Nationwide Retirement Solutions, Inc. v. Pebco, Inc.

Summary

The court held that the indemnification clause did not require NRS to reimburse PEBCO for attorney fees and expenses from the class action because that action arose from NRS's performance of its sponsorship-payment duty, not from a failure to perform under the agreement. The court also held that PEBCO was not entitled to recover fees incurred in establishing its claimed right to indemnification and could not recover defense costs for claims involving its own allegedly wrongful acts. Justice Shaw, concurring in the result, would have focused on whether NRS actually breached its specified best-efforts duty rather than treating the occurrence of the litigation as dispositive.