Benchmark Investments LLC  ("Benchmark"), an exchange-traded fund (ETF) sponsor and index provider, announces that the Superior Court of the State of Delaware has entered final judgment in its favor on remand in its contract dispute with Pacer Advisors, Inc. The Superior Court order declares that Benchmark did not terminate the parties' ETF Services Agreement, enters judgment in favor of Benchmark on Count I, and reinstates certain breach-of-contract claims previously dismissed under Count II. The case will now proceed to address remaining claims and Benchmark's damages. Benchmark is most notably known for conceiving, creating, sponsoring, and providing the capital and proprietary index for the first data center ETF.

The order implements the April 30, 2026, en banc decision of the Supreme Court of Delaware, which unanimously reversed the lower court's earlier ruling and directed entry of summary judgment for Benchmark on Count I of the Amended Complaint. The Court held: "The Agreement does not authorize Pacer to essentially 'fire' Benchmark and continue hosting the Funds without liquidating and without paying Benchmark." The Funds referenced by the Court are the SRVR and INDS ETFs, which Benchmark grew to over $2.1 billion in assets before Pacer's wrongful termination. Writing for a unanimous en banc Court, the Chief Justice held that a notice of intent to terminate is not the same as an actual termination, and that the Agreement unambiguously permitted Benchmark to propose a reorganization of the ETFs without causing a present termination.

The dispute arose from a white-label ETF arrangement under which Benchmark, as index provider and economic sponsor, paid Pacer to host and service funds tracking Benchmark's proprietary indexes. Benchmark retained exclusive control over the funds and indexes including the contractual right to terminate the relationship. Benchmark sued to enforce its contractual rights after Pacer purported to "accept" a notice of intent to terminate (pending a reorganization) and switched the ETFs to a competing index provider.