gregory Johnson (“Plaintiffs”) have moved for reargument of this Court’s 

February 26, 2016 letter opinion in which the Court held that: (1) Plaintiffs were 

entitled to recover “fees on fees” incurred on or after November 25, 2015, the date 

on which they submitted their undertakings to Defendant USES Holding Corp. 

(“USES”); and (2) the USES Bylaws did not require Plaintiffs to share in fees and 

costs billed by the Special Master in the administration of this advancement 

EFiled: Apr 05 2016 12:38PM EDT 

Transaction ID 58811447

Case No. 11475-VCS
Wong v. USES Holding Corp. 

C.A. No. 11475-VCS

April 5, 2016

Page 2

litigation. Plaintiffs seek reargument only with respect to the Court’s 

determination that they are not entitled to “fees on fees” incurred prior to the date 

on which they submitted their undertakings to USES. For the reasons that follow, 

the Motion is denied. 

The Court will deny a motion for reargument “unless the Court has 

overlooked a decision or principle of law that would have a controlling effect or 

the Court has misapprehended the law or the facts so that the outcome of the 

decision would be affected.”1 Where the motion merely rehashes arguments 

already made by the parties and considered by the Court when reaching the 

decision from which reargument is sought, the motion must be denied.2

In seeking reargument, Plaintiffs assert that (1) the Court improperly 

determined that 8 Del. C. § 145(e) and the USES Bylaws required Plaintiffs to 

submit an undertaking as a precondition to seeking a “fees on fees” recovery; 

(2) the Court incorrectly cited Underbrink v. Warrior Energy Services Corp., 2008 

 

1

Stein v. Orloff, 1985 WL 21136, at *2 (Del. Ch. Sept. 26, 1985).

2

See Lewis v. Aronson, 1985 WL 21141, at *2 (Del. Ch. June 7, 1985).
Wong v. USES Holding Corp. 

C.A. No. 11475-VCS

April 5, 2016

Page 3

WL 2262316 (Del. Ch. May 30, 2008) for the proposition that a plaintiff must first 

submit an undertaking to perfect his right to recover fees incurred while 

prosecuting a claim for advancement wrongfully withheld by the corporation;3and 

(3) the Court failed to consider that USES did not timely raise Plaintiffs’ delayed 

submission of their undertakings as a basis to oppose their request for “fees on 

fees.” 

The record reflects that the parties addressed in their partial summary 

judgment briefing the extent to which Plaintiffs could recover “fees on fees” 

incurred prior to the submission of their undertakings to USES on November 25, 

2015. Indeed, Plaintiffs expressly argued that the submission of undertakings to 

USES should have no bearing on the Court’s analysis of their right to “fees on 

fees” under Section 145(e) of the DGCL or USES’s Bylaws.4 Then, at oral 

argument, the Court expressed its concern that “all the boxes haven’t been 

 

3 According to Plaintiffs, at best for USES, Underbrink would support the notion 

that it could refuse to make a payment of advanced fees until it received the 

undertakings from Plaintiffs. It could not, however, rely upon Underbrink to deny 

Plaintiffs their right to advancement altogether simply because the undertakings 

had not yet been submitted. Pls.’ Mot. for Rearg. at 5-6.

4 Def.’s Br. in Opp’n to Pls.’ Mot. for Partial Summ. J. at 19; Pls.’ Reply Br. in 

Supp. of Their Mot. for Partial Summ. J. at 2-3.
Wong v. USES Holding Corp. 

C.A. No. 11475-VCS

April 5, 2016

Page 4

checked” to support Plaintiffs’ claim that USES had wrongfully refused to honor 

Plaintiffs’ advancement demand prior to November 25, 2015.5 Plaintiffs attempted 

to address that concern with the same argument Plaintiffs now advance on 

reargument: that Plaintiffs are entitled to recover all “fees on fees” incurred from 

the outset of their assertion of advancement rights because USES has consistently 

maintained that Plaintiffs had no right to advancement at all, regardless of whether 

Plaintiffs had submitted their undertakings vel non.

6

 The Court ultimately rejected 

that argument.7 Plaintiffs’ effort to “rehash” the point on reargument cannot be 

countenanced.8

Even if I concluded that Plaintiffs were not restating arguments, I would be 

hard-pressed to find fault with the Court’s treatment of Plaintiffs’ “fees on fees” 

claim. Until Plaintiffs submitted their undertakings, USES would have been within 

its rights under Section 9.1(b) of its Bylaws and Section 145(e) of the DGCL to 

reject Plaintiffs’ claims for advancement on that ground alone. Fees incurred by 

 

5

Tr. of Oral Arg. Pls.’ Mot. for Partial Summ. J. (“Oral Arg. Tr.”) 19.

6

Pls.’ Mot. for Rearg. at 7.

7 Wong v. USES Hldg. Corp., 2016 WL 769043, at *3 (Del. Ch. Feb. 26, 2016).

8

Lewis, 1985 WL 21141, at *2.
Wong v. USES Holding Corp. 

C.A. No. 11475-VCS

April 5, 2016

Page 5

Plaintiffs to prosecute a claim that USES would have been justified in rejecting are 

not recoverable as “fees on fees.”9 

Because I find no fault with the Court’s disposition of the “fees on fees” 

claim, I cannot accept Plaintiffs’ argument that the Court improperly interpreted 

Underbrink. Indeed, Underbrink fully supports the Court’s conclusion that USES 

had no obligation to advance funds, and could properly withhold advancement, 

until such time as the Plaintiffs delivered their mandated undertakings to the 

corporation.10 While it is true, as Plaintiffs observe, that the Court in Underbrink

appears to have awarded “fees on fees” incurred prior to the delivery of the 

undertaking (as evidenced by the award of prejudgment interest on those fees), 

nothing in Underbrink suggests that the Court was asked to consider whether the 

 

9 Mooney v. Echo Therapeutics, Inc., 2015 WL 3413272, at *12 (Del. Ch. May 28, 

2015) (holding that the court will award “fees on fees when a plaintiff successfully 

shows an entitlement to advancement wrongfully withheld by the defendant 

corporation”). 

10 Underbrink, 2008 WL 2262316, at *13 (“Where a bylaw clearly creates a right 

to mandatory advancement, the right is enforceable upon satisfaction of the 

prerequisites, including the appropriate form of undertaking as specified in the 

bylaws.”). 
Wong v. USES Holding Corp. 

C.A. No. 11475-VCS

April 5, 2016

Page 6

defendant was, under the Bylaws or as a matter of law, obliged to pay such fees. 

The issue simply was not addressed. 

Finally, Plaintiffs’ position that USES somehow waived its argument 

regarding the effect of Plaintiffs’ belated delivery of their undertakings on their 

claim for “fees on fees” does not comport with the record. USES advised Plaintiffs 

that they were required to “deliver . . . necessary undertakings” in connection with 

their demand for advancement at least as early as October 2, 2015, some seven 

weeks prior to the November 25 submission date.11

Based on the foregoing, Plaintiffs’ Motion for Reargument must be denied. 

IT IS SO ORDERED.

Very truly yours,

/s/ Joseph R. Slights III

JRSIII/cap

cc: Register in Chancery-K

 

11 See Oral Arg. Tr. 26; Def.’s Br. in Opp’n to Pls.’ Mot. for Partial Summ. J. at 5.