Gener8, LLC v. Scott Castanon

COURT OF CHANCERY
OF THE
STATE OF DELAWARE

LORI W. WILL LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734

January 14, 2025

Jonathan M. Stemerman, Esquire Kurt M. Heyman, Esquire
Armstrong Teasdale, LLP Jamie L. Brown, Esquire
1007 North Market Street Elizabeth A. DeFelice, Esquire
Wilmington, Delaware 19801 Heyman Enerio Gattuso & Hirzel LLP
300 Delaware Avenue
Wilmington, Delaware 19801

RE: Gener8, LLC et al. v. Scott Castanon,
C.A. No. 2022-0426-LWW

Dear Counsel:

This letter opinion addresses the plaintiffs’ application for attorneys’ fees and

expenses. The application is granted, with certain reductions.

I. BACKGROUND

In February 2020, Scott Castanon sold Symbient Product Development, LLC

to Gener8, LLC for $14.4 million. In the Equity Purchase Agreement (the “EPA”)

governing the sale, Castanon agreed to restrictive covenants including a

non-compete provision and provisions barring him from soliciting Symbient

employees or customers.
C.A. No. 2022-0426-LWW
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After trial, I found that Castanon had breached these restrictive covenants and

harmed plaintiffs Gener8 and Symbient.1 My September 29, 2023 post-trial opinion

(the “Opinion”) awarded the plaintiffs damages of $104,356 plus interest for these

breaches of contract.2 I also awarded injunctive relief specifically enforcing the

EPA.3 But I found that the plaintiffs had failed to prove their claims for breach of

fiduciary duty, breach of the implied covenant of good faith and fair dealing, and for

intentional interference with contractual relations and with prospective economic

advantage.4

I further held that the plaintiffs were entitled to “reasonable attorneys’ fees”

under a prevailing party provision in the EPA. 5 Specifically, I observed that

“Section 10.14 of the EPA entitles the ‘prevailing party’ to recover ‘its actual out-

of-pocket costs and expenses, including without limitation reasonable attorneys’ fees

incurred in connection with’ ‘an action to enforce [that party’s] rights under [the

EPA].’”6 The Opinion explained that the plaintiffs prevailed on “[t]he predominant

1
Gener8, LLC v. Castanon, 2023 WL 6381635 (Del. Ch. Sept. 29, 2023) (“Mem. Op.”).
2
Id. at *34.
3
Id. at *35.
4
Id. at *27-30.
5
Id. at *35.
6
Id. (quoting EPA § 10.14).
C.A. No. 2022-0426-LWW
January 14, 2025
Page 3 of 21

issue in this case,” which “was whether Castanon breached non–compete and non–

solicit covenants in the EPA.”7 “[T]he other claims stemmed from the same factual

predicate and involved issues overlapping with Castanon’s contractual breaches.”8

I requested further submissions on the reasonableness of the plaintiffs’ requested

fees and expenses.9

I also found that Castanon had committed contempt and spoliation.10 As a

remedy, I drew adverse inferences in the plaintiffs’ favor and awarded the plaintiffs

their reasonable attorneys’ fees and expenses in bringing a motion for sanctions.11

The plaintiffs subsequently filed bills of costs and Rule 88 affidavits in

support of their application for attorneys’ fees and expenses. 12 The fees and

expenses sought total $3,011,507.89.13

7
Id.
8
Id.
9
Id. at *36.
10
Id. at *13-16.
11
Id. at *16-17.
12
See Dkts. 170-72.
13
Id.
C.A. No. 2022-0426-LWW
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Page 5 of 21

Castanon objected to the plaintiffs’ application and asserted that any fee and

expense award should not exceed $1,500,000.21

Proceedings were delayed when a suggestion of death of Castanon was filed

by defense counsel.22 I granted defense counsel’s motion to substitute the executor

of Castanon’s estate for Castanon in this action.23 But defense counsel subsequently

notified the court that the executor had not been formally appointed the personal

representative of Castanon’s estate by a California court. 24 The plaintiffs thus

objected to the suggestion of death.25 Eventually, the executor’s appointment was

finalized and an amended motion for substitution was filed, which I granted.26 In

doing so, Castanon’s objection to the plaintiffs’ fee application was deemed ratified

by the executor.27

21
Def.’s Opp’n 6.
22
Dkt. 176.
23
Dkt. 181.
24
Dkt. 182.
25
Dkt. 184; see Ch. Ct. R. 25(a)(3) (“Any statement noting death should identify the
decedent’s successor or representative, and that person’s attorney, if any.”).
26
Dkt. 186 at 1.
27
Id. at 2 (“Defendant Scott Castanon’s Objections to Plaintiffs’ Fees, filed on February 1,
2024, is hereby deemed ratified by the Executor, as requested by the Executor’s Amended
Motion for Substitution.”).
C.A. No. 2022-0426-LWW
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II. ANALYSIS

“Delaware law dictates that, in fee shifting cases, a judge determines whether

the fees requested are reasonable.”28 This court “has broad discretion in determining

the amount of fees and expenses to award.”29 In assessing the reasonableness of a

fee application, the court is guided by the factors set out in Rule 1.5(a) of the

Delaware Lawyers’ Rules of Professional Conduct.30 Rule 1.5(a) directs the court

to consider:

(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.31

28
Mahani v. Edix Media Gp., Inc., 935 A.2d 242, 245 (Del. 2007).
29
Black v. Staffieri, 2014 WL 814122, at *4 (Del. Feb. 27, 2014) (TABLE) (citation
omitted).
30
Mahani, 935 A.2d at 245-46; see also Greenstar IH Rep., LLC v. TutorPerini Corp.,
2019 WL 6884752, at *2 (Del. Ch. Dec. 4, 2019).
31
Del. Laws.’ R. Pro. Conduct 1.5(a); see also Aveta v. Bengoa, 2010 WL 3221823, at *4
(Del. Ch. Aug. 13, 2010).
C.A. No. 2022-0426-LWW
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“Determining reasonableness does not require [the] Court [to] examine

individually each time entry and disbursement” or “assess independently whether

counsel appropriately pursued and charged for a particular motion, line of argument,

area of discovery, or other litigation tactic.”32 Instead, the court may find “[a] party’s

expenses are reasonable if they were actually paid or incurred, were thought prudent

and appropriate in the good faith professional judgment of competent counsel, and

were charged at rates, or on a basis, charged to others for the same or comparable

services under comparable circumstances.”33

A. The Overall Fee Request

Castanon asserted that the fee request is excessive because the plaintiffs only

prevailed on one of five claims and were awarded a small portion of the damages

sought.34 He claimed that the litigation was “economically irrational” because the

plaintiffs’ fees are “nearly 30 times [their] compensatory damages.” 35 Even so,

Aveta, 2010 WL 3221823, at *6; see also Weil v. VEREIT Operating P’ship, L.P., 2018
32

WL 834428, at *12 (Del. Ch. Feb. 13, 2018).
33
Weil, 2018 WL 834428, at *12 (cleaned up).
34
Def.’s Opp’n 1.
35
Id. at 2 (emphasis omitted).
C.A. No. 2022-0426-LWW
January 14, 2025
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Castanon’s arguments are not grounds to limit the plaintiffs’ recovery of reasonable

fees and expenses.

In the Opinion, I found that Castanon provided “extensive assistance” in

setting up a competitor in violation of his non-compete. 36 He persuaded key

Symbient employees to join the new competitor and solicited former, current, and

future potential Symbient customers. 37 The plaintiffs therefore prevailed in

demonstrating that Castanon breached the EPA.

The EPA contemplates fee shifting where, as here, a party prevails in

enforcing their contractual rights. 38 It does not require that fees be awarded in

proportion to the party’s success. “A private party possessed of contractual rights

may pursue those rights vigorously even if, as here, they are ultimately only partially

successful. If the contract includes reimbursement of expenses necessary to enforce

those rights, then such expenses may be awarded.”39

36
Mem. Op. *24.
37
Id. at *24-26.
38
See supra note 6 and accompanying text (quoting EPA § 10.14).
39
EDIX Media Grp., Inc. v. Mahani, 2007 WL 417208, at *1 (Del. Ch. Jan. 25, 2007),
aff’d, 935 A.2d 242.
C.A. No. 2022-0426-LWW
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Bringing Castanon’s actions to light required extensive litigation efforts by

the plaintiffs’ counsel, including broad discovery and a three-day trial. Discovery

included the plaintiffs’ production of 135,000 documents and a collective 19

depositions.40 Trial involved the submission of 743 joint exhibits, live testimony

from 6 fact witnesses and 3 expert witnesses, and deposition testimony from 16 fact

witnesses.41 Hundreds of professional hours were devoted to trial preparation and

trial alone.42

Although the legal issues presented were straightforward, Castanon’s actions

exponentially complicated the case and enlarged the time required to try it. He hid

and spoliated evidence, including his own text messages. 43 He provided false

testimony on the stand and seemingly led others to obfuscate.44 He raised a series

40
See Schroeder Aff. ¶¶ 11-12; Stemerman Aff. ¶¶ 11-12.
41
See Schroeder Aff. ¶ 15; Stemerman Aff. ¶ 15.
42
See Schroeder Aff. Ex. A. This “time and labor” supports the reasonableness of the
plaintiffs’ application. See Del. Laws.’ R. Pro. Conduct 1.5(a)(1); see also supra note 31
and accompanying text (enumerating the Rule 1.5(a) factors). Counsel’s hourly rate is also
comparable to those deemed appropriate by this court. See Del. Laws.’ R. Pro. Conduct
1.5(a)(3); see, e.g., Roma Landmark Theaters, LLC v. Cohen Exhibition Co., 2021 WL
5174088, at *5-6 (Del. Ch. Nov. 8, 2021) (concluding that an hourly rate of $1,645 was
reasonable). And counsel is skilled, experienced, and reputable. See Del. Laws.’ R. Pro.
Conduct 1.5(a)(7).
43
Mem. Op. *14-16.
44
Id. at *16-17 (“Castanon recklessly destroyed evidence. He then sought to capitalize on
his misconduct by providing false testimony at trial.”); see also id. at *9 (discussing that
C.A. No. 2022-0426-LWW
January 14, 2025
Page 10 of 21

of “hyper-technical arguments” that were “belied by both the text of the contract and

common sense.”45 Castanon—to use the words of Chancellor Chandler—seems to

have felt that trial was a “gamble” where he “balanced the possibility of reducing

(or even avoiding) an eventual judgment on the merits with the chance he would

have to pay for a more expensive trial.” 46 “If the final damages seem

disproportionately small in comparison to attorneys’ fees and costs, it is only

because [Castanon] doubled-down on that bet too many times.”47

B. Specific Objections

Castanon also made seven specific objections to plaintiffs’ application. These

objections include purported duplicative billing, work for a non-party entity,

comingled time spent for a separate lawsuit, and strategic decisions. Although most

are meritless, some objections support a reduction to the award. The reductions

I approve total $100,375.48.

Castanon’s son testified that a “rich uncle” was funding the new competitor, but the
supposed “rich uncle” was Castanon).
45
Id. at *24.
46
Mahani, 2007 WL 417208, at *2.
47
Id.
C.A. No. 2022-0426-LWW
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1. Staffing Issues

Castanon first asserted that plaintiffs’ counsel “billed for redundant and

duplicative work arising from frequently counsel changes and overstaffing.”48 The

plaintiffs’ fee application lists “10 partners, 13 associates, 1 senior counsel,

12 paralegals and 2 other professionals, who were rotated in-and-out of the case.”49

Castanon critiqued this staffing approach relative to his own leaner one, and also

asked that time to bring new plaintiffs’ counsel up to speed be excluded from the

award.50

Castanon’s broader challenge is unwarranted. The fact that the plaintiffs’

litigation team was larger and billed more time than Castanon’s counsel does not

necessarily mean that the plaintiffs’ approach was unreasonable. This expedited

case was litigated over a year and culminated in a multi-day trial and sanctions

hearing. Given this duration, the number of professionals working on the case

“appears appropriate” and “need not be second guessed.”51

48
Def.’s Opp’n 8.
49
Id. at 7.
50
Id. at 8-9.
51
Aveta, 2010 WL 3221823, at *3.
C.A. No. 2022-0426-LWW
January 14, 2025
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Castanon’s more specific argument challenging fees incurred due to staffing

changes likewise fails. It is hardly unreasonable or inappropriate for litigation teams

to evolve over the course of a year. Castanon identified time entries that he believed

are attributable to new team members being brought up to speed.52 But I have no

reason to conclude that these staffing decisions were unreasonable or that the

amounts billed were excessive. In fact, many of the entries reveal that substantive

case-related work was being done.53

Moreover, the cases Castanon relied on to exclude these entries concern

changing law firms mid-case rather than intra-firm staffing changes. In Aveta Inc.

v. Bengoa, the court declined to order a defendant to pay fees caused by the

plaintiff’s transition to new counsel. It explained that “[t]he decision to hire new

counsel was [the plaintiff’s] choice to make” and the “transition expenses were [not]

‘incurred because of [the defendant’s] contempt,’” which was the basis for fee

shifting.54 Similarly, in Judge v. City of Rehoboth Beach, the court declined to shift

52
Def.’s Opp’n Ex. 1.
53
E.g., id. at 1 (listing time entries including “draft Castanon Deposition Notice . . . start
list of issues regarding trial preparation . . . preparation of correspondence to potential
damages experts”).
54
2010 WL 3221823, at *7 (Del. Ch. 2010) (explaining that the court was not opining on
reasonableness, since there was “no cause to believe that [the plaintiff] acted unreasonably
in changing counsel or that the transition costs were excessive”).
C.A. No. 2022-0426-LWW
January 14, 2025
Page 13 of 21

fees for “double charges” where one firm representing the plaintiffs billed for the

same work as another firm representing them.55 Here, the charges involve Foley &

Lardner LLP’s staffing of professionals on this matter—a professional judgment I

decline to question.56

2. Representation of Plaintiffs’ Parent

Castanon next challenged the inclusion of fees incurred for non-party Sverica

Capital Management LP, which is the plaintiffs’ ultimate parent. 57 During the

discovery process, Castanon was required to treat Sverica as distinct from the

plaintiffs.58 For example, he served a third-party subpoena on Sverica because the

plaintiffs refused to produce documents from it otherwise.59

55
1994 WL 198700, at *7 (Del. Ch. Apr. 29, 1994).
56
See Aveta, 2010 WL 3221823, at *3; Sparton Corp. v. O’Neil, 2018 WL 3025470, at *6
(Del. Ch. June 18, 2018) (stating where “the hourly rates charged by Defendants’ counsel
are not excessive, and the staffing of attorneys appears appropriate,” they should not be
second-guessed).
57
Sverica Capital Management LP is “the manager of Sverica Capital Management
Partners IV, which is the ultimate majority shareholder of G8 Holdings, LLC.” Joint
Pre-trial Stipulation and Order (Dkt. 119) ¶ II.A.2. G8 Holdings, LLC is “the sole member
of Gener8, LLC.” Id. ¶ II.A.1. Symbient was sold to Gener8 in February 2020.
Id. ¶ II.A.3.
58
Nieves v. Insight Bldg. Co., 2020 WL 4463425, at *8 (Del. Ch. Aug. 4, 2020) (“Delaware
law presumes respect for the corporate form: ‘A subsidiary corporation is presumed to be
a separate and distinct entity from its parent corporation.’” (citing Wenske v. Blue Bell
Creameries, Inc., 2018 WL 5994971, at *6 n.44 (Del. Ch. Nov. 13, 2018))).
59
Dkt. 22.
C.A. No. 2022-0426-LWW
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Page 14 of 21

Yet, the plaintiffs’ fee application includes work performed at the direction of

Sverica, its officers, or its counsel. For example, the plaintiffs seek fees for

correspondence related to the “Sverica subpoena” and a related “motion for [a]

protective order.”60 The plaintiffs cannot blur corporate separateness in their fee

request after insisting on it during discovery. The associated time, which

corresponds to $12,120 in fees, will be deducted from the award.

Castanon further pointed to a series of time entries where work for the

plaintiffs and Sverica was comingled in block billing. 61 The flagged entries

correspond to $109,682.50 in fees.62 These entries seem to mostly concern work for

the plaintiffs, mixed with work regarding the Sverica subpoena. To address the

comingling, I will subtract 25% of the fees ($27,420.63) from the total to be paid by

Castanon’s estate.63

60
Def.’s Opp’n Ex. 2 at 1. The plaintiffs do not rebut this contention. See Reply in Supp.
of Pls.’ Rule 88 Aff. for Attys.’ Fees and Costs (Dkt. 177) 5-6 (discussing work for a
Sverica officer, who was a trial witness).
61
Def.’s Opp’n Ex. 3.
62
Id.
63
Castanon requested a 50% reduction. Def.’s Opp’n 10. After reviewing the time entries,
I conclude that this discount is too great.
C.A. No. 2022-0426-LWW
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3. Fees Related to Parallel California Litigation

Castanon’s next objection relates to fees incurred in furtherance of the

plaintiffs’ related lawsuit in California, which was filed after the Delaware action.64

This litigation was led by two Foley attorneys.65 Castanon identified $17,965 in fees

seemingly attributable only to the California litigation.66 He also pointed to another

$130,600.50 of fees based on comingled block-billed entries that are partly

attributable to the California case.67

There are economies of scale in representing the same clients in parallel

litigation. It would be unrealistic and inefficient to expect that counsel separately

build a knowledge base and expertise where suits overlap. Many of the challenged

time entries reflect such efficiencies. 68 Others concern work by the California

members of Foley’s team in connection with third-party discovery for the first-filed

Delaware action.69

64
Gener8, LLC v. Protoshop Inc., Case No. 37-2022-00039503-CU-PT-CTL (Cal. Super.).
65
Def.’s Opp’n 10.
66
Def.’s Opp’n Ex. 4.
67
Def.’s Opp’n Ex. 5.
68
For example, one of the selected entries concerns communications with a “potential
damages expert” and conferences “regarding California and Delaware cases and damages
claims.” Id. at 1.
69
See Def.’s Opp’n Exs. 4-5.
C.A. No. 2022-0426-LWW
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Page 16 of 21

This situation is different from that in Richmont Capital Partners I, L.P. v.

J.R. Investments Corp., which Castanon cited in support of subtracting the

California-related fees entirely.70 There, the court excluded from a fee award the

time and expenses related to issues that were handled by a Texas court before the

plaintiffs injected them into a second-filed Delaware action.71 Here, by contrast, the

fees and expenses relate to issues that were tried in Delaware.

Since most of the entries submitted in this category are fairly attributable to

the construction of a general knowledge base, I discount the identified entries by

25% rather than deducting them entirely.72 The total to be subtracted from the fee

award on this basis is $37,141.38.73

4. Strategic Decisions

Castanon next asked that fees incurred for the plaintiffs’ “imprudent litigation

strategies” be excluded.74 In particular, he questioned the plaintiffs’ decision to

70
2004 WL 1152295, at *3 (Del. Ch. May 20, 2004); see also Def.’s Opp’n 11.
71
Id. (considering whether fees were “reasonably and necessarily incurred”).
This is less than the 50% reduction Castanon requests, which is excessive. See Def.’s
72

Opp’n 11.
73
($130,600.50 + $17,965) x 25% = $37,141,38.
74
Def.’s Opp’n 12; see also Def.’s Opp’n Ex. 7 (listing entries in this category totaling
$91,283.00).
C.A. No. 2022-0426-LWW
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move for a modification to the scheduling order, to assert new arguments “on the

eve of trial,” and to put forward a rebuttal expert that never appeared at trial.75 I

decline to reduce the fee award on these grounds. “Second-guessing an attorney’s

judgment as to whether work was necessary or appropriate ‘is hazardous and should

whenever possible be avoided.’” 76 Contrary to in the cases on which Castanon

relies,77 the tactical decisions here appear to have been made in good faith.

5. Unsubstantiated Entries

Castanon next identified time entries and expenses as “wholly

unsubstantiated, unreasonable, or irrelevant.”78

75
Def.’s Opp’n 11-13.
76
Seiff v. Tokenize Inc., 2020 WL 6791233, at *4 (Del. Ch. Nov. 19, 2020) (quoting
Arbitrium (Cayman Is.) Handels AG v. Johnston, 1998 WL 155550, at *4 (Del. Ch. Mar.
30, 1998), aff’d, 720 A.2d 542 (Del. 1998)).
77
Def.’s Opp’n 11-12 (citing cases); see Seidman v. Blue Foundry Bancorp, 2023 WL
4503948, at *8 n.95 (Del. Ch. July 7, 2023) (discussing fee shifting as a sanction for bad
faith litigation tactics and observing that, in such circumstances, the court “may decrease
an award where the applicant’s ‘own litigation efforts have in some ways been less than
ideal in terms of . . . prudent focus’” (quoting Auriga Cap. Corp. v. Gatz Props., 40 A.3d
839, 882 (Del. Ch. 2012))); Richmont, 2004 WL 1152295, *3 (considering whether fees
were consistent with the court’s condition that litigation in Delaware be dismissed and
refiled so long as fees “reasonably and necessarily incurred” be reimbursed).
78
Def.’s Opp’n 13-14; Def.’s Opp’n Ex. 8 (listing entries in this category totaling
$30,597.73).
C.A. No. 2022-0426-LWW
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Castanon fairly points out that the plaintiffs seek reimbursement for

unspecified “expert fees” and “service fees” totaling $18,039.23.79 These entries do

not name the expert(s) or detail the service(s) provided. This sparse information

leaves me unable to conclude that the expenses are reasonable. I exclude them on

that basis.80

Other entries identified by Castanon also seem facially unreasonable. For

example, inordinate amounts of paralegal time were billed to organizing case files

and requesting deposition transcripts. 81 The fees billed for these tasks total

$11,308.50. I will reduce this total by half ($5,654.25).

79
Def.’s Opp’n Ex. 8 at 1.
80
See Lynch v. Gonzalez, 2020 WL 5587716, at *9 (Del. Ch. Sept. 18, 2020) (reducing a
fee award where the court could not conclude that “expenses [we]re reasonable on their
face” since the defendants “who [bore] the burden of justifying the[] expense[s]” failed to
substantiate them).
81
E.g., Def.’s Opp’n Ex. 8 at 1 (listing 7.5 hours for organizing and shipping case files and
6.4 hours for “reaching out to court reporters”).
C.A. No. 2022-0426-LWW
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The remainder of Castanon’s objections in this category are to entries with

typos,82 or to—again—critique a reasonable amount of time spent on meritorious

tasks.83 These objections are overruled.

6. Purportedly Improper Claims

Castanon maintained that any fees award should be discounted to account for

claims that the plaintiffs “should have . . . abandoned.” 84 But no claims were

abandoned here, unlike in the case law Castanon cited.85 Certain claims were simply

unproven by the plaintiffs at trial. “Absent any qualifying language that fees are to

be awarded 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.”86

82
Id. (“Review relatively documents for.”).
83
Id. (0.60 hours spent on “[a]ttention to correspondence from [individuals]; coordinate
entity operation”); id. at 2 (0.10 hours spent on “[c]ommunications with [individual
regarding] deposition”). Neither entry is unreasonable or excessive.
84
Def.’s Opp’n 15 (emphasis removed).
85
Id. (citing All Pro Maids, Inc. v. Layton, 2004 WL 3029869, at *6 (Del. Ch. Dec. 20,
2004) (reducing a fee award to account for abandoned claims)).
86
West Willow-Bay Ct., LLC v. Robino-Bay Ct. Plaza, LLC, 2009 WL 458779, at *8 (Del.
Ch. Feb. 23, 2009).
C.A. No. 2022-0426-LWW
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Further, there is nothing in the record suggesting that the plaintiffs advanced

their claims unreasonably or in bad faith, as Castanon suggested. His objection on

this basis fails for the same reasons that his general objection to the fee award was

overruled above.87

7. Expert Set-Off

Finally, Castanon asked that the plaintiffs’ fee award be “set off” by the

roughly $64,000 he spent on his expert, since the Opinion adopted Castanon’s

expert’s methodology.88 Castanon cites to no provision of the EPA supporting this

request. Section 10.14 of the EPA only permits a “prevailing party” to recover its

fees.89 It does not contemplate any form of set-off. None is adopted here.

87
See supra Section II.A.
88
Def.’s Opp’n 16-17.
89
Mem. Op. *35 (quoting EPA § 10.14); see also supra note 6 and accompanying text.