Miller v. Miller, 973 N.E.2d 228

Trumbull Industries is an Ohio plumbing-supply corporation with Samuel M. Miller as a significant shareholder, officer, and director, and with his Revocable Living Trust owning 25% of voting shares.
Sam M. engaged in the Brand Company project involving private-brand plumbing products and potential sales to Jacuzzi, without informing the other shareholders.
In 2002 Sam M. became involved with Umbs in negotiating a transaction with Jacuzzi, including conduct alleged to be improper.
In February 2003 Murray and Sam H. filed suit against Sam M. and Umbs for injunctive relief and damages related to the Brand Company misconduct.
On September 13, 2005 Sam M. executed an undertaking under R.C. 1701.13(E)(5)(a) to repay advances and to reasonably cooperate in the action.
The trial court ultimately ordered Sam M. to reimburse portions of defense costs, and the parties pursued multiple appeals, culminating in a discretionary Supreme Court review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is advancement of expenses mandatory under R.C. 1701.13(E)(5)(a)?	Miller argues advancement is mandatory when director acts within corporate affairs.	Miller argues the statute does not apply as the suit concerns actions outside direct corporate acts.	Yes; advancement is mandatory unless the corporation opts out.
Do advancement and indemnification have to be treated as the same remedy?	Advancement is a separate remedy from indemnification.	Indemnification analyses govern only after the fact, not during advancement.	Advancement is a distinct remedy, not contingent on indemnification.
Did Trumbull opt out of R.C. 1701.13(E)(5)(a) via its articles of incorporation?	If no explicit opt-out language, advancement is mandatory.	Articles could expressly exclude application of (E)(5).	Trumbull did not opt out; advancement required.
Does the status of Sam M. as an officer bar advancement from a suit by the corporation?	Advancement applies beyond officer/director status and is not limited by business-judgment rule.	Officers cannot be advanced when suing the director for fiduciary breaches.	Advancement applies regardless of officer status; not limited by role.

Stein, United States v., 452 F.Supp.2d 230 (S.D.N.Y. 2006) (advancement decisions occur during the underlying action; not for indemnification.)
Kaung v. Cole Natl. Corp., 884 A.2d 500 (Del. 2005) (advancement and indemnification distinguished; pre-indemnification advancement contemplated.)
Homestore, Inc. v. Tafeen, 888 A.2d 204 (Del. 2005) (advancement as corollary to indemnification; protection for corporate officials.)
Kehoe, James River Mgt. Co. v. Kehoe, 674 F.Supp.2d 745 (E.D. Va. 2009) (distinguishes by presence/absence of indemnification provisions; by-laws context.)
Ridder v. CityFed Fin. Corp., 47 F.3d 85 (3d Cir. 1995) (recognizes advancement principles for defense costs.)