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In the Matter of Miller

A corporate officer is not entitled to indemnification under Delaware law for acts committed for his own benefit before he was employed by the corporation, because he was not sued "by reason of the fact" that he was an officer of the potential indemnitor.

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As amended April 29, 2002

The issue in this case is whether a corporate officer is entitled to indemnification under Delaware law for acts committed for his own benefit before he was employed by the corporation. Affirming the decisions of the bankruptcy and district courts in the narrow circumstances presented, we hold that he is not so entitled, because he was not sued “by reason of the fact” that he was a officer of the potential indemnitor. See Del. Code Ann. tit. 8, � 145(a).

This case has been appealed by the Trustee of the estate of William L. Miller, who sought bankruptcy relief after being pursued to judgment by his former employer for misappropriation of proprietary information or improper use of trade secrets. Miller had worked for Abrams, Inc., a large Texas road construction contractor, unhappily for several years. He plotted his escape over a period of time, finally deciding to attract another major construction company, Balfour Beatty,*fn2 into the Texas market with him as its leader. While negotiating with Balfour Beatty in the autumn of 1993, and still an employee of Abrams, Miller took three boxes of Abrams documents and apparently used them to persuade Balfour Beatty of the attractiveness of competing in Texas. Miller then jumped ship to become Balfour Beatty’s chief operating officer in Texas in February 1994.

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