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Barry M. Klayman and Mark E. Felger Barry M. Klayman and Mark E. Felger

A pair of decisions by the Delaware Court of Chancery and the Delaware Supreme Court have clarified the time to seek an award of attorney fees for successfully defending against an alleged frivolous appeal. In The Marilyn Abrams Living Trust v. Pope Investments, C.A. No. 12829-VCL (Del. Ch. May 29, 2018), Vice Chancellor J. Travis Laster held that when the trial court has awarded a party expenses under the bad-faith exception to the American Rule, and that party successfully defends the trial court’s ruling on appeal, the trial court lacks authority after the appeal to award the expenses that the party incurred defending the appeal. In a subsequent decision, Pope Investments v. The Marilyn Abrams Living Trust, No. 259, 2017 (Del. July 18, 2018), the Supreme Court held that it had no jurisdiction to consider the party’s motion for attorney fees after the mandate had issued and the case was closed.

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