1 With notation that an opinion would follow.

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2073

INTERNATIONAL AIRPORT CENTERS, L.L.C., et al.,

Plaintiffs-Appellants,

v.

JACOB CITRIN,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 8104—Wayne R. Andersen, Judge.

____________

ARGUED AND DECIDED MAY 31, 20061—OPINION JULY 25, 2006

____________

Before POSNER, WILLIAMS, and SYKES, Circuit Judges.

POSNER, Circuit Judge. This appeal is a sequel to our

reversal earlier this year of the district court’s dismissal of

the plaintiffs’ suit for failure to state a claim. 440 F.3d 418

(7th Cir. 2006). Because the suit had been dismissed on the

pleadings, we assumed that the facts alleged in it were true;

we made no factfindings. The complaint alleged that the

defendant, Citrin, had, while employed by the plaintiffs

(IAC for short), committed a breach of his fiduciary obliga-
2 No. 06-2073

tions to his employer when he deleted certain company data

from the laptop that IAC had lent him to use in his work.

The only question we decided was whether, if the facts

alleged in the complaint were true (and, to repeat, we made

no findings on that score), the defendant had, as charged in

the complaint, violated the federal Computer Fraud and

Abuse Act, 18 U.S.C. § 1030. We answered “yes” and so sent

the case back to the district court for further proceedings.

Citrin then asked IAC—and when IAC refused brought

suit in the Delaware Chancery Court for an order compelling IAC—to advance him money for the attorneys’ fees and

other expenses that he was incurring to defend against

IAC’s suit. Citrin’s employment contract required IAC to

indemnify him for any damages he might incur if he

was sued based on acts performed in connection with

the company’s business and prevailed in the suit, but also

to pay his expenses of defending any suit based on such acts

“in advance of the final disposition of such action . . . upon

receipt of an undertaking by [him] to repay such amount

plus reasonable interest in the event that it shall ultimately

be determined that [he] was not entitled to be indemnified.”

Thus, if and when Citrin is found in our case to have

breached his fiduciary duty to IAC, he will not be entitled

to indemnity and therefore he will have to repay any money

advanced to him by the company. His Delaware suit seeks

advancement of the $1.3 million in attorneys’ fees that he

claims to have incurred already.

IAC is chartered in Delaware and concedes that Delaware

law governs Citrin’s contractual entitlement to the advance

that he is seeking. Nevertheless it asked the district court to

enjoin him from litigating the Delaware suit, on the ground

that the suit is a collateral attack on our ruling that IAC has

stated a claim against him under the federal computer fraud
No. 06-2073 3

statute. The district court denied the motion for a preliminary injunction, and IAC has appealed.

The Delaware suit is not a collateral attack on our ruling. Citrin is not asking the Delaware court to hold, contrary

to our decision, that IAC has failed to state a claim under

the federal computer statute. He is not asking to be indemnified on the ground that he is innocent of the charge of

breach of fiduciary obligation. That would require a ruling

on the merits of IAC’s claim and he is not asking for that.

All he is asking is that in advance of the final disposition of

the suit in federal district court he receive his litigation

expenses in accordance with the terms of his employment

contract. And since entitlement to advancement is independent of the merits of the suit for which the money is

sought, Ridder v. CityFed Financial Corp., 47 F.3d 85, 86-87

(3d Cir. 1995); Citadel Holding Corp. v. Roven, 603 A.2d 818,

822 (Del. 1992); Senior Tour Players 207 Management Co. LLC

v. Golftown 207 Holding Co. LLC, 853 A.2d 124, 128 (Del. Ch.

2004); Stephen A. Radin, “ ‘Sinners Who Find Religion’:

Advancement of Litigation Expenses to Corporate Officials

Accused of Wrongdoing,” 25 Rev. Litig. 251, 268-69 (2006),

the claim for advancement is not a compulsory counterclaim

to that suit. For the claim does not arise out of the litigation;

it arises out of the employment contract.

It is true that Citrin could have asked the district judge

to order the advancement of fees, since the federal district court would have subject-matter and personal jurisdiction of a suit by Citrin against IAC arising out of the

contract, though this would have required the judge to

interpret Delaware law. But requiring IAC to defend the

advancement suit in Delaware, the state whose law governs,

can hardly be thought a hardship to the company

or otherwise inappropriate. The only issues in the Delaware
4 No. 06-2073

suit are the applicability of the contractual advancement

clause to Citrin’s defense in the district court proceeding

(specifically, whether IAC’s suit concerns a matter arising

out of Citrin’s employment by the company) and the

amount of litigation expense that Citrin has incurred. If any

evidentiary hearing is required, it will surely be brief.

What is true is that “advancement” is rather a Delaware

specialty, see, e.g., Homestore, Inc. v. Tafeen, 888 A.2d 204,

211-13 (Del. 2005); Radin, supra, at 251-53, and though it has

spread to other states, American College of Trial Lawyers,

“The Erosion of the Attorney-Client Privilege and Work

Product Doctrine in Federal Criminal Investigations,” 41

Duquesne L. Rev. 307, 331-33 (2003), Delaware not only

permits advancement clauses but encourages them. See, e.g.,

8 Del. Code § 145; Homestore, Inc. v. Tafeen, supra, 888 A.2d

at 211. So Delaware judges might be more favorably

disposed to claims such as Citrin’s than other judges,

including federal judges in the Seventh Circuit, would be.

And so there is an element of “forum shopping” in Citrin’s

decision to seek advancement in Delaware rather than in

Chicago, where it could do so without a separate litigation.

But more must be shown to justify an injunction against

proceeding in what would be after all a perfectly natural

and proper forum in which to bring such a suit.

The federal Anti-Injunction Act provides, moreover, a

compelling alternative ground for the district judge’s denial

of IAC’s motion for an injunction. The Act forbids, with

narrow exceptions, a federal court’s enjoining litigation in

a state court. 28 U.S.C. § 2283. Although one of the exceptions is for cases in which the grant of an injunction by the

federal court is “necessary . . . to protect or effectuate [the

federal court’s] judgments,” there is no indication that the

Delaware court is hostile to the federal Computer Fraud and
No. 06-2073 5

Abuse Act and will express that hostility by seeking to

reexamine our ruling that IAC has stated a claim under the

Act. If it did, moreover, its judgment would be denied

preclusive effect in the federal litigation. In re

Bridgestone/Firestone, Inc., Tires Products Liability Litigation,

333 F.3d 763, 766 (7th Cir. 2003).

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-25-06