Indemnity: Language Under Indemnity Clause Was Broad Enough To Allow Recovery Of Fees For Non-Third Party Claim Issues Such As Contractual Breach

Ninth Circuit Remanded Fee Denial, But Expressed No Opinion On What Amount, Maybe Apportionable, Was Righteous—That Was For The District Judge.

            In Epic Games, Inc. v. Apple, Inc., Case Nos. 21-16506 et al. (9^th Cir. Apr. 24, 2023) (published), Apple was successful on a contract claim against Epic Games, but the district court denied fees to Apple based on an indemnification clause in a Developer Program Licensing Agreement (DPLA).  The Ninth Circuit reversed.  Section 10 of the DPLA provided that Epic “agree[s] to indemnify and hold harmless, and upon Apple’s request, defend, Apple[] . . . from any and all claims, losses, liabilities, damages, taxes, expenses and costs, including without limitation, attorneys’ fees and court costs . . . , incurred by [Apple] and arising from or related to” several enumerated grounds. One ground, clause (i), applies to Epic’s “breach of any certification, covenant, obligation, representation or warranty in [the DPLA].”  This language was clear enough in rebutting the Alki Partners, LP v. DB Fund Servs. (2016) 4 Cal.App.5^th 574, 600 presumption that true third-party indemnity clauses do not allow for recovery.   However, the Ninth Circuit remanded with no views on the amount of fees which would be appropriately awarded; that was a determination for the district judge.