Submitted: April 17, 2019
M. McCartney, Elizabeth A. Powers, BAYARD, P.A., Wilmington,
Delaware; Shawn M. Kennedy, MODERA LEGAL, Irvine, California;
Counsel for the Plaintiff.
Lopez Schnabel, Alessandra Glorioso, DORSEY & WHITNEY
LLP, Wilmington, Delaware; John Baker; Bryan M. McGarry;
DORSEY & WHITNEY LLP, Costa Mesa, California; Counsel for
Li was an employee of loanDepot.com, LLC (the
"Company"). The Company's limited liability
company agreement (the "LLC Agreement") granted
employees and agents a right to mandatory indemnification to
the fullest extent of the law. Compl. Ex. A § 6.4(a).
The indemnification right included a right to mandatory
advancement for any proceeding for which the indemnitee might
ultimately be entitled to indemnification.
Company sued Li, then commenced an arbitration against him.
Both proceedings implicated Li's advancement rights. The
Company subsequently dismissed the arbitration against Li
without prejudice, triggering the portion of Li's
fullest-extent-of-the-law indemnification right that applies
when an indemnitee has been successful on the merits or
otherwise. See Meyers v. Quiz-DIA LLC, 2017 WL
2438328, at *7-8 (Del. Ch. June 6, 2017); Stockman v.
Heartland Indus. P'rs, 2009 WL 2096213, at *10-11,
17-18 (Del. Ch. Jul. 14, 2009) (Strine, V.C.).
in this court to enforce his advancement right. The Company
moved to dismiss the case, citing a mandatory forum selection
clause in the LLC Agreement which called for any disputes
relating to the LLC Agreement to be heard "in the state
or federal courts located in Los Angeles, California . . .
." Compl. Ex. A § 14.8.
Delaware law, "[a] valid forum selection clause must be
enforced." Nat'l Indus. Gp. (Hldg.) v. Carlyle
Inv. Mgmt. L.L.C., 67 A.3d 373, 381 (Del. 2013). Forum
selection clauses are generally valid "unless the
resisting party can 'clearly show that enforcement would
be unreasonable and unjust, or that the clause was invalid
for such reason as fraud or overreaching.'"
Id. (quoting The Bremen v. Zapata Off-Shore
Co., 407 U.S. 1, 15 (1972)).
not challenge the forum selection clause on the traditional
grounds. Li relies instead on Section 18-109(d) of the
Delaware Limited Liability Company Act (the "LLC
Act"). With formatting and enumeration added to promote
clarity, that section states:
 In a written limited liability company agreement or other
writing, a manager or member may consent [a]to be subject to
[i] the nonexclusive jurisdiction of the courts of, or
arbitration in, a specified jurisdiction, or
[ii] the exclusive jurisdiction of the courts of the State of
[iii] the exclusivity of arbitration in a specified
jurisdiction or the State of Delaware, and
[b]to be served with legal process in the manner prescribed
in such limited liability company ...