MEMORANDUM OPINION
This mаtter is before the court on the Defendants’ MOTION FOR ADVANCEMENT OF ALL FEES AND EXPENSES (Docket No. 94). For the reasons set forth below, the motion is granted in part and denied in part.
BACKGROUND
On June 19, 2009, James River Management Company Inc., James River Group Inc. (“JRG”), and James River Insurance Company (“JRIC”) filed suit against Kin-sale Management, Inc., Kinsale Capital Group, Inc., Kinsale Capital Group, Inc. (collectively “Kinsale”), William Kenney, Brian Haney, Ann Marie Marson, 1 Edward Desch (collectively “James River Individual Defendants”), Michael Kehoe, and Greg Share.
The facts are recited fully in the Court’s memorandum opinion of November 18, 2009,
On October 29, 2009, Defendants Kehoe, Desch, and Kenney moved “for an Order requiring JRG and JRIC to advance all fees and expenses (including attorneys’ fees) incurred by or on behalf of the above named defendants in сonnection with this litigation.” Def. Mot. at 1. The Defendants note that rights of advancement from JRG and JRIC must be analyzed separately. JRG, of which Kehoe only was a director, and thus from which only Kehoe seeks advancement, is a Delaware corporation. Def. Mem. at 1. JRIC, of which all three Defendants were officers, and thus from which all three Defendants seek advancement, was incorporated in Ohio. Id. Thus, the controlling law differs with respect to the relief sought against JRG and JRIC.
Citing Article VI of JRG’s corporate bylaws, and 8 DeLCode § 145(a), Kehoe asserts that he is entitled to advancement, from JRG, of all fees and expenses incurred to date in this litigation, and all future fees and expenses as they are incurred. Def. Mot. at 1. Next, citing Ohio Code § 1701.13(E), Kehoe, Desch, and Kenney assert that Ohio law similarly mandates advancement of their fees and expenses. Id.
The Plaintiffs concede that Delaware law requires JRG to advance Kehoe’s fees and expenses relating to the breach of fiduciary duty claim against him. PI. Oppo. Mem. at 2. However, they contend that JRG is not required to advance fees *748 for the remainder of the claims against Kehoe, which the Plaintiffs contend implicate Kehoe in his personal capacity, not his capacity as director. As to the claims against JRIC by Kehoe, Desch, and Kenney, JRIC asserts several arguments: (1) “JRiC’s bylaws create no right of advancement,” and thus do not trigger Ohio Rev. Code § 1701.13(E); (2) Ohio Rev.Code § 1701.13(E) does not apply “to suits ... brought by current corporate management against officers or directors;” and (3) Ohio law “does not mandate advancement to former directors, only current ones.” Id. at 2-5 (emphasis added). 2
The motion is fully briefed, and the matter is ripe for resolution. The moving Defendants have requested oral argument. However, the Court does not consider that to be necessary because the issues are adequately briefed and argument would not materially aid the decisional process.
1. The Applicable Legal Standard 3
“[A] cоrporation can make the right to advancement of expenses mandatory, through a provision in its certificate of incorporation or bylaws.”
Gentile v. SinglePoint Financial, Inc.,
Advancement is a remedy distinct from indemnification, and, due to the necessity of promptly adjudicating issues of advancement, a director’s right to advancement must be determined before his ultimate right to indemnification.
Homestore, Inc. v. Tafeen,
II. JRG’s Advancement Obligations Under Delaware Law.
The Delaware Code, providing for indemnification of officers by the corporations they serve, as follows:
A corporation shall have power to indemnify any person who was or is a party ... to any threatened, pending or completеd action, suit or proceeding, *749 whether civil, criminal, administrative or investigative ... by reason of the fact that the person is or was a director, officer, employee or agent of the corporation ... against expenses (including attorneys’ fees), actually and reasonably incurred by the person in connection with such action ... if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation. ...
8 Del.Code § 145(a). Indemnification is available for defending actions “by or in the right of the corporation to procure а judgment in its favor,” 4 even if the Defendant does not ultimately prevail on the merits, if a chancery court decides that “in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity.” Id. § 145(b).
The statute further provides that the corporation may agree to pay these fees and expenses in such proceedings “in advance of the final disposition of such action ... upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation.... ” Id. § 145(e). This right is commonly referrеd to as “advancement.”
The Delaware indemnification and advancement statute demonstrates the state’s “salutary public policy [of] attracting the most capable people into corporate service.”
Homestore,
Expenses (including attorneys’ fees) incurred by a present or former director, officer, employee, or agent in dеfending any civil, criminal, administrative, or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit, or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Corporation as authorized in this Article VI.....
The Delaware advancement and indemnification statute “should be broadly interpreted to further the goals it was enacted to achieve.”
Stifel Financial Corp. v. Cochran,
However, advancement and indemnification rights may only extend to legal proceedings incurred “by reason of the fact” of the director’s position
qua
director. 8 Del.Code § 245;
see also Homestore,
The line between actions taken in a personal vis-á-vis a corporate capacity is not drawn according to whether the dirеctor or officer acted detrimentally to the interest of the corporation, but instead on whether “there is a nexus or causal connection between any of the underlying proceedings ... and one’s corporate capacity, without regard to one’s motivation for engaging in that conduct.”
Homestore,
Furthermore, although advancement appears to occur most frequently in cases where the essence of the corporation’s allegations is a breach of fiduciary duty claim, there is no requirement that only claims pled specifically as “breach of fiduciary duty” trigger advancement rights.
Reddy,
The Delaware chancery court, in
Brown v. LiveOps, Inc.,
he would not have had access to the confidential and proprietary information alleged to have been misappropriated had he not been a corрorate officer.... Essentially, Brown argues that he is entitled to advancement of his legal expenses because there is a causal connection between his role as an officer and director ... and the claims asserted against him....
Id. at 327. The court agreed. Quoting Homestore, the court noted that, “if there is a nexus or causal connection between any of the underlying proceedings ... and one’s official corporate capacity, those proceedings are ‘by reason of the fact’ that one was a corporate officer.” The court *751 then found that the former co-founder’s alleged acts were “inextricably intertwined” with his role in corporate management. Id. at 328. The allegations were not, nor could they have been, “strictly confined to his actions after his termination as a director and officer of the company.” Id. at 329.
The Plaintiffs raise two cases showing that actions for breach of employment agreements, in some instances, implicate a director only in his personal capacity, thus rendering advancement and indemnification inappropriate. In
Stifel,
In
Weaver v. ZeniMax Media, Inc.,
The Defendants’ efforts to distinguish Stifel and Weaver from Brown notwithstanding, the decisions stand in considerable tension. Whereas Weaver identified non-compete litigation as a “quintessential example” of litigation implicating a former employee in his personal capacity, Brown found that claims of “unfair competition” and “breach of a termination agreement” arose directly out of a former director’s corporate capacity.
The more factually similar Brown decision, decided more recently and decided in light of the Supreme Court of Delaware’s landmark 2005 Homestore decision, must control. Kehoe is accused of doing, for purposes of this analysis, exactly what the party seeking advancement in Brown had done. Kehoe allegedly used his “entrusted corporate powers” to form the knowledge and expertise required to assemble a competing company. He then allegedly organized the appropriation of JRG’s trade secrets and lured key personnel away from James River. Whether phrased as a “nexus,” a “causal connection,” or something else, Kehoe’s liability, if any is to be found, would have arisen directly out of his prior role as a JRG director.
Though one can question the wisdom of the policy decisions, both by the Delaware General Assembly in enacting 8 Del.Code § 145, and by JRG in offering full advancement to its directors, one cannot question the clarity of Delaware law on *752 this issue. This action, as was DeLucca v. KKAT Management, L.L.C.,
is yet another case in which [corporations] in an advancement case seek to escape the consequences of their own contractual freedom. Regretting the broad grant of mandatory advancement they forged on a clear day, they seek to have the judiciary ignore the plain language of their contracts and generate an after-the-fact judicial contract that reflects their current preference. But it is not the job of a court to relieve sophisticated parties of the burdens of contracts they wish they had drafted differently but in fact did not. Rather, it is the court’s job to enforce the clear terms of contracts. Here, that duty requires that [the] motion for ... advancement be granted.
III. JRIC’s Advancement Obligations Under Ohio Law
Ohio law has a statute analogous to that of Delaware granting corporations the right provide for indemnification and advancement of directors’ legal expenses. Ohio Code § 1701.13, entitled “Authority of Corporation,” provides that “[a] corporation may indemnify or agree to indemnify” its management in the same way, for the purposes of this ruling, 6 as is allowed in the Delaware statute. Id. § 1701.13(E)(1)-(2).
However, on the topic of advancement, the Ohio statute is worded somewhat differently from the Delaware statute. It reads as follows:
Unless at the time of a director’s act or omission that is the subject of an action, suit, or proceeding referred to in division (E)(1) or (2) of this section, the articles or the regulations of a corporation state, by specific reference to this division, that the provisions of this division do not apply ... expenses, including attorney’s fees, incurred by a director in defending the action, suit, or proceeding shall be paid by the corporation as they are incurred, in advance of the final disposition of the action.... 7
Id. § 1701.13(E)(5)(a) (emphasis added).
Ohio law on advancement is, charitably put, less fully developed than that of Delaware. The Court of Appeals of Ohio acknowledged as much in
MD Acquisition, L.L.C. v. Myers,
*753 Although the Ohio and Delaware statutes are similar, both structurally and respecting the verbiage used, the statutes are not identical. For purposes of this case, the key difference between the two statutes is that the Ohio statute’s advancement provision states that, for a suit referenced in division 1701.13(E)(1) or (E)(2) (respecting indemnification), expenses “shall be paid ... as they are incurred, in advance of the final disposition of the action” unlеss the corporation specifically states that it does not wish to confer advancement rights. Id. § 1701.13(E)(5) (emphasis added). The Delaware advancement provision (8 Del.Code § 145(e)), by comparison, does not mention the prior indemnification provisions (id. § 145(a)-(b)) within the same statute, and states that fees and expenses “may be paid ... in advance of the final disposition of such action.” Id. § 145(e).
The Delaware statute unambiguously indicates that the advancement right is permissive, in that corporations are not required to advance fees and expenses, but may rather exercise their right to do so by means such as contract or incorporation into their bylaws. The Ohio statute, on the other hand, is ambiguous. One сould interpret it, as the Defendants urge, to command a result that corporations must always advance fees and expenses any time a corporate officer or director is sued for acts with a nexus to his official capacity. Alternatively, one could view the right to advancement defined in division -(E)(5) as devolving from a decision under (E)(1) or (E)(2) to indemnify, as the Plaintiffs argue. It is undisputed that JRIC did not provide advancement or indemnification rights to its officers in its bylaws. Pl. Oppo. Mot. at 2.
The Plaintiffs’ view is the correct one, the Defendants’ hyperbolic disparagement thereof as “twisted and incomprehensible” (Def. Reply at 13) notwithstanding. Reading the stаtute as a whole, its plain language supports the construction that advancement is mandated only when the corporation has exercised the underlying right to make indemnification available. Even looking beyond the plain language of the statute as a whole, the latter view is better policy. The policy considerations set forth in the numerous Delaware decisions on the issue carry no weight when advancement is not a corporate decision, but is mandated in all cases, for every corporate manager.
First, a statute’s plain meaning may, in some small measure, be found by examining the title of the statute even though the language of the title is not dispositive. The pertinent statute is entitled “Authority of corporation.” Thus, it is evident that phrases within the statute pertain to powers that a corporation may grant or take away. The advancement provision’s location under the heading of corporate authority makes clear that corporations are given the power to grant indemnification and the corollary remedy of advancement; however, they are not required to exercise this power. Although division (E)(5) could be read as granting corporations the authority to opt out of advancement, it would be incongruous to require corporаtions to “opt in” to indemnification, the underlying remedy that advancement is meant to enhance, but “opt out” of the corollary advancement remedy.
Second, Division (E)(5) of the statute refers specifically to the indemnification divisions, (E)(1) and (E)(2). Although Division (E)(5) states that a corporation can only opt out of advancement “by specific reference to this division, that the provisions of this division do not apply,” it is illogical to view this outside of the context of the indemnification divisions, (E)(1) and (E)(2), particularly when these indemnification divisions are cited within (E)(5). The Defendants’ interpretation of this am
*754
biguously written statute, that advancement is mandatory even in the absence of a right to indemnification unless the corporation opts out of the advancement division, would be very plausible outside of its context, but is not plausible in context. And, it is axiomatic that statutory provisions must be interpreted in the context of related statutory provisions.
E.g., State ex rel. Choices for South-Western City Schools v. Anthony,
The Defendants’ strongest contention relates to another division of the statute, which states, in full:
The authority of a corporation to indemnify persons pursuant to division (E)(1) or (2) of this section does not limit the payment of expenses as they are incurred, indemnification, insurance, or other protection that may be provided pursuant to divisions (E)(5), (6), and (7) of this section. Divisions (E)(1) and (2) of this section do not create any obligation to repay or return payments made by the corporation pursuant to division (E)(5), (6), or (7).
Id. (E)(8). This provision recognizes that advancement may be made even when statutory indemnification is not available. It could, out of context, support an interpretation that advancement is required even in the absence of an indemnification provision.
However, the statute must be read as a whole. Its admonishment that (E)(1) and (E)(2) do not limit other protection that a corporation may provide is instructive. A corporation may choose to advance expenses even when it provides no underlying right of indemnification, and even when it will ultimately not request repayment. 8 But, all in all, the statute cannot be read to mandate advancement as the default rule for all employees under all circumstances. Indeed, the statute’s use of the words “may be provided pursuant to ... (E)(5)” underscores the fact that a corporation’s decision to advance legal expenses is one that must be actively exercised in its bylaws or through contract.
From a policy standpoint, it is very important to note that, in Delaware, “[n]o Delaware corporation is required to provide for advancement of expenses.”
Homestore,
The extent to which advancement provisions, particularly in a corporation’s bylaws, reflect a bargained-for agreement, or are more accurately characterized as undue influеnce of corporate managers over their own pay, irrespective of the potential detriment to shareholders, is debatable. See Jesse M. Fried, Option Backdating and Its Implications, 65 Wash. & Lee L. Rev. 853, 884-85 (2008) (contending that “[t]he fundamental problem in U.S. corporate governance ... is that executives of widely held firms exert too much influence over their boards”). Provisions such as advancement are particularly attractive to corporations as a form of “hidden” compensation — they do not appear on the corporation’s balance sheet. Cf. id. 9 They *755 are also exceedingly attractive to prospective officers and directors, due in no smаll part to their “performance-insensitivity.” Id. Of course, such measures appear shortsighted from the corporation’s perspective when it ultimately ends up footing a hefty legal bill for a former executive who may have abused his corporate powers.
Be that as it may, Delaware law allows corporations the freedom to grant, through voluntary agreement, broad advancement rights to their officers and directors. But, when advancement rights are wrenched from their conceptual moorings in contractual freedom, they lose their supposed benefits. Advancement rights are of no benefit to winning the war on talеnt when they are not granted by contract, but rather prescribed by statute. It would also result in legal fees being advanced in cases where the party seeking advancement has absolutely no prospect of ultimate indemnification from the corporation. Thus, policy considerations respecting interpretation of the Ohio advancement and indemnification statute require that advancement be linked to its indemnification remedy, which may be granted or withheld by a corporation.
IV. What Expenses Must JRG Advance To Kehoe?
Having concluded that JRG must advance Kehoe’s expenses for its claims against him, but that JRIC is not required to advance expenses for its three fоrmer officers, the Court’s task has just begun. It is necessary now to assess which expenses, in particular, were made on Kehoe’s behalf, and which were made on behalf of the other Defendants.
To begin, it is evident that all of the claims against Kehoe result from actions arising out of his status as a former director of JRG. 10 Thus, Kehoe is entitled to advancement of all reasonable fees and expenses incurred by his counsel on his behalf. However, the fees and expenses for the other Defendants represented by counsel for Kehoe, to the extent that these fees and expenses are severable, need not be advanсed.
In
Homestore,
Counsel for Kehoe have prepared a 140-page listing of all expenses incurred in this case to date. Def. Reply Exh. 4. Considering the decisions reached herein, it will be necessary for Defendants’ counsel to segregate the advancement claim to identify those fees and expenses incurred on Kehoe’s behalf. To that end, counsel shall submit a memorandum supporting the fees and expenses claimed for Kehoe. If the Plaintiffs disagree with an item they may *756 file a response memorandum and the Defendants may reply. The parties shall forthwith tender an agreed order scheduling the filing of these memoranda. 11
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the Defendants’ MOTION FOR ADVANCEMENT OF ALL FEES AND EXPENSES (Docket No. 94) should be denied as to JRIC, and granted as to JRG, respecting the fees and expenses that Kehoe’s counsel has incurred in representing him.
It is SO ORDERED.
Notes
. Ms. Marson is no longer a named Defendant in this case.
. Because the Plaintiffs first argument is dis-positive, the second and third arguments are not addressed. If they were to be addressed, they would not be persuasive.
. This section focuses on Delaware law, because there is almost no Ohio case law on the subject of advancement and indemnification pursuant to the Ohio statute.
. Presumably, this refers to shareholder derivative actions.
. Tafeen later pled guilty to securities fraud, received a 30-month jail term for that offense, and settled a civil suit for over $2.6 million. Mark Stein, Real Money, N.Y. Times, Nov. 12, 2006, § 3, at 2.
. Ohio law differs slightly respecting indemnification for "Unlawful loans, dividends, distribution of assets,” Ohio Code § 1701.95, in a way that does not impact this case.
. The statute also requires the directors whose expenses are advanced to issue an "undertaking” (1) to repay the advancement if a Court finds that he acted “with deliberate intent to cause injury to the corporation or undertaken with reckless disregard for the best interests of the corporation;” and (2) to "[Reasonably сooperate with the corporation concerning the action.” The Defendants assert that they have issued this required undertaking to JRIC. Def. Mot. at 1-2.
. For example, as (E)(8) recognizes, the corporation may have insurance that will cover the officer's legal expenses, even in the absence of any direct corporate liability to indemnify the officer.
. Professor Fried, in his article on options backdating, observes that the practice is "simply one example of a long-standing practice of boards favoring managers through executive pay arrangements, and then seeking to hide the amount and performаnce-insensitivity of *755 the compensation from shareholders. More broadly, it reflects a general tendency on the part of directors to favor executives in many aspects of corporate governance decision-making, one that arises because directors are insufficiently accountable to shareholders.” Id.
. Defendant Kehoe is named in the following counts: I, III-V, VII, IX, XI-XIII, and XVI.
. Counsel are admonished to be judicious in the proper allocation of fees and expenses and in any opposition thereto. The Court does not intend to tolerate nit-picking objection any more than it will tolerate overreaching claims and any counsel who is found to engage in either activity will be sanctioned.