The Williams Companies, Inc. v. Energy Transfer LP ( 2022 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
THE WILLIAMS COMPANIES, INC., )
)
Plaintiff and )
Counterclaim )
Defendant, )
)
v. ) C.A. No. 12168-VCG
)
ENERGY TRANSFER LP, formerly )
known as ENERGY TRANSFER )
EQUITY, L.P., and LE GP, LLC, )
)
Defendants and )
Counterclaim )
Plaintiffs. )
THE WILLIAMS COMPANIES, INC., )
)
Plaintiff and )
Counterclaim )
Defendant, )
)
v. ) C.A. No. 12337-VCG
)
ENERGY TRANSFER LP, formerly )
known as ENERGY TRANSFER )
EQUITY, L.P., ENERGY TRANSFER )
CORP LP, ETE CORP GP, LLC, LE GP, )
LLC and ENERGY TRANSFER )
EQUITY GP, LLC, )
)
Defendants and )
Counterclaim )
Plaintiffs. )
MEMORANDUM OPINION
Date Submitted: May 19, 2022
Date Decided: August 25, 2022
Kenneth J. Nachbar, Susan W. Waesco, and Matthew R. Clark, of MORRIS,
NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; OF COUNSEL:
Antony L. Ryan, Kevin J. Orsini, Michael P. Addis, and David H. Korn of
CRAVATH, SWAINE & MOORE LLP, New York, New York, Attorneys for
Plaintiff and Counterclaim Defendant The Williams Companies, Inc.
Rolin P. Bissell, James M. Yoch, Jr., and Alberto E. Chávez, of YOUNG
CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware; OF
COUNSEL: Michael C. Holmes, John C. Wander, Craig E. Zieminski, and Andy E.
Jackson, of VINSON & ELKINS LLP, Dallas, Texas, Attorneys for Defendants and
Counterclaim Plaintiffs Energy Transfer LP, formerly Energy Transfer Equity,
L.P.; Energy Transfer Corp LP; ET Corp GP, LLC; LE GP, LLC; and Energy
Transfer Equity GP, LLC.
GLASSCOCK, Vice Chancellor
This Memorandum Opinion considers, and grants in full, the Plaintiff’s
Motion for Entry of an Order and Final Judgment.1 It addresses the only remaining
issues; the reasonableness of the Plaintiff’s fee request, the application of pretrial
interest to the underlying contractual breakup fee, and whether such interest should
be tolled.2 The parties are large entities represented by sophisticated counsel.
Assisted by counsel, they entered a contractual arrangement, a merger agreement,
that contemplated a merger but also provided for contingencies, including an
enforcement/damages action of the kind represented here, which followed a busted
merger. The parties agreed contractually to a fee shifting provision, giving the
prevailing party a right to recoup its “reasonable fees and expenses” as determined
within this Court’s discretion. The first question before me is whether the litigation
costs Williams seeks—which after the injunctive-relief segment of this action
proceeded under a contingent fee arrangement between Williams and its counsel—
include a “reasonable” fee, based on the contingent nature of that fee. If I were a
social scientist,3 rather than a simple judicial officer, I would note at length the
interesting incentives caused by imposing a contingent fee via a fee shifting
provision. Fortunately, I am assisted here by case law, and most pertinently by the
1
See The Williams Companies, Inc.’s Mot. Entry Order Final J., Dkt. No. 657 [hereinafter “Pl.’s
Mot.”].
2
For the underlying dispute see Williams Companies, Inc. v. Energy Transfer LP, 2021 WL
6136723, (Del.Ch., 2021).
3
Which I am not, and for which I am grateful.
1
contract entered by the parties themselves. That contract shifts cost to the
prevailing party, Williams, but limits recovery to a reasonable fee—I need only
determine here that a contingent fee was reasonable to impose it upon ETE. It is
worth pointing out that these sophisticated parties surely were aware that post-
merger-agreement litigation, seeking a break fee, could likely include
representation on a contingent basis. They had every opportunity, therefore, to
contract against use of a contingent fee to determine the amount of fees shifted, if
they so desired. This, they failed to do. Because I find that Williams’ agreement
with counsel to a contingent representation was itself reasonable, and that the
amount incurred under their agreement is likewise reasonable, I find the contingent
fee appropriate under the fee-sifting provision of the merger agreement.
Similarly, I address the question of whether the contractual breakup fee
should draw compound interest “from the date such payment was required to be
made.” Again, while the contract provides for interest, it is silent as to whether
that interest should be simple or compound—and again, the parties should have
anticipated this issue but chose not to address it. I find that compound interest best
fulfills the intent of the award here, to make the Plaintiff whole. I also note that
ETE has had the use of the funds to which Williams was entitled, and presumably
used these funds for purposes it found advantageous in the interim. Accordingly, I
find applying compound interest to the damages award appropriate. I also reject,
2
for similar reasons, ETE’s request to toll interest during a period when trial in the
matter was continued. My reasoning is explained below.
I. BACKGROUND4
By way of background, I issued a post-trial Memorandum Opinion on
December 29, 2021 awarding a $410 million judgment in favor of the Plaintiff,
The Williams Companies, Inc. (“Williams”), as liquidated damages pursuant to a
merger agreement (the “Merger Agreement”) between Williams and the
Defendants, “ETE.”5 The Merger Agreement provided that, if Williams prevailed,
it was entitled to recover reasonable attorneys’ fees and expenses, as well as
prejudgment interest, from ETE:
[T]he [Defendants] shall pay to the [Plaintiff] . . . the
[Plaintiff’s] costs and expenses (including reasonable
attorneys’ fees and expenses) in connection with such suit,
together with interest on the amount of such payment from the
date such payment was required to be made until the date of
payment at the prime rate as published in the Wall Street
Journal in effect on the date such payment was required to be
made.6
4
Where the facts are drawn from exhibits jointly submitted at trial, they are referred to according
to the numbers provided on the parties’ joint exhibit list and with page numbers derived from the
stamp on each JTX page (“JTX- __ . ___”). Citations in the form of “Yoch Opp. Ex. —" refer to
the exhibits attached to the Transmittal Aff. of James M. Yoch, Jr. Supp. of Defs.’ and
Countercl. Pls.’ Opp’n. Pl.’s Mot. Entry J., Dkt. Nos. 666. Citations in the form of “Ryan Decl.
—” refer to the Decl. Antony L. Ryan Supp. Williams’ Mot. Entry Order and Final J., Dkt. No.
660, its supporting exhibits, and its appendixes.
5
Williams Companies, Inc. v. Energy Transfer LP, 2021 WL 6136723, at *36 (Del. Ch. Dec. 29,
2021).
6
JTX-0209.0059 (§5.06(g)).
3
I also awarded ETE reasonable attorneys’ fees and expenses in connection with
pursuing certain discovery and a related motion for sanctions.7 I directed the
parties to confer and submit a proposed form of order implementing the
Memorandum Opinion.8
The parties have reached an impasse regarding three aspects of the proposed
implementing order. First, the parties dispute whether Williams’ attorneys’ fees
and expenses are “reasonable.”9 Second, the parties disagree as to whether the
contractual prejudgment interest should be simple or compounded quarterly.10
Finally, the parties dispute whether interest should be tolled for a period during
which trial was postponed.11 For the reasons explained below, I find that
Williams’ attorneys’ fees and expenses were reasonable, and that Williams is
entitled to compound interest with no tolling.
II. ANALYSIS
A. The Plaintiff’s Attorneys’ Fees and Expenses Are Reasonable
ETE challenges two aspects of Williams’ attorneys’ fees and expenses.
First, Williams formed a contingent fee agreement with its out-of-state counsel,
Cravath, Swaine & Moore (“Cravath”), under which Cravath is entitled to 15% of
7
Williams Companies, 2021 WL 6136723, at *36.
8
Id.9
See Pl.’s Mot. § III; Defs.’ and Counterclaim Pls.’ Opp. Pl.’s Mot. Entry J. § I, Dkt. No. 664
[hereinafter “Defs.’ AB”]; The Williams Companies, Inc.’s Reply Supp. Mot. Entry Order
Final J. § I, Dkt. No. 668 [hereinafter “Pl.’s RB”].
10
Pl.’s Mot. § I; Defs.’ AB § III; Pl.’s RB § III.
11
Pl.’s Mot. § II; Defs.’ AB § II; Pl.’s RB § II.
4
the $410 million judgment, amounting to $74,846,161.32.12 Cravath and Williams
formed the contingent fee agreement partway through the litigation in this matter.
Specifically, in mid-2017, Williams’ new general counsel, Lane Wilson,
approached Cravath to suggest switching from an hourly arrangement to a
contingent arrangement.13 At that time, the Supreme Court had recently affirmed,
on March 23, 2017, my opinion declining to enjoin the Defendant from terminating
the Merger Agreement,14 and this action had thus evolved from an injunction case
to a damages case. Wilson testified that he wanted to switch to a contingent fee
arrangement because he wanted to “align Cravath and Williams [as] partners in
this litigation.”15 Cravath and Williams memorialized their contingent fee
arrangement in a written agreement dated September 19, 2017.16
ETE first contends that shifting the contingent fee in this case is not
“reasonable” under the Merger Agreement or Delaware law.17 ETE also
challenges Cravath’s “lodestar”—that is, the number of hours Cravath expended in
this litigation multiplied by its hourly rate—that supports its contingent fee.18 As
discussed below, I find that both the contingent fee and the lodestar are reasonable.
12
Ryan Decl. ¶¶ 39, 41, and 45; For the fee agreement, see Ryan Decl. Ex. B.
13
Yoch Opp. Ex. 3, at 43:12–46:18.
14
Williams Companies, Inc. v. Energy Transfer Equity, L.P., 159 A.3d 264, 266 (Del. 2017).
15
Yoch Opp. Ex. 3, at 44:13–18.
16
Ryan Decl. Ex. B.
17
Defs.’ AB § I.A.
18
Id. § I.
5
1. The Contingent Fee Is Reasonable
The Merger Agreement contains no limitation on what kinds of attorneys’
fees and expenses may shifted to the losing party, other than a requirement, which
is already implied under Delaware law, that the shifted fees and expenses must be
“reasonable.”19 The Merger Agreement also designates this Court as the
“exclusive jurisdiction” in which all disputes “arising out of or relating to th[e]
Agreement” must be brought.20 The parties thus manifested an intent to shift to the
losing party all attorneys’ fees and expenses that are “reasonable,” as determined
by this Court.
At the time the parties signed the Merger Agreement on September 28,
2015, this Court had not yet opined on whether fees based on a percentage of
recovery—contingent fees—may appropriately be shifted under a contractual fee
shifting provision. But it was well established at that time that this Court applies
the eight factors of Rule 1.5(a) of the Delaware Lawyers’ Rules of Professional
Conduct to evaluate whether the requested fees are reasonable in contractual
19
JTX-0209.0059 (§5.06(g)) (“[T]he [Defendants] shall pay to the [Plaintiff] . . . the [Plaintiff’s]
costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such
suit . . . .”); see also Mahani v. Edix Media Grp., Inc., 935 A.2d 242, 245 (Del. 2007) (“Delaware
law dictates that, in fee shifting cases, a judge determine whether the fees requested are
reasonable.”).
20
JTX-0209.0075 (§8.10(b)).
6
fee-shifting cases.21 And it was also well established that there is nothing
inherently unreasonable about contingent fees under Rule 1.5(a). Indeed, the
eighth factor of Rule 1.5(a) explicitly contemplates contingent fees.22 The
comments to Rule 1.5 advise that “[c]ontingent fees, like any other fees, are
subject to the reasonableness standard of paragraph (a) of this Rule,” and require
that “[i]n determining whether a particular contingent fee is reasonable, or whether
it is reasonable to charge any form of contingent fee, a lawyer must consider the
factors that are relevant under the circumstances.”23 The parties thus knew at the
time they entered into the Merger Agreement that their bargained-for
“reasonableness” limitation on fee-shifting did not automatically prohibit
contingent fees.
Consistent with Rule 1.5, this Court recently confirmed, in Shareholder
Representative Services LLC v. Shire US Holdings, Inc., that “there is nothing
inherently unreasonable in enforcing a contractual fee-shifting arrangement to
cover a contingent fee award.”24 Shire also involved a fee-shifting provision in a
merger agreement.25 During the litigation, the plaintiff and its counsel switched
21
See, e.g., Mahani v. Edix Media Grp., Inc., 935 A.2d 242, 245–46 (Del. 2007); see also Glob.
Link Logistics, Inc. v. Olympus Growth Fund III, L.P., 2010 WL 692752, at *1 (Del. Ch. Feb. 24,
2010).
22
Del. Lawyers’ R. Prof’l Conduct R. 1.5(a).
23
Id. R. 1.5 cmt. 3.
24
2021 WL 1627166, at *2 (Del. Ch. Apr. 27, 2021), aff’d, 267 A.3d 370 (Del. 2021).
25
See S’holder Representative Servs. LLC v. Shire US Holdings, Inc., 2020 WL 6018738, at *28
(Del. Ch. Oct. 12, 2020), aff’d, 267 A.3d 370 (Del. 2021).
7
from an hourly fee arrangement to a one-third contingent fee arrangement because
the plaintiff was struggling to fund the litigation.26 In finding the contingent fee
reasonable, the Court reasoned that “[r]isk-taking of this nature is a normal part of
litigation,” and “[a] one-third contingent fee arrangement is quite typical and
commercially reasonable.”27 The Court stressed that “[the defendant] could have
contracted in the [m]erger [a]greement to avoid this outcome. It did not.”28
As in Shire, the fee-shifting provision in the Merger Agreement here
contains no prohibition on the shifting of contingent fees. And the contingent fee
Williams agreed to, at 15%, is far below the 33% contingent fee approved in Shire
and well within the range of contingent fees that have been approved as reasonable
by this Court.29
ETE attempts to distinguish Shire because the plaintiffs there were
stockholders who struggled to fund the litigation without a contingent fee. 30 ETE
correctly points out that the Shire Court noted that “[r]isk-taking of this nature is a
normal part of litigation, which Delaware public policy seeks to reward when it
26
Shire, 2021 WL 1627166, at *1.
27
Id. at *2.
28
Id.
29
See Americas Mining Corp. v. Theriault, 51 A.3d 1213, 1260 & n.114 (Del. 2012) (“‘A study
of recent Delaware fee awards finds that the average amount of fees awarded when derivative
and class actions settle for both monetary and therapeutic consideration is approximately 23% of
the monetary benefit conferred; the median is 25%.’ Higher percentages are warranted when
cases progress to a post-trial adjudication.”).
30
Defs.’ AB § I.A.
8
benefits stockholders.”31 In contrast, ETE contends, Williams was not pursuing
this litigation as a stockholder, and it has presented no evidence that it struggled to
fund this litigation, meaning that “it does not fall into the public policy reasons”
articulated in Shire.32 I do not find that to be a principled basis to distinguish
Shire. In Shire, the plaintiff made a business judgment to switch to a contingent
fee because it could not otherwise fund the litigation; here, Williams’ general
counsel likewise made a business judgment to switch to a contingent fee to “align
Cravath and Williams [as] partners in this litigation.”33 This case, I note, had
recently changed from one seeking injunctive relief (which called for non-
contingent representation) to one seeking recovery of the break fee (for which
contingent representation was a business option).
Although “there is nothing inherently unreasonable in enforcing a
contractual fee-shifting arrangement to cover a contingent fee award,”34 the
decision to switch mid-litigation from an hourly arrangement to a contingent
arrangement may, in some circumstances, be unreasonable. For instance, where
the litigation has progressed significantly, if uncertainty regarding the outcome
begins to fall away, it may be unreasonable for a party to then switch to a
contingent fee in an attempt to penalize a party opponent. But that consideration is
31
Shire, 2021 WL 1627166, at *2.
32
Tr. 5.19.22 Oral Arg. re Mot. Entry Order and Final J. 33:21–35:1, Dkt. No. 676.
33
Yoch. Opp. Ex. 3, at 43:23–46:9.
34
Shire, 2021 WL 1627166, at *2.
9
not present here. To the contrary, the record reflects that, shortly after the Supreme
Court affirmed my post-trial opinion in the injunction phase of this litigation,
Williams’ new general counsel decided to switch to a contingent fee for the
damages phase because he thought it would align Williams and Cravath.35
Accordingly, I find no reason to part from the Court’s holding in Shire
enforcing a contractual fee-shifting provision to cover a contingent fee. I find the
particular contingent fee arrangement here to be reasonable.
2. Williams’ Lodestar Is Reasonable
ETE also takes issue with the “lodestar” that Williams used to support its
contingent fee. A “lodestar” is the “hours reasonably expended” multiplied by “a
reasonable hourly rate,” “which can then be adjusted through the application of a
‘multiplier,’ to account for additional factors such as the contingent nature of the
case.”36
Williams has produced a lodestar of $47,116,996.73.37 Comparing
Williams’ contingent fee to its lodestar yields a lodestar multiple of 1.7x.38 A 1.7x
35
See supra note 15 and accompanying text.
36
Americas Mining Corp. v. Theriault, 51 A.3d 1213, 1253 (Del. 2012).
37
Pl.’s Mot. § III.B.
38
Id.
10
lodestar multiple is well within the range of what this Court has deemed
reasonable.39
With respect to the lodestar itself, ETE contends that Cravath expended an
unreasonable number of hours in this litigation, and that Williams failed to review
Cravath’s bills to ensure compliance with Williams’ billing policies after they
switched to a contingent arrangement.40 I disagree. First, the record reflects that
Williams continued to review Cravath’s bills after the switch from an hourly to a
contingent arrangement.41 And even before the switch, Williams only objected to
“under 1 percent . . . of the amount billed” by Cravath.42 Thus, although Williams
did not review Cravath’s bills with the same degree of scrutiny after switching to a
contingent arrangement,43 ETE has presented no reason to suggest that any
potential write-downs after the switch would be material. Indeed, Cravath had
every incentive to work efficiently, given that its compensation was not based on
hours billed. In other words, Cravath bore the cost of any unnecessary litigation
expense, without the opportunity to pass that through to a client.
39
See Shire, 2021 WL 1627166, at *3 (“multiplier of approximately 2.5x” was “on par with or
less than awards this court has previously deemed reasonable in the post-trial or advanced-stage
litigation context”).
40
Defs.’ AB § I.B.
41
Yoch Opp. Ex. 3, at 87:15–89:18.
42
Id. Ex. 4, at 36:8–20; see also Ryan Decl. App. B, at 2 (showing $30,972.75 written-down on
$4,358,372.70 paid).
43
Yoch Opp. Ex. 3, at 88:11–89:25.
11
Second, ETE’s challenge to Cravath’s rates and hours is premised on a
comparison between Cravath and ETE’s counsel, Vinson & Elkins.44 For instance,
ETE points out that Cravath expended 81,864.8 hours, while Vinson & Elkins
expended only 34,700.3.45 But “any attempt to measure reasonableness by simple
comparison of the opposing parties’ lawyers’ bills is inadequate,” 46 particularly in
a case that imposed “asymmetric burdens” on either side.47 ETE does not dispute
that Williams produced approximately ten times as many documents as ETE in this
action.48 ETE has pointed to nothing that persuades me that the amount of hours
expended by Cravath in this litigation is unreasonable. I find the time expended—
again, used only as a proxy to measure the reasonableness of the contingent fee—
reasonable.
ETE likewise notes that Cravath’s hourly rate “is the highest of any counsel
in this action,” averaging $624.04 per hour, compared to Vinson & Elkins’ own
humble hourly rate of $472.60.49 But ETE offers nothing to suggest that the rates
Cravath used in its lodestar calculation were above the rates that the market would
bear for Cravath’s services. Nor could it: those rates reflected a discount and a rate
44
Defs.’ AB § I.B.
45
Id.
46
Bellmoff v. Integra Servs. Techs., Inc., 2018 WL 3097215, at *3 (Del. Super. Ct. June 22,
2018).
47
Cf. Danenberg v. Fitracks, Inc., 58 A.3d 991, 999 (Del. Ch. 2012).
48
See Pl.’s Mot. § III.B; Defs.’ AB § I.B.
49
Defs.’ AB § I.B.
12
freeze from what Cravath customarily charges.50 I find Cravath’s hourly rates to
be reasonable.
Accordingly, I find that the $47,116,996.73 lodestar Cravath used to support
its contingent fee is reasonable, and the fees and expenses award sought likewise
reasonable.
B. The Plaintiff is Entitled to Compound Interest
The parties to the merger agreement stipulated to an award of prejudgment
interest; they dispute whether Williams is entitled to quarterly compound, or
merely simple, prejudgment interest under the Merger Agreement’s fee shifting
provision. As with the ability to shift contingent fees, the Merger Agreement is
silent with respect to whether interest should be compound or simple.51 But the
parties agreed to submit any dispute arising out of the Merger Agreement to the
exclusive jurisdiction of this Court,52 and this Court has the discretion, in the
absence of a provision to the contrary, to award either compound or simple
prejudgment interest.53 Accordingly, by staying silent with respect to how interest
50
Ryan Decl. ¶¶ 38, 48. See Comrie v. Enterasys Networks, Inc., 2004 WL 936505, at *4 (Del.
Ch. Apr. 27, 2004) (rates reasonable where “[t]he plaintiffs received a 10% ‘courtesy discount’”
and “[t]he lead partner on the plaintiffs’ case kept his hourly rate constant following inception of
representation, notwithstanding two subsequent increases in his hourly rate for new matters”).
51
See JTX-0209.0059 (§5.06(g)).
52
JTX-0209.0075 (§8.10(b)).
53
Gotham Partners, L.P. v. Hallwood Realty Partners, L.P., 817 A.2d 160, 173 (Del. 2002)
(recognizing “the discretion of the Court of Chancery to award compound interest”).
13
should be calculated and agreeing to submit the matter to this Court, the parties
manifested an intent to leave that determination to the discretion of this Court.
In my discretion, I find that prejudgment interest should be compounded
quarterly. “Prejudgment interest serves two purposes: first, it compensates the
plaintiff for the loss of the use of his or her money; and, second, it forces the
defendant to relinquish any benefit that it has received by retaining the plaintiff’s
money in the interim.”54 In the context of sophisticated commercial parties,
“[c]ompanies neither borrow nor lend at simple interest rates.”55 Instead,
compound interest more accurately reflects the “fundamental economic reality”
that “[c]ompound interest is ‘the standard form of interest in the financial
market.’”56 Indeed, “even passbook savings accounts now compound their interest
daily.”57 It is thus “hard[] to imagine a corporation today that would seek simple
interest on the funds it holds.”58 By not promptly paying, ETE—not Williams—
has retained use of the $410 million breakup fee. The parties did not pluck $410
million from the ether; this amount represents Williams’ out-of-pocket cost should
54
Brandywine Smyrna, Inc. v. Millennium Builders, LLC, 34 A.3d 482, 486 (Del. 2011).
55
Glidepath Ltd. v. Beumer Corp., 2019 WL 855660, at *26 (Del. Ch. Feb. 21, 2019).
56
ONTI, Inc. v. Integra Bank, 751 A.2d 904, 926 & n.88 (Del. Ch. 1999), as revised (July 1,
1999).
57
Id. at 926.
58
Id.14
the merger fail.59 The merger did fail, and Williams has been without the use of its
money. Accordingly, I find that compound interest is appropriate here because it
more accurately reflects the economic realities of the parties. Williams is entitled
to prejudgment interest, compounded quarterly.
C. Tolling of Prejudgment Interest is Not Appropriate
ETE contends that interest should be tolled for the period during which the
trial in this action was delayed.60 Specifically, trial was initially delayed because of
an inadvertent error made by Williams’ discovery vendor.61 The trial was then
further delayed because of the COVID-19 pandemic.62 ETE contends that interest
must be tolled during the entire period of delay because Williams is the “but for”
cause of all the delays.63 Absent the discovery error, says ETE, trial would have
occurred before the COVID-19 pandemic.64
I decline to toll interest. Although this Court has the discretion to reduce
prejudgment interest for “delay that is the ‘fault’ or ‘responsibility’ of a plaintiff or
59
To enter the merger with ETE, Williams was forced to withdraw from another transaction
which bore a $410 million termination fee, JTX-1218.0130. For a more detailed discussion of the
transactions, see Williams, 2021 WL 6136723, at *2–3.
60
Defs.’ AB § II.
61
Letter to Vice Chancellor Glasscock from Kenneth J. Nachbar Regarding Electronic Disc.
Vendor Error, Which Parties Believe Requires Extension Case Schedule, Dkt. No. 407.
62
Judicial Action Form Completed by Dennel Niezgoda, Ct. Rep., Dkt. No. 500, Granted
(Stipulation and [Proposed] Third Am. Order Governing Case Schedule), Dkt. No. 502, Judicial
Action Form Completed by Dennel Niezgoda, Ct. Rep., Dkt. No. 528, Granted (Stipulation and
[Proposed] Forth Am. Order Governing Case Schedule), Dkt. No. 551, and Judicial Action Form
Completed by Jeanne Cahill, Ct. Rep., Dkt. No. 594.
63
Defs.’ AB § II.
64
Id.
15
his attorney,”65 such a reduction is typically reserved for situations involving
“inordinate” or deliberate delay.66 Here, the discovery error was inadvertent, made
by a third-party vendor, and was remedied within six months.67 And Williams had
nothing to do with the subsequent delays caused by COVID-19.
A prejudgment interest award is designed to “address the lost time value of
money.”68 ETE, not Williams, had the use of Williams’ $410 million judgment
during the entirety of this litigation; ETE’s use of those funds was not tolled during
the period of delay. I find no reason to toll interest here.
III. CONCLUSION
For the foregoing reasons, I find that the contingent fee is reasonable under
the Merger Agreement’s fee-shifting provision and under Delaware law. I also
find that Williams is entitled to pre-judgment interest, compounded quarterly, with
no tolling of interest. The parties should submit a proposed form of order
implementing the Memorandum Opinion dated December 29, 2021 and this
Memorandum Opinion.
65
Bishop v. Progressive Direct Ins. Co., 2019 WL 2009331, at *5 (Del. Super. Ct. May 3, 2019).
66
See Moskowitz v. Mayor & Council of Wilmington, 391 A.2d 209, 211 (Del. 1978) (“[W]here
there has been an inordinate delay the Court may take into consideration all of the actions of the
parties and apportion fault for any delay, thereby reducing the interest due in accordance with the
degree of the plaintiff's or his attorney's responsibility for the delay.”); See Wacht v. Cont’l
Hosts, Ltd., 1994 WL 728836, at *2 (Del. Ch. Dec. 23, 1994) (reducing interest because plaintiff
waited “nearly a decade to bring” “garden variety” case to trial, which was preceded “by long
periods of inactivity, with only fitful legal skirmishes occasioned mainly by motions . . . filed by
defendants”).
67
Ryan Decl. ¶¶ 20–21, 23.
68
See Buckeye Partners, L.P. v. GT USA Wilmington, LLC, 2020 WL 2551916, at *10 (Del. Ch.
May 20, 2020).
16
To the extent the foregoing requires an Order to take effect, IT IS SO
ORDERED.
17