    THE COURT OF CHANCERY OF THE STATE OF DELAWARE

FRED L. PASTERNACK,                    )
                                       )
            Plaintiff,                 )
                                       )
      v.                               )    C.A. No. 12082-VCMR
                                       )
NORTHEASTERN AVIATION                  )
CORP.,                                 )
                                       )
            Defendant.                 )


                          MEMORANDUM OPINION


                         Date Submitted: August 17, 2018
                         Date Decided: November 9, 2018
Paul D. Brown, Joseph B. Cicero, and Stephanie H. Dallaire, CHIPMAN BROWN
CICERO & COLE, LLP, Wilmington, Delaware; Cynthia S. Arato and Daniel J.
O’Neill, SHAPIRO ARATO LLP, New York, New York; Attorneys for Plaintiff.
Francis G.X. Pileggi and Alexandra D. Rogin, ECKERT SEAMANS CHERIN &
MELLOTT, LLC, Wilmington, Delaware; Edward J. Longosz, II, ECKERT
SEAMANS CHERIN & MELLOTT, LLC, Washington, D.C.; Attorneys for
Defendant.




MONTGOMERY-REEVES, Vice Chancellor.
      In this case, Plaintiff, a pilot, seeks indemnification from Defendant, the

aircraft charter and management company for which he flew planes. The underlying

dispute for which Plaintiff seeks indemnification of legal fees and expenses arose in

connection with the pilot’s participation in random drug testing. The regulations

governing the operations of the company require that the company submit a random

selection of its pilots for drug testing. The company informed the pilot that he had

been randomly selected. The pilot reported, as instructed, to the testing site and

provided a sample, but the volume was insufficient to complete testing. Rather than

waiting at the testing site until he could provide an adequate sample for testing, the

pilot informed the drug test collector that he needed to attend an appointment but

would return to complete the testing. The pilot left, and he returned a few hours later

to complete the test. With the permission of the aircraft company, the collector

resumed the test. The pilot’s test results were negative for drugs, but the medical

review officer determined that the pilot refused to take the test by leaving before the

test was complete, resulting in an automatic failure of the drug test. As a result, the

Federal Aviation Administration issued an emergency order and revoked the pilot’s

certificate to fly. The pilot challenged this finding through two levels of appeal. In

the final resolution of the case, the Court of Appeals for the D.C. Circuit held that

there was insufficient evidence to determine whether the collector gave the pilot




                                          2
permission to leave and reversed the revocation. Thus, the pilot prevailed in his

challenge.

      Thereafter, the pilot sought indemnification for the legal expenses associated

with those proceedings under the company’s bylaws. The bylaws provide for

mandatory indemnification for directors, officers, employees, and agents to the

extent permitted by the Delaware General Corporation Law. Plaintiff argues that he

is entitled to indemnification because he is an employee or agent of the company;

his status as an employee or agent stems from his actions on behalf of the company

and the company’s control of those actions; he took the drug test by reason of his

role as a pilot at the company; and he acted at all times in the best interest of or not

opposed to the interests of the company. The aircraft company responds that it need

not provide indemnification because Plaintiff (1) was neither an employee nor an

agent because he was not acting in his pilot role during the drug test, (2) was not

subjected to the drug test by reason of his affiliation with the company, and (3) did

not act in good faith or in the best interests of the company when he prematurely left

the drug test. Additionally, the company argues that the doctrine of laches bars

Plaintiff’s claims.

      In this opinion, I hold that Plaintiff is an agent of the company, that he took

the drug test by reason of his affiliation with the company, and that he acted in good

faith and in a manner, at the very least, not opposed to the best interests of the


                                           3
company. Thus, the company must indemnify the pilot and pay fees-on-fees, and

laches does not bar Plaintiff’s claims.

I.    BACKGROUND
      The facts in this opinion reflect my findings based on admitted allegations in

the pleadings, stipulated facts, trial testimony of five witnesses, and thirty-nine

documentary exhibits. 1

      A.     The History of Northeastern and Its Evolution
      Michael J. Russo and two other individuals started Northeastern Aviation

Corp. (“Northeastern” or the “Company”) in December 1978.2                    Northeastern

operated as a Delaware corporation with its principal place of business at Republic

Airport in Farmingdale, New York. 3 Initially, the Company leased aircraft to a

single small commuter airline. 4 Northeastern employed no pilots at that time. 5 Fred




1
      Citations to the trial transcript are in the form “Tr. # (X)” with “X” representing the
      surname of the speaker. Joint Trial Exhibits are cited as “JX #.” Facts drawn from
      the Joint Pretrial Stipulation and Order are cited as “PTO ¶ #.” Unless otherwise
      indicated, citations to the parties’ briefs are to post-trial briefs. After initially
      identifying individuals, I reference surnames without honorifics or regard to formal
      titles such as “Doctor.” I intend no disrespect.
2
      JX 1; PTO ¶¶ II.4-.5; see JX 30, at NEA00035, -37, -39.
3
      PTO ¶ II.3.
4
      Tr. 11:22-12:2 (Pasternack).
5
      Tr. 12:23-13:7 (Pasternack).


                                             4
L. Pasternack joined Northeastern in November 1980.6 He became a stockholder, a

director, and an officer of Northeastern, but Pasternack worked primarily as a

medical doctor.7

      In 1983, Northeastern’s single customer went bankrupt; in response,

Northeastern changed its business model and started operating as an aircraft charter

and management company. 8 As a charter flight operator, Northeastern was and is

regulated under Part 135 of the Federal Aviation Administration (“FAA”)

regulations (“Part 135”).9

      Russo and Pasternack initially served as Northeastern’s only pilots. 10 But

Northeastern grew during the 1980s, hired more pilots, and established a hierarchy

for its staff.11 In 1984, Pasternack became Northeastern’s Chief Pilot, a position

required by FAA regulations. 12 The Chief Pilot oversees the conduct of other pilots


6
      JX 30, at NEA00044.
7
      Id. at NEA00044, -94, -95; PTO ¶ II.1.
8
      Tr. 12:3-16 (Pasternack).
9
      14 C.F.R. Pt. 135 (entitled “Operating Requirements: Commuter and On Demand
      Operations and Rules Governing Persons on Board Such Aircraft”); Tr. 12:14-22
      (Pasternack).
10
      Tr. 15:20-16:1 (Pasternack).
11
      Tr. 13:7-9, 16:2-7 (Pasternack).
12
      JX 32, at FLP001463; Tr. 85:8-12 (Jordan); Tr. 150:18-22 (Montemurro); Tr. 227:1-
      6 (Russo).


                                          5
within the company. 13 The Chief Pilot reports directly to Russo, the Director of

Operations, investigates any accident or incident, and acts as a liaison for

Northeastern to the FAA. 14 Pasternack remained the Chief Pilot until approximately

1987. 15 After 1987, he continued to pilot flights for Northeastern, but not in the

supervisory role of Chief Pilot.16          Despite Pasternack’s recent service to

Northeastern as a pilot and previously as Chief Pilot, no written employment

agreement or agency agreement exists between him and Northeastern.17

      Russo has been the President and Director of Operations of Northeastern since

1978. 18 Although Russo no longer pilots flights for Northeastern,19 he actively


13
      Tr. 21:19-20 (Pasternack).
14
      JX 16, at NA000560; Tr. 84:17-85:1 (Jordan). See generally JX 16, at NA000560.
15
      Tr. 14:1-3 (Pasternack).
16
      Tr. 15:2-9 (Pasternack).
17
      Tr. 61:13-23 (Pasternack); Tr. 183:9-20, 184:14-18 (Montemurro); see also Tr.
      187:16-188:3 (Montemurro) (testifying that he was unaware of any agreement
      disclaiming Pasternack’s employee or agency status). Similarly, in 2007, Russo did
      not have an employment agreement with Northeastern, despite his service to
      Northeastern as a pilot and as Director of Operations. Tr. 188:18-23 (Montemurro).
      Today, the Chief Pilot must be an employee of the company. JX 16, at NA000711
      (“Tier I personnel are direct employees” of Northeastern.); Tr. 227:15-16 (Russo).
      The record does not show whether that was true in 1984, but because the Chief Pilot
      has responsibility for the conduct of other employed pilots, it seems likely that the
      Chief Pilot would be an employee.
18
      JX 16, at NA000707; JX 30, at NEA00095.
19
      Tr. 228:16-19 (Russo).


                                            6
manages the Company, making a majority of the business decisions for the

Company. 20

       B.       Northeastern Now
       Since 1986, the ownership of Northeastern and its Board of Directors have

remained unchanged.21 Four stockholders, including Russo and Pasternack, each

own twenty-five percent of Northeastern. 22 Both Russo and Pasternack serve on the

Board of Directors; Russo serves as President, and Pasternack serves as a Vice

President. 23

       Northeastern provides two types of pilots for its charter flights.24 Its pilots are

either full-time pilots or “on-demand” pilots. 25 Northeastern assigns full-time pilots

a tour of duty, which means that for a specified time (for example, twenty days 26)




20
       Tr. 233:6-9 (Russo); see, e.g., Tr. 245:24-246:14 (Russo).
21
       PTO ¶ II.7.
22
       Id.
23
       Id. ¶ II.6.
24
       Tr. 80:17-81:2 (Jordan); see Tr. 85:19-86:3 (Jordan) (testifying that part of the Chief
       Pilot’s role is to “provid[e] a set of qualified pilots to management or charter sales
       in order to staff aircraft”).
25
       Tr. 80:17-81:2 (Jordan).
26
       Tr. 153:10-14 (Montemurro).


                                              7
the pilot must remain fit to pilot a flight.27 During that time, Northeastern requires

that the full-time pilot be available for any flight Northeastern assigns to him or her.28

Pilots may not drink alcoholic beverages during a tour of duty. 29 If a pilot becomes

ill during the tour of duty, the pilot must inform Northeastern that he or she is not

medically fit to fly. 30 Northeastern classifies its full-time pilots as employees and

issues them W-2 forms. 31 Full-time pilots receive a salary, are not paid per flight,

and are not paid beyond their usual salary for compliance activities like training and

drug testing.32    Northeastern provides full-time pilots benefits such as health

insurance, life insurance, vacation and sick time, and paid personal days. 33



27
      Tr. 89:16-24 (Jordan).
28
      Tr. 160:24-161:6 (Montemurro). Pilot qualifications are for specific types of
      aircraft, and a pilot must be qualified to fly the specific aircraft used for a flight. See
      Tr. 52:22-53:3, 55:12-20, 57:8-16 (Pasternack); Tr. 234:4-8, 262:4-5 (Russo).
29
      JX 16, at NA000569 (“The use of intoxicants, including beer and wine, by . . . flight
      crewmembers, while scheduled as available for duty, is prohibited.”); see 14 C.F.R.
      § 91.17 (prohibiting pilots from consuming any alcoholic beverage within eight
      hours of flying).
30
      JX 16, at NA000568 (“Crewmembers have an individual responsibility for personal
      disqualification from flight status under conditions of medical deficiency . . . . All
      pilots are required to notify the Director of Operations of any change in their flying
      status.”).
31
      Tr. 84:11-13 (Jordan).
32
      Tr. 113:19-22 (Jordan); Tr. 179:2-9 (Montemurro).
33
      Tr. 94:1-15 (Jordan).


                                              8
      Northeastern utilizes its on-demand pilots differently. Northeastern contacts

one of its on-demand pilots if it is unable to staff a flight with full-time pilots. 34 The

on-demand pilot then may, at his or her discretion and without justification, accept

or decline the assignment. 35 To accept the assignment, the pilot must be fit to pilot

the flight. 36 After accepting the assignment, the on-demand pilot, just like a full-

time pilot, must “comply with the regulatory requirements for that [flight]” and with

Northeastern’s applicable policies. 37 In other words, after an on-demand pilot

accepts the assignment, there is no functional difference between the full-time pilot

and the on-demand pilot.38 There remain, however, administrative differences;

Northeastern issues each on-demand pilot an IRS Form 1099, and the pilots do not

receive any employment benefits.39 Northeastern pays its on-demand pilots per

flight,40 but like full-time pilots, Northeastern does not pay its on-demand pilots for




34
      Tr. 96:22-97:3 (Jordan).
35
      Tr. 97:4-6, 98:6-9 (Jordan).
36
      Tr. 98:13-16 (Jordan).
37
      Tr. 98:13-23 (Jordan); Tr. 163:7-11 (Montemurro).
38
      Tr. 99:19-100:1 (Jordan); Tr. 163:7-11, 182:20-24 (Montemurro).
39
      See PTO ¶¶ II.28-.37; Tr. 162:9-122 (Montemurro).
40
      Tr. 154:1-8 (Montemurro).


                                            9
compliance activities like training or drug testing.41 Northeastern classifies these

on-demand pilots as independent contractors. 42

      All pilots, whether full-time or on demand, must comply with applicable

regulations to maintain their status as Part 135 pilots for Northeastern. 43 This

compliance includes completion of regular training and an evaluation of flying

skills. 44 It also includes compliance with Northeastern’s drug testing program. 45 If

pilots fail to comply with any applicable FAA or DOT regulations, they may not

pilot any Northeastern flights.46       In addition to these regulations, certain

Northeastern policies apply to both full-time and on-demand pilots.47 For example,

all pilots must complete Northeastern’s flight and ground training program annually;

if a pilot fails to complete this training, he or she may not pilot any flights for

Northeastern.48 Additionally, all pilots must wear Northeastern uniforms during



41
      See Tr. 156:16-22 (Montemurro).
42
      Tr. 153:17-20 (Montemurro).
43
      Tr. 94:16-22, 95:8-10 (Jordan).
44
      Tr. 94:23-95:7 (Jordan).
45
      Tr. 182:12-15, 218:11-20 (Montemurro).
46
      See, e.g., Tr. 218:11-20 (Montemurro).
47
      Tr. 201:3-15 (Montemurro).
48
      JX 16, at NA000580; Tr. 157:9-18 (Montemurro).


                                         10
flights, and it therefore is not apparent to passengers whether an individual pilot is

full-time or on demand. 49

      Pasternack flew for Northeastern as an on-demand pilot. He did not receive

the benefits enjoyed by full-time pilots, such as vacation or sick benefits, paid

personal days, paid holidays, health insurance benefits, life insurance benefits,

workers’ compensation benefits, unemployment compensation benefits, or

participation in any type of retirement plan through Northeastern. 50 He received an

IRS Form 1099, not a W-2. 51

      C.      Northeastern’s Regulatory Environment
      “In 1983, Northeastern began operating its own charter flight service . . .

under Part 135 . . . .” 52 This operation falls under Department of Transportation

(“DOT”) and FAA regulations.53 Part 135 regulates charter flight service operators

like Northeastern.54




49
      JX 16, at NA000567; Tr. 22:10-11 (Pasternack); Tr. 183:1-8 (Montemurro).
50
      PTO ¶¶ II.28-.35; Tr. 162:9-22 (Montemurro).
51
      PTO ¶¶ II.36-.37.
52
      Id.¶ II.9.
53
      Id. ¶¶ II.9, II.14.
54
      14 C.F.R. Pt. 135.


                                         11
      Under Part 135, Northeastern must assume responsibility for operational

control over the flights it conducts.55 “Operational control” means exercising

“authority over initiating, conducting or terminating a flight.”56

      Under DOT regulations, to maintain its Part 135 certificate, Northeastern must

conduct random alcohol and drug testing of its pilots. 57            DOT regulations—

specifically, 49 C.F.R. Pt. 40 (“Part 40”)—prescribe the procedures that

Northeastern must follow in administering drug and alcohol testing.58 Part 40 allows

Part 135 operators to use “service agents” for drug and alcohol testing.59 A “service

agent,” in this context, provides services to the operator (Northeastern) and its pilots

in connection with DOT drug and alcohol testing requirements. 60


55
      “Each certificate holder is responsible for operational control and shall list, in the
      manual required by § 135.21, the name and title of each person authorized by it to
      exercise operational control.” 14 C.F.R. § 135.77.
56
      14 C.F.R. § 1.1.
57
      See 14 C.F.R. § 135.251 (2009) (recodified at 14 C.F.R. § 120.35). Part 135
      requires random drug testing of all individuals who perform safety-sensitive
      functions for the charter flight operator (in this case, Northeastern). 49 C.F.R.
      § 40.3. Under the statutory framework, both pilots and maintenance workers
      perform safety-sensitive functions, and therefore, Northeastern includes both in its
      pool for random drug testing. Tr. 129:3-10 (Schmitt); Tr. 163:2-6 (Montemurro).
      Because Pasternack’s only safety-sensitive role was as a pilot, I focus solely on
      pilots.
58
      See 14 C.F.R. § 120.103; 49 C.F.R. Pt. 40.
59
      See 49 C.F.R. § 40.3.
60
      Id.


                                            12
      Service agents include, among other things, laboratories and medical review

officers. 61 LabCorp, the laboratory where Pasternack reported for his drug and

alcohol test, was a service agent of Northeastern.62 ChoicePoint was another service

agent and provided services to Northeastern as a medical review officer.63

      Part 40 also limits what service agents may do. 64                 Barring specific

exceptions,65 none of which apply here, service agents may “not make a

determination that [a pilot] has refused a drug or alcohol test. This is a non-delegable

duty” of Northeastern. 66




61
      Id.
62
      PTO ¶ II.18.
63
      Id. ¶ II.27; Tr. 35:1-9 (Pasternack); Tr. 179:17-180:13 (Montemurro). A medical
      review officer acts as “an independent and impartial ‘gatekeeper’” in the drug-
      testing process, provides feedback to the flight operators, and confirms the
      laboratory’s drug test results. 49 C.F.R. § 40.123(a), (b) (entitled “What are the
      MRO’s responsibilities in the DOT drug testing program?”).
64
      49 C.F.R. § 40.355; PTO ¶ II.19.
65
      49 C.F.R. § 40.355(j) (“As an exception to paragraph (i) of this section, [a service
      agent] may make a determination that [the pilot] has refused a drug or alcohol test,
      if: (1) [The service agent] schedule[d] a required test for an owner-operator or other
      self-employed individual, and the individual fails to appear for the test without a
      legitimate reason; or (2) [An MRO service agent] determine[d] that an individual
      has refused to test on the basis of adulteration or substitution.” (emphasis added)).
66
      49 C.F.R. § 40.355(i).


                                            13
       D.        Pasternack’s Drug Test
       In June 2007, Northeastern had a random drug testing program in place as

required by the applicable FAA and DOT regulations.67 Northeastern submitted a

list of its pilots, including Pasternack, 68 to Choice Point, and Choice Point used that

list to randomly select individuals for drug testing. 69 Choice Point contacted Donna

Schmitt, Northeastern’s Flight Department Administrator and Designated Employer

Representative, and informed her that Pasternack had been selected for random drug

testing. 70

       On June 1, 2007, Schmitt instructed Pasternack to report to LabCorp for his

drug test (the “Drug Test”).71 Pasternack realized that he did not have a custody and

control form (“CCF Form”) embossed with Northeastern’s information.72 LabCorp

requires the CCF Form to complete the Drug Test.73 Pasternack informed Schmitt,

and Schmitt mailed a new CCF Form to him and instructed him to report for the



67
       PTO ¶ II.26.
68
       Id. ¶ II.27; Tr. 164:1-3 (Montemurro).
69
       PTO ¶ II.27.
70
       Tr. 127:17-19, 128:15-129:10, 134:20-135:1 (Schmitt).
71
       PTO ¶ II.38.
72
       Tr. 27:12-24 (Pasternack).
73
       See id.


                                           14
Drug Test after he received the CCF Form. 74 Pasternack received the CCF Form,

and on June 5, 2007, shortly after 1:00 p.m., Pasternack reported to LabCorp to

provide a urine sample for the Drug Test.75

      At LabCorp, Pasternack followed the instructions of the LabCorp collector,

Theresa Montalvo. 76 After Pasternack provided a sample, Montalvo informed him

that the amount of urine he had provided was insufficient.77 She instructed him to

wait at the LabCorp facility until he was able to produce another sample.78

Pasternack waited for approximately ten or fifteen minutes and then recalled that he

had a 2:00 or 2:30 p.m. appointment with one of his medical patients. 79 He informed

Montalvo that he needed to leave but that he would return the next day to complete

the Drug Test. 80 Montalvo explained that she would need to call Northeastern, but




74
      Tr. 27:24-28:3 (Pasternack); Tr. 145:17-20 (Schmitt).
75
      PTO ¶ II.39.
76
      Id. ¶ II.41.
77
      Id. ¶ II.42; Tr. 30:12-15 (Pasternack).
78
      PTO ¶ II.42.
79
      Id. ¶ II.43; Tr. 30:19-31:2 (Pasternack).
80
      PTO ¶ II.43.


                                            15
she did not explain that Pasternack’s departure would result in his Drug Test being

deemed a “refusal to test.”81

      Pasternack’s appointment was approximately eight blocks away. 82 After the

appointment, he decided to return to LabCorp to complete the Drug Test that same

afternoon.83 LabCorp required that Northeastern first give its authorization to

resume the Drug Test. 84 Although Schmitt, Northeastern’s Designated Employer

Representative, would have been the appropriate Northeastern representative to

contact, Schmitt was not at work that day, 85 and Montalvo spoke with Peter

Montemurro, Northeastern’s General Manager. 86 She asked Montemurro to give

permission, on behalf of Northeastern, to resume Pasternack’s Drug Test after he

returned.87   Unfamiliar with drug testing requirements, Montemurro instructed




81
      See Tr. 31:13-14 (Pasternack).
82
      Tr. 32:1-2 (Pasternack).
83
      Tr. 31:22-32:3 (Pasternack).
84
      Tr. 32:9-12 (Pasternack).
85
      Tr. 146:3-9 (Schmitt).
86
      JX 16, at NA000707; Tr. 165:15-20 (Montemurro).
87
      Tr. 165:21-166:2 (Montemurro).


                                        16
Montalvo to “do whatever [she] think[s] is appropriate.” 88 Montalvo continued the

Drug Test, and Pasternack provided a sufficient sample at that time. 89

      A few days later, ChoicePoint, in its role as medical review officer, deemed

Pasternack’s Drug Test a “refusal to test” because Pasternack left LabCorp before

he completed the Drug Test.90 On June 10, 2007, Schmitt informed Pasternack of

this result.91 ChoicePoint determined that Pasternack failed the Drug Test solely due

to the refusal to test;92 Pasternack’s sample tested negative for drugs.93

      After the Drug Test, Pasternack did not pilot any flights for Northeastern. 94

      E.     The Underlying FAA Proceeding
      On November 20, 2007, the FAA revoked Pasternack’s pilot’s certificates on

the ground that he refused to test.95 Pasternack retained counsel to represent him in




88
      Tr. 166:6-11 (Montemurro).
89
      PTO ¶ II.45.
90
      Id. ¶ II.46; see Tr. 35:1-9 (Pasternack).
91
      Tr. 33:19-34:1 (Pasternack).
92
      Tr. 35:10-13 (Pasternack); Tr. 181:24-182:6 (Montemurro).
93
      Tr. 181:17-23 (Montemurro).
94
      Tr. 169:5-8 (Montemurro); see also Tr. 213:4-23 (Montemurro).
95
      Compl. ¶ 13.


                                            17
the administrative proceeding and to challenge the FAA revocation.96 During the

administrative proceedings, the FAA called ten witnesses, including employees of

Northeastern.97 Administrative Law Judge Fowler affirmed the FAA’s revocation.98

Pasternack appealed the decision, initially to the National Transportation Safety

Board (“NTSB”) and then to the United States Court of Appeals for the D.C.

Circuit.99 The D.C. Circuit remanded to the NTSB, which in turn remanded the

matter to Judge Fowler for credibility determinations.100

      After Judge Fowler upheld and the NTSB affirmed Judge Fowler’s original

decision, Pasternack filed a second appeal with the D.C. Circuit.101 The D.C. Circuit

held that because there was insufficient evidence to show whether the collector

(Montalvo at LabCorp) impliedly gave Pasternack permission to leave, Pasternack’s

departure was not a “refusal to test” and the NTSB’s decision was arbitrary and




96
      PTO ¶ II.47.
97
      Id. ¶ II.48; Tr. 91:10-19 (Jordan); Tr. 164:9-18 (Montemurro).
98
      PTO ¶ II.48.
99
      Tr. 38:21-39:5 (Pasternack).
100
      Tr. 39:5-13 (Pasternack).
101
      Tr. 39:15-16; 39:22-40:2 (Pasternack).


                                          18
capricious. 102 On March 22, 2013, the D.C. Circuit reversed the decision of the

NTSB, also reversing the revocation of Pasternack’s pilot’s certificates. 103

      F.     Pasternack’s Demand for Indemnification and This Litigation
      At no point during the underlying FAA proceedings did Pasternack make any

demands for indemnification from Northeastern for attorneys’ fees.104 Over two

years after the conclusion of the FAA proceeding, on October 20, 2015, Pasternack

sent a letter to Northeastern requesting indemnification for approximately $140,000

in legal fees and expenses he incurred in defending himself during the FAA

proceedings.105 His letter requests indemnification under Northeastern’s bylaws,

which, according to Pasternack’s letter, “provide that employees shall be

indemnified to the full extent allowed under Delaware law.” 106

      Northeastern’s corporate governance documents, including its bylaws (the

“Bylaws”), have been in effect since 1980 or earlier107 and remain unchanged since



102
      Pasternack v. Huerta, 513 F. App’x 1 (D.C. Cir. 2013); Tr. 40:10-14 (Pasternack).
103
      Pasternack, 513 F. App’x 1; Tr. 40:3-7 (Pasternack).
104
      PTO ¶ II.50; Tr. 48:18-23, 65:10-16 (Pasternack); Tr. 168:7-18 (Montemurro); Tr.
      245:13-17 (Russo); see Tr. 44:7-14 (Pasternack); Tr. 244:2-21, 288:17-289:10
      (Russo).
105
      JX 21, at NEA00135.
106
      Id.
107
      PTO ¶ II.8.


                                          19
incorporation.108   The Bylaws contain an indemnification provision:             “The

corporation shall indemnify its officers, directors, employees and agents to the extent

permitted by the General Corporation Law of Delaware.” 109

      Northeastern responded to Pasternack’s request via letter on November 3,

2015. 110 In that letter, Northeastern stated that it will “check[] into this matter

and . . . get back to [Pasternack] in the near future.” 111        Northeastern never

substantively responded to Pasternack’s letter.112

      On March 7, 2016, Pasternack filed his Verified Complaint for

Indemnification against Northeastern.113 This Court held a two-day trial in this

matter on March 15 and 16, 2018.

II.   ANALYSIS
      “To succeed at trial, ‘Plaintiff[] . . . ha[s] the burden of proving each

element . . . of each of his causes of action against [the] Defendant . . . by a




108
      Id.; see Tr. 11:7-15 (Pasternack).
109
      JX 29, at NEA00030.
110
      JX 21; PTO ¶ II.52.
111
      JX 21.
112
      PTO ¶ II.53; Tr. 45:1-5 (Pasternack); Tr. 288:1-6 (Russo).
113
      JX 22.


                                           20
preponderance of the evidence.’” 114 “Proof by a preponderance of the evidence

means proof that something is more likely than not. It means that certain evidence,

when compared to the evidence opposed to it, has the more convincing force and

makes you believe that something is more likely true than not.”115

      A.     Northeastern Aviation Must Indemnify Pasternack Under Its
             Mandatory Indemnification Bylaw
      Pasternack seeks indemnification under Northeastern’s Bylaws for legal fees

and expenses he incurred in defending himself in the underlying FAA

proceedings.116 The Bylaws’ indemnification provision states, “The corporation

shall indemnify its officers, directors, employees and agents to the extent permitted

by the General Corporation Law of Delaware.” 117 Section 145(a) of the Delaware

General Corporation Law sets out the relevant requirements for indemnification by

a corporation:

             A corporation shall have power to indemnify any person
             who was or is a party . . . to any threatened, pending or

114
      S’holder Representative Servs. LLC v. Gilead Scis., Inc., 2017 WL 1015621, at *15
      (Del. Ch. Mar. 15, 2017) (quoting inTEAM Assocs., LLC v. Heartland Payment Sys.,
      Inc., 2016 WL 5660282, at *13 (Del. Ch. Sept. 30, 2016)), aff’d, 177 A.3d 610 (Del.
      2017).
115
      Agilent Techs., Inc. v. Kirkland, 2010 WL 610725, at *13 (Del. Ch. Feb. 18, 2010)
      (quoting Del. Express Shuttle, Inc. v. Older, 2002 WL 31458243, at *17 (Del. Ch.
      Oct. 23, 2002)).
116
      Compl. ¶¶ 27-33.
117
      JX 29, at NEA00030.


                                          21
             completed action, suit or proceeding, whether civil,
             criminal, administrative or investigative . . . by reason of
             the fact that the person is or was a director, officer,
             employee or agent of the corporation, . . . against expenses
             (including attorneys’ fees) . . . actually and reasonably
             incurred by the person in connection with such action, suit
             or proceeding if the person acted in good faith and in a
             manner the person reasonably believed to be in or not
             opposed to the best interests of the corporation . . . . 118

      Thus, the evidence must show that (1) Pasternack was a party to a threatened,

pending, or completed action, suit, or proceeding by reason of the fact that he was a

director, officer, employee, or agent of Northeastern; (2) the action, suit, or

proceeding was brought neither by nor in the right of the corporation; (3) he actually

and reasonably incurred legal expenses in connection with the action, suit, or

proceeding; and (4) he “acted in good faith and in a manner [he] reasonably believed

to be in or not opposed to the best interests of the corporation.”119

      The parties dispute (1) whether Pasternack was an agent or employee of

Northeastern,120 (2) whether Pasternack’s participation in the underlying FAA

proceedings was “by reason of the fact” of his affiliation with Northeastern, and




118
      8 Del. C. § 145(a).
119
      Id.
120
      Pasternack does not argue that he was acting as an officer or director at the time of
      the Drug Test. See generally Pl.’s Opening Br. 30-43 (arguing only that Pasternack
      was an employee or an agent–independent contractor).


                                           22
(3) whether Pasternack acted in good faith and in a manner he reasonably believed

to be in or not opposed to the best interests of the corporation.121

             1.     Pasternack was an agent of Northeastern
      The party seeking indemnification under Section 145(a) must be a director,

officer, employee, or agent. Pasternack asserts that he is an employee or agent.122

“An agency relationship is created when one party consents to have another act on

its behalf, with the principal controlling and directing the acts of the agent.” 123 “It is

well settled that questions of agency are not subject to absolute rules but, rather, turn

on the facts of the individual case.”124

      Then-Vice Chancellor, now-Chief Justice, Strine discussed agency as it

relates to Section 145 in Fasciana v. Electronic Data Systems Corp.125 As he

explained, to serve the policy rationale of Section 145, this Court limits agency in


121
      Def.’s Answering Br. 9. Defendant also argues that Pasternack failed to mitigate
      his legal expenses. Id. The parties stipulated that the reasonableness of Pasternack’s
      legal expenses will be addressed, if necessary, separately from the determination of
      indemnification. PTO 18 n.3; Post-Trial Hr’g Tr. 32:20-22. Any dispute regarding
      mitigation of legal expenses will be addressed in that process.
122
      Pl.’s Opening Br. 30-43.
123
      Cochran v. Stifel Fin. Corp., 2000 WL 286722, at *17 (Del. Ch. Mar. 8, 2000)
      (quoting Fisher v. Townsends, Inc., 695 A.2d 53, 57 (Del. 1997)), aff’d in pertinent
      part, 809 A.2d 555 (Del. 2002).
124
      Fisher, 695 A.2d at 61 (quoting Sussex Cty. v. Morris, 610 A.2d 1354, 1360 (Del.
      1992)).
125
      829 A.2d 160, 163 (Del. Ch. 2003).


                                            23
the indemnification context to “only those situations when an outside contractor . . .

can be said to be acting as an arm of the corporation vis-à-vis the outside world.”126

Further, the underlying proceeding must result from the purported agent’s “conduct

on behalf of the corporation.” 127

        When applying this definition of agency in the context of a Part 135 charter

flight operator, all pilots, whether full-time or on demand, are agents for the operator

when piloting a flight. Northeastern, as the Part 135 carrier, “authorizes” the pilot

to “exercise operational control” of a flight. 128 The pilot is “acting as an arm of the

corporation vis-à-vis” Northeastern’s passengers, air traffic controllers, and ground

crew.

        Northeastern’s General Operations Manual (the “Manual”) supports this

conclusion. It states explicitly that “[Northeastern] retains responsibility for the

operational control of aircraft operations, and thus the safety of each flight conducted

under its Certificate and Operations Specifications, including the actions of all direct

employees and agents.”129       “All flight crewmembers will be either a Direct




126
        Id.
127
        Id.
128
        14 C.F.R. § 135.77.
129
        JX 16, at NA000708.


                                          24
Employee or an Agent for [Northeastern].” 130 The Manual repeats this explicit

statement: “[All crewmembers] are either employees or agents of [Northeastern].”131

      Defendant concedes this point but tries to distinguish the conduct of a pilot

during a flight from the conduct of a pilot during a drug test. Defendant argues that

Pasternack acted as an agent only when he was piloting a flight and not during other

tasks such as taking the Drug Test. Defendant posits that Pasternack was not acting

on behalf of Northeastern when Pasternack appeared for the Drug Test. 132

      The record shows otherwise. Northeastern provided the names of all its pilots

to its service agent ChoicePoint.133 Northeastern designated Pasternack as one of its

pilots. 134 ChoicePoint randomly selected, from all of Northeastern’s pilots, which

pilots must be tested to satisfy Northeastern’s regulatory obligations for the calendar

quarter. 135 In June 2007, ChoicePoint informed Northeastern that Pasternack had


130
      Id.
131
      Id. at NA000712.
132
      Def.’s Answering Br. 24.
133
      Tr. 132:7-133:12 (Schmitt).
134
      Tr. 87:22-88:5 (Jordan); Tr. 164:1-3 (Montemurro). Defendant argues that
      Pasternack was not subject to random drug testing because he was not current with
      regard to training requirements. This argument does not explain why Northeastern
      kept Pasternack in the pool of pilots, thus making him subject to random drug
      testing. See Tr. 86:4-17 (Jordan) (testifying that Northeastern uses its list of pilots
      as a compliance tracking tool).
135
      Tr. 133:6-15 (Schmitt).


                                            25
been randomly selected. 136         Schmitt, Northeastern’s Designated Employer

Representative, instructed Pasternack to report for the drug test at LabCorp.137 When

Pasternack informed Schmitt that he did not have the requisite CCF Form, Schmitt

sent him a new form and instructed him to report to LabCorp as soon as he received

it.138 Northeastern and ChoicePoint took these actions to ensure Northeastern’s

compliance with FAA and DOT regulations.139

      Pasternack complied with the instructions he received from Northeastern and

ChoicePoint. When Pasternack left the facility, he believed he did so with the

implied permission of the collector at the facility, Theresa Montalvo. 140 Montalvo

then contacted Northeastern. 141 When Pasternack returned to resume the drug test,

Montalvo refused to resume testing until she received authorization from

Northeastern to do so 142 because it was Northeastern’s nondelegable duty to




136
      Tr. 134:20-135:1 (Schmitt).
137
      Tr. 145:14-16 (Schmitt).
138
      Tr. 145:17-146:2 (Schmitt).
139
      See 14 C.F.R. § 135.251 (2009) (recodified at 14 C.F.R. § 120.35).
140
      See PTO ¶¶ II.43-.44.
141
      Tr. 165:15-19 (Montemurro).
142
      Tr. 32:9-12 (Pasternack).


                                          26
determine whether Pasternack could continue the Drug Test.143 By reporting for the

Drug Test and by complying with Northeastern and ChoicePoint’s instructions,

Pasternack acted on behalf of Northeastern to ensure Northeastern’s compliance

with the FAA and DOT regulations. Pasternack acted as an arm of Northeastern vis-

à-vis the FAA and the DOT. Thus, Pasternack acted as Northeastern’s agent during

the Drug Test.

       Because I conclude that Pasternack acted as Northeastern’s agent at the time

of Drug Test, I need not address whether Pasternack was an employee of

Northeastern at that time.

              2.     Pasternack appeared for the Drug Test by reason of the fact
                     of his agency status with Northeastern
       The party seeking indemnification must be a party to a proceeding by reason

of the fact of his corporate function.144 There must be a “causal connection or nexus

between [the underlying proceeding] and [Pasternack’s] corporate function or

‘official [corporate] capacity.’” 145 “The phrase ‘by reason of’ can be equated to ‘by

virtue of,’ ‘by force of,’ or ‘by the authority of.’” 146


143
       49 C.F.R. § 40.355(i).
144
       Perconti v. Thornton Oil Corp., 2002 WL 982419, at *4 (Del. Ch. May 3, 2002).
145
       Id. (third alteration in original) (quoting Cochran v. Stifel Fin. Corp., 2000 WL
       1847676, at *6 (Del. Ch. Mar. 8, 2000)).
146
       Id.


                                            27
      Northeastern determined, in compliance with FAA and DOT regulations, who

was in the pool of pilots subject to random drug testing. 147 Schmitt informed

Pasternack that he was selected to submit to a random drug test and instructed him

to report for the Drug Test.148 Pasternack reported to the Drug Test by reason of the

instructions he received from Schmitt. Although Pasternack, as an on-demand pilot,

could refuse a flight assignment, he could not refuse to take the Drug Test. The

consequence of such a refusal would be that Pasternack could no longer pilot flights

for Northeastern.149

      Additionally, Pasternack had no independent individual requirement to

complete the Drug Test. His sole reason for attending the Drug Test was his

affiliation with Northeastern, a Part 135 charter flight operator. 150       But for

Pasternack’s affiliation with Northeastern, there would have been no reason for him

to initiate the Drug Test. In short, Northeastern instructed Pasternack to report for

the random drug test, and Pasternack did so by reason of that instruction.




147
      Tr. 180:18-20 (Montemurro).
148
      PTO ¶ II.38.
149
      Tr. 217:6-11 (Montemurro).
150
      Tr. 143:17-20 (Schmitt).


                                         28
      Defendant argues that Pasternack prematurely left the testing facility for his

own reasons, not on behalf of Northeastern. 151 Pasternack left the LabCorp facility

because he had an appointment in connection with his work as a medical doctor.152

This argument, however, ignores Pasternack’s reason for appearing for the Drug

Test, which is solely attributable to his affiliation with Northeastern. But for that

relationship, the “refusal to test” and underlying FAA proceeding would not have

occurred. Pasternack appeared for the Drug Test by reason of the fact of his agency

relationship with Northeastern.

             3.     Pasternack acted in good faith and in a manner he
                    reasonably believed to be in or not opposed to the best
                    interests of Northeastern
      Section 145(a) requires that the party seeking indemnification “acted in good

faith and in a manner the person reasonably believed to be in or not opposed to the

best interests of the corporation.”153 Northeastern argues that Pasternack acted in a




151
      Def.’s Answering Br. 24-25.
152
      PTO ¶ II.43; Tr. 30:19-31:2 (Pasternack).
153
      8 Del. C. § 145(a). Although Section 145(c) mandates indemnification when the
      party seeking indemnification was “successful on the merits or otherwise in defense
      of any action, suit, or proceeding,” this mandate applies only to directors and
      officers. See Cochran, 2000 WL 1847676, at *2 n.6 (noting the amendment of
      Section 145(c) in 1994 to remove mandatory indemnification of agents). The parties
      agree that Pasternack was not acting in his role as director or officer in connection
      with the Drug Test or the subsequent proceedings. Def.’s Answering Br. 1-2; see
      generally Pl.’s Opening Br. 3-14.


                                           29
manner opposed to the best interests of Northeastern when he prematurely left the

Drug Test to attend an appointment related to his work as a medical doctor and

completely unrelated to his affiliation with Northeastern and also when he pursued

extensive administrative and legal proceedings to challenge the FAA’s revocation.154

      According to Northeastern, Pasternack, as a medical doctor and as a former

medical review officer, should have known the consequences of his actions—

namely, that the Drug Test would be deemed a “refusal to test.”155 The D.C. Circuit,

however, held that there was insufficient evidence to show that Pasternack left the

Drug Test without the implied permission of the LabCorp collector.156 Further,

Pasternack credibly testified that he was unaware that ChoicePoint would deem his

departure a refusal to test.157 Northeastern points to no credible evidence to the

contrary. Pasternack, therefore, did not act in a manner opposed to Northeastern’s

best interests when he left the Drug Test.

      Additionally, at trial, Russo testified that a pilot’s failed drug test negatively

impacts the carrier’s reputation.158 Pasternack’s challenge to the FAA’s revocation


154
      Def.’s Answering Br. 35-38.
155
      Id. at 37.
156
      Pasternack v. Huerta, 513 F. App’x 1 (D.C. Cir. 2013).
157
      Tr. 34:6-13 (Pasternack).
158
      Tr. 274:21-275:3 (Russo).


                                          30
and his ultimate exoneration served to protect Northeastern’s reputation. Further, if

Pasternack had not challenged the revocation, he would not be allowed to serve

Northeastern as a pilot. His protection of Northeastern’s reputation and his service

to Northeastern were in the best interests, or at a minimum, not opposed to the best

interests, of Northeastern.

      Because Pasternack has shown that he acted as an agent of Northeastern when

appearing for the Drug Test, that he appeared for the Drug Test by reason of the fact

of his agency status, and that he acted in good faith and in a manner he reasonably

believed to be in or not opposed to the best interests of Northeastern, he is entitled

to mandatory indemnification as provided by Northeastern’s Bylaws.159

      B.     Pasternack Timely Requested Indemnification
      Defendant argues that despite Pasternack’s commencement of this

indemnification action within the analogous three-year statute of limitations,

Pasternack’s claim must be denied on the basis of laches.

      “[L]aches generally requires the establishment of three things:              first,

knowledge by the claimant; second, unreasonable delay in bringing the claim, and




159
      The parties have stipulated that the reasonableness of Pasternack’s legal expenses
      will be addressed, if necessary, separately from the determination of
      indemnification. PTO 18 n.3; Post-Trial Hr’g Tr. 32:20-22.


                                          31
third, resulting prejudice to the defendant.”160 A plaintiff’s “action will be barred by

laches only if unusual conditions or extraordinary circumstances make it inequitable

to allow the prosecution of his claim within the time allowed by law.” 161

      Defendant argues that Plaintiff’s unreasonable delay in filing this action

unfairly prejudiced the Company. 162 “[U]nreasonable delay involves consideration

of whether the plaintiff acted with the degree of diligence that fairness and justice

require.” 163 Northeastern claims that had Pasternack requested indemnification

before the conclusion of the underlying proceeding, Northeastern would have

participated in the proceeding to Pasternack’s benefit.164

      First, Plaintiff’s indemnification claim was not ripe until the conclusion of the

underlying FAA proceeding in March 2013.165 Second, Northeastern cites no

authority supporting its purported right to participate in the underlying




160
      Reid v. Spazio, 970 A.2d 176, 182-83 (Del. 2009) (quoting Homestore, Inc. v.
      Tafeen, 888 A.2d 204, 210 (Del. 2005)).
161
      Id. at 183.
162
      Def.’s Answering Br. 46.
163
      Houseman v. Sagerman, 2015 WL 7307323, at *8 (Del. Ch. Nov. 19, 2015).
164
      Def.’s Answering Br. 46.
165
      Kaung v. Cole Nat’l Corp., 884 A.2d 500, 509 (Del. 2005) (“Whether a corporate
      officer has a right to indemnification is a decision that must necessarily await the
      outcome of the investigation or litigation.”).


                                           32
proceedings.166 I am aware of no such authority in Delaware, and Northeastern’s

Bylaws do not establish this right. Third, despite its claim that it was unable to

participate in the underlying FAA proceeding, Northeastern did, in fact, participate

in the underlying FAA proceeding. Northeastern representatives testified in the

underlying FAA proceeding.167

      In support of its argument, Northeastern discusses Houseman v. Sagerman.168

In Houseman, this Court focused on prejudice suffered by the defendants in

determining that the plaintiffs’ delay was unreasonable.             Mrs. Houseman’s

justifications for the delay in filing her claim (that she could not accurately calculate

the monetary amount at issue, that she wanted to avoid the expense of a second

litigation, and that this Court would likely stay the action pending resolution of a

related action in another jurisdiction) “ignore the concern that the Defendants may

suffer prejudice by the Plaintiffs’ delay.” 169 In this action, Defendant fails to show

that Pasternack’s delay in filing his claim offends fairness and justice or prejudices

Northeastern.      Northeastern merely conjectures that Pasternack’s delay is

attributable to the integrity of his claim. Northeastern fails to point to any prejudice


166
      See Def.’s Answering Br. 46.
167
      Tr. 91:10-19 (Jordan); Tr. 164:9-18 (Montemurro).
168
      2015 WL 7307323 (Del. Ch. Nov. 19, 2015).
169
      Id. at *9.


                                           33
it suffered after March 2013, when Pasternack’s indemnification claim became

ripe. 170

        I do not find that “unusual conditions or extraordinary circumstances” are

present that “make it inequitable to allow the prosecution of [Pasternack’s] claim

within the time allowed by [the analogous statute of limitations].”171 I therefore hold

that Pasternack filed this action within a reasonable time after the underlying

proceeding concluded and that laches is inapplicable here.

        C.    Pasternack Is Entitled to Fees-on-fees
        It is well settled in Delaware law that when a claimant prevails on an

indemnification claim, an award of fees-on-fees is permissible. 172 Northeastern

provides indemnification “to the extent permitted by the General Corporation Law

of Delaware.”173 To give full effect to Section 145, an award of fees-on-fees is not

only permissible, but appropriate in light of the language of Northeastern’s

indemnification provision and the policy of Section 145. This policy “eschew[s a]

narrow construction of the statute,” and “without an award of attorneys’ fees for the



170
        See Def.’s Answering Br. 46-47.
171
        Reid, 970 A.2d at 183.
172
        Stifel Fin. Corp. v. Cochran, 809 A.2d 555, 561-62 (Del. 2002); Levy v. HLI
        Operating Co., 924 A.2d 210, 225 (Del. Ch. 2007).
173
        JX 29, at NEA00030.


                                          34
indemnification suit itself, indemnification [is] incomplete.”174 Had Northeastern

desired to avoid payment of fees-on-fees, it could have tailored its indemnification

provision to exclude such payments. 175 It did not. Thus, Pasternack’s request for an

award of fees-on-fees is granted.

III.   CONCLUSION
       For the foregoing reasons, I conclude that Pasternack has shown that he is

entitled to (1) indemnification under Northeastern’s bylaws and (2) fees-on-fees

under Delaware law. Additionally, Defendant has not shown that the doctrine of

laches applies.

       The parties shall confer and advise the Court within thirty days of this opinion

whether any outstanding matters remain that require the Court’s attention. If not,

this opinion will serve as the final order of the Court.

       IT IS SO ORDERED.




174
       Stifel Fin. Corp., 809 A.2d at 561.
175
       See id. at 561-62.


                                             35
