         IN THE SUPREME COURT OF THE STATE OF DELAWARE

  PLATEAU DATA SERVICES, LLC and               §
  ZETA INTERACTIVE, formerly known             §
  as XL MARKETING CORP.,                       §   No. 83, 2018
                                               §
         Defendants Below-                     §
         Appellants,                           §   Court Below: Superior Court
                                               §   of the State of Delaware
         v.                                    §
                                               §   C.A. No. N15C-03-096
  ADCHEMY, INC.,                               §
                                               §
         Plaintiff Below-                      §
         Appellee.                             §

                            Submitted: February 16, 2018
                            Decided: March 2, 2018

Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.

                                     ORDER

      This 2nd day of March 2018, upon consideration of the notice of interlocutory

appeal, it appears that:

      (1)     The defendants below, Plateau Data Services, LLC and Zeta Interactive

(collectively, “Plateau”), have petitioned this Court under Supreme Court Rule 42

to accept an interlocutory appeal from a memorandum opinion of the Superior Court

dated December 19, 2017 (“the Memorandum Opinion”).               The Memorandum

Opinion granted plaintiff Adchemy, Inc’s motion in limine to preclude Plateau from

presenting evidence at trial relating to consequential or opportunity cost damages or

the loss of anticipated or future business profits. The Superior Court concluded that
all of Plateau’s counterclaims, in substance, alleged breaches of representations and

warranties and that, under the clear terms of the parties’ agreement, indemnification

was the exclusive remedy. Plateau filed a motion for reargument, which the Superior

Court denied on January 18, 2018.

        (2)   Plateau filed an application for certification in the Superior Court to

take an interlocutory appeal of the Memorandum Opinion on January 29, 2018.

Plateau argued that its application met the criteria of Rule 42 because the

Memorandum Opinion decided a substantial issue of material importance. Plateau

also argued that the Memorandum Opinion reversed the Superior Court’s earlier

ruling that it would not consider untimely motions for summary judgment disguised

as motions in limine. Plateau also argued that interlocutory review may substantially

reduce the litigation and otherwise serve considerations of justice. Adchemy filed

its response in opposition on February 6, 2018.

        (3)   The Superior Court denied the certification application on February 14,

2018.     In denying certification, the Superior Court acknowledged that the

Memorandum Opinion decided a substantial issue of material importance. The

Superior Court also noted that the motion in limine was partially dispositive and thus

untimely under the court’s prior ruling. But, the Superior Court rejected Plateau’s

contention that the Memorandum Opinion “reversed or set aside a prior decision of

the trial court” under Rule 42(b)(iii)(E) because the legal issue presented—the



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contract interpretation regarding available damages—was not contrary to any of the

court’s prior decisions. The Superior Court noted that it had discretion to address

the substance of the untimely motion before trial in the interests of judicial economy

and to enable the parties to efficiently prepare for trial. The Superior Court

concluded that certification was not warranted because interlocutory review would

not substantially reduce further litigation or otherwise serve considerations of

justice.

          (4)     We agree that interlocutory review is not warranted in this case.

Applications for interlocutory review are addressed to the sound discretion of this

Court. In the exercise of its discretion, this Court has concluded that the application

for interlocutory review does not meet the strict standards for certification under

Supreme Court Rule 42(b). The case is not exceptional,1 and the potential benefits

of interlocutory review do not outweigh the inefficiency, disruption, and probable

costs caused by an interlocutory appeal.2

          NOW, THEREFORE, IT IS ORDERED that the interlocutory appeal is

REFUSED.

                                         BY THE COURT:
                                         /s/ Leo E. Strine, Jr.
                                         Chief Justice


1
    Del. Supr. Ct. R. 42(b)(ii)
2
    Id. 42(b)(iii).


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