IN THE SUPREME COURT OF THE STATE OF DELAWARE

GENELUX CORPORATION and §

RONALD SIMUS

, § No. 631, 2015 §

Plaintiff s Below

- §

Cross

- Appellees

, § Court Below: Court of Chancery § of the State of Delaware

v. § § C.A. No. 10042

- VCM

ALBERT ROEDER and BYRON §

GEORGIOU

, § §

Defendants Below

- §

Cross

- Appellants

, § §

and § §

DR. ALADAR SZALAY

, § §

Intervenor Below

- §

Cross

- Appellant. §

Submitted: June 30 , 2016

Decided: July 6 , 2016

Before STRINE , Chief Justice; HOLLAND

, VALIHURA

, VAUGHN , and

SEITZ , Justices, constituting the Court en Banc

.

O R D E R

This 6th day of July 2016

, having considered the defendants‟ motion for

partial vacatur of judgment and the plaintiffs‟ opposition to that motion

, we find it

evident that : On June 9, 2016, we dismissed the defendants‟ cross

- appeal as moot

because no financial consequences remained in controversy after the plaintiffs2

advanced the attorneys‟ fees and expenses sought by the defendants. 1 The

defendants now ask this Court to vac ate paragraph 3 of the Court of Chancery‟s

October 22, 2015 Final Order and Judgment, which denied their request for

additional sanctions and attorneys‟ fees and expenses. 2 We acknowledge that

vacatur is available only in a limited set of circumstances, b ut this appeal presents

unusual circumstances in which the defendants‟ opportunity to seek o ur review of

the trial court‟s determination that the plaintiffs‟ conduct did not justify

fee

- shifting was thwarted nine days before oral argument when the plaintiffs

advanced the remaining amount of the defendants‟ attorneys ‟ fees and expenses. 3

Because the plaintiffs‟ decision to advance the funds when they did was beyond

the defendants‟ control, it would be contrary to the interests of justice to allow th e

Court of Chancery‟s prior denial of the defendants‟ request for additional

1 See Genelux Corp. v. Roeder , 2016 WL 3381420, at *1 (Del. June 9, 2016).

2 See In re Genelux Corp ., 2015 WL 6408149 , at *1 (Del. Ch. Oct. 22, 2015) (“In all other respects, Defendants‟ requests for relief, including their requests for attorneys‟ fees and expenses and additional sanctions, are denied.”).

3 See, e.g.

, Tyson Foods, Inc. v. Aetos Corp. , 818 A.2d 145, 147

– 48 (Del. 2003) (“ In Delaware, the equi table remedy of vacatur is available in only a narrow set of circumstances. As a general rule, when a case becomes moot at some point during the appellate process, this Court will vacate the judgment below where the interests of justice so require. This so

- called „interests of justice‟ standard is no doubt met where the party seeking appellate review is thwarted by some event beyond its control. In such circumstances, vacatur is necessary to prevent the unappealable ju dgment from obtaining „ precedential or preclusive res judicata effect[.] ‟ ” (emphasis in original) (internal citations omitted)); Stearn v. Koch , 628 A.2d 44, 46 (Del. 1993) (“The rationale for the rule of vacatur is „that those who have been prevented from obtaining the [appella te] review to which they are entitled should not be treated as if there had been [an adverse determination upon] review.‟ The rule of vacatur exists for the protection of a party whose desire for appellate review has been thwarted.” (quoting United States v. Munsingwear,

Inc.

, 340 U.S. 36, 39 (1950)) ).3

sanctions, and attorneys‟ fees and expenses

, to have precedential or preclusive

effect. 4 Further, the plaintiffs‟ argument that the defendants‟ motion is “unfairly

selective” bec ause it does not cover the Court of Chancery‟s decision to award

$10,000 in sanctions to the defendants is unpersuasive because the plaintiffs chose

not to appeal that award. Thus, in the interests of justice, the defendants‟ request

for partial vacatur i s granted. This matter is remanded to the Court of Chancery

with directions to vacate paragraph 3 of its October 22, 2015 Final Order and

Judgment.

IT IS SO ORDERED.

BY THE COURT:

/s/ Leo E. Strine, Jr.

Chief Justice

4 See, e.g.

, Glazer v. Pasternak , 693 A.2d 319, 321 (Del. 1997) (granting a corporation‟s motion to vacate the Court of Chancery‟s decision to enjoin a proposed merge r on the ground that the corporation was “prevented from obtaining appellate review” because its special committee terminated the merger agreement, causing the appeal to be dismissed as moot); Koch , 628 A.2d

at 47 (“It would be contrary to the interests of justice to allow the judgment of the Court of Chancery to have any precedential or preclusive res judicata effect [where the plainti ffs‟]

cross

- appeal has been dismissed as moot, because of an event beyond their control.”).