presuming that only the Delaware plaintiffs contributed to the initial price increase and awarding fees to Delaware plaintiffsSummary of this case from In re Allion Healthcare Inc.
C.A. No. 2015-N.
Submitted: January 9, 2007.
January 18, 2007.
Joseph A. Rosenthal, Esquire, Rosenthal, Monhait Goddess, P.A. Wilmington, DE.
S. Mark Hurd, Esquire, Catherine G. Dearlove, Esquire, Morris, Nichols, Arsht Tunnell LLP, Wilmington, DE .
David C. McBride, Esquire, Young Conaway Stargatt Taylor, LLP, Wilmington, DE.
Pamela S. Tikellis, Esquire, Chimicles Tikellis LLP Wilmington, DE.
Catherine G. Dearlove, Esquire, Richards, Layton Finger, P.A. Wilmington, DE.
R. Bruce McNew, Esquire, Taylor McNew LLP, Wilmington, DE.
Intervenor Alaska Electrical Pension Fund has moved, under Court of Chancery Rule 59, for reconsideration of, or for a new trial following, the Court's denial of its request for an award of attorneys' fees and expenses. Alaska raises three contentions: (1) that its attorneys, California Counsel, should be credited with a "causal connection" between their efforts and the settlement approved in the Delaware Action; (2) that an evidentiary hearing should have been held to allow Alaska to develop the record to support its claim for attorneys' fees and expenses; and (3) that the Court should specify that its decision is "without prejudice to Alaska's right to file a separate application" in the California Action.
In re William Lyon Homes S'holder Litig., 2006 WL 3860916 (Del. Ch. Dec. 21, 2006). The terms defined there will also be used here.
* * *
A party moving for reargument bears the burden of demonstrating that the Court misunderstood a material fact or misapplied the law. To obtain a new trial, the disappointed party must show that manifest injustice otherwise would result. To the extent that Alaska may be seeking to ask the Court to modify its judgment, even though no judgment has been entered, it is Alaska's obligation to demonstrate "(1) an intervening change in controlling law; (2) the availability of new evidence not previously available; or (3) the need to correct a clear error of law or to prevent manifest injustice."
In re ML/Eq Real Estate P'ship Litig., 2000 WL 364188, at *1 (Del. Ch. Mar. 22, 2000).
See, e.g., Cantor Fitzgerald, L.P. v. Cantor, 2001 WL 536911, at *2 (Del.Ch. May 11, 2001).
Nash v. Schock, 1998 WL 474161, at *1 (Del.Ch. July 23, 1998).
* * *This action involved a challenge to a tender for the publicly-held, minority shares of the Company. The tender consideration increased from $93 per share to $109 per share in two discrete steps. The first, from $93 per share to $100 per share, resulted from the initial agreement negotiated by Delaware Counsel to settle the Delaware Action. Alaska chose not to participate in that settlement and has not demonstrated that its acts (or the acts of California Counsel) aided that settlement. When the Defendants and Delaware Counsel reached their initial understanding, Alaska was asked to join in the settlement. Alaska now argues that the mere fact that it was asked to join in the settlement demonstrates that it must have contributed to (or caused to some extent) the agreement. When defendants settle a dispute that is being litigated in more than one forum, they obviously want to resolve it on a comprehensive basis. That a plaintiff in another forum is invited to participate in the settlement proves nothing with respect to whether that plaintiff's efforts had any causal connection to the settlement.
After Delaware Counsel had agreed to settle for $100 per share, a third party investor with a sizable holding of stock in the Company balked and approached the Defendants directly. With its economic power, it was able to achieve something that none of the lawyers could achieve: an additional increase of $9 per share. Alaska concedes that its counsel did not directly cause that increase; it intimates that its counsel indirectly caused the increase, perhaps by keeping the litigation ongoing in California. That, however, is a contention for which there is no factual basis. The third-party investor, with or without the continuing litigation in California, would have achieved the increase, and the settlement before this Court would have been revised accordingly.
Alaska's Mot. at ¶ 2.
Alaska and California Counsel are not being penalized, as they suggest, for failing to participate in the initial settlement of the Delaware Action. In order to be awarded a fee, California Counsel are required to show a "causal connection." They have not demonstrated that their efforts contributed either to the initial settlement (from $93 to $100 per share) or to the final increase (from $100 to $109 per share). Without a causal connection between their efforts and either of the increases in share price (or any of the other benefits achieved through the settlement of the Delaware Action), they are left with nothing more than having undertaken a parallel action in a different forum. As Infinity Broadcasting teaches, the "mere pendency" of litigation that involves the same claims in another jurisdiction is not sufficient to satisfy the burden, held in this instance by California Counsel, to show that "their efforts elsewhere conferred a benefit realized as part of the Delaware settlement."
Their suggestion that Delaware Counsel did not achieve the maximum benefit possible for the shareholder class may be fair criticism of the fee award itself. It does not, however, demonstrate that California Counsel should be compensated.
In re Infinity Broad. Corp. S'holders Litig., 802 A.2d 285, 293 (Del. 2002).
Id. at 291.
* * *Alaska next argues that it did not have "a fair opportunity to develop and present the evidence which the Court's decision has required."
At the hearing to consider both approval of the settlement and award of attorneys' fees and expenses, the Court specifically raised with counsel for Alaska the question of whether an evidentiary hearing should be held. Counsel, however, did not accept the Court's invitation; he merely responded that Alaska would be "amenable" to such a hearing. When a judge asks whether an evidentiary hearing is necessary and counsel to whom the question is asked does not respond that a hearing is necessary (or requested), the party represented by that counsel cannot later come forward, after receiving a decision with which it is not satisfied, and express its second thoughts. The opportunity to seek a hearing was extended; Alaska could have taken advantage of the opportunity, but it did not. The Court properly went forward to decide the fee application based on the record as it was.
The colloquy, in part, was as follows:
The Court: I'm — this is a — a question to the committee as a whole, but you're [Counsel for Alaska] at the podium. Is this something that really requires an evidentiary hearing? I don't imagine anybody really likes the affirmative answer to that, but put yourself in my position. How am I supposed to go about resolving it [the question of whether California Counsel conferred a benefit reflected in the settlement] otherwise?
[Counsel for Alaska]: Well, I do think you have affidavits to support that. I actually would be amenable to an evidentiary hearing, but I do believe . . . Settlement Hr'g Tr. (Aug. 9, 2006) at 69-70.
It should also be noted that Alaska never sought to take discovery and never asked for an evidentiary hearing.