Bako Pathology LP v. Bakotic ( 2022 )


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  •            IN THE SUPREME COURT OF THE STATE OF DELAWARE
    BAKO PATHOLOGY LP, BPA                  §
    HOLDING CORP., and BAKO                 §      No. 382, 2021
    PATHOLOGY ASSOCIATES, LLC,              §
    §
    Defendants Below,                 §
    Appellants/Cross-Appellees,       §      Court Below—Superior Court
    §      of the State of Delaware
    v.                         §
    §      C.A. No. N17C-12-337
    BRADLEY BAKOTIC and                     §
    JOSEPH HACKEL,                          §
    §
    Plaintiffs Below,                 §
    Appellees/Cross-Appellants        §
    Submitted:   September 21, 2022
    Decided:     November 28, 2022
    Before VALIHURA, VAUGHN, and TRAYNOR, Justices.
    Upon appeal from the Superior Court. AFFIRMED in part, REVERSED in part, and
    REMANDED.
    Mary F. Dugan, Esquire, Lauren E.M. Russell, Esquire, Young Conaway Stargatt &
    Taylor, LLP, Wilmington, Delaware. Of counsel: Robert W. Capobianco, Esquire
    (argued), Adriana R. Midence, Esquire, Kelli N. Church, Esquire, Jackson Lewis P.C.,
    Atlanta, Georgia, for Appellants.
    Bruce W. McCullough, Esquire, Bodell Bove, LLC, Wilmington, Delaware. Of counsel:
    Salmeh K. Fodor, Esquire, Kristoffer V. Sargent, Esquire (argued), KF Law, LLC, Atlanta,
    Georgia, for Appellees.
    VALIHURA, Justice:
    INTRODUCTION
    This is an appeal in a protracted contractual battle between two sides that dispute
    the meaning and application of certain restrictive covenants. Since the filing of the action
    in the Superior Court in December 2017, the parties proceeded through Rule 12 motions,
    then discovery and summary judgment motions, and, ultimately, a seven-day bench trial.
    The Superior Court held that Plaintiffs Below, Appellees/Cross-Appellants, two
    doctors who started a laboratory testing enterprise known as Bako Diagnostics (“Bako”),
    breached certain restrictive covenants when they left Bako to form a new, competing
    laboratory enterprise. Despite fee-shifting provisions in certain of the contracts, the trial
    court declined to award attorneys’ fees.
    We agree with the Superior Court’s determinations that the two doctors breached
    certain of the restrictive covenants. But because it appears that the Superior Court may
    have misapplied the formula that both sides employed for calculating damages, we remand
    for the court to clarify how it derived its damages award and for any needed revisions.
    Further, we disagree that no attorneys’ fees were warranted under certain of the contracts.
    Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further
    proceedings consistent with this Opinion.
    2
    I.     RELEVANT FACTS AND PROCEDURAL BACKGROUND1
    A. The Parties
    Defendant Below, Appellant/Cross-Appellee Bako Pathology LP (“Bako LP”) is a
    Delaware limited partnership. Defendant Below, Appellant/Cross-Appellee BPA Holding
    Corp. (“BPA Holding”) is a Delaware corporation.               Bako LP owns BPA Holding.
    Defendant Below, Appellant/Cross-Appellee Bakotic Pathology Associates, LLC
    (“Bakotic Associates”) is a limited liability company formed under the laws of the State of
    Georgia.2 BPA Holding is the sole member of Bakotic Associates.
    Plaintiff Below, Appellee/Cross-Appellant Dr. Bradley Bakotic, D.P.M., D.O. (“Dr.
    Bakotic”) “is a licensed doctor of podiatric medicine and osteopathic medicine.” 3 Dr.
    Bakotic served as the CEO of Bakotic Associates until September 2017.
    Plaintiff Below, Appellee/Cross-Appellant Dr. Joseph Hackel, M.D. (“Dr. Hackel”
    and together with Dr. Bakotic, the “Doctors”)4 “is a licensed medical doctor”5 who worked
    1
    The facts, except as otherwise noted, are taken from the post-trial opinion below, Bakotic &
    Hackel v. Bako Pathology LP, et al., C.A. No. N17C-12-337 WCC (Nov. 2, 2021) [hereinafter,
    the Opinion].
    2
    A232 (Compl. ¶ 10). Bakotic Associates has also been referred to in the trial court proceedings
    as “Bako Diagnostics” or “Bako.” B21 (Pretrial Stipulation and Proposed Order at 5). We use the
    term “Bako” to refer to the physical laboratory that “provid[es] clinical pathology, anatomic
    pathology, and dermatopathology-related services” out of its principal place of business in
    Alpharetta, Georgia. Id. Bakotic Associates, as used herein, refers to the same entity’s legal name.
    We also note that Appellants incorrectly identified Bakotic Pathology Associates, LLC as “Bako
    Pathology Associates, LLC” in the captions of their briefs filed with this Court.
    3
    Opinion, at 2.
    4
    The Doctors raise five contentions on cross-appeal. For ease of reference, this Opinion refers to
    them as the Doctors and to Bako LP, BPA Holding, and Bakotic Associates collectively as the
    “Appellants.”
    5
    Opinion, at 2.
    3
    as Bako’s Medical Director and as a practicing dermatopathologist.
    B. The Doctors Establish Bako
    The Doctors first met in 2000 and, over time, worked together at various pathology
    laboratories. In 2007, the two decided to start their own pathology laboratory enterprise
    and founded Bako in Alpharetta, Georgia. Bako is a dermatopathology laboratory that
    offers four main lab services:       (1) dermatopathology; (2) microbiology testing; (3)
    molecular testing; and (4) epidermal nerve fiber density testing. In addition, the lab sells
    specialized creams and solutions to medical practitioners, namely podiatrists and some
    dermatologists throughout the United States.
    While at Bako, Dr. Bakotic implemented several testing methods. As part of the
    testing panel offered by the lab, Dr. Bakotic encouraged the use of Period Acid Schiff
    (“PAS”) and GMS histochemical genetic tests. Both the PAS and GMS testing soon
    became lucrative aspects of the lab’s business and were touted by Dr. Bakotic, in
    communications with potential clients, as tests with “ultrahigh sensitivity with the fewest
    false negative results.”6 In addition to the PAS and GMS testing, Bako developed PCR
    testing as a faster alternative to other testing options. Bako’s PCR testing was the only
    service of its type offered in the field and became a critical component of the lab’s business
    model.
    Bako’s laboratory enterprise soon attracted the attention of other entities in the
    medical arena. In January 2014, Bako and the Ankle and Foot Centers of Georgia
    6
    Opinion, at 5.
    4
    (“AFCG”) entered into a Medical Director Services Agreement (the “AFCG Agreement”),
    whereby Dr. Bakotic would serve as the Medical Director of AFCG.                   The AFCG
    Agreement provides that Bako could replace Dr. Bakotic and select a new Medical Director
    for AFCG.7
    To augment the lab’s testing services, Bako developed a highly successful
    marketing strategy. The lab sponsored various conferences hosted by various podiatry
    associations, which allowed Dr. Bakotic to lecture at conferences and to strengthen the
    lab’s brand, goodwill, and client base in the process. The lab obtained “booth space” at
    these conferences and staffed them with sales representatives who marketed Bako’s
    laboratory services to the conference attendees.
    Dr. Bakotic proved to be the driving force behind Bako’s successful marketing
    strategy. The lab “sponsored, produced, or provided over 200 lectures, seminars[,] and
    small group meetings with podiatrists throughout the year.”8 Dr. Bakotic himself decided
    which conferences the lab would sponsor based upon how much business he felt the
    conferences could generate. Due to his visibility at the conferences — in particular, his
    educational lectures — Dr. Bakotic became known as “the face of Bako” and a leader in
    the podiatric community.
    7
    A561 (Dr. Bakotic Trial Test. at 216:7–19). Dr. Bakotic, however, remained the Medical
    Director of AFCG even after his eventual termination from Bako. See Opinion, at 5; infra section
    I.D.
    8
    Opinion, at 4 (internal quotations and citation omitted).
    5
    C. The Restrictive Covenants
    Following Bako’s founding in 2007, the lab became quite successful. Starting in
    the fall of 2011, the Doctors executed three contracts, each of which contains restrictive
    covenants.
    1.    The Employment Agreements
    In 2011, the Doctors sold a percentage of Bakotic Associates to Ampersand 2011
    Limited Partnership. As part of that transaction, they entered into separate employment
    agreements with BPA Holding, on behalf of its subsidiary, Bakotic Associates.9 The
    Bakotic Employment Agreement and the Hackel Employment Agreement (collectively,
    the “Employment Agreements”) became effective as of November 18, 2011.
    The Employment Agreements contain several, nearly identical restrictive covenants
    binding on the Doctors.       For example, the Employment Agreements contain non-
    competition provisions (the “Employment Non-Compete Provisions”) that provide:
    1. NON-COMPETITION. While Employee is engaged by the Company,
    Employee agrees that during the term of Employee’s employment by the
    Company, other than in the proper performance of Employee’s
    employment duties for the Company, and for a period of twenty-four (24)
    months after such employment terminates for any reason (other than
    without cause termination by the Company), Employee shall not perform
    the same or similar duties that he or she performed for the Company on
    behalf of or for the benefit of (i) any laboratory and/or health care
    provider which competes with the Company, or (ii) any customer or client
    of the Company for whom the Company provided services within two
    years prior to Employee’s termination from the Company. The restriction
    9
    A93 (the “Bakotic Employment Agreement”); A101 (the “Hackel Employment Agreement”).
    The parties to these agreements include “BPA Holding Corp., on behalf of itself and its wholly-
    owned subsidiary, Bakotic Pathology Associates, LLC (collectively, ‘Company’)” and then either
    Dr. Bakotic or Dr. Hackel, respectively. See id.
    6
    herein is limited to the territory where the Company was doing business
    at the time of the transaction.10
    The Employment Agreements also contain several provisions regarding the use of
    proprietary information. Both contain non-use provisions (the “Employment Non-Use
    Provisions”) that provide:
    2. NON-DISCLOSURE AND NON-USE OF PROPRIETARY
    INFORMATION.
    a. Maintaining the Company’s Proprietary Information. Employee
    agrees not to use, utilize, disclose, or reverse engineer the Company’s
    Confidential Information or Trade Secrets for any purpose other than
    the Company’s business, except as authorized in writing by the
    Company. The covenants made by the Employee herein are in
    addition to, and not exclusive of, any and all other rights to which the
    Company is entitled under federal and state law, including, but not
    limited to, rights provided under copyright and trade secret laws, and
    laws concerning fiduciary duties. Employee’s obligations under this
    Paragraph 2.a shall remain in effect as long as the information
    constitutes a Trade Secret under applicable law and/or Confidential
    Information, as defined above.11
    The Bakotic Employment Agreement contains an additional provision (the
    “Employment Existing Use Provision”), which provides:
    2. NON-DISCLOSURE AND NON-USE OF PROPRIETARY
    INFORMATION.
    d. Existing Materials and Perpetual License. Notwithstanding
    anything herein to the contrary, the parties hereto, hereby acknowledge
    and agree that Employee is the sole owner of those items identified on
    Exhibit A, attached hereto and incorporated herein by reference
    (collectively, the “Employee Information”), and as a result, such
    Employee Information is not considered to be Company Proprietary
    10
    A93 (Bakotic Employment Agreement § 1) (emphases added); A101 (Hackel Employment
    Agreement § 1) (emphases added).
    11
    A94 (Bakotic Employment Agreement § 2(a)); A102–03 (Hackel Employment Agreement
    § 2(a)).
    7
    Information. Moreover, the parties hereto hereby acknowledge and
    agree that, upon termination of Employee’s employment with the
    Company for any reason, Employee shall have a non-exclusive,
    perpetual license to use, for educational purposes, any and all
    information of the same general type as the Employee Information
    developed by Employee during the term of his employment by the
    Company.12
    Dr. Bakotic testified at trial that he understood the Employment Existing Use Provision to
    be an “education carveout[.]”13 The Hackel Employment Agreement does not contain an
    Employment Existing Use Provision.
    In addition to the above restrictive covenants, the Employment Agreements contain
    fee-shifting provisions for attorneys’ fees (the “Employment Fee-Shifting Provisions”) that
    provide:
    8. ATTORNEYS’ FEES If Company is the prevailing party in any legal
    proceeding to construe, apply, interpret, enforce or defend any of Company’s
    rights in this Agreement, Employee agrees to reimburse Company for all
    reasonable costs, expenses and attorney’s fees incurred by Company in such
    proceedings.14
    2.     The Merger Agreement
    On December 3, 2015, the Doctors entered into an Agreement and Plan of Merger
    (the “Merger Agreement”) with various corporate entities. The corporate signatories to the
    Merger Agreement include: Bako Pathology Holdings Corp. (as the buyer); Bako LP; BPA
    Merger Corp. (as the buyer’s subsidiary); BPA Holding (defined as the “Company” in the
    12
    A95 (Bakotic Employment Agreement § 2(d)).
    13
    A573 (Dr. Bakotic Trial Test. at 265:5–19).
    14
    A97 (Bakotic Employment Agreement § 8) (emphases added); A105 (Hackel Employment
    Agreement § 8) (emphases added).
    8
    Merger Agreement); Ampersand 2011 Limited Partnership (as the securityholder
    representative); and various individuals, including the Doctors.15
    Like the Employment Agreements, the Merger Agreement contains a non-
    competition provision (the “Merger Non-Compete Provision”), which provides:
    5.11 Non-Competition; Non-Solicitation. (a) Each of Bradley W. Bakotic
    [and] Joseph Hackel . . . agree that, from the Closing Date until the date that
    is five (5) years following the Closing Date, he . . . shall not . . . without the
    prior written consent of Buyer[:]
    (ii)(A) engage in the Competing Business in any manner or capacity
    (whether as an officer, director, employee, consultant, owner, investor or
    otherwise with respect to any Competing Business), (B) own any equity
    interest, or operate, control or participate (including as a joint venture
    partner, agent, representative, consultant or lender) in any Person that
    engages directly or indirectly in the Competing Business, (C) solicit any
    direct or indirect investors, agents, providers/suppliers, distributors or other
    similar parties of the Company or any of its Subsidiaries, in each case, in
    respect of a Competing Business or (D) intentionally interfere with the
    business relationships between the Company or any of its Subsidiaries and
    any of its investors.
    For purposes of this Agreement, “Competing Business” means any business
    in which the Company or any of its Subsidiaries is engaged, or has specific
    plans (as evidenced by documentation of the Company) to become engaged,
    in each case, as of the Closing Date.
    Notwithstanding the foregoing, nothing contained in this Agreement shall
    restrict any of the individuals identified above in Section 5.11(a) from being
    employed by a Competing Business (i) if such individual’s role with such
    Competing Business is limited to a business unit or division that would not
    reasonably be expected to be competitive with any business in which the
    Company or any of its Subsidiaries is engaged, or has specific plans to
    become engaged, in each case, as of the Closing Date[.]16
    15
    A114 (Merger Agreement Recital).
    16
    A163–64 (Merger Agreement § 5.11(a)(ii)) (emphases added).
    9
    The Merger Agreement also contains a non-solicitation provision (the “Merger Non-
    Solicitation Provision”), which provides:
    5.11 Non-Competition; Non-Solicitation. (a) Each of Bradley W. Bakotic
    [and] Joseph Hackel . . . agree that, from the Closing Date until the date that
    is five (5) years following the Closing Date, he . . . shall not . . . without the
    prior written consent of Buyer[:]
    (i)(A) hire or solicit for employment any employee of the Company or any
    of its Subsidiaries or any Person who has been an employee of the Company
    or any of its Subsidiaries in the preceding twelve (12) months, except for any
    employee of the Company or any of its Subsidiaries who, following the
    Closing, has been involuntarily terminated by the Company or Buyer for a
    six (6)-month period prior to commencement of employment with such
    Person or (B) induce or encourage any employee of an [sic] the Company or
    any of its Subsidiaries to no longer be employed by the Company or any of
    its Subsidiaries[.]17
    Unlike the Employment Agreements, the Merger Agreement does not contain a fee-shifting
    clause.
    3.    The Partnership Agreement
    On January 7, 2016, just over a month after the Merger Agreement’s execution, the
    Doctors — in their capacity as limited partners of Bako LP — entered into an Amended
    and Restated Limited Partnership Agreement of Bako Pathology LP (the “Partnership
    Agreement”) with Bako LP, Bako Pathology GP LLC, and various other limited partners.18
    Dr. Bakotic’s capital contribution to Bako LP was $16,967,000,19 and Dr. Hackel’s was
    17
    A163 (Merger Agreement § 5.11(a)(i)) (emphasis added).
    18
    Opinion, at 9. The Partnership Agreement was formed pursuant to the Revised Uniform Limited
    Partnership Act of the State of Delaware. See B61 (Partnership Agreement Recital); B63
    (Partnership Agreement § 2.2).
    19
    B126 (Partnership Agreement Exhibit A).
    10
    $6,556,000.20 This translated to an ownership interest in Bako LP of “approximately
    11.6% [for Dr. Bakotic] and 3.4% [for Dr. Hackel].”21
    Like the Employment Agreements and the Merger Agreement, the Partnership
    Agreement contains a non-competition provision (the “Partnership Non-Compete
    Provision”), which provides:
    6.5. Competitive Opportunity. 6.5.1 None of the Limited Partners nor any
    of their respective Affiliates or Affiliated Funds shall have any business
    interests or engage in business activities in addition to those relating to the
    Partnership, including, without limitation, business interests and activities in
    direct competition with the Partnership or any of its Subsidiaries[.]22
    In addition to the Partnership Non-Compete Provision, the Partnership Agreement — like
    the Employment Agreements but unlike the Merger Agreement — contains a fee-shifting
    provision for attorneys’ fees (the “Partnership Fee-Shifting Provision”), which provides:
    12.12. Attorneys’ Fees. If any dispute between the parties hereto should
    result in litigation or arbitration, the prevailing party in such dispute shall be
    entitled to recover from the other party all reasonable fees, costs and
    expenses of enforcing any right of the prevailing party, including without
    limitation, reasonable attorneys’ fees and expenses, all of which shall be
    deemed to have accrued upon the commencement of such action and shall be
    paid whether or not such action is prosecuted to judgment. Any judgment or
    order entered in such action shall contain a specific provision providing for
    the recovery of attorneys’ fees and costs incurred in enforcing such judgment
    and an award of prejudgment interest from the date of the breach at the
    maxim rate of interest allowed by law. For the purposes of this Section
    12.12: (a) attorneys’ fees shall include, without limitation, fees incurred in
    the following: (i) post-judgment motions; (ii) contempt proceedings; (iii)
    garnishment, levy and debtor and third party examinations; (iv) discovery
    20
    B127 (Partnership Agreement Exhibit A).
    21
    A259 (Def. Ans. & Counterclaims ¶ 14).
    22
    B89 (Partnership Agreement § 6.5.1).
    11
    and (v) bankruptcy litigation and (b) “prevailing party” means the party who
    is determined in the proceeding to have prevailed or who prevails by
    dismissal, default or otherwise.23
    D. The Doctors Leave Bako and Form the Rhett Foundation
    On September 7, 2017, Dr. Bakotic was terminated as CEO of Bakotic Associates.24
    Roughly three weeks later, on September 30, 2017, Dr. Hackel informed Bakotic
    Associates that he planned on retiring.25 He resigned following Dr. Bakotic’s termination.
    At trial, Dr. Hackel testified that he “didn’t want to work there if [Dr. Bakotic] was no
    longer there” but that Dr. Bakotic did not encourage his resignation.26
    A few days later, on October 3, 2017, the Doctors founded the Rhett Foundation
    (the “Foundation”) and donated $2.2 million to it. The Doctors both served on the
    Foundation’s board of directors, with Dr. Bakotic as chairman.27             Several of the
    Foundation’s contributing founders previously gave lectures on behalf of Bako.
    But with the Doctors gone, Bako needed a new Medical Director. On September
    25, 2017, Bako entered into a contract with Dr. Bryan Markinson for the position of
    Medical Director (the “Bako-Markinson Agreement”). A few days later, Dr. Markinson
    shared the contract with Dr. Bakotic, and they discussed the potential implications the
    Bako-Markinson Agreement would have on Dr. Markinson joining the Foundation. Dr.
    Bakotic informed Dr. Markinson that, despite Bako’s representations, Dr. Bakotic could
    23
    B113-14 (Partnership Agreement § 12.12) (emphases added).
    24
    Opinion, at 9.
    25
    A590 (Dr. Hackel Trial Test. at 50:11–16).
    26
    A597 (Dr. Hackel Trial Test. at 77:22–78:4).
    27
    A531 (Dr. Bakotic Trial Test. at 97:2–9).
    12
    not return to Bako. Shortly after Dr. Bakotic’s conversation with Dr. Markinson, Dr.
    Markinson rescinded the Bako-Markinson Agreement on October 1, 2017.28
    Following the Foundation’s formation, Dr. Bakotic made a post about it on his
    personal Facebook page. In his post, Dr. Bakotic wrote that the Foundation was his and
    Dr. Hackel’s “second chapter” and that they would “sponsor various educational events
    and institutions as we always have[.]”29           Consistent with his post, the Foundation
    “sponsored twenty podiatric conferences and provided a speaker at thirty-five other
    podiatry events.”30 Dr. Bakotic himself gave some of these lectures, including one on
    November 22, 2017, during which he informed a room of podiatrists that the allegations
    underlying his internal investigation at Bako had been found to be unsupported.
    On December 28, 2017, the Doctors formed Rhett Diagnostics, LLC (“Rhett
    Diagnostics”), which “was intended to be a human anatomic pathology laboratory.” 31 To
    staff it, the Doctors “hired several employees to work for Rhett Diagnostics, including
    several who were previously Bako employees, and purchased human pathology laboratory
    equipment costing between $600,000 and $700,000.”32 Despite those efforts, the lab never
    became operational.
    Opinion, at 10. Dr. Markinson would go on to serve on the Foundation’s board and as a founding
    28
    member. See id. at 10–11.
    29
    A532 (Dr. Bakotic Trial Test. at 100:13–101:8).
    30
    Opinion, at 11.
    31
    Opinion at 14.
    32
    Id.
    13
    As time passed, Dr. Bakotic continued to emphasize that the Foundation’s purpose
    mirrored that of Bako’s. In an article posted on June 21, 2018, to a website he created, Dr.
    Bakotic stated that his departure from Bako was “voluntar[y]” and that, through the
    Foundation, he and Dr. Hackel “intend to continue doing what [they have] done throughout
    [their] entire professional careers: support the advancement of the podiatric profession[.]”33
    E. Proceedings in the Superior Court and the Court of Chancery
    On December 27, 2017, the Doctors filed their complaint in the Superior Court
    against the Appellants. They sought a declaratory judgment that the restrictive covenants
    — the Employment Non-Compete Provisions and the Partnership Non-Compete Provision
    — were invalid under 6 Del. C. § 2707 (“Section 2707”).34 Appellants answered and filed
    counterclaims on February 12, 2018. Appellants sought a declaratory judgment that the
    restrictive covenants were valid under Delaware law. In addition, they asserted breach of
    contract, breach of the duty of loyalty, unjust enrichment, and tortious interference
    counterclaims against both Doctors and a claim for slander against Dr. Bakotic.35
    Appellants subsequently moved for a preliminary injunction in the Court of
    Chancery in July 2018. In the meantime, Dr. Bakotic informed a fellow podiatrist, Dr.
    David Tarr, that Appellants had sought an injunction against the Doctors. In response, Dr.
    Tarr drafted what became known as the “Tarr Petition,” which stated that the undersigned
    Dr. Tarr planned to call Bako and:
    33
    Id. at 12 (internal quotations omitted).
    34
    A235 (Compl. ¶ 29).
    35
    Opinion, at 14; A270–76 (Def. Ans. & Counterclaims ¶¶ 64–107).
    14
    [G]ive them 30 days’ notice to cease and desist from their attempts to prevent
    Dr. Bakotic from speaking and sponsor activities, all of which benefit our
    collective profession. Should they not reverse course, I will entrust my
    business to a lab that has not chosen to put profits above benevolence, and I
    hope you will consider doing the same.36
    Dr. Bakotic helped Dr. Tarr disseminate the Tarr Petition by connecting him “with public
    relations professionals who worked for the Rhett Foundation to facilitate the circulation of
    [the Tarr Petition].”37
    The Court of Chancery entered a Status Quo Order on September 6, 2018, that
    enjoined the Doctors from:
    a. Engaging in any speaking or sponsorship activities at any podiatry or
    dermatology conferences, or at any educational institutions at which
    podiatrists or dermatologists are anticipated to be in attendance . . . b.
    Administering a fellowship or similar internship program for podiatry
    students . . . c. Interfering with any sponsorship and speaking activities of
    Bako Diagnostics at podiatry or dermatology conferences, associations, and
    educational intuitions; and d. Owning, operating, or having any interest in
    or with any laboratory engaged in the provision of anatomic and molecular
    pathology services, microbiology services, and neuropathy-related testing to
    podiatrists and dermatologists.38
    While the parties engaged in the initial stages of litigation, the Doctors continued to
    communicate with the podiatric and dermatology communities.                  In November and
    December of 2018, Dr. Bakotic contacted approximately 50 members of the podiatric
    36
    A302 (Tarr Petition).
    37
    Opinion, at 16.
    38
    C1–2 (Court of Chancery Status Quo and Scheduling Order). The Court of Chancery withdrew
    the Status Quo Order on March 20, 2019, pending resolution of the claims in the Superior Court.
    See Opinion, at 15 n.78.
    15
    community to sign and return affidavits for use against Appellants.39 Dr. Bakotic’s emails
    were sent “on behalf of the Rhett Foundation[.]”40
    The Doctors moved for judgment on the pleadings under Superior Court Civil Rule
    12(c). On December 10, 2018, the Superior Court denied the Doctors’ motion for a
    declaratory judgment on the restrictive covenants, the breach of contract counterclaim, and
    the tortious interference counterclaim against Dr. Bakotic.41 The Superior Court dismissed
    the breach of the duty of loyalty counterclaim, the unjust enrichment counterclaim, the
    slander counterclaim against Dr. Bakotic, and the tortious interference counterclaim
    against Dr. Hackel.42
    Both sides later moved for summary judgment under Superior Court Civil Rule 56.
    In their brief for summary judgment, the Doctors argued for the first time that neither of
    the then-defendants (Bako LP and BPA Holding) had standing to pursue the breach of
    contract claims.43 The parties stipulated to adding Bakotic Associates as a third defendant
    to address any standing concerns, noting that such “stipulation shall not act as a waiver of
    any party’s claims or defenses[.]”44
    On December 11, 2019, the Superior Court denied the Doctors’ motion for summary
    39
    A554 (Dr. Bakotic Trial Test. at 188:7–15).
    40
    A555 (Dr. Bakotic Trial Test. at 195:14–16).
    41
    See Bakotic v. Bako Pathology LP, 
    2018 WL 6601172
    , at *3, *4, *6 (Del. Super. Dec. 10, 2018).
    42
    See 
    id.
     at *4–7.
    43
    B156–59 (Plaintiff’s Op. Br. for Summary Judgment at 21–24). As of the time the Doctors filed
    their brief for summary judgment, the defendants in the action were Bako LP and BPA Holding.
    44
    C151 (Stipulation to Add Party ¶ 3).
    16
    judgment and granted Appellants’ motion for partial summary judgment with respect to
    the parties’ Section 2707 arguments, finding that the statute “cannot be used to invalidate
    [the Doctors’] non-competition agreements because the statute does not apply.”45
    The Superior Court conducted a seven-day bench trial in January 2021. On the
    breach of contract claims, the Superior Court found that the Doctors breached the
    following:       the Employment Non-Compete Provisions, the Employment Non-Use
    Provisions, the Partnership Non-Compete Provision, and the Merger Non-Solicitation
    Provision. The court found that the Doctors did not breach the Merger Non-Compete
    Provision and that Dr. Bakotic did not tortiously interfere with Bakotic Associates’
    contracts.
    Regarding the breach of contract claims, Appellants’ damages expert opined that
    Bako suffered lost profits of $8,273,121 from January 2018 to February 2019 and a loss in
    business value of $65,980,243 as of March 2019, for total damages of $74,253,364.46
    Appellants’ expert applied “a growth rate of 9.4 percent and 8.9 percent” to calculate lost
    profits, but the court found the growth rate to be “unrealistic” and declined to apply it,
    saying that it caused the projected damages “figure to be inflated and unreliable.”47 Instead,
    the court accepted the “expert[’s] opinion that some growth did occur” and “decided to
    45
    Bakotic v. Bako Pathology LP, 
    2019 WL 6896465
    , at *5 (Del. Super. Dec. 11, 2019) [hereinafter
    Bako Pathology, 
    2019 WL 6896465
    , at _].
    46
    A381 (Mark J. Hosfield Expert Report at 34).
    47
    Opinion, at 47–48.
    17
    apply a growth rate of 1.5%[.]”48 The trial court then awarded damages totaling $1,740,254
    to Appellants.
    In addition to damages, both sides moved for attorneys’ fees. Appellants asserted
    that their fees and costs totaled approximately $2.3 million, while the Doctors asserted their
    fees and costs totaled $1,689,395. The court declined to award either side fees, despite the
    fee-shifting clauses in the underlying contracts at issue. In analyzing the contract language
    on fee shifting, the trial court found that neither side was the “prevailing party” in the
    litigation and, thus, no fees would be shifted.49
    F. Contentions on Appeal and Cross-Appeal
    Appellants raise two issues on appeal. First, Appellants contend that the Superior
    Court abused its discretion by applying — without explaining how it derived — its own
    growth rate. Second, Appellants assert that the Superior Court abused its discretion by not
    awarding attorneys’ fees despite the fee-shifting provisions in certain of the contracts.
    The Doctors raise five issues on cross-appeal. First, they contend that the Superior
    Court erred in finding Section 2707 to be inapplicable. Second, they assert that the
    48
    Id. at 49.
    49
    At trial, the court stated that the parties could present evidence regarding the reasonableness and
    amounts of their attorneys’ fees at a later time if it became necessary. See A839 (Trial Tr. at
    32:10–12) (“I’ll accept [the attorneys’ fees amounts] as submitted. And if I award fees, if I have
    any concerns about it, I’ll address it at that time.”). We have no issue with the trial court’s practical
    approach and reject the Doctors’ assertions that Appellants waived their ability to pursue fee-
    shifting by not presenting evidence of the amount and reasonableness of their fees after the trial
    court suggested that they do so later if necessary. See Avaya, Inc. v. Charter Commc’ns Hldg. Co.,
    LLC, 
    2016 WL 381261
    , at *3 (Del. Ch. Jan. 29, 2016) (“As a general matter, for involved,
    complicated litigation, waiting until resolution of the merits before shifting attorneys’ fees has a
    common sense appeal.”).
    18
    Superior Court erred by not dismissing Appellants’ breach of contract claims under the
    Partnership Agreement due to lack of standing. Next, the Doctors contend that the trial
    court erred when it found that their conduct was the proximate cause of damage suffered
    by Appellants. Fourth, they contend that the trial court erred when it found that their
    conduct at the Foundation constituted a breach of the Employment Agreements and the
    Partnership Agreement. And finally, the Doctors assert that the Superior Court erred when
    it “reformed” the Partnership Agreement.
    We address the cross-appeal arguments first, as they relate to the breach of contract
    determinations against the Doctors. Then we address the damages and fees issues raised
    by Appellants.
    II.    STANDARD OF REVIEW
    “We review questions of law and contractual interpretation . . . de novo.”50 This
    Court “reviews questions relating to standing under the de novo standard of review.”51
    “We review [the Superior Court’s] damages award for abuse of discretion.”52 “We
    review for an abuse of discretion the trial court’s assessment of attorney[s’] fees.”53 “While
    we review an award of attorneys’ fees for abuse of discretion, we review the [trial court’s]
    interpretation of a contractual fee-shifting provision de novo.”54 This Court will not disturb
    50
    Baldwin v. New Wood Res. LLC, __ A.3d __, 
    2022 WL 3364169
    , at *13 (Del. Aug. 16, 2022).
    51
    Brookfield Asset Mgmt., Inc. v. Rosson, 
    261 A.3d 1251
    , 1262 (Del. 2021) (citing El Paso
    Pipeline GP Co., L.L.C. v. Brinckerhoff, 
    152 A.3d 1248
    , 1256 (Del. 2016)).
    52
    Bhole, Inc. v. Shore Invs., Inc., 
    67 A.3d 444
    , 449 (Del. 2013).
    53
    Sternberg v. Nanticoke Mem’l Hosp., Inc., 
    62 A.3d 1212
    , 1220 (Del. 2013).
    54
    Scion Breckenridge Managing Member, LLC v. ASB Allegiance Real Estate Fund, 
    68 A.3d 665
    ,
    675 (Del. 2013) (internal citations omitted).
    19
    the trial court’s “factual findings unless they are clearly erroneous.”55
    III.   ANALYSIS
    A. The Cross-Appeal Arguments
    1.    Section 2707 Does Not Apply
    The Doctors argue that the Superior Court erred in determining that Section 2707
    does not apply to the contracts at issue. We disagree.
    Section 2707 reads in relevant part:
    Any covenant not to compete provision of an employment, partnership or
    corporate agreement between and/or among physicians which restricts the
    right of a physician to practice medicine in a particular locale and/or for a
    defined period of time, upon the termination of the principal agreement of
    which the said provision is a part, shall be void[.]56
    The Superior Court dismissed the Doctors’ Section 2707 argument at summary
    judgment, holding that “Section 2707 cannot be used to invalidate [their] non-
    competition agreements because the statute does not apply.”57
    “The ‘most important consideration for a court in interpretating a statute is the words
    the General Assembly used in writing it.’”58 As the Superior Court observed, the statute
    55
    Bäcker v. Palisades Growth Cap. II, L.P., 
    246 A.3d 81
    , 94 (Del. 2021) (internal quotations and
    citation omitted).
    56
    6 Del. C. § 2707 (emphasis added).
    57
    Bako Pathology, 
    2019 WL 6896465
    , at *5.
    58
    Salzberg v. Sciabacucchi, 
    227 A.3d 102
    , 113 (Del. 2020) (quoting Boilermakers Loc. 154 Ret.
    Fund v. Chevron Corp., 
    73 A.3d 934
    , 950 (Del. Ch. 2013)). See also Stream TV Networks, Inc. v.
    SeeCubic, Inc., 
    279 A.3d 323
    , 354 (Del. 2022) (quoting Salzberg, 227 A.3d at 113).
    20
    governs agreements not to compete “between and/or among physicians” which restrict “the
    right of a physician to practice medicine[.]”59 It held that:
    It is evident that the Employment Agreement, Merger Agreement, and
    Partnership Agreement are executed by Bakotic and Hackel on the one hand,
    arguably in their capacity as physicians. However, the other parties that
    executed the documents are largely corporate entities unrelated to the
    practice of medicine. Accordingly, the Court finds that Section 2707 is
    inapplicable because the agreements at issue cannot be considered “between
    and/or among physicians.”60
    On appeal, the Doctors contend that the trial court’s holding is erroneous because it
    renders the term “among” superfluous. An overview of the contracting parties to each
    agreement is a helpful starting point in addressing this contention. The Employment
    Agreements are between the Doctors, on one side, and BPA Holding and Bakotic
    Associates, on the other.61 The following are parties to the Merger Agreement: Bako
    Pathology Holdings Corp., Bako LP, BPA Merger Corp., BPA Holding, and — solely for
    certain provisions — Ampersand 2011 Limited Partnership. Solely for the purposes of the
    Merger Non-Compete Provision, the Merger Non-Solicitation Provision, the amendment
    provision, and the miscellaneous provisions, the Merger Agreement is also executed
    individually by the Doctors and eight other individuals.62 The signatories to the Partnership
    Agreement are: Bako Pathology GP LLC as general partner, and the following limited
    59
    6 Del. C. § 2707.
    60
    Bako Pathology, 
    2019 WL 6896465
    , at *5 (quoting 6 Del. C. § 2707).
    61
    A93 (Bakotic Employment Agreement); A101 (Hackel Employment Agreement).
    62
    A114 (Merger Agreement Recital).
    21
    partners:     the Doctors, Consonance Bako Holdings LP, Ampersand 2006 Limited
    Partnership, and Ampersand 2011 Limited Partnership, as well as five other individuals.63
    We disagree with the Doctors that the Superior Court ignored the word “among.”
    Clearly it did not. It simply concluded that the agreements are not “between and/or among
    physicians.”64 We agree with the trial court that the statute requires that “physicians,”
    which could include multiple physicians, be counterparties.65               The Doctors raise no
    challenge to the Superior Court’s conclusion that the Merger Agreement and the
    Employment Agreements lack physician counterparties. Nor did they contest, in their
    briefing on appeal, the Superior Court’s finding that “the other parties that executed the
    documents are largely corporate entities, unrelated to the practice of medicine.”66
    However, at oral argument before this Court, the Doctors argued for the first time
    that two of the limited partners who executed the Partnership Agreement were also
    63
    B61 (Partnership Agreement Recital); B126–27 (Partnership Agreement Exhibit A).
    64
    See, B.F. Goodrich Co. v. Aircraft Braking Sys. Corp., 
    1994 WL 16019986
    , at *8 (D. Del. Nov.
    10, 1994) (“In its definition of ‘among,’ the same dictionary states: ‘Precise users of English use
    AMONG when more than two . . . things are involved . . . and use BETWEEN when only two . . .
    things are involved.”).
    65
    Also, “[t]he synopsis for the bill that became Section 2707 explains: ‘Because patients establish
    relationships with their physicians and/or enter into courses of treatment with particular physicians,
    the patients should not be deprived of the services of the physician of their choice because of an
    economic contract entered into between two physicians.’” Dunn v. FastMed Urgent Care, P.C.,
    
    2019 WL 4131010
    , at *14 (Del. Ch. Aug. 30, 2019) (quoting Del. S.B. 294 syn., 132nd Gen.
    Assem. (Del. 1983)) (emphasis added). “[T]he General Assembly adopted Section 2707 in
    furtherance of ‘the importance of maintaining the continuity of care by protecting the physician-
    patient relationship.’” 
    Id.
     (quoting Total Care Physicians, P.A. v. O’Hara, 
    2002 WL 31667901
    ,
    at *6 (Del. Super. Oct. 29, 2002)). In Dunn, the restriction preventing the plaintiff from engaging
    in a competing executive position was held to not be violative of the statute because it did not
    “provoke Section 2707’s protections of the physician-patient relationship” and the restriction was
    wholly unconnected to patient care. Id. at *15.
    66
    Bako Pathology, 
    2019 WL 6896465
    , at *5.
    22
    physicians.67 Appellants responded that these limited partners were not counterparties to
    the Doctors, but instead were “on the same side” with the Doctors as counterparties to the
    partnership entity, Bako LP.68 Because the Doctors did not raise this argument in their
    briefing before this Court, it is waived.69 But even if we were to consider the Doctors’
    belated challenge, there is nothing in the record before this Court that suggests that the
    signatories were acting other than in their capacity as investors in Bako LP, as opposed to
    acting as “physicians” within the meaning of Section 2707.70
    67
    See             Oral               Argument,               at             31:37–59,
    https://livestream.com/delawaresupremecourt/events/10612702/videos/233007566               (Doctors’
    counsel noting that the presence of the two additional physicians triggers Section 2707’s preclusive
    effect). The Doctors did not advance this argument below in their briefing on § 2707 for summary
    judgment.
    68
    See id. at 33:10–32 (Appellants’ counsel noting that the other two physicians are on the same
    side of the Partnership Agreement as the Doctors).
    The partnership itself is a counterparty to the Doctors and the other limited partners: Bako LP is
    equally bound by the Partnership Agreement and may sue for rights under it, as occurred here. See
    6 Del. C. § 17-101(14) (a limited partnership is bound by a partnership agreement regardless of
    whether it executes the agreement).
    69
    Del. Supr. Ct. R. 14(b)(vi)(A)(3) (“The merits of any argument that is not raised in the body of
    the opening brief shall be deemed waived and will not be considered by the Court on appeal.”).
    70
    We note, but do not address, the existence of other issues that raise questions as to Section
    2707’s applicability here. The Superior Court observed that the court in Dunn suggested that
    Section 2707 was intended to protect the physician/patient relationship in Delaware and was not
    intended to manage the practice of physicians in other states. See, e.g., Dunn, 
    2019 WL 4131010
    ,
    at *14 (“I conclude that the term ‘practice medicine’ in Section 2707 refers to a physician’s
    provision of medical services or treatment to patients in Delaware.”). The Superior Court stated
    that “[a]t most, the Court would believe the prohibitions found in Section 2707 would only apply
    to the treatment or diagnosis of Delaware patients.” Bako Pathology, 
    2019 WL 6896465
    , at *5.
    Otherwise, such a reading “would expand Section 2707 beyond that intended by the General
    Assembly.” 
    Id.
     Although the Doctors were licensed in various states, they were not licensed in
    Delaware. See C44 (Dr. Hackel Dep. Tran. at 7:13–15); C63 (Dr. Bakotic Dep. Tran. at 17:4–6).
    The record contains no evidence of the Doctors identifying or treating any patients in Delaware.
    Other colorable arguments were raised below and/or on appeal calling into question the
    applicability of Section 2707. For example, Appellants contended that Section 2707 requires “the
    termination of the principal agreement” in order for Section 2707 to apply. Appellants’ Reply Br.
    23
    Accordingly, we AFFIRM the trial court’s determination.
    2.    Appellants Have Standing
    The Doctors’ second contention on cross-appeal relates to the Partnership
    Agreement and an alleged lack of standing to sue for claims arising under it. They assert
    that the Superior Court erred by not dismissing the claim for breach of the Partnership Non-
    Compete Provision due to lack of standing for all three Bako-affiliated entities. They argue
    that Bakotic Associates lacks standing because it is neither a signatory to the Partnership
    Agreement nor a third-party beneficiary, although they later assert that Bakotic Associates
    is the only Defendant who could possibly have injury-in-fact standing to pursue the breach
    of contract claims in this case. For BPA Holding, they contend that it has no customers
    and lacks an injury-in-fact to confer standing. They make the same argument for Bako LP,
    namely, that it is too high up the corporate entity ladder to have suffered an injury.71
    at 17. But here, the partnership remains in force and, as the Superior Court noted, the Doctors are
    still limited partners in Bako LP. See Opinion, at 35–36. The Appellants also questioned whether
    the Doctors were treating patients and whether their professional activities fell within the ambit of
    Section 2707. Appellants’ Reply Br. at 16–17.
    71
    At oral argument before this Court, the Doctors went a step beyond their briefing. Counsel
    argued that no Bako-affiliated entity — Bakotic Associates, BPA Holding, or Bako LP — has
    standing to sue under the Partnership Agreement. See Oral Argument, at 40:41–49,
    https://livestream.com/delawaresupremecourt/events/10612702/videos/233007566           (Doctors’
    Counsel: “The result is that nobody has standing under the Partnership Agreement to pursue the
    injuries that were pursued in this case.”). When the Court asked if that argument “made any
    sense,” the Doctors’ counsel responded by diagnosing their position as a “cautionary tale from a
    contracting perspective.” 
    Id.
     at 40:59–41:03.
    We note the trial court’s understandable frustration with the standing concerns raised well into the
    more advanced stages of this litigation. See C137 (Oral Arg. Tran. at 36:9–16) (“[L]et’s stop the
    gamesmanship, figure out who the parties are, who should be in the case, who has standing, and
    try the case . . . it’s crazy that now in September when the court is going to trial in a few months I
    have people standing in front of me talking about standing.”). As this Court has stated, “[s]tanding
    is [] properly viewed as a threshold issue to ensure that the litigation before the tribunal is a case
    24
    Appellants raise several points in response. First, they assert that the Doctors
    waived their standing arguments with respect to Bakotic Associates. Second, Appellants
    assert that Bakotic Associates and BPA Holding are third-party beneficiaries under the
    Partnership Agreement. Third, Appellants assert that Bako LP did suffer an injury-in-fact
    sufficient to have standing.
    We agree that the Doctors waived certain arguments by not fairly presenting them
    to the trial court or to this Court. For example, the Doctors raise two third-party beneficiary
    standing arguments for the first time on appeal. Of these, one was raised for the first time
    in the Doctors’ reply brief on cross appeal, and another was raised for the first time at oral
    argument.72 We decline to consider these two contract-based incorporation-by-reference
    arguments seemingly conjured up as pure afterthoughts.73
    or controversy that is appropriate for the exercise of the court’s judicial powers.” Brookfield Asset
    Mgmt., Inc. v. Rosson, 
    261 A.3d 1251
    , 1262 (Del. 2021) (internal quotations and citation omitted).
    72
    See Appellees’ Reply Br. at 7–8.            See also Oral Argument, at 38:50–59,
    https://livestream.com/delawaresupremecourt/events/10612702/videos/233007566.
    73
    The Doctors argue that the Merger Agreement contains a provision disclaiming third-party
    beneficiaries and that the Merger Agreement is expressly incorporated into the Partnership
    Agreement. See, e.g., A198 (Merger Agreement § 11.2), B74 (Partnership Agreement § 2.98),
    B113 (Partnership Agreement §12.8). However, they raised this argument for the first time in their
    reply brief on cross-appeal and did not raise it in their opening brief on appeal. See Appellees’
    Reply Br. at 7. As noted above, it is waived. See Del. Supr. Ct. R. 14(c)(i) (a party “shall not
    reserve material for reply brief which should have been included in a full and fair opening brief.”).
    Additionally, at oral argument before this Court, the Doctors raised — for the first time — that
    § 12.6 of the Partnership Agreement “rules out Bako Labs being an intended beneficiary.” See
    Oral                         Argument,                           at                       38:50–59,
    https://livestream.com/delawaresupremecourt/events/10612702/videos/233007566. Section 12.6
    provides that “[t]he covenants and agreements” in the Partnership Agreement “inure to the benefit
    of, the heirs, executors, administrators, personal representatives, successors and permitted assigns
    of the respective parties hereto.” B113 (Partnership Agreement § 12.6). Like their § 11.2
    argument, this argument also has been waived.
    25
    However, we address the remaining aspects of the standing arguments raised by the
    Doctors that are, at least arguably, properly before this Court.74 We turn first to the
    Doctors’ argument that BPA Holding and Bakotic Associates lack standing because neither
    is a third-party beneficiary to the Partnership Agreement. This argument lacks merit. “A
    third-party beneficiary’s rights are measured by the terms of the contract.”75 “As a general
    rule, only parties to a contract and intended third-party beneficiaries may enforce an
    agreement’s provisions.”76 A third-party beneficiary is “an individual who is not a party
    to a contract [but] can nevertheless enforce it under certain circumstances.”77 As Delaware
    courts have held:
    Equally settled is the principle that a third person, who is, in effect, a stranger
    to the contract, may enforce a contractual promise in his own right and name
    if the contract has been made for his benefit. Essential to a third party’s right
    of enforceability is the intention of the contracting parties to view that party
    as either a donee or a creditor beneficiary.78
    74
    We note that the Doctors did not raise standing concerns regarding Bakotic Associates before
    trial and that Bakotic Associates was not yet a party to the action. It was only during oral argument
    on the motions for summary judgment that Bakotic Associates became a topic of discussion. At
    that oral argument, counsel for the Doctors stated they were “prepared to allow [Bakotic
    Associates] to be added to the extent that [Bakotic Associates] also has standing.” C137 (Oral
    Arg. Tran. at 34:17–18). Following instruction from the trial court, the parties stipulated to adding
    Bakotic Associates as a defendant. No specific argument was made as to Bakotic Associates’ lack
    of standing until the briefing before this Court, but because of the unique procedural
    circumstances, we consider this standing argument.
    75
    NAMA Hldgs., LLC v. Related World Mkt. Center, LLC, 
    922 A.2d 417
    , 431 (Del. Ch. 2007).
    76
    
    Id. at 434
     (internal citation omitted). See also Triple C Railcar Serv., Inc. v. City of Wilm., 
    630 A.2d 629
    , 633 (Del. 1993) (“It is axiomatic that either party to an agreement may enforce its terms
    for breach thereof.”).
    77
    13 Williston on Contracts § 37:1 (4th ed.).
    78
    Triple C Railcar, 
    630 A.2d at 633
     (internal citations omitted).
    26
    “To qualify as a third party beneficiary of a contract, (i) the contracting parties must
    have intended that the third party beneficiary benefit from the contract, (ii) the benefit must
    have been intended as a gift or in satisfaction of a pre-existing obligation to that person,
    and (iii) the intent to benefit the third party must be a material part of the parties’ purpose
    in entering into the contract.”79 “When a promised performance is rendered directly to the
    beneficiary, ‘it is presumed that the contract was for the beneficiary’s benefit.’”80
    We agree with Appellants that BPA Holding and Bakotic Associates are third-party
    beneficiaries to the Partnership Agreement.             Appellants focus on the Partnership
    Agreement’s explicit reference to these entities as “Subsidiaries.”              The Partnership
    Agreement defines “Subsidiary” as:
    [A]ny corporation [or] limited liability company . . . of which more than 50%
    of the total voting power of the equity interests entitled . . . to vote in the
    election of the board of directors . . . thereof are at the time owned or control,
    directly or indirectly, by such Person[.]81
    Both BPA Holding and Bakotic Associates meet the definition of “Subsidiary.” Bako LP
    owns BPA Holding and Bakotic Associates is an LLC whose sole member is BPA
    Holding.82       Further, the Partnership Agreement’s Non-Compete Provision expressly
    applies to Subsidiaries.
    79
    Madison Realty P’rs 7, LLC v. Ag ISA, LLC, 
    2001 WL 406268
    , at *5 (Del. Ch. Apr. 17, 2001).
    80
    Comrie v. Enterasys Networks, Inc., 
    2004 WL 293337
    , at *3 (Del. Ch. Feb. 17, 2004) (quoting
    13 Williston on Contracts § 37:7 (4th ed.)).
    81
    B74 (Partnership Agreement § 2.103).
    82
    See supra section I.A.
    27
    The Doctors fail to address the specific language in the Partnership Agreement that
    the provisions at issue here apply to Bako LP and its Subsidiaries.83 Rather than addressing
    Appellants’ various arguments directly, the Doctors rebut Appellants’ third-party
    beneficiary standing arguments by raising the entirely new arguments which we have
    deemed waived.84 We are satisfied, based upon the record and on the lack of any focused
    joining of the issues regarding the entities’ third-party beneficiary standing, that BPA
    Holding and Bakotic Associates have standing to assert claims under the Partnership
    Agreement as third-party beneficiaries.
    The Doctors also contend in their opening brief on appeal that Bako LP did not
    suffer an injury-in-fact. Delaware law is clear that “a party to a commercial contract who
    sues to enforce its contractual rights can bring a direct contract action under Delaware
    law.”85 That is what Bako LP did. Bako LP asserted counterclaims — brought under
    contracts it signed — against the Doctors, who remain limited partners under the
    partnership, alleging that the Doctors violated their contracts and competed with Bako.86
    Thus, we reject the Doctors’ challenges to Bako LP’s standing, and we agree with the
    83
    See B89 (Partnership Agreement § 6.5.1); B93 (Partnership Agreement § 6.8).
    84
    See supra n.73. We sympathize with the trial court’s understandable frustration with this
    scattershot approach to what should be a threshold issue.
    85
    NAF Hldgs., LLC v. Li & Fung (Trading) Ltd., 
    118 A.3d 175
    , 176 (Del. 2015) (holding that
    where the plaintiff — a stockholder of the third-party beneficiary — has secured a contractual
    commitment of the defendant counterparty to render a benefit to that third-party, and the
    counterparty defendant breaches that commitment, the promissee-plaintiff may bring a direct suit
    against the promisor for damages suffered by the plaintiff resulting from that breach,
    notwithstanding that the promisee-plaintiff’s loss derives indirectly from the loss suffered by the
    third-party beneficiary corporation.).
    86
    A267–68 (Def. Ans. & Counterclaims ¶¶ 42–51).
    28
    Superior Court, as explained below, that those counterclaims are meritorious.87
    3.    The Doctors Breached the Employment and Partnership Agreements and
    Proximately Caused Damage
    The Doctors’ third and fourth arguments on cross-appeal can be combined. They
    contend that the Superior Court erred when it found that their participation in conferences
    (including serving as sponsors and lecturers) breached the Employment Agreements and
    Partnership Agreement and that such breaches proximately caused damage to Appellants.
    We reject their arguments and affirm the trial court’s ruling on both issues.
    The Doctors’ arguments here strike at the heart of the entire dispute: whether their
    actions violated certain restrictive covenants in the various contracts. The Superior Court
    found that they did. We agree.
    To start, the Doctors argue that the Employee Non-Compete Provisions do not bar
    them from sponsoring and lecturing at podiatric medical conferences. They contend that
    the trial court improperly determined that the Employee Non-Compete Provisions cover
    “not just commercial benefits, but apparently a whole galaxy of non-commercial benefits
    like positive feelings and subjective increases in medical knowledge.”88 An examination
    of the facts found below is helpful.
    The Superior Court found “that a key function of Dr. Bakotic’s role at Bako, and
    critical to the company’s marketing strategy and success, was to sponsor podiatric
    87
    See Opinion, at 21–26, 31–39.
    88
    Appellees’ Ans. Br. at 54.
    29
    conferences and provide lectures at the events to educate attendees.”89 “It was a critical
    piece of the strategy developed by Dr. Bakotic to enhance Bako’s presence in the market
    and upon which the business gained its success.”90 The trial court found that, “[t]here is
    no doubt that Dr. Bakotic intended to duplicate this success at the Rhett entities using the
    same marketing strategy and to replace Bako as the leader in this industry.” 91 It further
    found that “[a]s he once did at Bako, Dr. Bakotic selected the conferences the Rhett
    Foundation would sponsor and he, along with Dr. Hackel, provided lectures at those events,
    which were attended by and for the benefit of Bako’s client base.”92 It was “the duplication
    of this marketing process, to the detriment of Bako, that was prohibited under the
    [Employment] Non-Compete Provision[s].”93
    In the face of these factual findings, the Doctors strenuously argue that the
    Employment Agreements’ definition of “business” dictates that activities such as
    sponsoring and providing lectures fall outside the scope of the prohibited activities.94 But
    neither the Employment Non-Compete Provisions nor the Employment Agreements define
    89
    Opinion, at 23.
    90
    
    Id.
    91
    
    Id.
    92
    Id. at 24.
    93
    Id. at 23.
    94
    Appellees’ Ans. Br. at 55. The Doctors, though, merely reference a recital in the Employment
    Agreements, which states that the “Company is a provider of anatomic pathology testing
    services[.]” A93 (Bakotic Employment Agreement recital); A101 (Hackel Employment
    Agreement recital). The Employment Agreements do not contain a “definitions” section.
    “Company” is defined collectively in the initial paragraph as “BPA Holding Corp., on behalf of
    itself and its wholly-owned subsidiary, Bakotic Pathology Associates, LLC[.]” Id.
    30
    “business.”95 In addition, the word “business” does not appear in the Employment Non-
    Compete Provisions.
    However, the Employment Non-Compete Provisions do contain a clear statement
    that the Doctors may “not perform the same or similar duties that [they] performed for the
    Company[.]”96 As the trial court found, the Doctors routinely sponsored and gave lectures
    on podiatry topics at medical conferences which the court found helped “the business gain[]
    its success.”97 The Doctors engaged in these activities while employed at Bako, and they
    continued to do so after they started the Foundation. Based on the facts as found by the
    trial court — which are not clearly erroneous — and the clear contractual language in the
    Employment Agreements, we affirm the trial court’s ruling that the Doctors violated the
    Employment Non-Compete Provisions.
    Regarding the Partnership Non-Compete Provision, the Doctors contend that the
    Merger Agreement is expressly incorporated into the Partnership Agreement and that the
    meaning of “business” within the Partnership Non-Compete Provision is governed by the
    Merger Agreement’s definition of “business.”98 We note that § 12.8 of the Partnership
    Agreement, defining “Entire Agreement,” provides that the Partnership Agreement “and
    the Related Agreements constitute the entire agreement[.]”99         Section 2.98 of the
    95
    A93 (Bakotic Employment Agreement); A101 (Hackel Employment Agreement).
    96
    A93 (Bakotic Employment Agreement § 1) (emphasis added); A101 (Hackel Employment
    Agreement § 1) (emphasis added).
    97
    Opinion, at 23.
    98
    Appellees’ Reply Br. at 13.
    99
    B113 (Partnership Agreement § 12.8).
    31
    Partnership Agreement defines “Related Agreements” to include the Merger Agreement.100
    The Merger Agreement defines “business” as “the business of providing anatomic
    pathology, proprietary molecular microbiology and neurology testing services and
    physician dispensed therapeutics as currently conducted or specifically planned to be
    conducted by the Company and its Subsidiaries on the date hereof.”101 The Doctors
    contend that this definition precludes a finding that their activities on behalf of the
    Foundation — lecturing and sponsoring conferences — violated the Partnership Non-
    Compete Provision.
    We disagree.    The fact that the Partnership Agreement provides that the Merger
    Agreement is part of the “Entire Agreement” does not mean that the Merger Agreement’s
    narrower definition of “business” overrides language in the Partnership Non-Compete
    Provision and, specifically, its broader restriction on “business interests and activities in
    direct competition with the Partnership or any of its Subsidiaries[.]”102 Rather, the Superior
    Court acknowledged the differences in the provisions and read them in harmony, giving
    100
    B74 (Partnership Agreement § 2.98).
    101
    A181 (Merger Agreement § 10.1). The Merger Non-Compete Provision and the Merger Non-
    Solicitation Provision, both found in § 5.11 of the Merger Agreement, restrict “Competing
    Business” activities. A163 (Merger Agreement § 5.11(a)). As the Superior Court observed, “the
    Merger Agreement defines Competing Business as ‘any business in which the Company or any of
    its Subsidiaries is engaged, or has specific plans (as evidenced by documentation of the Company)
    to become engaged.’” Opinion, at 27 (emphasis in original).
    102
    B89 (Partnership Agreement § 6.5.1). We note that § 10.1 of the Merger Agreement — entitled
    “Definitions” — provides that “the following terms [including ‘Business’] when used in this
    Agreement shall have the respective meanings set forth below[.]” A180 (Merger Agreement
    § 10.1) (emphasis added). “Agreement” is defined as the Merger Agreement. See id.
    32
    effect to both.103 It expressly found that the Merger Non-Compete Provision was not
    violated “[s]ince there [was] no competing lab created by Plaintiffs[.]”104
    But the court also gave effect to the specific, broader language in the Partnership
    Non-Compete Provision. As the Superior Court found:
    Drs. Bakotic and Hackel did engage in business activities and held business
    interests that competed with Bako’s interests through the Rhett brand, and
    therefore they breached the Non-Competition provision of the Partnership
    Agreement. The Court finds that the activities performed by Drs. Bakotic
    and Hackel in the name of the Rhett entities were detrimental to the historical
    marketing practices that Bako relied upon and that was key to their success.
    There is no doubt that [the Doctors] intended to conduct their new business
    activities with the intent of undermining the Bako brand. That is simply not
    allowed under the Partnership Agreement.105
    The trial court found that the Doctors hired several employees to work for Rhett
    Diagnostics, including several who were previously Bako employees, and that they
    purchased lab equipment. Although there is no indication that the Rhett lab ever became
    operational, the record does support the trial court’s conclusions, following a seven-day
    bench trial, that the Doctors engaged in “business interests and activities in direct
    competition with the Partnership or any of its Subsidiaries.”106 We find no error in this
    aspect of the trial court’s ruling.
    103
    See Opinion, at 26–27, 34–36. The Doctors agree that the two agreements should be read
    together. See Appellees’ Reply Br. at 16.
    104
    Opinion, at 30.
    105
    Id. at 36.
    106
    B89 (Partnership Agreement § 6.5.1); see also Opinion at 33–36. The trial court was not
    persuaded that the Doctors were merely focused on educating the podiatric community. Rather,
    the court observed that “[o]ne does not buy hundreds of thousands of dollars of equipment and
    hire employees to simply sit for two years waiting for the Non-Compete time frame to end.”
    Opinion, at 21.
    33
    In addition to challenging the findings that the Doctors breached the Employment
    Agreements and Partnership Agreement, the Doctors also contend that the trial court erred
    when it found that such activities “proximately caused” Appellants damage. The Superior
    Court found “no doubt that [the Doctors’] violation of their contractual Non-Competition
    restrictions caused Bako to lose business. In fact, there is an identifiable group of doctors
    who clearly decided to stop using Bako or to reduce their volume of business because of
    the conduct of [the Doctors].”107 In particular, the Superior Court noted that a list in the
    Appellants’ expert report “identifies those individuals who Bako’s sales representatives
    had reported reduced their orders to Bako because of the perceived mistreatment of Drs.
    Bakotic and Hackel.”108 The trial court then determined the amount of damages to award
    Appellants for the breaches suffered.
    “On appeal, this Court reviews the issue of proximate cause for clear error, as the
    question ‘is ordinarily a question of fact to be determined by the trier of fact.’”109 We find
    no error in the Superior Court’s determination that the Doctors’ conduct proximately
    caused damage to Appellants. “Under Delaware law, a proximate cause is one ‘which in
    natural and continuous sequence, unbroken by any efficient intervening cause, produces
    107
    Opinion, at 46.
    108
    Id. See also A483–86 (Mark J. Hosfield Expert Report at Appendix D).
    109
    RBC Cap. Mkts., LLC v. Jervis, 
    129 A.3d 816
    , 864 (Del. 2015) (quoting Duphily v. Del. Elec.
    Co-op., Inc., 
    662 A.2d 821
    , 830 (Del. 1995)). See also Siga Techs., Inc. v. PharmAthene, Inc., 
    132 A.3d 1108
    , 1128 (Del. 2015) (noting that this Court “will uphold [a trial court’s] factual findings
    unless they are clearly erroneous.”) (internal citation omitted).
    34
    the injury and without which the result would not have occurred.’”110 The trial court’s
    determination of proximate cause was based on a careful examination of the record
    evidence.
    4.     The Partnership Agreement was not “Reformed”
    The Doctors’ final argument on cross-appeal is that “the Superior Court erred when
    it removed the limiting term ‘business’ when reforming the Partnership Non-Compete” and
    “determined what the parties intended when they executed such provision.”111 They argue
    that the Partnership Non-Compete Provision “is unlimited in territory and also unlimited
    in the type of conduct it prohibits[,]” which, they contend, renders it “void as a matter of
    law.”112
    In addressing this argument, the trial court found that:
    Although [the Doctors] argue that the Non-Competition provision of the
    Partnership Agreement is unlimited in scope, territory, and duration, the
    Court disagrees. While Drs. Bakotic and Hackel remain limited partners, the
    restrictions on competition remain. However, if they choose to withdraw
    from their position as limited partners, they have the power to end the
    restrictive covenants immediately.113
    It determined that the Partnership Non-Compete Provision “was intended to prevent [the
    Doctors] from engaging in similar and competitive activity that would be detrimental to
    110
    RBC Cap. Mkts., LLC, 129 A.3d at 864 (quoting Russell v. K-Mart Corp., 
    761 A.2d 1
    , 5 (Del.
    2000)).
    111
    Appellees’ Ans. Br. at 61.
    112
    
    Id. at 62
    .
    113
    Opinion, at 36.
    35
    the partnership.”114 The trial court concluded that the Doctors did breach the Partnership
    Agreement through their actions with the Rhett entities.
    We do not agree that the Superior Court “reformed” the contract by removing the
    word “business” from the Partnership Non-Compete Provision. The Doctors’ argument is
    not a fair reading of the trial court’s opinion. The trial court interpreted the term “business”
    and the phrase “business interests and activities” based upon the evidence, including the
    intentions of the parties to the Partnership Agreement. For example, the court concluded
    that
    The Court simply cannot accept or condone a provision that in essence
    prohibits engaging in any activity regardless of how remote or unrelated to
    the partnership’s business. The Court is equally convinced this was never
    the intent of those who were participants in the Partnership Agreement.
    There is no question that provision was intended to prevent [the Doctors]
    from engaging in similar and competitive activity that would be detrimental
    to the Partnership. However, the Court finds Drs. Bakotic and Hackel did
    engage in business activities and held business interests that competed with
    Bako’s interests through the Rhett brand, and therefore they breached the
    Non-Competition provision of the Partnership Agreement. The Court finds
    that the activities performed by Drs. Bakotic and Hackel in the name of the
    Rhett entities were detrimental to the historical marketing practices that Bako
    relied upon and that was key to their success.115
    As we have discussed above, the trial court correctly found that the Doctors’ conduct
    violated the Partnership Non-Compete Provision’s express terms. Accordingly, we reject
    their final argument on cross-appeal.
    114
    
    Id. at 35
    .
    115
    Opinion, at 35–36.
    36
    B. The Damages Calculation
    Having found no merit in any of the Doctors’ contentions on cross-appeal, we now
    turn to the arguments presented by Appellants. Appellants claim that the trial court’s
    damages analysis was flawed in two ways. First, they contend that the court abused its
    discretion by arbitrarily applying a 1.5% growth rate without explaining how it derived that
    growth rate. Second, they assert that even if the growth rate were found to be appropriate,
    the court incorrectly applied the two-step damages formula that the parties employed in
    this case.
    Appellants’ expert, Mark J. Hosfield (“Hosfield”), “opined that Bako suffered lost
    profits of $8,273,121 from January 2018 to February 2019 and a loss in business value of
    $65,980,243 as of March 2019.”116 We note that both the Doctors and the Appellants
    agreed with the basic framework of Hosfield’s two-step analysis to calculate damages for
    lost profits.117 Hosfield’s two-step analysis involved calculating the lost unit sales because
    of the Doctors’ conduct and then, secondly, determining the lost profits resulting from
    those lost unit sales. To determine Bako’s lost unit sales, Hosfield first calculated the unit
    sales Bako expected to generate in the relevant period. The lost unit sales number was
    derived by applying an expected growth rate to Bako’s past sales. After calculating Bako’s
    expected sales units (which Hosfield referred to as the “but for” units), he then subtracted
    Bako’s actual sales for the relevant period from the “but for” unit sales.
    116
    
    Id.
     at 44 (citing A381 (Mark J. Hosfield Expert Report at 34)).
    117
    See        Oral        Argument,         at       6:55–7:23,           26:24–50,
    https://livestream.com/delawaresupremecourt/events/10612702/videos/233007566.
    37
    As for the second step in the analysis, in order to calculate Bako’s lost profits arising
    from these “but for” unit sales, Hosfield multiplied the amount of lost “but for” unit sales
    by the actual price of the units for that given month. He then subtracted costs and bad debt
    expenses. He concluded that Bako’s lost profits from those lost units totaled $8,273,121.
    We address the growth rate challenge first. Appellants contend that the trial court
    abused its discretion when the court selected a growth rate of 1.5% to calculate Bako’s lost
    profits and failed to provide any calculation or record support for its selection.118
    The trial court concluded that Hosfield’s growth rate of 9.4 percent and 8.9 percent
    was “inappropriate.”119 It then stated that “the fact that Drs. Bakotic and Hackel were no
    longer employed by Bako would have greatly reduced any projected growth rate.”120 Thus,
    the court found:
    [A] growth rate of around 9% suggested by Mr. Hosfield is unrealistic and
    would have caused the “but for” figure to be inflated and unreliable. Since
    Mr. Hosfield’s subsequent projections as to the lost profits and loss of
    business value rely upon the acceptance of his growth rate, they will not be
    adopted by the Court.121
    After rejecting Hosfield’s growth rate, the court stated:
    [I] will accept Mr. Hosfield’s expert opinion that some growth did occur
    during that timeframe. Therefore, based on the testimony of what was
    occurring in the industry and the turbulent situation at Bako, the Court has
    decided to apply a growth rate of 1.5% to the “but for” figure calculated by
    Mr. Hosfield. This will result in a damages figure of $1,433,814.00 in 2018
    118
    The Doctors raise this same challenge, but they argue that Appellants submitted no competent
    evidence of damages. See Appellees’ Ans. Br. at 18–19.
    119
    Opinion, at 47–48.
    120
    
    Id. at 48
    .
    121
    
    Id.
    38
    and $306,440.00 in 2019. Therefore, the Court finds the contractual breaches
    by [the Doctors] resulted in a damage award of $1,740,254.00 for lost
    business.122
    Appellants contend that the Superior Court arbitrarily chose the 1.5% growth rate.
    They point out that if the Superior Court took issue with the higher growth rates offered by
    Hosfield, Hosfield also provided alternative growth rates of 4.7% in 2018 and 4.45% in
    2019.123 Appellants also assert that the expert called at trial by the Doctors, Robert J.
    Taylor, IV, testified that he used a 3% growth rate.124
    We have explained that “[i]n making a decision on damages, or any other matter,
    the trial court must set forth its reasons. This provides the parties with a record basis to
    challenge the decision. It also enables a reviewing court to properly discharge its appellate
    function.”125 Here, the Superior Court did offer some reasoning behind its view that the
    Appellants’ proffered growth rate was too high. The court reasoned that “the fact that Drs.
    Bakotic and Hackel were no longer employed by Bako would have greatly reduced any
    122
    
    Id. at 49
     (emphases added).
    123
    See A844 (Mark J. Hosfield Trial Test. at 54:11–17); A432–35 (Mark J. Hosfield Expert Rep.
    at Exhibit 7).
    124
    Appellants’ Op. Br. at 25 n.5 (citing A795 (Robert J. Taylor, IV Trial Test. at 37:9–15)).
    125
    Ams. Mining Corp. v. Theriault, 
    51 A.3d 1213
    , 1251 (Del. 2012). In Americas Mining
    Corporation, for example, we affirmed a damages award that was “the product of a logical
    deductive reasoning process.” Id. at 1249. Although the parties here rely, in part, on appraisal
    cases in their briefing, we note that a damages calculation in a contract dispute differs from a trial
    court’s exercise of determining fair value in an appraisal action. Cf. DFC Global Corp. v.
    Muirfield Value P’rs, L.P., 
    172 A.3d 346
     (Del. 2017); Dell, Inc. v. Magnetar Global Event Driven
    Master Fund Ltd., 
    177 A.3d 1
     (Del. 2017). But even in a contractual dispute, the trial court must
    sufficiently explain its analysis, so that there can be effective appellate review. See Theriault, 51
    A.3d at 1251.
    39
    projected growth rate.”126 The court was also persuaded that “Bako had reached a market
    saturation that would hamper any additional growth [and] that many of the podiatry
    services were being insourced by the doctors, and hospitals, with their own labs, and were
    beginning to purchase podiatric practices.”127
    Accordingly, the court “decided to apply a growth rate of 1.5%[.]”128 It properly
    weighed the testimony offered by Hosfield and examined the calculations in Hosfield’s
    report. We do not agree with the Appellants that the chosen growth rate of 1.5% was not
    grounded in the record. Although its explanation for choosing that growth rate could have
    been more fulsome, the trial court did not abuse its discretion in selecting the 1.5% growth
    rate, and we, thus, affirm that aspect of the court’s ruling.
    We turn next to Appellants’ contention that the court did not properly apply that
    growth rate in the lost units analysis. Appellants assert, and it does indeed appear, based
    upon the Superior Court’s explanation in its opinion, that the court incorrectly applied the
    1.5% growth rate to the “but for” figure calculated by Hosfield. In the first step, the growth
    rate should have been applied to Bako’s historical sales data to determine Bako’s expected
    or “but for” sales. Actual sales are then subtracted from the “but for” sales to derive the
    lost unit sales. However, the court stated that it “has decided to apply a growth rate of
    126
    Opinion, at 48.
    127
    Id.
    128
    Id. at 49.
    40
    1.5% to the ‘but for’ figure calculated by Mr. Hosfield.”129 But the growth rate should not
    have been applied to the “but for” sales.
    Appellants argue that because the Superior Court did not explain and set forth its
    calculations, it is unclear how it arrived at its awarded damages amount. We, too, cannot
    determine for certain whether the court simply misstated what it did or whether it
    misapplied the damages formula in performing its actual calculations.130 Accordingly, we
    remand this issue to the trial court for clarification and to make any necessary revisions.
    Appellants also argue that the trial court erred in its calculation of units lost by
    misinterpreting Hosfield’s calculation of units in Schedules 2.a, 2.b, and 2.c of his report.
    They assert that these schedules contain the monthly units bought during the relevant
    period for three small subsets of customers who ceased or reduced their business with
    Bako. They further assert that the Superior Court concluded that these schedules contain
    52,419 units that were affected by the Doctors’ misconduct. They claim the court erred by
    stating that the 52,419 units represent the total actual units sold to this subset of customers
    during the relevant time, not the number of units lost due to the Doctors’ misconduct.
    Based upon the record before this Court, it is unclear to us whether the disputed
    figure of 52,419 units constitutes a subset of units sold or the actual number of units lost.
    We direct the trial court on remand to address and clarify this additional point and to set
    129
    Id.
    130
    We are unaided by the Doctors’ briefing, which did not respond to Appellants’ arguments
    regarding these alleged miscalculations.
    41
    forth the basis for its damages calculations. We anticipate that any further submissions on
    these damages issues would be based upon the evidence already submitted.131
    As for the Appellants’ contention that the trial court erred in not awarding damages
    for lost business value, we find no error. The trial court found that Appellants “simply
    have not met their burden to establish a sufficient causal connection between the actual
    conduct of [the Doctors] and the proposed nearly 66-million-dollar loss in business
    value.”132 The court found that “[t]he proposed loss is simply a theoretical one without
    support as to what actually occurred.”133 We find no abuse of discretion with that
    determination.
    C. Failure to Award Attorneys’ Fees for Breach of the Employment Agreements was
    Error
    Appellants’ second set of issues concerns whether the Superior Court abused its
    discretion when it declined to award “attorneys’ fees to Bako consistent with the fee-
    shifting provisions in the Employment and Partnership Agreements[.]”134 The Doctors
    argue that the trial court correctly declined to award attorneys’ fees because neither side
    prevailed at trial.
    131
    We note that the Superior Court did not allocate its damages award among the various corporate
    entities. However, it appears that counsel did not seek such apportionment. See Oral Argument,
    at                                                                                  12:38–13:51,
    https://livestream.com/delawaresupremecourt/events/10612702/videos/233007566.
    132
    Opinion, at 50.
    133
    Id.
    134
    Appellants’ Op. Br. at 35. Appellants contend that their attorneys’ fees “totaled approximately
    $2.3 million.” Id. (citing A701 (Daniel Spragle Trial Test. at 148:18–20)).
    42
    Where “an award [for attorneys’ fees] is legally permissible, [] the determination of
    the appropriate amount is a classic matter for the trial court’s discretion.” 135 This Court
    “conduct[s] a highly deferential abuse-of-discretion review by keeping in mind the non-
    exhaustive factors of Rule 1.5(a) of the Delaware Lawyer’s Rules of Professional
    Conduct.”136 “[A]lthough we review an award of attorneys’ fees for abuse of discretion,
    we consider the [trial] court’s interpretation of relevant [] contractual provisions de
    novo.”137
    “Delaware generally follows the American Rule, under which litigants are
    responsible for their own attorneys’ fees, regardless of the outcome of the lawsuit.”138 One
    exception to the American Rule “is found in contract litigation that involves a fee shifting
    provision.”139 “In contract litigation, where the contract contains a fee-shifting provision,
    we will enforce that provision.”140
    135
    TransPerfect Global, Inc. v. Pincus, 
    278 A.3d 630
    , 653 (Del. 2022) (internal citation omitted).
    136
    
    Id.
     See also Mahani v. Edix Media Grp., Inc., 
    935 A.2d 242
    , 245–6 (Del. 2007). The Rule
    1.5(a) factors are “(1) the time and labor required, the novelty and difficulty of the questions
    involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent
    to the client, that the acceptance of the particular employment will preclude other employment by
    the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount
    involved and the results obtained; (5) the time limitations imposed by the client or by the
    circumstances; (6) the nature and length of the professional relationship with the client; (7) the
    experience, reputation, and ability of the lawyer or lawyers performing the services; and (8)
    whether the fee is fixed or contingent.” 
    Id. at 246
    . Trial court judges in this State are directed by
    case law “to consider [these] factors” when “assess[ing] a fee’s reasonableness[.]” 
    Id.
     at 245–6.
    137
    TransPerfect, 278 A.3d at 656 (internal citation omitted).
    138
    Alaska Elec. Pension Fund v. Brown, 
    988 A.2d 412
    , 417 (Del. 2007) (internal citation omitted).
    See also Reserves Dev. LLC v. Crystal Props., LLC, 
    986 A.2d 362
    , 369 (Del. 2009).
    139
    Mahani, 
    935 A.2d at 245
    .
    140
    SIGA Techs., Inc. v. PharmAthene, Inc., 
    67 A.3d 330
    , 352 (Del. 2013) (internal citation
    omitted).
    43
    Here, the trial court declined to award attorneys’ fees despite the fee-shifting
    provisions in the Employment Agreements and the Partnership Agreement. At the outset
    of its fees discussion, the trial court stated:
    While the Court will explain its reasoning below, it does not believe the
    conduct of the parties justifies such relief. Both failed to exercise good
    business judgment and have used the justice system to obtain some form of
    revenge. For the Court to deviate from the American Rule would only give
    some degree of countenance to this litigation. Justice demands that both
    parties pay for litigation that should have ended years ago.141
    The court then examined the fee-shifting provisions in the Employment Agreements
    and the Partnership Agreement. Both the Employment Fee-Shifting Provisions and the
    Partnership Fee-Shifting Provision contain the phrase “prevailing party” as a precondition
    to shifting fees.142 However, the provisions differ in a significant respect. The Partnership
    Fee-Shifting Provision provides that fees are to be shifted to the prevailing party in “any
    dispute between the parties hereto[.]”143 Further, the Partnership Agreement defines
    “prevailing party” to mean “the party who is determined in the proceeding to have
    prevailed or who prevails by dismissal, default or otherwise.”144             However, the
    Employment Fee-Shifting Provisions provide that fees are to be shifted to “the prevailing
    141
    Opinion, at 51.
    142
    See A97 (Bakotic Employment Agreement § 8); A105 (Hackel Employment Agreement § 8);
    B113–14 (Partnership Agreement § 12.12).
    143
    B113 (Partnership Agreement § 12.12) (emphasis added).
    144
    B114 (Partnership Agreement § 12.12) (emphasis added).
    44
    party in any legal proceeding to construe, apply, interpret, enforce or defend any of the
    Company’s rights in this Agreement[.]”145
    Both the Employment Fee-Shifting Provisions and the Partnership Fee-Shifting
    Provision are contractual provisions and, as such, require this Court’s traditional approach
    to contract interpretation. “We interpret clear and unambiguous contract terms according
    to their plain meaning.”146 “Prevailing party” is a term of art that the parties bargained for
    in the contracts. “Having chosen the common term ‘prevailing party,’ the parties can be
    presumed to have intended that that term would be applied by the court as it has
    traditionally done so.”147 “That traditional application is an all-or-nothing approach
    involving an inquiry into which party predominated in the litigation[,]” as opposed to a
    claim-by-claim or other partial basis approach.148
    Our trial courts have frequently dealt with such “prevailing party” clauses in
    contracts. In Brandin v. Gottlieb, for example, the Court of Chancery determined that a
    “prevailing party” clause awards fees to a party “who has prevailed on most of her
    145
    A97 (Bakotic Employment Agreement § 8) (emphases added); A105 (Hackel Employment
    Agreement § 8) (emphases added).
    146
    Scion Breckenridge Managing Member, LLC v. ASB Allegiance Real Estate Fund, 
    68 A.3d 665
    ,
    683 (Del. 2013) (internal citation omitted).
    147
    Brandin v. Gottlieb, 
    2000 WL 1005954
    , at *28 (Del. Ch. July 13, 2000).
    148
    Comrie v. Enterasys Networks, Inc., 
    2004 WL 936505
    , at *2 (Del. Ch. Apr. 27, 2004), aff’d
    
    864 A.2d 929
     (Del. 2004) (TABLE). See also Aloha Power Co., LLC v. Regenesis Power, LLC,
    
    2017 WL 6550429
    , at *5 (Del. Ch. Dec. 22, 2017) (“‘Absent any qualifying language that fees are
    to be award claim-by-claim or on some other partial basis, a contractual provision entitling the
    prevailing party to fees will usually be applied in an all-or nothing manner.’”) (quoting W. Willow-
    Bay Court, LLC v. Robino-Bay Court Plaza, LLC, 
    2009 WL 458779
    , at *8 (Del. Ch. Feb. 23,
    2009)).
    45
    claims[.]”149 There, one party had “succeeded on a variety of important claims, having
    prevailed in her previous summary judgment motion [and then] having won most of the
    claims she pressed at trial.”150 The party who was deemed the “prevailing party” in
    Gottlieb did not win on every issue — and yet the court still shifted fees.151 In 2009 Caiola
    Family Trust v. PWA, LLC, the Court of Chancery articulated that “[t]o achieve
    predominance, a litigant should prevail on the case’s ‘chief issue.’”152
    With that backdrop, our analysis turns to the trial court’s application of the fee-
    shifting provisions. The differences in the fee-shifting provisions present some novel
    issues. Unlike the typical case where there are multiple claims and the court must
    determine which party prevailed — often with both sides having won on some and lost on
    some — this case involves not only multiple claims, but also different agreements
    containing different fee-shifting provisions. As noted above, the Partnership Agreement
    speaks of the “prevailing party” in terms of the overall dispute, whereas the Employment
    Agreements speak to the “prevailing party” in terms of success on claims involving rights
    under those specific Employment Agreements. We think this difference is important here.
    However, the trial court’s analysis did not consider these differences in the
    contracts. Instead, it looked at the “prevailing party” language more globally, holding that:
    149
    Gottlieb, 
    2000 WL 1005954
    , at *27.
    150
    
    Id.
    151
    See 
    id.
     (noting that the other party prevailed on a material breach claim, “which involved a
    good deal of litigation effort on both sides.”).
    152
    
    2015 WL 6007596
    , at *33 (Del. Ch. Oct. 14, 2015) (quoting W. Willow-Bay Court, 
    2009 WL 458779
    , at *9).
    46
    The fee-shifting language chosen by the parties requires the Court to perform
    the traditional analysis and look to the overall substance of the litigation.
    Both the [Doctors] and the [Appellants] have won some claims and lost on
    others. However, after years of excessive litigation, that culminated in a
    seven-day trial, the parties recovered much less than sought. Under those
    circumstances, the Court has discretion to find that neither party is a
    “prevailing party.”153
    The Superior Court concluded that there were “two chief issues present at trial[.]”154 These
    “boil[ed] down to five breach of contract claims and two tortious interference claims.”155
    The Superior Court noted that the Doctors won “on the two tortious interference claims
    and one of the contract claims[,] [w]hile [the Appellants] prevailed on the four-remaining
    breach of contract claims only.”156 By ignoring the different language in the Employment
    Fee-Shifting Provisions, the trial court’s analysis is only partly correct.
    Under the Partnership Fee-Shifting Provision, the prevailing party must prevail in
    the overall dispute itself. The trial court’s focus on the overall dispute and its conclusion
    that there was no prevailing party in the overall dispute here is not an abuse of discretion.
    Thus, we find no error in the trial court’s decision to not award attorneys’ fees under the
    Partnership Agreement.
    However, the narrower language in the Employment Fee-Shifting Provisions
    focuses on vindicating rights under those specific contracts. With regard to the claims
    raised under the Employment Agreements, the trial court ruled for Appellants on all claims:
    153
    Opinion, at 53.
    154
    
    Id.
    155
    
    Id.
    156
    
    Id.
     The one breach of contract claim that the Doctors won on was asserted under the Merger
    Agreement, which does not contain a fee-shifting provision.
    47
    the Doctors breached the Employment Non-Compete Provisions and the Employment
    Non-Use Provisions.157 Thus, the Appellants are the clear “prevailing party” on the claims
    raised in connection with the Employment Agreements.158
    We reject the Doctors’ assertions that their win on the tortious interference claims
    undercuts this conclusion. The tortious interference claims asserted by Appellants against
    Dr. Bakotic as compulsory counterclaims were based upon other agreements with third-
    parties, not upon the Employment Agreements.159 The Doctors cite no case holding that
    success on a tortious interference claim not based on the agreement containing the fee-
    shifting provision negates fee-shifting where a party prevails on all claims based upon that
    agreement and where the agreement’s “prevailing party” language focuses on claims
    involving rights under that agreement. Accordingly, we conclude that the Superior Court
    erred by not awarding attorneys’ fees in connection with the litigation of the claims arising
    under the Employment Agreements. Accordingly, we REVERSE and REMAND for
    further proceedings consistent with this Opinion.
    IV. CONCLUSION
    In sum and based on the foregoing, we reject all claims raised by the Doctors in
    their cross-appeal and AFFIRM the Superior Court’s decisions on those claims. We
    157
    Id. at 54.
    158
    See AFH Hldg. & Advisory, LLC v. Emmaus Life Scis., Inc., 
    2014 WL 1760935
    , at *3 (Del.
    Super. Apr. 16, 2014) (awarding attorneys’ fees under fee-shifting provision where party won on
    the breach of contract issues).
    159
    Appellants asserted “that Dr. Bakotic tortiously interfered with two contracts: (1) the Podiatric
    Medical Director Services Agreement between Bako and Dr. Bryan Markinson; and (2) the
    Medical Director Services Agreement between Bako and the AFCG.” Opinion, at 18. Neither
    contract is at issue on appeal.
    48
    REMAND to the Superior Court the two aspects of the lost profits damages calculations
    for clarification and revision, if needed, consistent with this Opinion.   Finally, we
    REVERSE the Superior Court’s decision declining to award attorneys’ fees under the
    Employment Agreements and REMAND for additional development of the record on that
    issue consistent with this Opinion.
    49