On October 2, 2025, Justice Patel of the New York County Commercial Division issued a decision in Credit Suisse Intl. v. Broadcom Inc., 2025 NY Slip Op. 33772(U), holding that a contract’s indemnification provision provided for fee shifting only in case brought by one party but not the other, explaining:
Under the general rule, attorney’s fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule. In light of this principle, parties to a contract may agree to an indemnification provision in which one party promises to hold the other harmless for attorneys’ fees arising under specific indemnifiable claims. Id. However, because this diverges from the traditional rule, a court will not infer a party’s intention to indemnify another for attorneys’ fees incurred in connection with litigation between themselves and instead will only waive the inference of non-indemnification if it is unmistakably clear from the language of the provision that the parties intended as such.
Here, Plaintiffs allege that the indemnification provision of the Amended Commitment Letter is broad enough to cover intra-party claims brought by Plaintiffs. However, the unmistakably clear standard imposes a strong presumption against reading indemnification provisions to cover intra-party litigation, and instead considers whether the intent to indemnify is unmistakably clear from the language of the promise, not whether the agreement could be read to provide for indemnification. Furthermore, when determining whether an indemnification provision rebuts the strong presumption against intra-party indemnification, courts will consider whether the parties contemplated future third-party claims.
The provision in the Amended Commitment Letter does not rebut the presumption against indemnification of inter-party litigation expenses and it explicitly contemplates third-party claims as it applies regardless of whether any such Indemnified Person is a party thereto, whether or not such Proceedings are brought by Defendant, Defendant’s equity holders, affiliates or creditors or any other third person, and to promptly reimburse after receipt of a written request, each such Indemnified Person for any reasonable and documented or invoiced out-of-pocket legal fees and expenses incurred in connection with investigating or defending any of the foregoing.
Although New York Courts have occasionally departed from the traditional standard of Hooper when an indemnification provision contains extremely broad language, that is not the case here. Contrary to a broad catch-all provision, the language of the Indemnity Provision refers to claims brought by Defendant or any third-party, as well as specifically in connection with investigating or defending any of said claims.. Therefore, while the indemnification provision in the Amended Commitment Letter may cover intra-party claims brought by Defendant, it does not refer to or contemplate intra-party claims brought by Plaintiffs.
The Court will not infer a rebuttal of the presumption against indemnification of intra-party claims, particularly when extending the application of the indemnification provision to a claim by the Plaintiffs would render the reference to claims brought by Defendant or a third party incurred in connection with investigating or defending said claims meaningless.
Accordingly, as the indemnification provision of the Amended Commitment Letter does not permit the reimbursement of attorneys’ fees in intra-party disputes brought by the Plaintiffs, the sixth cause of action seeking indemnification fees must be dismissed.
(Internal quotations and citations omitted).