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 the ninety percent
seen in Navient, the Court finds the percentages aptly comparable.
101
Id. JanCo prevented full recovery on two of five counts, meaning JanCo succeeded in fully
defending against forty percent of the APA-related claims ISS brought. Both counts (ISS’s Counts
II and III), however, were claims plead in the alternative to ISS’s Count I—a breach-of-contract
claim. The Court finds ISS’s Counts II and III to be duplicative of Count I when evaluating success
based on substance of the litigation, as the counts both address the same claim in different form.
Therefore, JanCo failed to fully defend any APA-related claims brought by ISS. JanCo did
partially defend forty percent of the APA-related claims brought by ISS, though ISS was still able
to recover ninety-five percent of the damages it sought from its Count IV. Even when the Court
credits JanCo for success in defending ISS’s Count IV, and for partially defending ISS’s Count I,
JanCo still has a lower success rate than ISS in defending APA-related claims.
102
Id. ISS fully or partially recovered on sixty percent of its APA-related claims by recovering on
three of its five claims. Again, because ISS’s Counts II and III are duplicative of Count I, ISS
really recovered on all the substantive issues ISS raised.
22
JanCo’s APA-related claims.103 ISS had a higher success rate in recovering under its

APA-related claims and defending against those brought by JanCo. The Court

therefore finds ISS to be the prevailing party for the chief issue of APA-related

claims.

ISS predominated in the litigation by prevailing on the two chief issues in this

case. Because ISS is found to have predominated in the litigation, ISS is the

“successful Party” under Section 9.12. As the “successful Party,” ISS is entitled to

“any and all fees, costs, and expenses reasonably incurred” in this case.104

D. ISS’s fees and costs are reasonable.

1. The Contentions of ISS

ISS contends, as the “successful Party” in this litigation, ISS is entitled to a

total of $6,415,258.69 in attorneys’ fees, expert fees, and other costs. 105 ISS argues

this amount of fees is reasonable, including the number of hours expended and rates

charged by ISS’s attorneys.106 ISS asserts the fees reflect the nature of the litigation

in this case, which was complex, lengthy, and involved prosecuting and defending

103
Id. JanCo recovered on approximately seventeen percent of its APA-related claims by only
recovering on one of its six claims.
104
APA § 9.12.
105
ISS OB at 24.
106
Id. at 25-29.
23
numerous claims.107 ISS adds most of its fees were necessitated by JanCo’s litigation

tactics.108

ISS also argues JanCo can no longer fairly dispute the reasonableness of ISS’s

fees and costs.109 ISS highlights JanCo previously used the proximity of both

Parties’ fees and costs to show JanCo’s fees were reasonable.110 ISS asserts

Delaware courts have found a party’s fees reasonable when that party’s fees do not

differ significantly from those of the opposing party.111

2. Standard of Review

“Delaware law dictates that, in fee shifting cases, [courts] determine whether

the fees requested are reasonable.”112 A court, in assessing the reasonableness of

fees, considers a non-exhaustive list of factors in Rule 1.5(a) of the Delaware

Lawyers’ Rules of Professional Conduct.113 The reasonableness inquiry has two

107
Id. at 27-29.
108
Id. at 28.
109
Id. at 29.
110
Id.
111
Id.
112
Mahani v. Edix Media Grp., Inc., 935 A.2d 242, 245 (Del. 2007) (citing Del. Lawyers’ Rules
of Prof’l Conduct R. 1.5(a)(1)(a)).
113
Id. at 245-46; Gerlofs v. Citizens Bank, N.A., 2024 WL 1855354, at *5 (Del. Super. Apr. 29,
2024). The factors set forth in Rule 1.5(a) are: (1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will
preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar
legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed
by the client or by the circumstances; (6) the nature and length of the professional relationship
with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the
services; and (8) whether the fee is fixed or contingent. Del. Lawyers’ R. Prof'l Conduct 1.5(a).
24
components: “(1) whether the number of hours is reasonable; and (2) whether the

hourly rate is reasonable.”114

A court is not required to “examine individually each time entry and

disbursement” or “assess independently whether counsel appropriately pursued and

charged for a particular motion, line of argument, area of discovery, or other

litigation tactic.”115 Whenever possible, the Court will avoid using hindsight to

second-guess an attorney’s judgment on whether work was appropriate.116

3. Analysis

After a careful review of the Parties’ submissions, the Court finds ISS’s fees

and costs to be reasonable. This litigation has lasted for over three years and was

fiercely contested at nearly every major stage. The Parties collectively brought

thirteen counts, culminating in extensive discovery and a four-day bench trial. The

current dispute between the Parties is emblematic of the complexity present

throughout this case.

The Court finds nothing unusual about the attorneys’ fees, expert fees, and

other costs ISS has submitted. The number of hours and hourly rates charged by

ISS’ attorneys are reasonable and reflect the nature of the Parties’ litigation. The

114
Gerlofs, 2024 WL 1855354, at *8 (citing McGlothlin v. Petrunich Oral & Maxillofacial
Surgery, 2023 WL 5747520, at *6 (Del. Super. Sept. 6, 2023)).
115
Orlando v. Digit. World Acq. Corp., 2025 WL 2748405, at *2 (Del. Ch. Sept. 24, 2025)
(citations omitted) (cleaned up).
116
Malkani v. Cunningham, 2024 WL 3860112, at *2 (Del. Ch. Aug. 19, 2024).
25
expert fees and other costs incurred by ISS are also reasonable and reflect what

would be expected for a case ending in a four-day bench trial. JanCo makes no

substantive argument to the contrary.117 ISS’s fees and costs are reasonable.

E. JanCo and ISS are entitled to pre- and post-judgment interest.

1. The Contentions of the Parties

Both Parties contend they are entitled to pre- and post-judgment interest on

their awarded amounts in this case.118 Both Parties also agree the legal rate of

interest applies as specified in 6 Del. C. § 2301.119

JanCo argues interest must be applied to the $6,913,993.00 awarded to JanCo

because ISS failed to timely obtain the FAA and Pima County consents.120 JanCo

asserts its pre-judgment interest accrued between the date ISS breached the APA and

the date the Court issued its Summary Judgment Opinion.121 JanCo calculates, using

simple interest at the legal rate of 5.5%, it is entitled to $919,939.92 in pre-judgment

interest.122

117
See generally JanCo Ans. Br. (providing no substantive argument for why ISS’s attorneys’ fees
and costs would be unreasonable).
118
JanCo OB at 35-36; ISS OB at 30-35. ISS contends JanCo has waived any argument on interest
because JanCo provided “no substantive argument on pre- or post-judgment interest” in its
Opening Brief. ISS Ans. Br. at 28-29. The Court disagrees. JanCo’s opening brief provides its
argument for pre- and post-judgment interest, and while that argument may be brief, it nonetheless
preserved JanCo’s ability to request interest. JanCo OB at 35-36.
119
ISS OB at 31; JanCo Ans. Br. at 33.
120
JanCo OB at 35-36; JanCo Ans. Br. at 33-34.
121
JanCo. Ans. Br. at 34. JanCo contends ISS breached the APA on March 31, 2022. Id. The
Court issued its Summary Judgment Opinion on August 30, 2024. Id; Summary Judgment
Opinion.
122
JanCo. Ans. Br. at 34.
26
JanCo then asserts its post-judgment interest started accruing after the Court

issued its Summary Judgment Opinion.123 JanCo adds post-judgment interest will

continue accruing until ISS makes payment of the judgment amount.124 JanCo notes

its post-judgment interest should be applied at the legal rate of 10.50%.125

ISS argues pre-judgment interest must be applied to the judgment amount

awarded to ISS for three categories of payments: the Holdback Amount, the Net

Working Capital Adjustment, and the Ingram Micro Amount.126 ISS asserts various

dates these payments became due.127 ISS also asserts ISS’s pre-judgment interest,

applied at the legal rate of 5% above the Federal Reserve discount rate, should be

calculated using a floating rate and be compounded quarterly.128 Using these

parameters, ISS calculates it is entitled to $3,283,942.93 in pre-judgment interest.129

ISS next asserts its post-judgment interest started accruing when the Court

issued its Post-Trial Opinion.130 ISS contends post-judgment interest should be

123
Id.
124
Id.
125
Id.
126
ISS OB at 30-31.
127
Id. ISS contends the Holdback Amount was due on December 7, 2022 (within 5 business days
of the one-year anniversary of closing on November 30, 2021). Id. at 30. ISS contends the Net
Working Capital Adjustment was due on October 25, 2022 (the date the Parties “fully determined”
the working capital adjustment, as evidenced by DX404). Id. at 30-31. ISS contends the Ingram
Micro Amount was due on November 21, 2022 (the date ISS issued a claim notice to the Escrow
Agent after JanCo reneged on its promise to fully execute instructions to release the applicable
escrow amount for the timely obtained Ingram Micro consent). Id. at 31.
128
Id. at 31. The Court will address its authority to award compound and floating interest in a
separate section of this opinion.
129
Id. at 33.
130
Id.
27
applied to its awarded damages, pre-judgment interest, attorneys’ fees, expert fees,

and other litigation costs—a total judgment amount of $19,584,067.62.131 ISS again

asserts its post-judgment interest, compounded quarterly, should be calculated using

the legal rate of 5% above the Federal Reserve discount rate.132

JanCo counters ISS is not entitled to pre-judgment interest for any of its

awarded damages.133 JanCo asserts ISS’s rights to each of the payments only arose

once the Court issued its Post-Trial Opinion, as the applicable APA provisions

authorized withholding the payments until resolution of the parties’ disputes.134

Because ISS’s right to payment had not matured before the Court’s ruling, JanCo

contends ISS cannot be entitled to any pre-judgment interest.135

131
Id. at 33-35.
132
Id. at 34.
133
JanCo Ans. Br. at 33-37.
134
JanCo contends APA § 2.4(b) authorized JanCo to withhold payment of the Holdback Amount
because remittance of the Holdback Amount was subject to “pending claims.” Id. at 13-14.
Because JanCo was required to remit the Holdback Amount “less any then pending claims,” JanCo
argues ISS was not due the Holdback Amount until after the Parties’ disputes—which were
pending at the time the Holdback Amount became due—had been resolved. Id; APA § 2.4(b).
JanCo contends APA § 2.5 authorized JanCo to withhold payment of the Net Working Capital
Adjustment because the Parties never “finally determined” the working capital adjustment. JanCo
Ans. Br. at 15-16. JanCo argues payment of the New Working Capital Adjustment could only
become due if the Parties engaged in dispute resolution pursuant to APA § 2.5(d). Id; APA § 2.5.
JanCo notes this process was never completed. JanCo Ans. Br. at 15. JanCo finally contends it
was authorized to withhold instruction to release escrow funds for the Ingram Micro Amount. Id.
at 16-18. JanCo argues the Parties specifically contracted for consent from both parties to be
required for the escrow funds for the Ingram Micro Amount to be released. Id; APA § 6.1(d). JanCo
asserts because it never gave the necessary consent to release the escrow funds for the Ingram
Micro Amount, this payment never became due before trial. JanCo Ans. Br. at 16-18.
135
JanCo Ans. Br. at 19, 34-35.
28
2. Standard of Review

In Delaware, pre- and post-judgment interest is awarded as a matter of right.136

In the absence of an expressed contractual rate, the “legal rate of interest shall be 5%

over the Federal Reserve discount rate.”137 Because pre- and post-judgment interest

accrue at different times, analysis of the applicable rates for each type of interest

must be done separately.138

Pre-judgment interest “is an extraordinary award [applicable] when a party

unjustifiably refuses to live up to” its payment obligation.139 “Prejudgment interest

serves two distinct purposes: (1) it compensates the plaintiff for the loss of the use

of his or her money; and (2) it forces the defendant to relinquish any benefit that it

received by retaining [the] plaintiff’s money in the interim.”140 Prejudgment interest

accrues from the date payment becomes due.141 When a payment obligation arises

136
Citadel Hldg. Corp. v. Roven, 603 A.2d 818, 826 (Del. 1992); Wilm. Country Club v. Cowee,
747 A.2d 1087, 1097 (Del. 2000) (citing Moskowitz v. Mayor & Council of Wilm., 391 A.2d 209,
210 (Del. 1978)); Stone Key P’rs, LLC v. Mphasis Corp., 2026 WL 698776, at *12 (Del. Super.
Feb. 26, 2026).
137
6 Del. C. § 2301(a).
138
See Noranda, 269 A.3d at 982 (Del. 2021) (finding it was error for the Superior Court of
Delaware to award post-judgment interest at the pre-judgment rate).
139
Stonewall Ins. Co. v. E.I. du Pont de Nemours & Co., 996 A.2d 1254, 1262 (Del. 2010) (citing
Citrin v. Int’l Airport Ctrs. LLC, 922 A.2d 1164, 1167 (Del. Ch. 2006)).
140
LG Elecs. Inc. v. Invention Inv. Fund I, L.P., 2025 WL 1545444, at *4 (Del. Super. May 15,
2025), aff’d in part, rev’d in part on other grounds, 2026 WL 935618 (Del. Apr. 7, 2026) (quoting
Brandywine Smyrna, Inc. v. Millenium Builders, LLC, 34 A.3d 482, 486 (Del. 2011)).
141
Brandywine, 34 A.3d at 486 (quoting Moskowitz, 391 A.2d at 210).
29
from a contract, “the court will look to the contract itself to determine when interest

should begin to accrue.”142

“The ultimate purpose of post-judgment interest is to place the parties in the

position they held at the time of the original judgment.”143 Post-judgment interest

begins accruing when “judgment is entered as final and determinative of a party’s

rights.”144 For post-judgment calculation purposes, judgment includes any pre-

judgment interest, attorneys’ fees, and litigation costs awarded to the prevailing

party.145

3. Analysis

a. JanCo is entitled to pre-judgment interest for its awarded damages.

JanCo’s awarded damages arose solely from ISS’s failure to timely obtain the

FAA and Pima County consents.146 APA § 6.1(d) (“Section 6.1(d)”) unambiguously

required the FAA and Pima County consents to be obtained by March 31, 2022.147

142
Wilm. Tr., Nat’l Ass’n v. Sun Life Assurance Co. of Can., 294 A.3d 1062, 1078 (Del. 2023)
(citing Citadel, 603 A.2d at 826).
143
Cede & Co. v. Technicolor, Inc., 2003 WL 23700218, at *48 (Del. Ch. Dec. 31, 2003), aff’d in
part, rev’d in part on other grounds, 884 A.2d 26 (Del. 2005).
144
Cowee, 747 A.2d at 1097 (citing Moffitt v. Carroll, 640 A.2d 169, 178 (Del. 1994)).
145
See NGL Energy P’rs LP v. LCT Cap., LLC, 319 A.3d 335, 345 (Del. 2024) (“Including interest
in the judgment that will bear post-judgment interest is consistent with the structure of Section
2301(a) . . . To decouple prejudgment interest from the other components of a judgment would, in
our view, discourage judgment debtors from promptly paying the full measure of their adjudicated
obligations. For these reasons, we hold that prejudgment interest is part of the judgment upon
which post-judgment interest accrues under Section 2301(a).”); See also Noranda, 269 A.3d at 982
(clarifying that a judgment at law “often comprises elements, such as costs and fees, that are not
components of the underlying liability[.]”).
146
JanCo OB at 35; Summary Judgment Opinion at 60-69.
147
APA § 6.1(d); Summary Judgment Opinion at 64.
30
If these consents were not obtained by that date, Section 6.1(d) required applicable

escrow amounts be distributed to JanCo.148 No further instruction by ISS or JanCo

was needed for the escrow amounts to be released.149

The Court finds JanCo is entitled to pre-judgment interest on its awarded

damages for the period between March 31, 2022, and August 30, 2024. When

neither the FAA nor the Pima County consents were obtained on March 31, 2022,

JanCo’s right to payment of the escrow amounts matured.150 Once JanCo’s right to

payment matured, pre-judgment interest began accruing. Pre-judgment interest then

ceased accruing on August 30, 2024, when summary judgment for the FAA and Pima

County consents was granted in JanCo’s favor.151 The Court orders JanCo to submit

its final calculations of pre-judgment interest for approval by the Court.

148
APA § 6.1(d).
149
APA § 6.1(d) (“[I]f any of the Unobtained Required Consents are not ultimately obtained and
delivered by Sellers within the 120-day period following the Closing Date, then the Escrow Agent,
without further instruction from [ISS] or [JanCo], shall release and pay to [JanCo] any amounts
remaining in the escrow account relating to the Unobtained Required Consents upon the expiration
of the 120-day period[.]”).
150
Summary Judgment Opinion at 66 (“The APA in this case is not ambiguous: it requires release
of the adjustment amounts to ISS if they are obtained within the 120-day deadline; otherwise,
JanCo is entitled to the remaining escrow funds.”).
151
Summary Judgment Opinion at 67-68 (“The terms of the APA are clear that adjustment amounts
are paid to ISS when the consents are obtained within the contractually agreed deadline. There is
no dispute that the consents were obtained after the deadline, and therefore the Court must
reinforce the terms of the contract in favor of JanCo”).
31
b. JanCo is entitled to post-judgment interest for its awarded damages.

The Court also finds JanCo is entitled to post-judgment interest on its awarded

damages and pre-judgment interest.152 Post-judgment interest began accruing the

day pre-judgment interest ceased accruing—August 30, 2024.153 Post-judgment

interest will cease accruing once JanCo receives payment. The Court orders JanCo

to submit its final calculations of post-judgment interest for approval by the Court.

c. ISS may be entitled to pre-judgment interest for the Holdback Amount,
is entitled to pre-judgment interest for the Net Working Capital
Adjustment, and is not entitled to pre-judgment interest for the Ingram
Micro Amount.

i. ISS may be entitled to pre-judgment interest for the Holdback
Amount.154

APA § 2.4(b) (“Section 2.4(b)”) governs the retention and return of the

Holdback Amount.155 Section 2.4(b) first provides the Holdback Amount is to be

reduced by any losses ISS is obligated to indemnify JanCo for under Article 7. 156

The provision then provides any remaining Holdback Amount, less pending claims

152
NGL Energy, 319 A.3d at 344.
153
Summary Judgment Opinion.
154
The Court uses the word “may” here because it is unclear whether the November 23
indemnification claim, which will be discussed further below, was for an amount that exceeded
the Holdback Amount.
155
APA § 2.4(b).
156
Id. (“On the Closing Date, Purchasers will retain an amount equal to Five Million and 00/100
Dollars ($5,000,000.00) (the “Holdback Amount”). The Holdback Amount will be reduced, but
not below zero, by the amount of any Losses indemnifiable by Sellers under Article 7 herein.”).
32
by JanCo, must be returned to ISS within five business days following the twelve

month anniversary of the APA’s Closing Date.157

Neither Party disputes how the provision is intended to operate.158 Unless the

Holdback Amount has been reduced to zero, or any remaining Holdback Amount is

subject to a pending claim by JanCo, ISS is to receive the Holdback Amount on the

date specified in Section 2.4(b). Where the Parties differ is whether the Holdback

Amount was subject to a “pending claim” by JanCo when ISS would otherwise be

entitled to receive the Holdback Amount.159

That the Parties disagree on the interpretation of “pending claims” under

Section 2.4(b) is unsurprising. Section 2.4(b) itself does not expressly define

“pending claims,” nor is the term “pending claims” a defined term in the APA.160

But while the Court finds “pending claims” ambiguous under Section 2.4(b), the

most reasonable interpretation of the term is as follows: “pending claims” are

indemnification claims timely asserted by JanCo.

157
Id. (“The remaining balance of the Holdback Amount, less any then pending claims against it
by Purchasers, will be remitted to Sellers within five (5) business days following the twelve (12)
month anniversary of the Closing Date by wire transfer of immediately available funds in
accordance with wire instructions to be provided by notice given by the intended recipient of the
Holdback Amount.”).
158
JanCo Ans. Br. at 13-14; ISS OB at 30; Tr. 100:6-104:23.
159
JanCo Ans. Br. at 13-14; Tr. 101:2-104:23.
160
See generally APA (providing no definition of “pending claims” as used in Section 2.4(b)).”
33
Section 2.4(b) provides the Holdback Amount is only reduced by

indemnifiable losses experienced by JanCo.161 Because JanCo’s indemnifiable

losses are the only losses capable of affecting the Holdback Amount, it is thus logical

a “pending claim” must be an indemnification claim by JanCo. If this were not the

case, there would be no reason to withhold the Holdback Amount from being paid.

Just because all “pending claims” under Section 2.4(b) must be JanCo

indemnification claims, however, does not mean all JanCo indemnification claims

are “pending claims.” The Court finds JanCo indemnification claims must meet two

additional requirements to be considered “pending claims” for purposes of the

Holdback Amount. The first requirement is the claim be asserted, as Article 7

requires indemnification claims be evidenced by notice.162

The second requirement is the claim be timely asserted. Section 2.4(b) is clear

the Holdback Amount is to be remitted to ISS within five business days following

the twelve month anniversary of the APA’s Closing Date.163 It logically follows any

“pending claims” preventing remittance of the Holdback Amount must be asserted

before this date. The most reasonable interpretation of “pending claim” is therefore

a timely asserted indemnification claim brought by JanCo.

161
APA 2.4(b) (“The Holdback Amount will be reduced, but not below zero, by the amount of any
Losses indemnifiable by Sellers under Article 7 herein.”) (emphasis added).
162
APA § 7.3.
163
APA § 2.4(b) (“The remaining balance of the Holdback Amount, less any then pending claims
against it by Purchasers, will be remitted to Sellers within five (5) business days following the
twelve (12) month anniversary of the Closing Date.”) (emphasis added).
34
Having now defined what “pending claims” means in the content of Section

2.4(b), the Court next addresses whether such “pending claims” existed by five

business days following the twelve month anniversary of the APA’s Closing Date.

The Court finds at least one such claim did exist. In oral argument, ISS admitted at

least one JanCo indemnification demand was “issued on November 23, which is

before the date in the APA.”164

Because such a claim existed before ISS was entitled to remittance of the

Holdback Amount, ISS’s entitlement to remittance was suspended for at least a

portion of the Holdback Amount. Whether this claim would eventually be

determined as meritorious or not is inconsequential. The APA does not specify such

claims must be meritorious, and if ISS sought such a requirement, it should have

negotiated for it.165

The Court finds ISS is not entitled to pre-judgment interest for any portions

of the Holdback Amount affected by JanCo’s asserted and timely indemnification

claim on November 23. If the indemnification demand would not affect the entire

remaining Holdback Amount, however, ISS would be entitled to pre-judgment

interest for the portion of the Holdback Amount unaffected by the indemnification

164
See Tr. 102:1-11 (answering in response to the Court’s question of whether there were timely
pending claims “The first claim was, yes.”).
165
APA § 2.4(b). See also Conner v. Phoenix Steel Corp., 249 A.2d 866, 868 (Del. 1969) (“[A]
court may not, in the guise of construing a contract, in effect rewrite it to supply an omission in its
provisions.”).
35
demand. The Court orders the Parties to submit calculations aligned with this ruling

for final approval.

ii. ISS is entitled to pre-judgment interest for the Net Working
Capital Adjustment.

JanCo’s argument that ISS is not entitled to pre-judgment interest for the Net

Working Capital Adjustment is unconvincing and inapposite of the Post-Trial

Opinion. The Court has already held there was enough evidence to demonstrate the

Parties had agreed upon a working capital adjustment.166 Such an agreement renders

the dispute resolution procedure prescribed in APA § 2.5(d) both moot and not

dispositive of whether pre-judgment interest applies to the Net Working Capital

Adjustment owed to ISS.167

The Court’s finding the Parties agreed upon a working capital adjustment

means ISS’s right to this payment matured sometime before trial. The evidence

presented at trial shows JanCo agreeing to the adjustment as early as October 25,

2022.168 ISS is therefore entitled to pre-judgment interest for the period between

October 25, 2022, and August 21, 2025—the date the Court’s post-trial opinion was

166
Post-Trial Opinion at 53 (“ISS identifies several documents demonstrating JanCo agreed to a
$3,390,119 working capital adjustment.”).
167
APA § 2.5(d) requires dispute resolution only if “the parties do not reach a final resolution
within thirty (30) days after [JanCo] ha[s] received” objection from ISS. APA § 2.5(d). Because
the Court found the Parties had reached such a final resolution, the procedural requirements of
APA § 2.5(d) are moot.
168
The Court found, as evidenced by DX404, the Parties had reached a “final determination” on
working capital adjustment on October 25, 2022. Post-Trial Opinion at 53. Trial in this case did
not begin until November 18, 2024. Post-Trial Opinion at 17.
36
issued.169 The Court orders ISS to submit its final calculations of pre-judgment

interest for approval by the Court.

iii. ISS in not entitled to pre-judgment interest for the Ingram
Micro Amount.

The Ingram Micro consent payment differs significantly from the FAA and

Pima County consent payments. Unlike the FAA and Pima County consents, which

were untimely obtained,170 the Ingram Micro consent was timely obtained.171 This

distinction matters under Section 6.1(d), and it matters for when ISS’s right to

payment of the Ingram Micro consent payment matured.

Under Section 6.1(d), a timely consent, in contrast to an untimely consent,

does not automatically trigger a right to payment.172 A timely consent instead

triggers a pre-condition that must be met before ISS receives a purchase price

adjustment.173 That pre-condition was both ISS and JanCo jointly authorizing and

instructing the Escrow Agent to release applicable escrow amounts to ISS.174 ISS’s

169
Post-Trial Opinion.
170
Summary Judgment Opinion at 63-68.
171
Post-Trial Opinion at 54.
172
APA § 6.1(d).
173
Id.
174
Id. (“[F]or each Unobtained Required Consent obtained and delivered by [ISS] to [JanCo]
during the 120-day period immediately following the Closing Date, [JanCo] shall authorize and
instruct, jointly with [ISS], the Escrow Agent to release and pay to [ISS] out of the escrow account
an amount equal to the purchase price adjustment amount set forth opposite the name of each
Target Account on Schedule 2.2(f) for which an Unobtained Required Consent is obtained and
delivered during the 120-day period immediately following the Closing Date[.]”).
37
right to payment for the Ingram Micro consent therefore would only mature once

this pre-condition had been achieved.

The pre-condition was never achieved, as JanCo never instructed the Escrow

Agent to release the applicable escrow amounts to ISS for the Ingram Micro

consent.175 This is the heart of JanCo’s argument. JanCo reasons if the pre-condition

to payment was never achieved, ISS’s right to payment never matured.176 If ISS’s

right to payment never matured, JanCo reasons pre-judgment interest is inapplicable

and inappropriate.177

The Court finds ISS is not entitled to pre-judgment interest for the Ingram

Micro consent payment. ISS and JanCo are sophisticated parties that mutually

agreed upon the construction of Section 6.1(d). The plain language of Section 6.1(d)

reveals the Parties’ clear intention to treat timely and untimely consents

differently.178 The Parties specifically agreed the release of escrow amounts for

timely consents would require the consent of both Parties.179

The Court acknowledges parties may commonly contract for the release of

escrow funds to require the consent of multiple parties. The Court makes clear such

175
JanCo Ans. Br. at 18-19.
176
Id.
177
Id. at 19.
178
APA § 6.1(d). The Parties contemplated JanCo immediately receiving escrow amounts for
Unobtained Required Consents that were untimely, while ISS could only receive escrow amounts
for Unobtained Required Consents that were timely once both parties consented to escrow amount
release. Id.
179
Id.
38
agreements do not automatically preclude pre-judgment interest when one party

refuses to consent to escrow fund release. To hold otherwise would encourage

delayed payment and defeat the important purposes pre-judgment interest serves.180

This situation is distinct, however, from typical agreements regarding escrow

amount releases. The Parties here explicitly contracted for distinct types of escrow

amounts to be released differently.181 The Parties could have addressed the topic of

interest in the APA, but they declined to do so.182 The language of Section 6.1(d)

provides ISS’s right to payment did not accrue until the Court issued its Post-Trial

Opinion. ISS is therefore not entitled to pre-judgment interest for the Ingram Micro

Amount.

d. ISS is entitled to post-judgment interest on its entire awarded damages,
including pre-judgment interest, attorneys’ fees, and other litigation
costs.

The Court finds ISS is entitled to post-judgment interest on its awarded

damages, inclusive of pre-judgment interest, attorneys’ fees, and other litigation

costs. Post-judgment interest began accruing the day pre-judgment interest ceased

accruing—August 21, 2025.183 Post-judgment interest will cease accruing once ISS

180
If any release of escrow amounts that required the consent of multiple parties would
automatically eliminate pre-judgment interest, the paying party would be incentivized to withhold
consent with the most minor of disputes. The receiving party would suffer from the funds it is
owed diminishing in value over time.
181
APA § 6.1(d).
182
See generally APA § 6.1 (showing the Parties did not account for interest despite anticipating
disputes surrounding the Unobtained Required Consents).
183
Post-Trial Opinion.
39
receives payment. The Court orders ISS to submit its final calculations of post-

judgment interest for approval by the Court.

F. The Superior Court does not have the authority to award compound or
floating interest in this case.

1. The Contentions of the Parties.

ISS contends any pre-judgment interest the Court awards ISS must be

compounded quarterly and use a floating interest rate.184 ISS also contends any

awarded post-judgment interest must compound quarterly and use the legal rate of

interest on the date final judgment is entered.185 In support of its position, ISS offers

public policy considerations186 and limited Superior Court caselaw.187

JanCo contends ISS’s request for compound and floating interest is

atypical.188 JanCo argues the Superior Court has historically “declined to award

compound or floating interest, especially for a claim sounding in law.”189 JanCo also

184
ISS OB at 31-33.
185
Id. at 33-34.
186
ISS argues awarding interest that is fixed and does not compound violates the core premise of
prejudgment interest that “the damages award was ‘plaintiff’s money.’” Id. at 31 (quoting Movora
LLC v. Gendreau, 2025 WL 2795773, at *1 (Del. Super. Oct. 1, 2025)). ISS also adds that “[a]
fixed interest rate risks over- or under-compensating the plaintiff, and either benefitting or
penalizing the defendant, depending on how the interest rate varied during the period covered by
the award.” Id. at 32 (quoting Levey v. Brownstone Asset Mgmt., 2014 WL 4290192, at *1 (Del.
Ch. Aug. 29, 2014).
187
See id. at 30-34 (citing Schneider, 2022 WL 1222738 (Del. Super. Apr. 25, 2022); River Valley
Ingredients, LLC v. Am. Proteins, Inc., 2025 WL 1826656 (Del. Super. July 2, 2025); Wygand v.
Presido, Inc., 2025 WL 919876 (Del. Super. Mar. 24, 2025), aff ’d, 2025 WL 3633004, (Del.
2025)).
188
JanCo Ans. Br. at 33.
189
Id. at 35.
40
asserts the caselaw ISS provides to support its position are outliers failing to address

the legal and equitable divide between the Superior Court and Court of Chancery.190

In short, JanCo maintains the position the Superior Court lacks authority to award

either compound or floating interest.

2. Analysis

Whether the Superior Court can award compound or floating interest in this

case is a question of power to grant relief. The Superior Court may only grant

specific forms of relief when it has the power to do so, and any relief granted without

such power constitutes an impermissible constitutional overreach. To determine

whether the Superior Court can award compound or floating interest in this case, the

Court must therefore examine where it would derive the power to do so, and where

the Court of Chancery derives its power to grant these specific forms of relief.

a. The Court of Chancery derives its power to award compound and
floating interest from its equitable nature.191

The Court starts by examining where the Court of Chancery derives its power

to award compound and floating interest. This starting point is logical for two

reasons: (1) the Court of Chancery’s power to award compound and floating interest

190
Id. at 35-37.
191
The Court is aware that 8 Del. C. § 262 (“Section 262”) authorizes the award of compound
interest in appraisal actions. Because this case is not an appraisal action, Section 262 has been
omitted from the following analysis.
41
is widely accepted under Delaware law;192 and (2) identifying the sources from

which the Court of Chancery derives such power will inform whether those same

sources can be used to derive the same power in Superior Court.

The Court of Chancery derives the power to award compound interest from

its equitable nature. The foundational case kickstarting this establishment was the

Supreme Court of Delaware’s opinion in Summa Corporation v. Trans World

Airlines, Inc.193 In Summa Corp., the appellant challenged, among other things,

whether the Court of Chancery abused its discretion by awarding a pre-judgment

interest rate different from the legal rate of interest.194

The Supreme Court of Delaware held the Court of Chancery had not abused

its discretion “in the court’s choice of rate,” reasoning a court of equity had broad

discretion in fixing the interest rate applicable to pre-judgment interest.195 The

Supreme Court reinforced the principle that the legal rate of interest is a mere guide,

not an inflexible rule, in a court of equity.196

192
See ITG Brands, LLC v. Reynolds Am., Inc., 2025 WL 670818, at *13-14 (Del. Ch. Mar. 3,
2025) (providing that the Court of Chancery now provides compound and floating interest with
regularity); Walker v. FRP Invs. GP, LLC, 336 A.3d 542, 574 (Del. Ch. Apr. 15, 2025) (recognizing
that the modern approach to awarding pre- and post-judgment interest is to award compound and
floating interest).
193
540 A.2d 403, 410 (Del. 1988).
194
Id. at 409.
195
Id.
196
Id. (citing Missouri-Kansas Pipeline Co. v. Warrick, 22 A.2d 865, 868 (Del. 1941)). The
Supreme Court of Delaware recently clarified the scope of the Summa Corp. decision, reversing a
Superior Court decision that used the ruling to deny pre-judgment interest. See LG Elecs. Inc.,
2026 WL 935618, at *16 (“The court’s reliance on Summa Corp. is misplaced. Summa Corp. does
not hold that the Superior Court has discretion to award or deny prejudgment interest. Instead, it
42
The Summa Corp. decision laid the groundwork for another pivotal case—

Brandin v. Gottlieb.197 In Gottlieb, the Court of Chancery took its broad discretion

in fixing applicable interest rates a step further. The Court of Chancery held its

“discretion to select a rate of interest higher than the statutory rate . . . include[s] the

lesser authority to award compounding.”198 The Supreme Court would later adopt

the Gottlieb expansion of its Summa Corp. holding in Gotham Partners, L.P. v.

Hallwood Realty Partners, L.P.199 Awarding compound interest subsequently

became a widely accepted practice in the Court of Chancery.200

The Court now turns its attention to floating interest. The Court of Chancery

also derives the power to award floating interest through its equitable nature. This

power largely developed through the same caselaw establishing the Court of

Chancery’s power to award compound interest. For floating interest, however, the

role of the Gottlieb court was taken by Levey v. Brownstone Asset Management,

LP.201

The Levey court, like in Gottlieb, invoked the Summa Corp. holding to expand

the “broad discretion” the Court of Chancery has in fixing applicable interest rates.202

addressed the scope of the Court of Chancery’s discretion acting as a court of equity to decide what
rate of interest applies when awarding prejudgment interest”).
197
2000 WL 1005954.
198
Id. at *29 n.83.
199
817 A.2d 160, 173 (Del. 2002) (quoting Gottlieb, 2000 WL 1005954, at *29 n. 83).
200
ITG Brands, 2025 WL 670818, at *13-14; Walker, 336 A.3d at 574.
201
2014 WL 4290192 (Del. Ch. Aug. 29, 2014).
202
Id. at *1.
43
This time, the Court of Chancery interpretated the “broad discretion” described in

the Summa Corp. decision as including the discretion to award a floating rate for

both pre- and post-judgment interest.203 The Court of Chancery has continued to

award floating interest ever since.204

b. The Superior Court does not derive the power to award compound
or floating interest from equity or statutory law.

While the Court of Chancery has a clear source of authority to award

compounding and floating interest, the Superior Court cannot derive such power

from this source or any other source.

The Superior Court clearly cannot derive any authority to award compound or

floating interest through equity. Delaware law presents a “historic and constitutional

separation of common law and equity jurisdiction.”205 The Delaware Constitution

provides that the “Superior Court shall have jurisdiction of all causes of a civil

nature, real, personal and mixed, at common law,”206 while the Court of Chancery

has “all the jurisdiction and powers vested by the laws of [Delaware].”207 The Court

203
Id.
204
ITG Brands, 2025 WL 670818, at *14 (“Since Levey, [the Court of Chancery] ha[s] consistently
applied floating interest rates.”).
205
Prospect St. Energy, LLC v. Bhargava, 2016 WL 446202, at * 4 (Del. Super. Jan. 27, 2016)
(citations omitted).
206
Del. Const. Art. IV § 7.
207
Del. Const. Art. IV § 10.
44
of Chancery is specifically vested with “jurisdiction to hear and determine all matters

and cases in equity.”208

The legal and equitable divide between the Superior Court and the Court of

Chancery is well-established. When the Court of Chancery derives certain powers

from its equitable nature, the Superior Court naturally cannot derive those same

powers from the same source. It is therefore impossible for the Superior Court to

derive the power to award compound and floating interest through equity, as such a

practice would violate the Delaware Constitution.

The only other logical source of authority for the Superior Court to award

compound and floating interest would be through statutory law. The only statute

relevant to this discussion is 6 Del. C. § 2301 which, as previously discussed,

governs the award of pre- and post-judgment interest in Delaware. The statute

provides, in relevant part:

Any lender may charge and collect from a borrower interest at any rate
agreed upon in writing not in excess of 5% over the Federal Reserve
discount rate including any surcharge thereon. Where there is no
expressed contract rate, the legal rate of interest shall be 5% over the
Federal Reserve discount rate including any surcharge as of the time
from which interest is due; provided, that where the time from which
interest is due predates April 18, 1980, the legal rate shall remain as it
was at such time. Except as otherwise provided in this Code, any
judgment entered on agreements governed by this subsection, whether
the contract rate is expressed or not, shall, from the date of the
judgment, bear post-judgment interest of 5% over the Federal Reserve

208
10 Del. C. § 341.
45
discount rate including any surcharge thereon or the contract rate,
whichever is less.209

Whether 6 Del. C. § 2301 allows for compound or floating interest is a matter of

statutory construction. “The goal of statutory construction is to determine and give

effect to the legislative intent.”210 Where a statute is “clear and unambiguous, the

plain meaning of the statutory language controls.”211 A statute is unambiguous

where “the language is plain and admits no more than one meaning, the duty of

interpretation does not arise, and the rules which are to aid in doubtful meanings

need no discussion.”212

The Court finds the language of 6 Del. C. § 2301 clear and unambiguous. The

General Assembly provides express language on how pre- and post-judgment

interest are to be calculated in Delaware, which does not include any authorization

to award compound or floating interest. Had the General Assembly intended for the

statute to include such relief, it could have done so.

Both the Superior Court and the Court of Chancery reached similar

conclusions in prior decisions. For example, in Rollins Environmental Services, Inc.

v. WSMW Industries, Inc, the Superior Court held departing from traditional simple

209
6 Del. C. 2301(a).
210
Eliason v. Englehart, 733 A.2d 944, 946 (Del. 1999) (citing Streett v. State, 669 A.2d 9 (Del.
1995).
211
Ins. Comm’r of State of Del. v. Sun Life Assurance Co. of Can. (U.S.), 21 A.3d 15, 20 (Del.
2011) (citing Dir. of Revenue v. CNA Hldgs., Inc., 818 A.2d 953, 957 (Del. 2003)).
212
Wilkerson v. State, 338 A.3d 477, 485-86 (Del. 2025) (quoting Friends of H. Fletcher Brown
Mansion v. City of Wilm., 34 A.3d 1055, 1059 (Del. 2011)).
46
interest would require legislative consent.213 In other words, the Rollins court saw

awarding compound interest as an end-run around the statutory interest rate.214

Another example is found in the Gottlieb decision. In Gottlieb, the Court of

Chancery made clear its compound interest ruling—which was premised solely on

the equitable nature of the court—should not be interpreted as a rereading or

reimagining of 6 Del. C. § 2301.215 The Gottlieb decision cautioned courts not to

overstep and exercise authority not vested by statute:

Having for so long been construed as providing for a simple interest
calculation, 6 Del. C. § 2301 should not be reinterpreted by the judiciary
as calling for compound interest. Any reinterpretation of the statute at
this stage should come from the legitimate authority, the General
Assembly.”216

Both the plain language of 6 Del. C. § 2301 and past precedent across

Delaware’s legal and equitable divide therefore support the Superior Court’s

inability to derive the power to award compound or floating interest through

statutory law. To find otherwise would represent a usurpation of the General

Assembly’s authority and an overreach by the Court.

c. The limited cases in which the Superior Court has awarded
compound or floating interest do not address where the Superior
Court derives such authority.

213
1981 WL 3297, at *1 (Del. Super. Mar. 6, 1981) (“Since the statute is a creature of the
Legislature, if a different concept is to be applied, the change should come from the Legislature”).
214
Brown v. Court Square Cap. Mgmt., L.P., 2024 WL 1655418, at *3 n.27 (Del. Ch. Apr. 17,
2024).
215
Gottlieb, 2000 WL 1005954, at *29.
216
Id.
47
The Court is aware of at least two cases in which the Superior Court has

awarded compound interest and at least one where floating interest was awarded.217

None of these cases, which largely cite to Court of Chancery precedent, discuss

where the Superior Court derives the authority to award such relief. The Court is

not convinced by these cases, which are heavily outweighed by decades of precedent

finding the Superior Court lacking authority to grant such relief.

d. Conclusion

The Delaware Constitution, statutory law, and the vast amount of Delaware

precedent support the Superior Court having no authority to award compound or

floating interest. The Court therefore finds it lacks authority to grant such relief in

this case. ISS’s request for compound and floating interest is denied.

IT IS SO ORDERED.

217
See Schneider, 2022 WL 1222738, at *32 (awarding compound interest in an action transferred
to Superior Court pre-trial after the Court of Chancery determined it lacked jurisdiction); Wygand
v. Presido, Inc., 2025 WL 919876 (Del. Super. Mar. 24, 2025), aff’d, 2025 WL 3633004, (Del.
2025) (awarding compound interest, without citing to any supporting authority, which was not
addressed on appeal); McGlothlin, 2023 WL 5747520, at *9 (awarding a floating interest rate based
on policy considerations without citation to legal authority).

48