OPINION AND ORDER This dispute concerns whether plaintiff Suk Joon Ryu is entitled to advancement of the attorney’s fees he has incurred and will continue to incur in connection with federal investigations and a civil action arising out of his alleged embezzlement from his former employer, BankAsiana. Before the Court is defendant’s motion to dismiss the complaint, ECF No. 19, and plaintiff’s motion for summary judgment, ECF No. 14.Ryu served as the Senior Vice President and Chief Operating Officer of BankAsiana until its merger with Wilshire Bancorp, Inc. (“Wilshire Bancorp”) in 2013. Defendant Hope Bancorp, Inc. (“Hope Bancorp”) is Wilshire Bancorp’s successor by merger. Some time after BankAsiana and Wilshire Bancorp were merged, Miye Chon, a former BankAsiana employee, confessed to Wilshire Bank that she had embezzled money from BankAsiana. She alleged that Ryu was also involved. In connection with these allegations, the Federal Bureau of Investigation and the U.S. Department of Justice opened a criminal investigation into the alleged embezzlement and Hope Bancorp filed a civil action against Ryu and Chon, among others, in the federal district court for the District of New Jersey.Ryu here seeks advancement of attorney’s fees under Section 6.7 of the Merger Agreement between Wilshire Bancorp and BankAsiana, pursuant to which Wilshire Bancorp “shall indemnify” directors or officers of BankAsiana “against” “any and all claims” — including “any and all claims, actions, suits, proceedings or investigations brought by” BankAsiana or any of its affiliates — “to the fullest extent possible that [BankAsiana] would have been permitted under its certificate of incorporation and bylaws” and “shall” also “advance expenses as incurred…to the fullest extent so permitted.”Plaintiff filed the instant action on February 12, 2018. See ECF No. 1. By telephone conference on February 22, 2018, plaintiff requested expeditious resolution of his claim. Defendant opposed the request. At an initial conference held the following week, on February 26, 2018, the Court set a briefing schedule for defendant’s motion to dismiss and plaintiff’s motion for summary judgment. See ECF No. 10. Upon full consideration of the papers submitted by the parties in connection with both motions, as well as the arguments presented at a hearing held on April 9, 2018, the Court rules as follows.Defendant’s Motion to DismissDefendant moves to dismiss the Complaint under Federal Rule of Civil Procedure 12(b) (6), arguing that Ryu is not entitled to advancement under the terms of the Merger Agreement since Hope Bancorp has denied Ryu’s demand and, in defendant’s view, the Merger Agreement does not mandate advancement. See Defendant Hope Bancorp, Inc.’s Memorandum of Law in Support of its Motion to Dismiss (“Def. Mem.”), ECF No. 21.To survive a motion dismiss under Rule 12(b)(6), a pleading must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court draws all reasonable inferences in plaintiff’s favor and accepts as true all well-pleaded factual allegations in the complaint.I. BackgroundThe pertinent allegations from the Complaint are as follows:Plaintiff Suk Joon Ryu served as the Senior Vice President and Chief Operating Officer for BankAsiana from its founding until its merger with Wilshire Bancorp in October 2013. Complaint (“Compl.”) at
1-2, ECF No. 1. Wilshire Bank is a wholly owned subsidiary of Wilshire Bancorp. Id. at 6.In January 2014, Miye Chon (a/k/a Karen Chon), a former employee of BankAsiana, admitted to Wilshire Bank that she had embezzled over a million dollars from BankAsiana during the period from 2010 to 2013. She claimed that Ryu knew about and approved of her criminal activities and that she gave a large part of the cash to him. Id. at 3. Chon’s allegation led to a criminal investigation by the United States Department of Justice and the Federal Bureau of Investigation (the “Government Investigations”). Id. at 5. Ryu has incurred fees in connection with these investigations but has not been charged with anything. Id. at
