IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

SUNDER ENERGY, LLC, 

Plaintiff,

v.

TYLER JACKSON, FREEDOM FOREVER 

LLC, BRETT BOUCHY, CHAD TOWNER, 

FREEDOM SOLAR PROS, LLC, and SOLAR 

PROS LLC,

Defendants. 

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C.A. No. 2023-0988-JTL

MEMORANDUM OPINION CERTIFYING INTERLOCUTORY APPEAL

Date Submitted: December 14, 2023

Date Decided: December 22, 2023

Raymond J. DiCamillo, Chad M. Shandler, Steven J. Fineman, Kelly E. Farnan, 

Kevin M. Gallagher, Christine D. Haynes, Alexander M. Krischik, Sara M. Metzler, 

RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware; Joshua Berman, 

Jackson Herndon, Paul C. Gross, Ben Nicholson, Michael H. Rover, PAUL 

HASTINGS LLP, New York, New York; Attorneys for Plaintiff Sunder Energy, LLC.

Timothy R. Dudderar, Aaron R. Sims, Abraham C. Schneider, POTTER ANDERSON 

& CORROON LLP, Wilmington, Delaware; Maureen M. Stewart, FOLEY & 

LARDNER LLP, Tampa, Florida; Jordan C. Bledsoe, Tyler Dever, Bryce W. Talbot 

FOLEY & LARDNER LLP, Salt Lake City, Utah; Attorneys for Defendant Tyler 

Jackson.

Paul J. Lockwood, Jenness E. Parker, Jessica R. Kunz, Matthew R. Conrad, Eric M. 

Holleran, Mallory V. Phillips, SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, 

Wilmington, Delaware; Karen Hoffman Lent, Evan R. Kreiner, SKADDEN, ARPS, 

SLATE, MEAGHER & FLOM LLP, New York, New York; Attorneys for Defendants 

Freedom Forever LLC, Brett Bouchy, Chad Towner, and Freedom Solar Pros, LLC.

LASTER, V.C.

EFiled: Dec 22 2023 08:00AM EST 

Transaction ID 71679732

Case No. 2023-0988-JTL
1

Sunder Energy, LLC (“Sunder”) moved for a preliminary injunction to enforce 

restrictive covenants in its limited liability company agreement against Tyler 

Jackson. Sunder also sought a preliminary injunction against Freedom Forever LLC, 

Solar Pros LLC, Freedom Solar Pros LLC, Brett Bouchy, and Chad Towner

(collectively, the “Freedom Defendants”) on the theory that the Freedom Defendants 

tortiously interfered with the restrictions binding Jackson.

I issued an opinion denying Sunder’s motion (the “Injunction Decision”). 

Although technically a denial of a preliminary injunction, that opinion ruled on key 

issues as a matter of law. It is more akin to a decision that dismissed the bulk of 

Sunder’s claims. 

Sunder has filed an application to certify the Injunction Decision for 

interlocutory appeal (the “Application” or “App.”). Ordinarily, a ruling on a 

preliminary injunction is not suitable for interlocutory appeal. An opinion granting a 

motion to dismiss, by contrast, results in a final judgment that can be appealed 

immediately.

Without an appeal, this case will move forward with the rulings in the 

Injunction Decision operating as law of the case. The limited nature of the remaining 

issues will constrain the breadth of fact and expert discovery and the scope of the 

trial. Any post-trial factual findings and legal rulings will be restricted to the 

remaining issues, as will any remedy (if Sunder prevails). The case will unfold very 

differently than if Sunder could pursue the claims the Injunction Decision rejected.
2

After entry of a final judgment, Sunder can challenge all of the errors it thinks 

I made, including the rulings in the Injunction Decision. While I would like to think 

that I got the Injunction Decision right, I have enough humility and experience to 

understand that the legal disputes that this case presents involve issues where 

reasonable minds can disagree. That is why the case was filed in the first place, and 

why the parties are willing to spend large sums to litigate it. If the answers were 

clear, Sunder would not have sued, or the case would have settled. 

Consequently, there is always risk that the Delaware Supreme Court will 

disagree with my rulings. And for purposes of this case, there is a substantial 

difference between learning the definitive answers on key legal issues now versus 

later. If the Delaware Supreme Court disagrees with my rulings at the end of the 

case, everyone has to go back to square one. The scope of the lawsuit will expand 

dramatically. A complete do-over will be required. 

By contrast, if the Delaware Supreme Court hears an appeal now, then the 

parties and I can implement the high court’s views. True, that means the justices 

would hear an appeal before a final judgment, but they are likely to hear an appeal 

on the same issues in any event, and if they hear the appeal now, then there is no 

risk that they will have to revisit those issues later. Their legal rulings will be 

binding. 

This decision therefore grants the Application. Ultimately, only the Delaware 

Supreme Court can determine whether to entertain the interlocutory appeal. My 

recommendation, however, is to hear the appeal now rather than later. 
3

I. FACTUAL BACKGROUND

The facts are drawn from the Injunction Decision and matters subject to 

judicial notice. In the interest of brevity, this decision provides only a summary of the 

underlying facts. 

A. Sunder’s Beginnings

Sunder is a solar sales dealer organized as a Delaware limited liability 

company. Sunder currently operates in at least forty-seven states.

Sunder’s sole business involves securing agreements with residential 

customers to install solar systems for their homes. Once an agreement is signed, 

Sunder hands the job over to an installer. Until September 2023, Sunder acted as an 

exclusive dealer for Freedom, a leading installer led by Towner and Bouchy. 

Seven sales leaders from a different solar sales dealer founded Sunder in 2019. 

The co-founders agreed on an equity split. Eric Nielsen and Max Britton were the 

most senior sales leaders and received 60%. The other five—including Jackson—were 

more junior and received 8% each. With that understanding, the co-founders formed 

Sunder as a Delaware LLC. They also executed a five-year exclusive dealer 

agreement with Freedom.

B. The LLC Agreement

In fall 2019, Nielsen and Britton engaged a law firm to draft a written LLC 

agreement for Sunder. The other co-founders were not involved in the process. The 

law firm was representing all of the co-founders in pending litigation brought by their 

former employer. All of the co-founders regarded the firm as their counsel. 
4

When the draft was ready, Nielsen and Britton went to the law firm’s offices 

and received a briefing about what the dense language of the lengthy draft agreement 

meant. The other co-founders were not invited, and no one explained the agreement 

to them. 

The agreement dramatically changed the ownership structure of Sunder and 

radically altered its internal governance. Most significantly for this case, Article XIII 

added broad restrictive covenants. 

Nielsen and Britton sprung the agreement on the minority members on New 

Year’s Eve. Addressing the minority members as “Partners,” Nielsen wrote:

Max [Britton] and I have executed our portion of the Sunder Operating 

Agreement today and a copy for your review is attached. I will be 

sending each of you a couple of documents via docusign momentarily. 

The first one contains your grant of shares and the second one is a 

joinder agreement that will formally add each of you to the Operating 

Agreement. If you are married, your spouse will also be sent a spousal 

consent form. Please let Max or me know if you have any questions.

Lastly, the attorney’s [sic] highly recommend completing these 

documents by the end of tonight, but we don’t expect any of you to sign 

something if you are uncomfortable with it or if you need more 

clarification from the attorney’s [sic] on something. Please let me know 

if you have any questions.

Happy New Year!

The New Year’s email did not provide any indication that the agreement gutted the 

minority members’ rights. The New Year’s email did not suggest in any way that the 

minority members could not rely on Nielsen and Britton—their “Partners”—as 

fiduciaries. Nothing suggested that the minority members needed to go into 

adversarial, arms’-length bargaining mode and negotiate vigorously for themselves.

All of the minority members quickly returned their signature pages. 
5

Nielsen and Britton went further in 2021, when they proposed amendments to 

the agreement. That time, they did not even send a copy to the minority members. 

They simply circulated an email saying that the amendment would add a member 

and that there were no substantive changes. That was not true: The amendment 

expanded the geographic scope of the restrictive covenants, making them more 

onerous. 

C. The Sunder-Freedom Relationship Blossoms, Then Deteriorates.

From 2019 until the start of 2023, Sunder thrived. Sunder grew into one of 

Freedom’s “super-dealers,” generating over 25% of its sales. Jackson’s responsibilities 

at Sunder grew with the company. By 2022, Jackson had been given the title of Vice 

President and had nearly half of Sunder’s sales force reporting to him directly or 

indirectly. He became the highest paid sales leader at Sunder, earning a total of $4.8 

million in compensation over four years. Over the same period, he received a total of 

$1.2 million in profit distributions. 

In 2021 and 2022, however, Nielsen and Britton made a series of business 

decisions that caused Sunder to encounter difficulties. Those decisions affected 

Sunder’s relationship with Freedom and with its own sales force.

One issue was an effort to boost Sunder’s profitability by artificially increasing 

the installation cost of the project over Freedom’s quote then pocketing the difference. 

As a practical matter, the padded installation cost lowered the portion of the project 

price on which Sunder paid commissions and overrides, so it took money way from 

Sunder’s sales force. Sunder’s sales representatives eventually discovered that 
6

Sunder had secretly changed its calculations. Not surprisingly, the revelation 

generated feelings of betrayal and distrust. 

Another issue was whether Sunder would continue working with Freedom. The 

initial five-year dealer agreement would expire in 2024, and a new agreement would 

need to be negotiated. Freedom had been an essential part of Sunder’s success, and 

its sales force knew Freedom’s products and valued Freedom’s industry-leading 

ability to install systems quickly. But another exclusive, multi-year deal with 

Freedom would limit Nielsen and Britton’s alternatives. When asked about Sunder’s 

future direction, Nielsen said that they prioritized working with Freedom, but they 

would not rule out the possibility that Sunder would go in a different direction. 

D. The Attraction Of Solar Pros

By early 2023, the combination of the artificial price floor and the uncertainty 

about whether Sunder would continue with Freedom were topics of discussion and 

debate among Sunder’s sales force, and particularly its sales leadership. The sales 

leaders began questioning whether they should stay with Sunder or move to another 

Freedom dealer.

One attractive option was Solar Pros, a rapidly expanding dealer that was 

affiliated with Bouchy, one of Freedom’s principals. Solar Pros did not have an 

artificial pricing floor and paid significantly higher commissions. 

Jackson was one of the sales leaders who explored the possibility of moving to 

Solar Pros. Immediately after that meeting, Jackson asked Sunder’s CFO for copies 

of all of the agreements he had signed with Sunder, evidencing that he was thinking 

about leaving.
7

After learning that he was bound by restrictive covenants, Jackson felt that 

his best option was to attempt to preserve the Sunder-Freedom relationship and keep 

his sales force together. He tried to facilitate meetings between Sunder and Freedom. 

He also tried to convince his sales leaders not to leave for Solar Pros. But he kept in 

touch with Solar Pros. 

During the same period, Nielsen and Britton were keeping their options open

regarding Sunder’s relationship with Freedom. In June and July 2023, they began 

having meetings with other solar installers. In August 2023, they hired counsel to 

evaluate Sunder’s rights under the dealer agreement with Freedom.

Sunder’s sales leaders knew what Nielsen and Britton were doing, and they 

became even more concerned. In early September 2023, Clayton Granch decided to 

leave Sunder for Solar Pros and take his teams with him. Granch was one of Jackson’s 

direct reports.

E. The Las Vegas Meeting

The principals of Sunder and Freedom met in Las Vegas on September 14, 

2023. During the meeting, Freedom offered to pay $10 million in exchange for 

Sunder’s agreement to release Jackson from his restrictive covenants and to facilitate 

the transfer of “his group” to Solar Pros. The parties did not reach an agreement, but 

they also did not seem that far apart. 

After learning that the meeting went well, Jackson circulated a list of Sunder 

personnel to three of his direct reports. The list was an initial effort to identify who 

would join him at Solar Pros. Within days after the Las Vegas meeting, Jackson’s 
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direct reports and their teams began leaving for Solar Pros. Jackson also worked hard 

to recruit members of his team to go to Solar Pros.

Sunder and Freedom did not reach a deal. Instead, on September 22, 2023, 

Jackson signed an independent consulting agreement with an affiliate of Freedom 

and Solar Pros. Four hours later, Jackson resigned from Sunder.

F. This Litigation

On September 29, 2023, Sunder filed this action. Based on the detailed 

allegations in Sunder’s verified pleading, I issued an ex parte temporary restraining 

order. That order was intended to preserve the status quo pending a hearing on 

whether to renew or lift the order, which would take place on or before October 18. 

On October 6, I issued an order to show cause interpreting the ex parte temporary 

restraining order in a manner favorable to Sunder. 

The parties briefed whether the court should allow the TRO to expire or renew 

it. The defendants also moved to dismiss the case in favor of arbitration. On October 

11, 2023, I renewed the TRO and denied the motion to dismiss. 

Over the following month, the parties engaged in expedited discovery. A 

hearing on Sunder’s motion for a preliminary injunction took place on Friday, 

November 17, 2023. On the following Wednesday, I issued the Injunction Decision. 

II. LEGAL ANALYSIS

Supreme Court Rule 42 governs the certification of an interlocutory appeal. 

“[T]he purpose of Rule 42 is to prevent wasteful piecemeal litigation from 

overwhelming the docket of the Supreme Court.” Stein v. Blankfein, 2019 WL 

3311227, at *1 (Del. Ch. July 23, 2019).
9

Rule 42 states that “[n]o interlocutory appeal will be certified by the trial court 

or accepted by this Court unless the order of the trial court decides a substantial issue 

of material importance that merits appellate review before a final judgment.” Supr. 

Ct. R. 42(b)(i). If the “substantial issue” requirement is met, then the trial court will 

analyze whether “there are substantial benefits that will outweigh the certain costs 

that accompany an interlocutory appeal.” Supr. Ct. R. 42(b)(ii). The rule identifies 

eight factors relevant to the assessment. Supr. Ct. R. 42(b)(iii)(A)–(H).

A. A Substantial Issue Of Material Importance

“The ‘substantial issue’ requirement is met when an interlocutory order 

decides a main question of law which relates to the merits of the case, and not to 

collateral matters.” Sprint Nextel Corp. v. iPCS, Inc., 2008 WL 2861717, at *1 (Del. 

Ch. July 22, 2008); accord Castaldo v. Pittsburgh–Des Moines Steel Co., 301 A.2d 87, 

87 (Del. 1973). The Injunction Decision made legal rulings that meet the substantial 

issue requirement.

1. The Validity Of The Restrictive Covenants Under Delaware Law

The Injunction Decision ruled that Sunder could not rely on the restrictive 

covenants because they were unreasonably broad as a matter of law. The Injunction 

Decision also refused to blue-pencil the restrictive covenants. Both rulings addressed 

substantial issues. 

The Injunction Decision is an interlocutory ruling, but it is law of the case at 

the trial level. Based on those rulings, the defendants likely could move for summary 

judgment in their favor on those points. For those issues, the Injunction Decision is 

akin to the granting of a motion to dismiss. 
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Admittedly, the rulings on the restrictive covenants do not dispose of the case 

as a whole. The Injunction Decision acknowledged that Sunder likely could plead 

viable claims against Jackson based on his pre-resignation activities. Those 

remaining claims, however, would only cover a portion of the conduct that Sunder 

wants to challenge. 

By ruling on those legal issues, the Injunction Decision decided the principal 

questions at issue in favor of the defendants. Those rulings meet the substantial issue 

requirement and, to that extent, are suitable for interlocutory review.

2. The Validity Of The Restrictive Covenants Under The LLC Act

The Injunction Decision held that Sunder could not rely on the restrictive 

covenants because they were invalid under the Delaware Limited Liability Company 

Act (the “LLC Act”) and the common law governing fiduciary duties. That ruling 

addressed a substantial issue as well. 

Like the rulings on the scope of the restrictive covenants, the fiduciary duty 

ruling is akin to a decision granting a motion to dismiss. By holding that the 

restrictive covenants could not be enforced, the Injunction Decision decided one of the 

principal questions at issue in favor of the defendants.

That ruling warrants interlocutory review even without Sunder’s attempt to 

paint it as procedurally improper. Sunder trumpets that the court ruled on those 

issues “even though (i) it had not yet ruled on Jackson’s Motion for Leave to assert 

these counterclaims and defenses and (ii) Sunder (and the Court) had learned of the 

fiduciary duty defense for the first time a few days prior to the hearing.” App. ¶ 20

(footnote omitted). Jackson’s motion for leave addressed whether he could assert 
11

affirmative claims for breach of fiduciary duty. Whether that motion was granted did 

not affect Jackson’s ability to raise the fiduciary duty issues as a defense. In expedited 

litigation, parties often raise arguments during injunction briefing that have not been 

fully spelled out in the pleadings. Ever since the Delaware courts adopted versions of 

the federal rules of civil procedure, pleadings have served a notice function. See In re 

McDonald’s Corp. S’holder Deriv. Litig., 289 A.3d 343, 375–76 (Del. Ch. 2023); HOMF 

II Inv. Corp. v. Altenberg, 2020 WL 2529806, at *26, 36 (Del. Ch. May 19, 2020), aff’d, 

263 A.3d 1013 (Del. 2021). A complaint is not a straitjacket. Jackson properly raised 

his fiduciary duty defense. 

In a footnote, Sunder points out that I referred to Jackson’s invocation of 

Nielsen and Britton’s breaches of fiduciary duty “as an affirmative defense” and 

states that this characterization was “not correct at the time of the Decision.” Id. ¶ 

21 n.3. Jackson had raised an unclean hands defense in his answer, and unclean 

hands can be a vehicle for asserting a defense based on breach of fiduciary duty or 

fraud. See, e.g., Ray v. Williams, 2020 WL 1542028, at *38 (Del. Ch. Mar. 31, 2020) 

(unclean hands based on fiduciary breach); In re Rural/Metro Corp. S’holders Litig., 

102 A.3d 205, 237 (Del. Ch. 2014) (unclean hands based on fraud). In any event, the 

asserted breach of fiduciary duty was a defense that Jackson had raised affirmatively 

and on which Jackson would bear the burden of proof. 

The fact that Jackson had not formally spelled out a defense based on breach 

of fiduciary duty thus did not prevent him from arguing that the Nielsen and Britton’s

breach of duty rendered the restrictive covenants unenforceable such that Sunder 
12

was not entitled to a preliminary injunction. Jackson had identified unclean hands 

as a defense in his answer, and he diligently pursued that defense by seeking 

discovery and moving to compel the production of documents related to that defense. 

See Dkt. 127. Jackson fairly presented the defense for purposes of the injunction 

application. 

Jackson agrees that the validity of the restrictive covenants under the LLC Act 

presents a substantial issue but argues against interlocutory review because of the 

potential for further factual development. In support of that argument, he cites 

emails identified after the issuance of the Injunction Decision, which he says makes 

the fiduciary duty defense stronger. That may be so, but at least two issues of law can 

be addressed now. The first is whether Nielsen and Britton owed fiduciary duties to 

their fellow members in a member-managed LLC when asking them to approve the 

first written operating agreement for the entity, after having operated informally for 

months under a de facto operating agreement based on the LLC Act and oral 

understandings. The second is whether the New Year’s email, standing alone, was 

sufficient to put the minority members on notice of their need to negotiate at arm’s 

length. If Sunder prevails on either point, then the fiduciary defense fails.

The breach of fiduciary duty defense therefore presents a substantial issue. To 

that extent, it is suitable for interlocutory review.

3. The Tortious Interference Claim Under Utah Law

The Injunction Decision ruled that Utah law governed Sunder’s tortious 

interference claim and that Sunder could not prevail against the Freedom Defendants 
13

as a matter of law. In reaching that decision, the Injunction Decision decided a 

substantial issue suitable for interlocutory review. 

Ordinarily, a choice-of-law ruling does not warrant interlocutory review. E.g., 

Pivotal Payments Direct Corp. v. Planet Payment, Inc., 247 A.3d 688, 2021 WL 

754850, at *1–2 (Del. Feb. 23, 2021) (ORDER). In this case, however, the choice-oflaw ruling is dispositive because of the strictures of Utah law. Based on that ruling, 

the Freedom Defendants likely could move for summary judgment in their favor on 

Sunder’s claims. The Injunction Decision effectively ruled on the merits of Sunder’s 

claim against the Freedom Defendants, thereby addressing the merits of the case and 

making the issue appropriate for interlocutory review.

4. The Policy Issue Raised By Including Restrictive Covenants in 

Internal Governance Documents 

Although Sunder has identified three substantial issues for appeal, an 

additional argument misses the mark. When discussing the Injunction Decision, 

Sunder points to a section in the introduction in which I described a multi-year trend 

involving parties’ efforts to enforce restrictive covenants in the Delaware Court of 

Chancery (the “Policy Excerpt”). Reproduced in full, the Policy Excerpt stated:

Sunder maintains that Jackson is bound by restrictive covenants. 

He received Incentive Units in Sunder, and the attorneys who drafted 

Sunder’s LLC agreement embedded in its terms a set of restrictive 

covenants (the “Covenants”) that bind any holder of Incentive Units. The 

Covenants consist of:

• A restriction prohibiting the holder from engaging in any 

competitive activity (the “Competition Restriction”);

• A restriction prohibiting the holder from soliciting Sunder’s 

employees and independent contractors (the “Personnel 

Restriction”);
14

• A restriction prohibiting the holder from soliciting, selling to, 

accepting any business from, or engaging in any business 

relationship with any of Sunder’s customers (the “Customer 

Restriction”); and 

• A restriction prohibiting the holder from inducing, influencing, 

causing, advising, or encouraging any Sunder stakeholder to 

terminate its relationship with Sunder (the “Stakeholder 

Restriction”). 

The LLC agreement also imposes an expansive restriction on the use of 

Sunder’s confidential information, broadly defined. 

Each Covenant applies not only to the holder of the Incentive Unit 

but also to that person’s “Affiliates,” defined to include the holder’s 

spouse, parents, siblings, and descendants, both natural and adopted. 

The Covenants thus purport to bind Jackson’s wife and children. The 

Covenants apply during the period when the holder owns the Incentive 

Units and for two years afterward. A holder has no ability to transfer 

the Incentive Units, but Sunder can repurchase them for zero dollars if 

the holder is terminated or leaves other than for good reason. Because 

Sunder can decide not to repurchase the Incentive Units, the Covenants

could be perpetual. 

The Incentive Units are a form of incentive compensation. 

Jurisdictions other than Delaware have a significant interest in how 

businesses compensate employees and independent contractors and the 

extent to which businesses can attach restrictive covenants to those 

arrangements. Sunder has its headquarters in Utah, which has an 

obvious interest in that subject and has passed legislation to regulate it. 

Jackson lives in Texas, which has an interest in the extent to which its 

citizens can earn a living. Freedom has its headquarters in California, 

and Solar Pros has its headquarters in Nevada, so those jurisdictions

have interests as well. 

But Sunder filed suit here—in Delaware—because Sunder is a 

Delaware LLC and its lawyers deployed the now widespread legal 

technology of inserting restrictive covenants into an internal governance 

document. Businesses and their lawyers do that so they can invoke 

Delaware’s contractarian regime and argue that it should override how 

other jurisdictions regulate restrictive covenants. 

That legal technology calls on the Delaware courts to adjudicate 

post-employment disputes for the country and potentially the world. In 

the past five years alone, the Court of Chancery has issued written 
15

decisions addressing disputes over restrictive covenants for businesses 

operating in Hong Kong,1 Italy,2 Alabama,3 Arizona,4 California,

5

Colorado,6 Idaho,7 Illinois,8 Louisiana,9 Nebraska,10 New Jersey,11 New 

York,12 Oklahoma,13 and Texas.14 Only two businesses operated in 

1 Ainslie v. Cantor Fitzgerald, L.P., 2023 WL 106924 (Del. Ch. Jan. 4, 2023).

2 AlixPartners, LLP v. Mori, 2022 WL 1111404 (Del. Ch. Apr. 14, 2022); AlixPartners, 

LLP v. Mori, 2019 WL 6327325 (Del. Ch. Nov. 26, 2019).

3 HighTower Hldg., LLC v. Gibson, 2023 WL 1856651 (Del. Ch. Feb. 9, 2023); FP UC 

Hldgs., LLC v. Hamilton, 2020 WL 1492783 (Del. Ch. Mar. 27, 2020).

4 Dunn v. FastMed Urgent Care, P.C., 2019 WL 4131010 (Del. Ch. Aug. 30, 2019).

5 Gener8, LLC v. Castanon, 2023 WL 6381635 (Del. Ch. Sept. 29, 2023); Sorrento 

Therapeutics, Inc. v. Mack, 2023 WL 5670689 (Del. Ch. Sept. 1, 2023); UBEO Hldgs., LLC v. 

Drakulic, 2021 WL 1716966 (Del. Ch. Apr. 30, 2021); Focus Fin. P’rs, LLC v. Holsopple, 250 

A.3d 939 (Del. Ch. 2020); Focus Fin. P’rs, LLC v. Holsopple, 241 A.3d 784 (Del. Ch. 2020); 

NuVasive, Inc. v. Miles, 2020 WL 5106554 (Del. Ch. Aug. 31, 2020); NuVasive, Inc. v. Miles, 

2019 WL 4010814 (Del. Ch. Aug. 26, 2019); NuVasive, Inc. v. Miles, 2018 WL 4677607 (Del. 

Ch. Sept. 28, 2018).

6 Mountain W. Series of Lockton Cos., LLC v. Alliant Ins. Servs., Inc., 2019 WL 

2536104 (Del. Ch. June 20, 2019).

7 Kodiak Bldg. P’rs, LLC v. Adams, 2022 WL 5240507 (Del. Ch. Oct. 6, 2022).

8 Centurion Serv. Gp., LLC v. Wilensky, 2023 WL 5624156 (Del. Ch. Aug. 31, 2023).

9 AG Res. Hldgs, LLC v. Terral, 2021 WL 486831 (Del. Ch. Feb. 10, 2021).

10 Cabela’s LLC v. Wellman, 2018 WL 5309954 (Del. Ch. Oct. 26, 2018).

11 CelestialRX Invs., LLC v. Krivulka, 2019 WL 1396764 (Del. Ch. Mar. 27, 2019).

12 Intertek Testing Servs. NA, Inc. v. Eastman, 2023 WL 2544236 (Del. Ch. Mar. 16, 

2023); Badger Hldg. LLC v. Kirsch, 2018 WL 4709563 (Del. Ch. Oct. 1, 2018).

13 Parks v. Horizon Hldgs., LLC, 2022 WL 2821337 (Del. Ch. July 20, 2022).

14 U.S. Legal Support, Inc. v. Lucido, 2021 WL 4940823 (Del. Ch. Oct. 22, 2021).
16

Delaware, one of which filed two cases.15 That list excludes transcript 

rulings. 

For Delaware courts to address these matters is problematic 

because the Delaware franchise depends on other states deferring to 

Delaware law to govern the internal affairs of the entities that Delaware 

charters. Delaware risks jeopardizing that deference if Delaware 

accommodates efforts to use the internal governance documents of its 

entities to override the law of other states on issues of great importance 

to them.

16

For Delaware courts to address these matters is unsustainable 

because the Court of Chancery will never have sufficient resources to 

adjudicate restrictive covenant cases for Delaware entities throughout 

the world. The court’s core role is to resolve internal governance disputes 

for Delaware entities. To Delaware’s good fortune, the number of its

entities has grown year over year. At the end of 2017, the starting point 

for the five-year lookback that this decision has used, Delaware had 

chartered more than 1.3 million entities.17 At the end of 2022, there were 

over 1.9 million, reflecting aggregate growth of 46% and compound 

annual growth of nearly 8%. At that rate, the number of Delaware 

entities should easily crest 2 million in 2023.18 Because some number of 

entities have disputes each year, more Delaware entities means more 

disputes. It thus should come as no surprise that the court’s expansion 

from five to seven constitutional judges in 2018 was not a permanent fix. 

It enabled the court to meet 2018 demand, not future demand. 

For the Court of Chancery to entertain restrictive covenant cases 

from far and wide diverts the court’s attention from its core mission. And 

it generates considerably more work. As this case shows, restrictive 

covenant cases often start with an emergency application for a 

15 Lyons Ins. Agency, Inc. v. Wark, 2020 WL 429114 (Del. Ch. Jan. 28, 2020); Lyons 

Ins. Agency, Inc. v. Wilson, 2018 WL 4677606 (Del. Ch. Sept. 28, 2018); Physiotherapy Corp. 

v. Moncure, 2018 WL 1256492 (Del. Ch. Mar. 12, 2018).

16 See Diedenhofen-Lennartz v. Diedenhofen, 931 A.2d 439, 451–52 (Del. Ch. 2007) (“If 

we expect that other sovereigns will respect our state’s overriding interest in the 

interpretation and enforcement of our entity laws, we must show reciprocal respect.”).

17 Del. Div. of Corps., 2017 Annual Report, https://corp.delaware.gov/stats/2017-

annual-report/ (last visited Nov. 20, 2023). 

18 Del. Div. of Corps., 2022 Annual Report, https://corp.delaware.gov/stats/ (last visited 

Nov. 20, 2023). 
17

temporary restraining order, followed by a highly expedited motion for 

a preliminary injunction. Rulings on those preliminary matters do not 

end the case, which can continue to a trial on requests for permanent 

injunctive relief and damages. The factual issues are difficult because 

they frequently involve assertions about surreptitious activity and 

betrayal, and the discovery disputes regularly involve questions about 

spoliation. The legal questions are equally complex because they require 

determining what law applies, parsing dense contractual clauses, and 

balancing competing interests. 

A solution needs to be found, and the market is unlikely to provide 

it. This is an area where Delaware’s interests and the interests of its bar 

as a whole conflict with the individual interests of clients and their

lawyers. For any single business, it makes sense for a lawyer to advise 

the client to embed restrictive covenants in an internal governance 

document. And for any single business faced with a dispute over those 

restrictions, it makes sense for a lawyer to advise the client to file a 

lawsuit in the Court of Chancery. In the aggregate, that is a recipe for a 

tragedy of the commons. 

A judicial solution is also unlikely, because judges decide specific 

cases. Doubtless there are many combinations of fixes involving choice 

of law, personal jurisdiction, and subject matter jurisdiction that could 

address this burgeoning problem. But a cure requires the involvement 

of policymakers beyond the courts.

Injunction Decision at 1–6.

Three days later, on November 25, 2023, I posted the Policy Excerpt—but not 

any other part of the Injunction Decision—to my Linked-In account. I introduced the 

Policy Excerpt with the following explanation: 

Thanks to a now widespread legal technology, the Court of Chancery is 

being asked to hear restrictive covenant cases brought by Delaware 

companies doing business around the country and the world. As 

described in this short excerpt from a recent decision, that trend is both 

problematic and unsustainable. Finding a solution likely requires the 

involvement of policymakers outside the courts. The issue cuts across 

multiple areas of the law. Although entity law and the internal affairs 

doctrine enable the technology to function, its effects implicate 

employment law, conflicts of law, horizontal federalism, and civil 

procedure. Hopefully some of the great minds out there can come up 

with answers that could help the court prioritize its core mission of 
18

resolving internal governance disputes for Delaware entities, while 

reducing the extent to which the court’s judicial resources are devoted 

to restrictive covenant cases that courts in other jurisdictions can hear 

just as (if not more) efficiently and effectively.

Dkt. 209, Ex. 1.

One week after that, on December 2, 2023, I posted a follow-up piece on my 

Linked-In account. I noted that after my earlier post, “I saw Professor John Coyle’s 

post about his work on statutes that invalidate choice of law clauses and choice of 

forum clauses. He reports that Delaware already has two of the former and three of 

the latter.” Id., Ex. 2. Using ideas from Professor Coyle’s work, I suggested high level 

amendments to 6 Del. C. § 2707 that could provide one method of limiting the 

restrictive covenant trend. Id. 

Those comments did not come out of the blue. I began speaking about the 

trends identified in the Policy Excerpt in 2020. In a decision from that year, I 

described what I saw as a developing issue: 

Delaware court have confronted with increasing frequency situations in 

which parties have attempted to use choice-of-law provisions selecting 

Delaware law to bypass the substantive law of sister states. In this 

court, the conflicts most often involve agreements containing restrictive 

covenants. This court has also confronted a conflict between agreements 

selecting Delaware’s contractarian regime and the substantive law of a 

foreign jurisdiction. Other Delaware courts have confronted similar 

issues in other contexts. Because Delaware’s role as a chartering 

jurisdiction depends on other states deferring to the application of 

Delaware law to the internal affairs of entities, the increasing frequency 

with which parties use Delaware law to create conflicts with the 

substantive law of other jurisdictions raises significant public policy 

issues for this state.19

19 Focus Fin. P’rs, LLC v. Holsopple, 241 A.3d 784, 802 n.4 (Del. Ch. 2020) (citations 

omitted).
19

In a decision issued the following month, I flagged similar concerns.20

The flow of restrictive covenant cases continued—even grew. So the following 

year, I identified the issue again in a transcript ruling.21

In 2022, Professor Ann Lipton blogged about the trend.

22 She later included a 

reference to the transcript ruling in an article detailing concerns about the expanding 

scope of the internal affairs doctrine.23 But no one else seemed to notice. 

And still the cases came, prompting me to revisit the trend in another

transcript ruling.

24 I also believe I mentioned the trend at conferences when 

discussing the court’s heavy workload, but I cannot offer any citations to support my 

recollection.

When the Sunder decision implicated the same issue, I elevated the Policy 

Excerpt to its position in the introduction. I also posted that section of the decision to 

my Linked-In account. With the exception of Professor Lipton, my earlier efforts to 

20 See Focus Fin. P’rs, LLC v. Holsopple, 250 A.3d 939, 956–57 (Del. Ch. 2020).

21 Strategic Funding Source Hldgs. LLC v. Kirincic, C.A. No. 2021-0107-JTL, at 43–

44 (Del. Ch. Sept. 22, 2021) (TRANSCRIPT).

22Ann M. Lipton, New Challenges to the Internal Affairs Doctrine, The CLS Blue Sky 

Blog (Dec. 19, 2022), https://clsbluesky.law.columbia.edu/2022/12/19/new-challenges-to-theinternal-affairs-doctrine/.

23 See Ann Lipton, Inside Out (or, One State to Rule them All): New Challenges to the 

Internal Affairs Doctrine, 58 Wake Forest L. Rev. 321 (2023); see also Mohsen Manesh, The 

Corporate Contract and the Internal Affairs Doctrine, 71 Am. U. L. Rev. 501, 529–44 (2021).

24 See Iqvia Inc. v. Chalfant, C.A. No. 2022-1194-JTL (Del. Ch. Oct. 19, 2023)

(TRANSCRIPT).
20

raise awareness about the issue did not seem to have worked. I was trying again, and 

admittedly attempting to use a louder voice.

Sunder never states clearly why it believes the Policy Excerpt and my LinkedIn posts are pertinent to the Application. Several possibilities exist. 

One is that Sunder seeks to use the Policy Excerpt and my Linked-In posts to 

highlight the importance of the restrictive covenant issues for interlocutory appeal, 

hoping to distinguish its application from a run of the mill request. To that end, 

Sunder seems at times to suggest that the Injunction Decision decided a substantial 

issue because it is an example of the larger trend I have discussed.

25 But the fact that 

a larger trend has policy implications does not mean that a ruling in one particular 

case has significance. The restrictive covenant trend is problematic and 

unsustainable because of the volume of cases as a whole. If there were few restrictive 

covenant cases, then the effect on the court’s workload would be marginal, and there 

would be minimal risk of other jurisdictions becoming concerned about Delaware 

courts treading on their police powers by determining whether to enforce restrictive 

25 App. ¶ 8 (“Giving additional context to the importance of the Decision is that [sic] 

fact that, since issuing the Decision, this Court has twice commented publicly that the trend 

of ‘restrictive covenant cases brought by Delaware companies doing business around the 

country and the world’ is ‘both problematic and unsustainable.’ Sunder respectfully submits 

that, under the present state of the law, the Court of Chancery is the only clear forum for the 

adjudication of disputes like this, despite a growing trend that appears to disfavor restrictive 

covenant litigation in the Court of Chancery. However, Sunder also respects and 

acknowledges this Court’s perspective that the Court of Chancery faces a substantial docket, 

including restrictive covenant cases. The point is, this Court has issued an important 

Decision, and that Decision is worthy of the attention of the Delaware Supreme Court as soon 

as possible, without the need to wait until the end of a full trial (and before further restrictive 

covenant lawsuits are filed).”).
21

covenants within their borders. The Injunction Decision is an individual case. The 

Policy Excerpt does not make the case-specific issues it raises more or less significant.

A more cynical possibility is that Sunder cited the Policy Excerpt and LinkedIn posts to imply that my views on the larger policy issue biased my decision.26 I 

26 For example, Sunder says: 

The Court found it “problematic” that cases like this one are brought in 

Delaware, however, and expressed that it would be “unsustainable” for the 

Court of Chancery to preside over cases like this, where a Delaware entity 

chose to include restrictive covenants in its operating agreement. The Court 

then held that Sunder could not enforce its Operating Agreement because it 

credited Jackson’s allegations (which Mr. Jackson is currently seeking leave to 

assert) that Sunder’s CEO and President breached their fiduciary duties by not 

explaining the Operating Agreement’s terms to him.

App. ¶ 4 (citation omitted). The word “then” does a lot of work here. The Injunction Decision 

did not rely on the Policy Excerpt when analyzing the validity of the restrictive covenants, 

and thirty-three pages separated the Policy Excerpt (which ended on page 6) from the section 

titled “Lack of Enforceability Due To Breach of Duty” (which started on page 40). The latter 

did not depend on the former. 

Sunder later appears to seek the same post hoc ergo propter hoc inference. In 

paragraphs 17 and 18 of its application, Sunder refers to the Policy Excerpt. In paragraph 

19, Sunder sates, “[t]he Decision denied the PI Motion and its accompanying order dissolved 

the Renewed TRO.” Id. ¶ 4. One did not lead to the other. 

Sunder elsewhere says, 

Sunder respectfully submits that Delaware courts—at least absent legislative 

action, or a confirmation of the Decision—are the right place to adjudicate 

these disputes. If that is not the case, however, and this Court’s indication that 

LLCs like Sunder should not enforce their rights in the Court of Chancery, 

then it serves Sunder, all Delaware LLCs, and the Court of Chancery itself to 

have a clear pronouncement to that effect.

Id. ¶ 7. That is why the Policy Excerpt observed that “a cure requires the involvement of 

policymakers beyond the courts,” and that is why the Injunction Decision stated that even 

though the case might have been filed elsewhere, it was filed in Delaware and needed to be 

decided. Injunction Decision at 6–7. 

Along similar lines, Sunder states, “Sunder respectfully disagrees that it is 

problematic to litigate a case like this before the Court of Chancery and respectfully submits 
22

assume that was not Sunder’s intent, but to avoid any doubt, I will address it: The 

views I expressed in the Policy Excerpt and Linked-In posts did not bias my 

consideration of the issues Sunder presented. As I said in the Injunction Decision, 

“[i]n an ideal world, this case would have been filed in Utah, Nevada, or Texas. But 

the case is here, and it must be decided.” Injunction Decision at 7. I proceeded to 

decide the case on its merits, not as part of a larger, policy-driven push to limit the 

restrictive covenant cases brought in the Court of Chancery. Indeed, in my view, “a 

cure requires the involvement of policymakers beyond the courts.” Id. at 6. This is not 

an area where I think judges—and particularly not trial judges—can help 

themselves. 

Of course, I could be suffering from false consciousness. Looking to outward 

signals, my approach to this case does not suggest a bias against Sunder’s positions. 

I granted Sunder’s application for a TRO and its motion to expedite the case. Dkts. 

10 & 11. I issued an order to show cause interpreting the TRO in a manner favorable 

to Sunder. Dkt. 22. I denied a motion to send Sunder’s claims to arbitration. Dkt. 49. 

I renewed the TRO over the defendants’ strong objections. Dkt. 52. I also set bond for 

Sunder at a comparatively modest level and required only partial security because I 

did not want a high bond to foreclose Sunder’s ability to proceed. Dkt. 114. If I were 

that the Decision provides the Supreme Court with an opportunity to weigh in on the

important policy considerations surrounding restrictive covenant cases.” App. ¶ 27. The 

Injunction Decision acknowledges that for any single company and counsel, it makes sense 

to recommend proceeding as Sunder did. The result of those rational decisions in the

aggregate is what generates a tragedy of the commons. That is the issue that the Policy 

Excerpt flagged, and that is why after identifying that issue, I decided the application. 
23

biased against Sunder’s arguments, I did a poor job implementing those biases. And 

if I wanted to rid myself of the case, I blew it by not dismissing the complaint in favor 

of arbitration. Perhaps Sunder imagines that I did all that so I could work five long 

days—including over a weekend—to issue a big opinion containing the Policy 

Excerpt. There was no such plan. 

An even more cynical possibility is that Sunder cited my Linked-In posts to 

imply a deeper charge of judicial impropriety. Again, I assume that was not Sunder’s 

intent, and I address the possibility only to remove any doubt. Canon 4 permits a 

judge to engage in “activities to improve the law, the legal system, and the 

administration of justice.”27 That canon does not expressly address social media posts, 

but it says that “[a] judge may speak, write, lecture, teach, and participate in other 

activities concerning the law, the legal system, and the administration of justice 

(including projects directed to the drafting of legislation).”28 I included the Policy 

Excerpt to identify a need—in my opinion—“to improve the law, the legal system, and 

the administration of justice.” I posted the Policy Excerpt after concluding that the 

post would fall within the category of writing concerning the law, the legal system, 

and the administration of justice. I reached the same conclusion about my second 

Linked-In post, which also related at a high level to the drafting of legislation.29

27 Delaware Judges’ Code of Judicial Conduct, Canon 4. 

28 Id. 

29 When I posted to my Linked-In account, I was careful only to reference the policy 

issues. See Delaware Judges’ Code of Judicial Conduct, Canon 3, commentary (6) (“A judge 
24

The Linked-In posts seem no different to me than the comments that my 

colleagues and I often provide at conferences about our workload, including the types 

of cases that contribute to it and possible solutions. The posts brought my comments 

to a larger audience than a Practicing Law Institute seminar, an American Bar 

Association event, or the Tulane Conference, but the content was the same. If I were 

to write a law review article and say the same things, I do not think anyone would 

complain. The medium may be different, but the canon operates similarly.

The Policy Excerpt and the Linked-In posts therefore do not demonstrate that 

the Injunction Decision addressed a substantial issue suitable for appeal. The 

Injunction Decision meets that test, but because of the rulings it made. 

B. Whether The Issues Merit Appellate Review Before A Final Judgment

A ruling addressing a substantial issue is a necessary but not sufficient 

condition for the certification of an interlocutory appeal. The trial court’s ruling also 

must “merit[] appellate review before a final judgment.” Supr. Ct. R. 42(b)(i). The 

Delaware Supreme Court has counseled that “[i]nterlocutory appeals should be 

exceptional, not routine, because they disrupt the normal procession of litigation, 

cause delay, and can threaten to exhaust scarce party and judicial resources.” Supr. 

Ct. R. 42(b)(ii). When analyzing whether an issue merits appellate review before a 

final judgment, Rule 42(b)(iii) instructs trial courts to consider eight factors. Sunder 

relies on three. 

should abstain from public comment on the merits of a pending or impending proceeding in 

any court.”).
25

1. Whether Review Would Serve Considerations Of Justice

Sunder’s application succeeds by relying on the catchall eighth factor, which

asks whether “[r]eview of the interlocutory order may serve considerations of justice.” 

Supr. Ct. R. 42(b)(iii)(H). In addressing this factor, I acknowledge that “the grant or 

denial of a preliminary injunction is, itself, highly discretionary and where, as here, 

the denial of injunctive relief is based on a finding that the plaintiff has failed the 

burden of proving ultimate success, review [under Rule 42] is rarely granted.” Wilm. 

Sav. Fund Soc’y, FSB v. Covell, 577 A.2d 756, 1990 WL 84687, at *1 (Del. May 16, 

1990) (ORDER). Because injunction decisions are not ordinarily suitable for 

interlocutory review, my reliance on the eighth factor requires some explanation. 

As discussed previously, the rulings in the Injunction Decision effectively 

rejected both Sunder’s right to enforce its restrictive covenants against Jackson and 

its ability to sue the Freedom Defendants for tortious interference. Those rulings are 

akin to a decision granting a motion to dismiss, which results in a final judgment that 

gives rise to an immediate appeal. 

The Injunction Decision did not reject all of Sunder’s claims, and Sunder could 

continue to trial on theories limited to Jackson’s pre-resignation conduct. That 

litigation, however, would be very different than the case Sunder wants to pursue. 

The scope of fact and expert discovery would be narrower, the trial would be limited, 

and Sunder’s potential remedies would be constrained. 

The Injunction Decision is therefore more like a Rule 12(b)(6) decision that 

dismisses the bulk of a case, but permits one comparatively narrow claim to proceed. 

In that setting, entry of a partial final judgment under Rule 54(b) likely would be 
26

warranted. That rule states that “[w]hen more than 1 claim for relief is presented in 

an action, ... the Court may direct the entry of a final judgment upon 1 or more but 

fewer than all of the claims or parties only upon an express determination that there 

is not just reason for delay and upon an express direction for the entry of judgment.” 

When a motion to dismiss has resolved the bulk of the case, it is at least worth 

considering entry of a partial final judgment under Rule 54(b), rather than litigating 

the case to the end before the plaintiff can appeal. If the proceedings on the remaining 

claims are comparatively focused and distinct, then moving forward with the case 

makes more sense. But if an appeal at the end of the case would require a complete 

do-over, then entry of a partial final judgment could well be warranted. 

The current posture of this case thus resembles a scenario in which a court has 

granted a motion to dismiss that disposes of the bulk of the claims, but where

litigation on the remaining claims necessarily overlaps with the dismissed claims. To 

pick somewhat arbitrary percentages, if the case Sunder hoped to pursue 

encompassed 100% of the factual, expert, and legal issues, then what remains will 

involve perhaps 20%. Litigating that case will be costly, and yet if the Delaware 

Supreme Court were to reverse the rulings in the Injunction Decision after a final 

judgment, then everyone will have to start over for a complete re-do. 

There is a significant benefit to an appeal now. Receiving the Delaware 

Supreme Court’s views on the legal issues will establish the shape of the case for 

purposes of discovery and trial, enabling the parties and me to proceed in conformity 

with those views. Having final answers on those legal questions negates the risk that 
27

the parties and I could expend significant efforts litigating the case through a posttrial decision, only for the justices to hold that Sunders’ claims for breach of the 

restrictive covenants should have gone forward because legal issues were outcomedeterminative on key defenses.

30

Although that means the Delaware Supreme Court would hear the appeal now, 

the high court will likely have to hear an appeal on these issues in any event. Sunder 

is not likely to go away. They previously rejected a $10 million offer from Freedom to 

release Jackson from his restrictive covenants and transition his team. They have 

maintained that Jackson’s actions are causing them irreparable harm. They seem 

committed to pushing the case to the end, meaning that the justices will likely have 

to address the issues raised by the Injunction Decision at some point. If the justices 

entertain the appeal now, then their effort will not be wasted, because those rulings 

will be law of the case. 

My experience with the Stream TV litigation informs my view on how 

considerations of justice affect the timing of the appeal. There, as here, I denied a

preliminary injunction application, which in that case allowed a transaction to 

cbetween a debtor and its secured creditor.

31 No one sought interlocutory review. For 

over a year, the case continued at my level, with the creditor-buyer operating the 

30 E.g., Boardwalk Pipeline P’rs, LP v. Bandera Master Fund LP, 288 A.3d 1083, 1088 

(Del. 2022) (reversing lengthy post-trial decision following multi-year litigation based on two 

issues of law); Oxbow Carbon & Mins. Holdings, Inc. v. Crestview-Oxbow Acquisition, LLC, 

202 A.3d 482, 502 (Del. 2019) (reversing lengthy post-trial decision in multi-year litigation 

based on issue of law).

31 See Stream TV Networks, Inc. v. SeeCubic, Inc., 250 A.3d 1016 (Del. Ch. 2020).
28

assets and investing in the business. After replacing counsel, the plaintiff moved for 

partial summary judgment, resulting in a Rule 54(b) order and an appeal.

32 After 

another six months, the Delaware Supreme Court reversed on one point of law, which 

was sufficient to render the transaction agreement void.33 That reversal triggered an 

avalanche of complex issues, including how to rescind the transaction and unwind 

nearly two years’ of operational decisions, along with efforts by the company’s secured 

creditors to obviate that result. On remand, I confronted a series of expedited 

motions, and I appointed a receiver to get a handle on the factual complexities.34 The 

32 See Stream TV Networks, Inc. v. SeeCubic, Inc., 2021 WL 5816820 (Del. Ch. Dec. 8, 

2021), rev’d in part, vacated in part, 279 A.3d 323 (Del. 2022).

33 Stream TV Networks, Inc. v. SeeCubic, Inc., 279 A.3d 323 (Del. 2022).

34 E.g., Hawk Inv. Hldgs., Ltd. v. Mediatainment, Inc., 2023 WL 3099122 (Del. Ch.

Apr. 26, 2023) (ORDER) (order granting motion to dismiss); Stream TV Networks, Inc. v. 

Seecubic, Inc., 2023 WL 3099113 (Del. Ch. Apr. 26, 2023) (ORDER) (order denying motion to 

dismiss); Stream TV Networks, Inc. v. Seecubic, Inc., 2023 WL 3099112 (Del. Ch. Apr. 26, 

2023) (ORDER) (order denying motion to intervene); Hawk Inv. Hldgs. Ltd. v. Stream TV 

Networks, Inc., 2023 WL 1963091 (Del. Ch. Feb. 10, 2023) (ORDER) (order granting motion 

to file amended complaint); Hawk Inv. Hldgs. Ltd. v. Stream TV Networks, Inc., 2023 WL 

1816922 (Del. Ch. Feb. 4, 2023) (ORDER) (order granting motion to set cash bond); Hawk 

Inv. Hldgs. Ltd. v. Stream TV Networks, Inc., 2022 WL 17661578 (Del. Ch. Dec. 14, 2022) 

(ORDER) (order denying motion for reargument); Hawk Inv. Hldgs. Ltd. v. Stream TV 

Networks, Inc., 2022 WL 17258460 (Del. Ch. Nov. 29, 2022) (memorandum opinion granting 

partial summary judgment); In re Stream TV Networks, Inc. Omnibus Agr. Litig., 2022 WL 

16860930 (Del. Ch. Nov. 9, 2022) (ORDER) (order granting motion to intervene); Hawk Inv. 

Hldgs. Ltd. v. Stream TV Networks, Inc., 2022 WL 16860942 (Del. Ch. Nov. 9, 2022) (ORDER) 

(order denying motion to compel); Hawk Inv. Hldgs. Ltd. v. Stream TV Networks, Inc., 2022 

WL 12615549 (Del. Ch. Oct. 20, 2022) (ORDER) (status quo order); Stream TV Networks, Inc. 

v. Seecubic, Inc., 2022 WL 11388785 (Del. Ch. Oct. 19, 2022) (ORDER) (order denying motion 

for contempt); In re Stream TV Networks, Inc., 2022 WL 10029844, at *1 (Del. Ch. Oct. 14, 

2022) (ORDER) (order addressing motion for clarification); In re Stream TV Networks, Inc. 

Omnibus Agr. Litig., 283 A.3d 1183 (Del. Ch. 2022) (opinion imposing sanction for contempt); 

In re Stream TV Networks, Inc. Omnibus Agr. Litig., 2022 WL 4989617 (Del. Ch. Oct. 3, 2022) 

(ORDER) (order denying emergency motion to enforce order); In re Stream TV Networks, Inc.

Omnibus Agr. Litig., 2022 WL 4772886 (Del. Ch. Sep. 30, 2022) (ORDER) (order denying 

application for mandatory injunction); Stream TV Networks, Inc. v. Seecubic, Inc., 2022 WL 
29

dispute eventually shifted to the bankruptcy court, where (to my knowledge) it 

continues.35

If only I had known about my error shortly after denying the preliminary 

injunction, so much work and so many headaches might have been avoided. Sadly, no 

one sought an appeal at that time, so there was no vehicle for obtaining timely insight 

into the Delaware Supreme Court’s views. Here, Sunder seeks that insight. My 

experience in the Stream TV case suggests that having those views will be highly 

beneficial such that considerations of justice warrant interlocutory review.

2. Whether Decisions Of The Trial Courts Conflict

Another factor that Sunder cites weakly supports interlocutory review. Rule 

42 calls on a trial court to consider whether “[t]he decisions of the trial courts are 

conflicting upon the question of law.” Supr. Ct. R. 42(b)(iii)(B). Sunder argues that 

“[o]ver the past few years, there has been a growing trend that disfavors restrictive 

4398448 (Del. Ch. Sep. 22, 2022) (ORDER) (order denying application for special master); 

Stream TV Networks, Inc. v. Seecubic, Inc., 2022 WL 4356510 (Del. Ch. Sep. 16, 2022) 

(ORDER) (order denying application to modify temporary restraining order); Stream TV

Networks, Inc. v. Seecubic, Inc., 2022 WL 4356514 (Del. Ch. Sep. 16, 2022) (ORDER) (order 

granting motion for costs); In re Stream TV Networks, Inc. Omnibus Agr. Litig., 2022 WL 

4491925 (Del. Ch. Sept. 28, 2022) (memorandum opinion declining to modify partial final 

judgment); Stream TV Networks, Inc. v. Seecubic, Inc., 2022 WL 3283863 (Del. Ch. Aug. 10, 

2022) (ORDER) (order granting motion for partial final judgment implementing Delaware 

Supreme Court decision); Stream TV Networks, Inc. v. Seecubic, Inc., 2022 WL 3227785 (Del. 

Ch. Aug. 9, 2022) (ORDER) (order granting motion for temporary restraining order); Stream 

TV Networks, Inc. v. Seecubic, Inc., 2022 WL 2902646 (Del. Ch. July 20, 2022) (ORDER)

(order granting status quo order); Stream TV Networks, Inc. v. SeeCubic, Inc., 2022 WL 

17970594 (Del. Ch. July 5, 2022) (ORDER) (order granting motion to amend).

35 The Delaware Supreme Court’s decision also prompted the General Assembly to 

amend the Delaware General Corporation Law. See 2023 Del. Laws ch. 98 (2023) (S.B. 114) 

(amending 8 Del. C. § 272).
30

covenant litigation in the Court of Chancery.”36 Sunder posits that this “stands in 

contrast to prior longstanding Delaware case law that was less reluctant to blue 

pencil restrictive covenants.”37 Sunder argues that the Delaware Supreme Court 

should have the ability to weigh in on this question. 

Sunder has not pointed to any direct conflicts between trial-level decisions. 

Candidly, however, there is a sense in which Delaware decisions over the past decade 

have paid greater attention to the real-world effects of restrictive covenants, the 

bargaining dynamics in which they arise, and the incentives employers have to 

include ever more favorable provisions in their form agreements. There has also been 

a growing societal understanding regarding the implications of restrictive covenants 

which has led to more jurisdictions limiting their use, as well as federal initiatives. 

From a big picture standpoint, it does seem like more recent Delaware decisions have 

been less likely to enforce the full scope of restrictive covenants and related provisions 

designed to protect them from challenge (such as stipulations as to reasonableness 

and blue-penciling requirements). The difference is a matter of degree, because prior 

decisions considered these factors as well.38 The difference also may stem from the 

36 App. ¶ 36. In addition to the Injunction Decision, Sunder cites Centurion Services 

Gp., LLC v. Wilensky (Del. Ch. Aug. 31, 2023), and Ainslie v. Cantor Fitzgerald, L.P., 2023 

WL 106924 (Del. Ch. Jan. 4, 2023). 

37 App. ¶ 36. Sunder cites Del. Express Shuttle, Inc. v. Older, 2002 WL 31458243, at 

*11-13 (Del. Ch. Oct. 23, 2002); RHIS, Inc. v. Boyce, 2001 WL 1192203, at *1 (Del. Ch. Sept. 

26, 2001); Norton Petroleum Corp. v. Cameron, 1998 WL 118198, at *3 (Del. Ch. Mar. 5, 1998).

38 See, e.g., Del. Elevator, Inc. v. Williams, 2011 WL 1005181, at *10–11 (Del. Ch. Mar. 

16, 2011); Elite Cleaning Co., Inc. v. Capel, 2006 WL 1565161, at *4 (Del. Ch. June 2, 2006); 

TriState Courier & Carriage, Inc. v. Berryman, 2004 WL 835886, at *15 (Del. Ch. Apr. 15, 

2004). 
31

fact that the provisions have simply become more onerous over time. But at a highlevel, Sunder’s impression is not unfounded.

If the Delaware Supreme Court wants this court to afford less significance to 

context, defer to provisions designed to protect covenants from challenge, enforce 

broad restrictive covenants as written, and generally prioritize contract law over 

equity in this setting, then it would be helpful to know that. But because the Delaware 

Supreme Court could provide that guidance just as easily in an appeal from a final 

judgment, this factor only weakly supports the Application. What warrants 

interlocutory appeal in this case is that when the justices provide guidance makes a 

difference, not whether they provide guidance.

3. Whether Review May Terminate The Litigation

A final factor that Sunder cites does not support interlocutory review. Rule 42 

asks the trial court to consider whether “[r]eview of the interlocutory order may 

terminate the litigation.” Supr. Ct. R. 42(b)(iii)(G). According to Sunder, “if the Court 

reverses the Decision and finds that Sunder’s contract claims are valid, there would 

be little need to continue the litigation, as the Court has already found that Sunder 

has proven that Jackson violated both Covenants.” App. ¶ 41. Not so.

If the Delaware Supreme Court were to reverse the Injunction Decision and 

uphold the full breadth of the restrictive covenants, then there are numerous issues 

that remain to be litigated. True, the restrictive covenants are sufficiently expansive 

that Jackson would be in breach. But the Delaware Supreme Court’s ruling would 

not be enough to trigger the issuance of a preliminary injunction, much less a 

permanent injunction or an award of damages. The issue of causation looms large, 
32

and the balancing of the hardships has not yet been addressed. The parties have done 

nothing on the damages front.

Thus, rather than there being “little need to continue the litigation,” the case 

would go on, and there would still be a lot to do. This factor therefore does not favor

certifying an interlocutory appeal. 

C. The Balancing 

As a final step, Rule 42 directs the trial court to engage in balancing:

After considering [the eight] factors and its own assessment of the most 

efficient and just schedule to resolve the case, the trial court should 

identify whether and why the likely benefits of interlocutory review 

outweigh the probable costs, such that interlocutory review is in the 

interests of justice. If the balance is uncertain, the trial court should 

refuse to certify the interlocutory appeal.

Supr. Ct. R. 42(b)(iii). There must be “substantial benefits that will outweigh the 

certain costs that accompany an interlocutory appeal.” Id.

In this case, the balancing supports interlocutory review. Although the 

Injunction Decision denied a request for preliminary relief, the posture of the case is 

more analogous to a ruling dismissing the bulk of a plaintiff’s claims where a court 

would enter a partial final judgment under Court of Chancery Rule 54(b). Admittedly, 

certifying an interlocutory appeal and entering partial final judgments are different 

things, but they both facilitate an early appeal. The same considerations that would 

warrant entry of a partial final judgment support granting the Application.39

39 Using a trial court’s power to manage its docket, I likely could maneuver this case 

into a posture where I could enter final judgments under Rule 54(b). “Delaware trial courts 

have inherent power to control their dockets.” Solow v. Aspect Res., LLC, 46 A.3d 1074, 1075 

(Del. 2012). That authority includes determining how to proceed for the “orderly adjudication 
33

As discussed previously, an interlocutory appeal is preferable at this stage 

because it will generate substantial benefits for the parties and the trial court, while 

the costs of an appeal are likely to be incurred regardless. With definitive answers on 

key legal issues, the parties and the trial court can determine the scope of the case 

going forward. While an appeal on those issues is likely in any event, if that appeal 

happens at the end of the case, then reversal will require a complete do-over. If the 

appeal happens now, then the case can be litigated in conformity with the Delaware 

Supreme Court’s rulings. 

III. CONCLUSION

Ultimately, whether to permit an interlocutory appeal lies in the discretion of 

the Delaware Supreme Court. The justices’ views, not mine, determine whether 

of claims.” Unbound P’rs Ltd. P’ship v. Invoy Hldgs. Inc., 251 A.3d 1016, 1030 (Del. Super. 

2021) (cleaned up). Rule 1 instructs the members of this court that the rules “shall be 

construed, administered, and employed by the Court and the parties, to secure the just, 

speedy and inexpensive determination of every proceeding.” Ct. Ch. R. 1. Commenting on the 

sibling federal rule, a leading treatise states that “[t]here probably is no provision in the 

federal rules that is more important than this mandate. It reflects the spirit in which the 

rules were conceived and written, and in which they should be interpreted.” 4 Charles Alan 

Wright, Arthur R. Miller & Adam N. Steinman, Federal Practice and Procedure § 1029 (4th 

ed.), Westlaw (database updated Apr. 2023). Court of Chancery Rule 16(a) similarly 

contemplates that a court may take steps to “formulat[e] and simplif[y] ... the issues” and to 

address “[s]uch other matters as may aid in the disposition of the action.” Id. 16(a)(1), (5). 

The same authoritative treatise explains that “case management [is] an express goal of 

pretrial procedure.” 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal 

Practice and Procedure § 1521 (3d ed.), Westlaw (database updated Apr. 2023). To that end, 

the Advisory Committee’s note to the federal rule emphasizes the need for “a process of 

judicial management that embraces the entire pretrial phase.” Fed. R. Civ. P. 16 advisory 

committee’s note to 1983 amendment. The commentary recognizes that “[t]he timing of any 

attempt at issue formulation is a matter of judicial discretion.” Id. Exercising this authority, 

I could direct either or both sides to file and brief motions for summary judgment that could 

result in orders suitable for entry under Rule 54(b). The purpose of doing that would be to set 

up an appeal (which the Delaware Supreme Court still could reject). It seems more 

transparent to grant the Application and recommend acceptance of an interlocutory appeal.
34

Sunder’s request will be granted. This court’s role under Rule 42 is to make a 

recommendation. In this case, my recommendation is for the Delaware Supreme 

Court to accept the interlocutory appeal.