In re TransPerfect Global, Inc.

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
__________________________________________
)
In re: TRANSPERFECT GLOBAL, INC. ) C.A. No. 9700-CB
__________________________________________)
)
ELIZABETH ELTING, )
Petitioner, )
)
v. ) C.A. No. 10449-CB
)
PHILIP R. SHAWE and SHIRLEY SHAWE, )
Respondents, )
)
and )
)
TRANSPERFECT GLOBAL, INC. )
Nominal Party. )
)
MEMORANDUM OPINION
Date Submitted: March 2, 2021
Date Decided: April 30, 2021
Kevin R. Shannon, POTTER ANDERSON & CORROON LLP, Wilmington,
Delaware; Philip S. Kaufman, KRAMER LEVIN NAFTALIS & FRANKEL LLP,
New York, New York; Attorneys for Elizabeth Elting.
Jeremy D. Eicher, EICHER LAW LLC, Wilmington, Delaware; David B. Goldstein,
RABINOWITZ, BOUDIN, STANDARD, KRINSKY & LIEBERMAN, P.C., New
York, New York; Attorneys for Philip R. Shawe.
Frank E. Noyes, II, OFFIT KURMAN, P.A., Wilmington, Delaware; Adam K. Bult,
BROWNSTEIN HYATT FARBER SCHRECK, LLP, Las Vegas, Nevada;
Attorneys for TransPerfect Global, Inc.
Jennifer C. Voss, Cliff C. Gardner, and Elisa M.C. Klein, SKADDEN, ARPS,
SLATE, MEAGHER & FLOM LLP, Wilmington, Delaware; Attorneys for
Custodian Robert B. Pincus.
BOUCHARD, Chancellor
Nine years ago, in shifting fees where a litigant had advanced frivolous
arguments, then-Chancellor Strine remarked that “it is more time-consuming to
clean up the pizza thrown at a wall than it is to throw it.”1 The “pizza principle” is
on full display in this decision.
Before the court are petitions the Custodian of TransPerfect Global, Inc. filed
for reimbursement of attorneys’ fees and expenses he and his counsel incurred from
May 2019 to December 2020. The amount is large—approximately $3.66 million.
As detailed below, however, the vast majority of this amount was incurred because
TransPerfect and its 99% owner, Philip R. Shawe, kept throwing pizzas at the wall.
Among other things, they sued the Custodian in Nevada state court concerning two
of his fee petitions in contempt of an exclusive jurisdiction provision in an order of
this court; prematurely made not one, but five different attempts for appellate review
of the contempt decision; objected in 192 pages of briefing and 108 pages of expert
submissions to virtually every entry in the Custodian’s billing records; and filed
three non-meritorious motions attacking various aspects of the fee petitions.
In this unduly lengthy opinion—necessitated by having to clean up the “extra-
large, deep-dish pie[s] with lots of toppings”2 that TransPerfect and Shawe have
1
Auriga Cap. Corp. v. Gatz Props., LLC, 40 A.3d 839, 882 n.184 (Del. Ch. 2012).
2
Danenberg v. Fitracks, Inc., 58 A.3d 991, 998 (Del. Ch. 2012).
1
thrown against the wall—the court grants the Custodian’s fee petitions in the amount
of $3,242,251, to be paid in the manner explained herein.
I. BACKGROUND3
The factual and procedural background of these actions is discussed in detail
in numerous opinions of this court and the Delaware Supreme Court.4 This decision
recites facts relevant to the fee petitions and related motions.
A. Initial Appointment of the Custodian
Before these actions were filed, the shares of TransPerfect Global, Inc.
(“TPG,” “TransPerfect,” or the “Company”) were held by Elizabeth Elting (50%),
Philip R. Shawe (49%), and his mother, Shirley Shawe (1%). This decision refers
to TPG and Shawe together, at times, as “Respondents” or “Objectors.”
On May 23, 2014, Elting filed the first of these actions seeking, among other
things, the appointment of a custodian to sell the Company under 8 Del. C. § 226
3
Civil Actions Nos. 9700-CB and 10449-CB have been litigated together since their
inception but were not formally consolidated. Docket citations refer to C.A. No. 9700-CB.
4
See In re TransPerfect Glob., Inc., 2019 WL 5260362, at *1 (Del. Ch. Oct. 17,
2019), appeal dismissed sub nom. TransPerfect Glob., Inc. v. Pincus, 224 A.3d 203 (Del.
2019) (TABLE), and cert. denied, 2019 WL 6130807 (Del. Ch. Nov. 18, 2019); In
re TransPerfect Glob., Inc., 2018 WL 904160 (Del. Ch. Feb. 15, 2018), aff’d sub
nom. Elting v. Shawe, 185 A.3d 694 (Del. 2018) (TABLE); In re TransPerfect Glob., Inc.,
2017 WL 3499921 (Del. Ch. Aug. 4, 2017); In re Shawe & Elting LLC, 2016 WL 3951339(Del. Ch. July 20, 2016), aff’d sub nom. Shawe v. Elting, 157 A.3d 142 (Del. 2017); In
re TransPerfect Glob., Inc., 2016 WL 3477217 (Del. Ch. June 20, 2016, revised June 21,
2016); Shawe v. Elting, 2015 WL 5167835 (Del. Ch. Sept. 2, 2015); In re Shawe & Elting
LLC, 2015 WL 4874733 (Del. Ch. Aug. 13, 2015), aff’d sub nom. Shawe v. Elting, 157
A.3d 152 (Del. 2017).
2
because of stockholder and board level deadlocks between its co-founders (Elting
and Shawe) that threatened the Company with irreparable injury.5 On March 9,
2015, a few days after the conclusion of a six-day merits trial and while the matter
was under submission, the court entered an order (the “Initial Order”) appointing
Robert B. Pincus—then a corporate partner at Skadden, Arps, Slate, Meagher &
Flom LLC (“Skadden”)—as “custodian of TPG . . . for the purpose of serving as a
mediator to assist Elting and Shawe in negotiating a resolution of their disputes.”6
Paragraph 7 of that Initial Order provided that: (i) “[t]he Custodian shall be
compensated at the usual hourly rate he charges as a partner of Skadden,” (ii) “[t]he
Custodian shall petition the Court on a monthly basis, or such other interval as the
Court may direct, for approval of fees and expenses,” and (iii) “[a]ny fees and
expenses approved by the Court shall be paid promptly by TPG.” 7
B. The Post-Trial Opinion and August 2015 Order
On August 13, 2015, after the parties failed to resolve their disputes through
mediation with the Custodian, the court issued a 104-page post-trial opinion and
implementing order (the “August 2015 Order”). The August 2015 Order entered
judgment in Elting’s favor on her claims under Section 2268 and appointed Pincus
5
Verified Pet. of Dissolution and Appointment of a Custodian or Receiver at 1 (Dkt. 1).
6
Dkt. 515 ¶ 1.
7
Id. ¶ 7.
8
Dkt. 607 ¶¶ 2, 4.
3
as the custodian of TPG (the “Custodian”) (i) “to oversee a judicially ordered sale
of the Company” and (ii) in the interim before a sale was consummated, “to serve as
a third director with the authority to vote on any matters on which Shawe and Elting
cannot agree and which rise to the level that [the Custodian] deems to be significant
to managing the Company’s business and affairs.”9
The August 2015 Order required the Custodian to file a report with this court
every thirty days concerning his progress.10 Paragraph 9 of the August 2015 Order
afforded the Custodian and Skadden judicial immunity, indemnification, and
advancement rights:
The Custodian and the law firm of Skadden, Arps, Slate, Meagher &
Flom LLP, its partners and employees (collectively, “Skadden”) are
entitled to judicial immunity and to be indemnified by TPG, in each
case, to the fullest extent permitted by law. Without limiting the
generality of the foregoing, fees and expenses incurred by the
Custodian and Skadden in defending any civil, criminal, administrative
or investigative claim, action, suit or proceeding reasonably related to
the Custodian’s responsibilities under this order shall be paid by TPG
in advance of the final disposition of such claim, action, suit or
proceeding within 15 days of a statement therefor.11
9
Shawe & Elting LLC, 2015 WL 4874733, at *32.
10
Dkt. 607 ¶ 8.
11
Id. ¶ 9. In addition to obtaining these protections, the Company and Pincus entered into
a Director Indemnification Agreement on August 19, 2015, which affords Pincus certain
rights to indemnification and advancement but only in his capacity as a director of TPG.
See Dkt. 1361 Ex. A. The Director Indemnification Agreement expressly provides that
these rights “shall be in addition to, but not exclusive of, any other rights which Indemnitee
may have at any time under applicable law, the Certificate of Incorporation or Bylaws, any
other agreement, vote of members or directors . . . or otherwise.” Id. § 14A. Pincus’ rights
under the Director Indemnification Agreement are not at issue in this opinion.
4
Paragraph 10 of the August 2015 Order parroted the Initial Order, in that it: (i)
permitted the Custodian to charge “at the usual hourly rate he charges as a partner
of Skadden,” (ii) directed the Custodian to “petition the Court on a monthly basis . .
. for approval of fees and expenses,” and (iii) required that TPG pay “[a]ny fees and
expenses approved by the Court.”12 Paragraph 11 of the August 2015 Order further
provided that the Custodian “may retain counsel (including Skadden) or other
advisors to assist him,” that the fees of any such counsel or advisors “shall be
calculated on the same hourly rates charged by such counsel or advisors to clients
represented outside this matter,” and that “[t]he reasonable fees and expenses of such
counsel or advisors shall be paid promptly by TPG.”13
C. The Sale Order
On February 8, 2016, the Custodian submitted to the court a proposed plan of
sale for the Company that recommended holding a “modified auction.”14 After
briefing and a hearing to address Shawe and Ms. Shawe’s objections,15 the court
issued a letter opinion accepting the Custodian’s recommendation to pursue a sale
12
Dkt. 607 ¶ 10.
13
Id. ¶ 11.
14
Dkt. 735.
15
See TransPerfect, 2016 WL 3477217, at *2.
5
of the Company through a modified auction and asked the Custodian “to confer with
counsel for the parties and to submit an implementing order.”16
On July 18, 2016, the court entered an order for the Custodian to undertake a
sale process (the “Sale Order”).17 Paragraph 14 of the Sale Order: (i) repeated the
requirement in paragraph 10 of the August 2015 Order that the Custodian to petition
the court on a monthly basis for approval of his fees and expenses, (ii) provided that
the fees of any counsel or advisors hired by the Custodian must be paid by the
Company, and (iii) added a new provision affording the Custodian the right to place
some of the proceeds of a sale transaction into an escrow account to cover unpaid
fees and expenses that may be due to the Custodian and/or his advisors:
The Custodian shall be compensated at the usual hourly rate he charges
as a partner of the Firm. The Custodian also shall be reimbursed for
reasonable travel and other expenses incurred in the performance of his
duties. The Custodian shall petition the Court on a monthly basis, or
such other interval as the Court may direct, for approval of fees and
expenses. Any fees and expenses approved by the Court shall be paid
promptly by the Company. The fees of any counsel or advisors retained
by the Custodian (i) shall be determined pursuant to the applicable
agreement entered into pursuant to Paragraph 7 hereof or (ii) shall be
calculated on the same hourly rates charged by such counsel or advisors
to clients represented outside this matter. Such fees and expenses of
such counsel or advisors shall be paid promptly by the Company upon
approval of the Custodian. In the event any fees and expenses of the
Custodian or any counsel or advisors retained by the Custodian or by
the Company at the Custodian’s direction remain unpaid at the closing
of the Sale Transaction (or any claims for indemnification or
16
Id. at *5.
17
Dkt. 848.
6
advancement remain outstanding), the Custodian may provide for the
proceeds of the sale to be paid into an escrow account and for the unpaid
fees and expenses (and any claims for indemnification or advancement)
to be deducted from the proceeds, and then for the proceeds to be
distributed pro rata to the Company’s stockholders.18
Although Shawe submitted revisions to virtually every other provision in the Sale
Order, he did not propose any revisions to paragraph 14.19
The Sale Order also included judicial immunity, indemnification, and
advancement provisions nearly identical to those provided in the August 2015
Order.20 Paragraph 15 of the Sale Order further provided that “[a]ll actions,
recommendations and decisions of the Custodian shall be presumed to have been
made on an informed basis, in good faith, and in the honest belief that such actions,
recommendations and decisions were in the best interests of the Company.”21
D. Shawe is Sanctioned by the Court
Shortly before the merits trial, Elting filed a motion for sanctions against
Shawe alleging serious acts of misconduct,22 which were the subject of a separate
two-day evidentiary hearing in January 2016. On July 20, 2016, the court issued a
memorandum opinion (the “Sanctions Opinion”) in which it found “that Shawe
18
Id. ¶ 14.
19
See Dkt. 837 Ex. A ¶ 14.
20
Dkt. 848 ¶ 16.
21
Id. ¶ 15.
22
Dkt. 480.
7
acted in bad faith and vexatiously during the course of the litigation in three
respects,” namely:
(1) by intentionally seeking to destroy information on his laptop
computer after the Court had entered an order requiring him to provide
the laptop for forensic discovery; (2) by, at a minimum, recklessly
failing to take reasonable measures to safeguard evidence on his phone,
which he regularly used to exchange text messages with employees and
which was another important source of discovery; and (3) by repeatedly
lying under oath—in interrogatory responses, at deposition, at trial, and
in a post-trial affidavit—to cover up aspects of his secret deletion of
information from his laptop computer and extraction of information
from the hard drive of Elting’s computer.23
With respect to the third category, the court specifically found, among other things,
that Shawe secretly accessed Elting’s computer remotely “at least 44 times” and
“gained access to approximately 19,000 of Elting’s Gmails, including approximately
12,000 privileged communications with her counsel,”24 and deleted approximately
19,000 files from his laptop the day before an image of it was to be taken pursuant
to discovery orders of the court.25
As a sanction, Shawe was ordered to pay Elting approximately $7.1 million
to reimburse a portion of her legal fees.26 Indicative of the extraordinary
contentiousness of the litigation, as of July 2016, Shawe and Elting together spent
23
Shawe & Elting LLC, 2016 WL 3951339, at *1.
24
Id. at *2.
25
Id. at *5.
26
Dkt. 885 ¶ 13.
8
approximately $27 million on the litigation over a 20-month period, with Shawe
accounting for more than $13.8 million of that amount.27
E. The Shawes Sue Elting’s Counsel, Financial Advisor, and Husband
During the interim between the Custodian’s proposal to conduct a modified
auction in February 2016 and entry of the sale order in July 2016, Shawe and his
mother launched a barrage of lawsuits against Elting’s counsel, financial advisor,
and husband.
On April 21, 2016, Shawe sued Ronald Greenberg and his law firm, Kramer
Levin Naftalis & Frankel, LLP, Elting’s lead counsel at the merits trial, in New York
state court under New York Judiciary Law § 487, and sued Elting, Greenberg, and
Kramer Levin for malicious prosecution.28
On May 6, 2016, Ms. Shawe sued Kidron Corporate Advisors LLC and Mark
Segall, a co-owner and director of Kidron, in New York state court.29 Kramer Levin
hired Kidron on Elting’s behalf to serve as a financial advisor.30 Ms. Shawe alleged
that Kidron and Segall “aided and abetted Elting’s fiduciary duty breaches” and
“aided Elting’s supposed ‘scheme’ of manufacturing deadlock.”31
27
TransPerfect, 2018 WL 904160, at *21; Dkt. 885 at 3-4.
28
Shawe v. Elting, 2017 WL 2882221, at *4 (N.Y. June 29, 2017).
29
Id. at *7.
30
Shawe v. Elting LLC, 2015 WL 4874733, at *12.
31
Shawe v. Elting, 2017 WL 2882221, at *7.
9
On May 18, 2016, Ms. Shawe sued Cushman & Wakefield, Inc. and Michael
Burlant, an executive director at Cushman and Elting’s husband, in New York state
court.32 Ms. Shawe asserted four claims against Cushman and Burlant that “all relate
to the allegation that Burlant, who was retained to help the Company find new office
space in London, scuttled potential lease opportunities to aid Elting [in obtaining]
leverage in her disputes with Shawe, thereby causing the Company to lease inferior
office space, which supposedly impeded its work.”33
On June 29, 2017, the Supreme Court of New York dismissed all three of
these actions in a single opinion.34 The New York court found that “[t]he three cases.
. . represent some of Shawe’s most recent collateral challenges to the loss he suffered
in Delaware. They are replete with revisionist history that borders on downright
frivolity. It is as if the Delaware proceedings, and its notable holdings, never
occurred.”35 The court also observed that Shawe was engaged in forum shopping:
These cases, clearly, are a forum shopping exercise based on Shawe’s
misguided hope that this court might either view his behavior more
charitably than the Delaware courts or decide not to follow their rulings.
As noted earlier and addressed further below, given Shawe’s wealth,
this court has serious concerns that litigation might prove perpetual
32
Id.33
Id.34
Id. at *15.
35
Id. at *1 (emphasis added).
10
absent a filing injunction, as the $7 million sanction imposed by the
Chancellor does not appear to have had much of a deterrent effect.36
The court concluded that, “given the borderline frivolity of these lawsuits, Philip and
Shirley Shawe are cautioned that the maintenance of future suits in this court that
are barred by the outcome of the Delaware action may result in sanctions and a filing
injunction.”37
F. A TPG Employee Sues the Custodian and the Chancellor
On July 26, 2016, eight days after the court entered the Sale Order, Timothy
Holland, a TransPerfect employee, filed an action in the United States District Court
for the Southern District of New York against the Custodian and this judicial officer,
asserting that the Sale Order chilled his First and Fourth Amendment rights.38 On
September 19, 2017, the district court dismissed the action under the
Younger abstention doctrine.39 Holland filed a notice of appeal on October 19, 2017,
which was withdrawn on May 11, 2018, after the sale transaction closed.
36
Id. at *12.
37
Id. at *14 (emphasis added).
38
Holland v. Bouchard, 2017 WL 4180019, at *2 (S.D.N.Y. Sept. 19, 2017).
39
Id. at *1.
11
At the time, Holland worked exclusively with Shawe at TransPerfect.40
Holland also is the incorporator of “Citizens for a Pro-Business Delaware Inc.,”41 an
organization that has run ads criticizing the expenses that were incurred as a result
of the sale process, including fees paid to Skadden.42 In a letter to the court on April
10, 2020, counsel for Shawe asserted that the “accusation that there is some
connection between Shawe and employees of TPG” and Citizens for a Pro-Business
Delaware is “false.”43 Yet, in an interview on April 2, 2020, Chris Coffey, the
“Campaign Manager” for the Citizens group, stated that Citizens for a Pro-Business
Delaware “was formed by the employees” of TPG and that “the head of the group is
the number 2 or 3 person at the company.”44
G. Affirmance of the Court of Chancery’s Decisions
On February 13, 2017, the Delaware Supreme Court affirmed the August 2015
post-trial opinion, the August 2015 Order and the Sale Order.45 In its opinion, the
40
Appellee’s Answering Br. at 43, Shawe v. Elting, No. 423, 2016 (Del. Nov. 3, 2016),
Dkt. 38.
41
B3572-B3579 to the App. in Support of Appellee's Answering Br. at App. B3579, Shawe
v. Elting, No. 423, 2016 (Del. Nov. 3, 2016), Dkt. 39.
42
See Golden Aff. Exs. C-E (Dkt. 1219).
43
Dkt. 1487.
44
Dkt. 1488 at 2 n.2 (linking to Radio Interview on WXDE with Chris Coffey on April 2,
2020). As noted below, in at least one instance, the Citizens group issued a press release
describing a motion TPG and Shawe filed with the court before the motion actually had
been filed.
45
Shawe v. Elting, 157 A.3d 152 (Del. 2017).
12
high court summarized numerous factual findings of this court, noting “that Shawe
bullied Elting and those aligned with her, expressing his desire to ‘create constant
pain’ for Elting until she agreed with Shawe’s plans,” and that “Shawe’s conduct
was reprehensible.”46
Also on February 13, 2017, the Delaware Supreme Court affirmed the
Sanctions Opinion and its implementing order.47 The high court concluded that
“[t]he Court of Chancery did not abuse its discretion by sanctioning Shawe based on
a clear record of egregious misconduct and repeated falsehoods during the
litigation.”48
H. The Section 211 and 220 Actions
On April 20, 2017, Ms. Shawe filed an action in this court asserting a single
claim under 8 Del. C. § 211(c) to compel TPG to hold an annual meeting of its
stockholders.49 Ms. Shawe intended to use the Section 211 action not to schedule a
straightforward annual meeting, but to implement a highly conditional proposal she
had made to break the deadlocks between Elting and her son by granting a limited
46
Id. at 157, 167 n.55.
47
Shawe v. Elting, 157 A.3d 142 (Del. 2017).
48
Id. at 152 (emphasis added).
49
TransPerfect, 2017 WL 3499921, at *2.
13
proxy to Elting. But the conditions in the proposal were completely unacceptable to
Elting, making it a non-starter.50
On August 4, 2017, in denying Ms. Shawe’s motion for expedition, the court
reasoned as follows:
In view of the specific and unique circumstances of this case, where the
sale process that was set in motion almost two years ago is expected to
conclude in the near future, it is my opinion that TPG should not be
required to respond to the Section 211 Action at this stage. Ms. Shawe
explicitly states that she “has not commenced [the Section 211]
proceeding merely to enforce a technical corporate statutory right.
Rather, . . . Ms. Shawe intends to end the division of the stockholders
that led to the 2014 Stipulation.” But Ms. Shawe also has steadfastly
insisted on conditioning her grant of a proxy to Elting on conditions
that Elting already has rejected. Thus, even if a stockholder meeting
were ordered, no proxy would be granted, no deadlock would be
broken, and no director would be elected. It would be a futile exercise.51
Three days later, on August 7, Ms. Shawe requested certain “itemized billing
records” from the Custodian.52 On September 12, 2017, Ms. Shawe converted her
50
The conditions of Ms. Shawe’s proposal included the (i) “adoption of an amendment to
TPG’s bylaws restructuring the Board to consist of five directors serving staggered terms,
and authorizing a majority of the members of the Board to fill any vacancies that may exist
from time to time;” (ii) “adoption of certain guidelines for significant corporate governance
issues, including that any sitting director up for re-election at the next annual meeting must
submit a contingent resignation that becomes effective only if the director fails to receive
a sufficient number of votes for re-election and the Board accepts the resignation;” (iii)
“issuance of the remaining authorized shares of the Company to each of the current
stockholders on a pro rata basis according to their current ownership interests;” and (iv)
“provision of a proxy allowing Elting to vote Ms. Shawe’s shares solely for the election of
any directors of TPG at the next five annual meetings of the stockholders.” Id.51
Id. at *5 (alterations in original) (internal citations omitted).
52
Dkt. 1539 Ex. D at 3.
14
information request into a formal demand under 8 Del. C. § 220 to inspect books
and records of the Company in order to “evaluate the propriety of the amounts
included in recent invoices from the Custodian and his advisors to be paid by the
Company, pursuant to” the Sale Order.53 On October 1, 2017, Ms. Shawe sued the
Company to enforce her inspection demand.54 The Custodian expressed concern
that Ms. Shawe was seeking this information “as a potential new avenue to try to
undermine the sales process.”55 The Section 220 action did not progress beyond the
pleadings and was dismissed in connection with the closing of the sale transaction.
I. Shawe Sues the Custodian Twice in Federal Court
On March 15, 2017, Shawe and Ms. Shawe sued the Custodian and the
Delaware Secretary of State in the United States District Court for the District of
Delaware, raising constitutional claims that were never raised at the merits trial and
deemed waived by the Delaware Supreme Court.56 On September 26, 2017, the
53
Shawe v. TransPerfect Glob., Inc., C.A. No. 2017-0697-AGB, Dkt. 1 Ex. 9 at 1.
54
Shawe v. TransPerfect Glob., Inc., C.A. No. 2017-0697-AGB, Dkt. 1.
55
Dkt. 1539 Ex. E at 2.
56
Shawe v. Pincus, 265 F. Supp. 3d 480, 484 (D. Del. 2017) (“Ms. Shawe's constitutional
arguments were deemed waived [by the Delaware Supreme Court] for failure to raise them
first in the Chancery Court.”); see also Shawe, 157 A.3d at 168-69 (holding that Ms.
Shawe’s constitutional arguments, which she “admits that she did not properly present this
issue before the Court of Chancery,” were “waived for failure to raise them first in the
Court of Chancery”).
15
court district court dismissed the Shawes’ constitutional claims, concluding they
were barred under the Rooker-Feldman doctrine.57
Undeterred, the Shawes appealed the district court’s dismissal in the United
States Court of Appeals for the Third Circuit and sought expedition of that appeal,
which was denied.58 The Shawes also filed a motion in the district court to stay the
sale process, which was denied on October 27, 2017.59
On September 1, 2017, Shawe again sued the Custodian, this time in the
United States District Court for the Southern District of New York. The complaint
in that action again asserted constitutional claims.60 This action was voluntarily
dismissed on May 8, 2018 in connection with the closing of the sale transaction.61
J. Shawe is Sanctioned Again
On September 24, 2017, Shawe sued Potter Anderson & Corroon, LLP and
Kevin R. Shannon, a Potter Anderson partner, in the United States District Court for
57
Shawe, 265 F. Supp. 3d at 483.
58
See Order Denying Appellants’ Motion to Expedite Case, Shawe v. Pincus, 17-3185 (3d
Cir. Nov. 6, 2017).
59
Shawe v. Pincus, 2017 WL 4856863, at *1 (D. Del. Oct. 27, 2017).
60
See Complaint for Violation of Civil Rights and Supremacy Clause, Shawe v. Pincus,
17-cv-06673-WHP (S.D.N.Y. Sept. 1, 2017), Dkt. 1.
61
Notice of Voluntary Dismissal Pursuant to F.R.C.P. 41(a)(1)(A)(i), Shawe v. Pincus, 17-
cv-06673-WHP (S.D.N.Y. May 9, 2018), Dkt. 53.
16
the District of Delaware.62 Potter Anderson has served as Elting’s Delaware counsel
from the inception of these actions. Shawe alleged that Potter Anderson and
Shannon committed a “‘prima facie tort’ for ‘maliciously and intentionally’
misrepresenting certain fees incurred in the Court of Chancery during the
computation of the order of sanctions.”63 As the district court explained, “[t]he
entirety of the allegations against Potter and Shannon concern their submission of
fee estimates for the order of sanctions in the Delaware Court of Chancery.”64
On November 7, 2017, Potter Anderson and Shannon moved for sanctions
against Shawe and his Delaware attorney, Christopher M. Coggins of Coggins Law,
LLC.65 On December 8, 2017, the district court granted this motion for sanctions
and dismissed the action with prejudice. In doing so, the court explained: “The
Delaware Court of Chancery twice considered and twice rejected the very same
allegations Shawe includes in his complaint in the instant action. . . . Shawe’s
purpose in presenting the Court with the complaint and the amended complaint was
62
Shawe v. Potter Anderson & Corroon LLP, 2017 WL 6397342, at *2 (D. Del. Dec. 8,
2017).
63
Id.64
Id.65
Id. at *1, *3.
17
to harass the Defendants and to abuse the court system, in violation of Rule
11(b)(1).”66
As a sanction, the district court ordered Shawe “to pay 50% of the Defendants’
attorneys’ fees and expenses incurred in connection with the defense of this civil
action for his violation of Rule 11(b)(1),” with his attorney, Coggins, responsible for
the other 50%.67 The court declined to impose a filing injunction on Shawe, but
expressly referenced the June 29, 2017 opinion of the Supreme Court of New York
and advised “that any future court plagued by subsequent frivolous lawsuits brought
by Shawe to collaterally attack the Delaware rulings should very seriously consider
imposing an injunction to put a final end to this behavior.”68
K. The Final Order
After the Supreme Court affirmed the Sale Order, the Custodian oversaw a
sale process involving multiple rounds of bidding that resulted in execution of a
securities purchase agreement on November 19, 2017 (the “Sale Agreement”).69
Under the Sale Agreement, Shawe acquired Elting’s 50% of the Company for $385
million, subject to certain adjustments.70 The transaction closed on May 7, 2018.
66
Id. at *3-4.
67
Id. at *5.
68
Id.
69
Dkt. 1185 Ann. C.
70
See id. § 1.1.
18
The Sale Agreement set aside $5 million from the purchase price—half
funded by Shawe and half funded by Elting—“as a non-exclusive source of funds
for securing,” among other things, “amounts payable to the Custodian or his
advisors, including, without limitation, investment banking, legal and accounting
fees and expenses for services performed prior to or after the Closing.”71 The $5
million was placed into an “Escrow Account” (the “Escrow”).72
Section 7.5(a) of the Sale Agreement requires Shawe to, among other things,
“take all necessary actions to cause the Company and the Company Subsidiaries to
continue to indemnify and hold harmless, to the fullest extent permitted by
applicable Law, the Custodian and each of the Company’s and the Company
Subsidiaries’ present and former directors.”73 Section 12.18 of Sale Agreement
provides that “the duties and responsibilities of all parties subject to the Sale Order
and all other orders of the Court in Civil Action Nos. 9700-CB and 10449-CB shall
remain in full force and effect in accordance with their terms.”74
On February 15, 2018, over objections from Elting, the court accepted the
Custodian’s recommendation to approve the transaction embodied in the Sale
71
Id. § 2.2.
72
See id. §§ 1.1, 2.4.
73
Id. § 7.5(a).
74
Id. § 12.18.
19
Agreement75 and entered an order approving the Sale Agreement (the “Final
Order”).76 Similar to the Sale Agreement, the Final Order keeps in place all prior
orders entered in these actions:
The rights and authority granted to the Custodian and the duties and
responsibilities of all parties to the Actions under the Sale Order and all
other orders of the Court in Civil Action Nos. 9700-CB and 10449-CB
shall remain in full force and effect in accordance with their terms until
otherwise modified or discharged by the Court.77
The Final Order also provides that the court has exclusive jurisdiction over
the parties to the actions “for all matters relating to the Actions”:
Without impacting the finality of this Order and judgment, the Court
retains continuing and exclusive jurisdiction over the parties to the
Actions for all matters relating to the Actions, including the
administration, interpretation, effectuation or enforcement of the Sale
Agreement and the Related Agreements, and all orders of the Court in
Civil Action Nos. 9700-CB and 10449-CB, and further retains and
reserves continuing jurisdiction to consider any applications that the
Custodian may make for the Court’s assistance in addressing any
problems encountered by the Custodian in performing his duties under
any order of the Court.78
Finally, similar to the August 2015 Order and the Sale Order, the Final Order
includes a provision providing the Custodian and Skadden with judicial immunity
as well as indemnification and advancement rights:
75
See TransPerfect, 2018 WL 904160, at *27.
76
Dkt. 1243.
77
Id. ¶ 8.
78
Id. ¶ 10.
20
Without limitation, the Custodian and Skadden, Arps, Slate, Meagher
& Flom LLP (and its partners and employees) are entitled to judicial
immunity and to be indemnified by the Company (or its successor in
interest), in each case, to the fullest extent permitted by Law. Without
limiting the generality of the foregoing and notwithstanding anything
that could be construed to the contrary in this Order or the Sale
Agreement, fees and expenses incurred by the Custodian or Skadden,
Arps, Slate, Meagher & Flom LLP (and its partners and employees) in
defending or prosecuting any civil, criminal, administrative or
investigative claim, action, suit or proceeding reasonably related to the
Custodian’s responsibilities under the Sale Order or this Order, shall be
paid by the Company (or its successor in interest) in advance of the
final disposition of such claim, action, suit or proceeding, within 15
days of receipt of a statement thereof.79
On May 3, 2018, the Delaware Supreme Court affirmed the Final Order.80 In
his brief to the Supreme Court supporting the Final Order, Shawe praised the
Custodian and Skadden, noting that Skadden and the Custodian’s other advisors
were “experts . . . whose qualifications are unchallenged.”81 Shawe also highlighted
that the record “overwhelmingly demonstrated that” the Custodian “had no conflict
of interest”82 and that he “fulfilled [his] dual mandate”83 “to sell the Company with
79
Id. ¶ 7.
80
Elting v. Shawe, 185 A.3d 694 (Del. 2018) (TABLE).
81
See Answering Br. of Resp’t-Below Appellee Philip R. Shawe at 13, Elting v. Shawe,
No. 90, 2018 (Del. Apr. 5, 2018), Dkt. 18.
82
Id. at 26.
83
Id. at 46.
21
a view toward maintaining the business as a going concern and maximizing value
for the stockholders.”84
L. Fee Petitions from May 2018 to April 2019
On May 10, 2018, the Custodian filed his monthly report in which he informed
the court that he had resigned as a director of the Company but would continue to
serve as Custodian for other purposes, with the expectation of filing a proposed order
of discharge at a later date.85 In the same letter, the Custodian petitioned the court
under compensation provisions in paragraphs 10 and 11 of the August 2015 Order
to approve the fees and expenses he and his advisors had incurred and to require that
they be paid by the Company.86 The Custodian also advised the court of his intention
to petition the court in the future for payment of his fees and expenses from the
Escrow.87
From June 2018 to April 2019, the Custodian’s petitions for approval of fees
and expenses explained that they would be paid from the Escrow.88 In his January
2019 report, the Custodian informed the court and the parties that he had fully retired
84
Id. at 7 (quoting Shawe & Elting LLC, 2015 WL 4874733, at *32).
85
Dkt. 1261 at 2.
86
Id. at 3.
87
Id. at 3-4.
88
See Dkts. 1267, 1269, 1271, 1273, 1275, 1277, 1279, 1281 Ex. 1, 1292 Ex. 1, 1303 Ex.
1, 1311 Ex. 1.
22
from Skadden as of December 31, 2018, and that future services he would be
providing as Custodian would be charged at a reduced hourly rate of $950 per hour.89
M. The Cypress and H.I.G. Litigations
On August 16, 2018, Cypress Partners LLC filed a lawsuit against Shawe in
the Supreme Court of the State of New York (the “Cypress Action”).90 According
to the four-count complaint, Cypress provided Shawe with advisory services in
connection with the sale of TransPerfect, but Shawe refused to pay the balance of a
negotiated fee in the amount of $800,000 or to participate in arbitration, as required
by an engagement letter.91
On May 22, 2019, the Custodian received a “Subpoena to Appear at a
Deposition and to Produce Documentary Evidence” from Cypress.92 The
Custodian’s deposition was scheduled for June 5, 2019.93 The subpoena sought,
among other documents, “[a]ll documents and communications from July 1, 2016
through June 30, 2018 relating to,” among other things, Shawe, Cypress, and “the
Modified Auction, Sale Order, Shawe’s purchase of Elting’s interest in TPG, and
89
Dkt. 1281 Ex. 1 at 3.
90
See Dkt. 1315 Ex. 1 Attach. A at 1.
91
Id. ¶¶ 3-9, 24-53.
92
Dkt. 1441 Ex. 13.
93
Id.
23
Sale Agreement.”94 Two of the Custodian’s advisors in the sale process—Credit
Suisse Securities (USA) LLC and Alvarez & Marsal—also received subpoenas from
Shawe and Cypress.95 Skadden and Cypress’s counsel eventually reached a
resolution that Cypress would not enforce the subpoena against the Custodian.96
On April 11, 2019, TPG filed a lawsuit against Lionbridge Technologies, Inc.
and H.I.G. Middle Market LLC, which held a majority interest in Lionbridge, in the
United States District Court for the Southern District of New York (the “H.I.G.
Action”).97 H.I.G. was one of the three final bidders for the Company during the
sale process.98 In the H.I.G. Action, TPG is seeking “in excess of $300,000,000” in
damages from H.I.G. and Lionbridge for allegedly misusing the Company’s trade
secrets or confidential information that H.I.G. acquired during the sale process to
compete unfairly with the Company.99 The Custodian is listed as a “Relevant Non-
Part[y]” in the H.I.G. Action.100
On April 25, the Custodian and Skadden each received a litigation hold notice
from TPG’s counsel in the H.I.G. Action, requiring that they preserve certain
94
See id. ¶¶ 1-3.
95
See Dkt. 1441 Ex. 14.
96
See Dkt. 1441 Ex. 15.
97
See Dkt. 1315 Ex. 1 Attach. B.
98
TransPerfect, 2018 WL 904160, at *11-12.
99
Dkt. 1315 Ex. 1 Attach. B at 1 (¶ 1), 43 (¶ h).
100
Id. ¶ 16.
24
categories of documents, including “[a]ny and all records relating to the forced sale
of TPG through an auction contest in the Delaware Court of Chancery.”101
On June 15, 2020, TPG served subpoenas on the Custodian and Skadden in
the H.I.G. Action, seeking production of over 50 different categories of
documents.102 TPG also sent subpoenas to several of the Custodian’s advisors
around this time, seeking similar information.103
N. The May 2019 Report
On May 8, 2019, in his monthly report, the Custodian informed the court about
the filing of the Cypress and H.I.G. Actions, described the nature of the allegations,
and apprised the court that given the nature of the actions, he intended in the future
to seek payment for expenses incurred in connection with these actions under the
court’s orders instead of using the Escrow for that purpose:
Given the general circumstances, as well as the nature of the [H.I.G.
Action] and the Cypress Complaint, and the scope of the Litigation
Hold Notices relating to the [H.I.G. Action], I anticipate expenses to be
higher in future months than in recent months, and, in future
applications, I intend to seek prompt payment, per Court order, directly
from TransPerfect Global, Inc. for these expenses, while reserving all
rights vis-a-vis the Escrow Fund, which is a “non-exclusive source of
funds” to pay my fees and expenses and the fees and expenses of my
agents and representatives post-Closing (funded 50/50 by Mr. Shawe
and Ms. Elting).104
101
Dkt. 1315 Ex. 1 Attach. E at 1.
102
See Dkt. 1576 Exs. 2-3.
103
See Dkt. 1576 Exs. 6, 8.
104
Dkt. 1315 Ex. 1 at 10-11.
25
The report cited three provisions from prior court orders as support for seeking
payment from the Company for time and expenses incurred in connection with the
Cypress and H.I.G Actions: the indemnification provisions in paragraph 7 of the
Final Order and paragraph 16 of the Sale Order, and the compensation provision in
paragraph 14 of the Sale Order.105
The May 2019 report sought approval to pay from the Escrow $60,104.70 in
unbilled fees and expenses, which included $25,784.70 of Skadden’s fees and
expenses and $30,900 of Ernst & Young LLP’s fees and expenses “related to their
work on pre-Closing tax periods.”106 On May 17, 2019, the court entered an order
approving this request.107
O. The June and July 2019 Fee Petitions
On June 17, 2019, the Custodian filed his monthly report and sought court
approval concerning $58,767.71 in fees and expenses he had incurred that primarily
related to the Cypress and H.I.G. Actions.108 Referencing the explanation provided
in his May 8, 2019 report, the Custodian requested that these expenses be paid
105
Id. at 10 n.7.
106
Id. at 11-12.
107
Dkt. 1318.
108
Dkt. 1324 Ex. 1 at 2.
26
directly by the Company rather than from the Escrow.109 On June 28, 2019, the court
entered an order approving this request.110
On July 10, 2019, the Custodian filed his monthly report and sought court
approval concerning $90,089.14 in fees and expenses, “of which $83,653 was
incurred by Ernst & Young LLP in connection with its preparation of certain
preclosing tax information.”111 Referencing the positions taken in his May and June
reports, the Custodian requested that the amounts billed by Ernst & Young be paid
from the Escrow and that the balance of $6,436.14 be paid directly by TPG.112 On
July 17, 2019, the court entered an order approving this request.113 The June and
July 2019 Orders are referred to together as the “Fee Orders.”
P. TPG Demands Documents from the Custodian’s Advisors
On August 2, 2019, Adam Mimeles, TPG’s General Counsel, sent a letter to
Alvarez & Marsal “request[ing] all electronic and hard copies of all files, documents,
correspondence, communications (electronic or otherwise) notes, etc. in connection
with work done, and advice provided, by Alvarez & Marsal on behalf of its client,
109
Id.
110
Dkt. 1327.
111
Dkt. 1329 Ex. 1 at 2.
112
Id.
113
Dkt. 1331.
27
TransPerfect Global, Inc. and its subsidiaries.”114 In the performance of his duties,
the Custodian retained Alvarez and Marsal as an advisor to provide “financial and
operational services to the Company.”115 No subpoena was included with the letter
to Alvarez & Marsal, and no explanation was provided as to why TPG believed it
was entitled to this information.116
Credit Suisse, which the Custodian had retained “as his exclusive financial
advisor for undertaking the sale process,”117 received a similar letter from Mimeles
on behalf of TPG, again with no subpoena or explanation.118 Credit Suisse and
Alvarez & Marsal referred the demands to the Custodian and Skadden.119
Q. The Filing of the Nevada Action and Finding of Contempt
On August 13, 2019, TransPerfect sued the Custodian in Nevada state court,
asserting claims for breach of fiduciary duty and declaratory relief (the “Nevada
Action”).120 The Nevada Action sought damages against Pincus concerning the
114
Dkt. 1441 Ex. 19.
115
TransPerfect, 2018 WL 904160, at *3.
116
See Dkt. 1441 Ex. 19.
117
TransPerfect, 2018 WL 904160, at *7.
118
See Dkt. 1441 Ex. 20.
119
See Dkt. 1441 Exs. 19-20.
120
In August 2018, the Company reincorporated in Nevada. Dkt. 1376 Ex. 1, ¶ 2.
28
$65,203.85 that the Company was ordered to pay him under the Fee Orders.121 It
also sought a declaration that the Company had no duty to indemnify the Custodian
for this amount.122
On August 26, 2019, the Custodian filed a motion for civil contempt and
sanctions against TPG and Shawe in these actions.123 In his motion, the Custodian
asserted that TPG and Shawe were in contempt of this court’s orders by (i) filing the
Nevada Action, in violation of paragraph 10 of the Final Order and (ii) failing to pay
the $65,203.85 that the Company was ordered to pay the custodian under the Fee
Orders.124
On October 17, 2019, for the reasons explained in a memorandum opinion,
the court granted the Custodian’s motion for civil contempt and sanctions against
TPG and Shawe with respect to the Final Order, but reserved judgment with respect
to the Fee Orders.125 Specifically, the court found that the Custodian established by
121
Id. ¶¶ 46-50. The $65,203.85 amount is the sum of the amounts the Company was
ordered to pay in the June 2019 order ($58,767.71) and July 2019 order ($6,436.14) for
fees and expenses the Custodian incurred relating to the Cypress and Lionbridge actions.
122
Id. ¶¶ 51-54.
123
Dkt. 1337.
124
See id. ¶¶ 64-69.
125
TransPerfect, 2019 WL 5260362, at *1.
29
clear and convincing evidence that Shawe and TransPerfect violated the exclusive
jurisdiction provision in paragraph 10 of the Final Order in a meaningful way:126
[T]he filing of the Nevada action violated paragraph 10 of the Final
Order by depriving the court of exclusive jurisdiction over the
Respondents (as parties to these actions) for “matters relating to the
Actions.” The nature of the violation is evident in at least two ways.
First, the Nevada action specifically puts at issue—and thus
deprives this court of exclusive jurisdiction over parties to these actions
with respect to—the interpretation of the indemnification provisions in
the [August] 2015 Order, the Sale Order, the Final Order, and the Sale
Agreement. This is because, in order to grant the declaratory relief
sought in the Nevada action, the Nevada court would need to construe
the indemnification provisions in three of this court’s orders and in the
Sale Agreement to determine whether the Custodian is entitled to be
indemnified for work he has performed with respect to the Cypress and
Lionbridge actions.
Indeed, if the Nevada action proceeds beyond the pleadings
stage, the interpretation of other provisions of this court's orders
inevitably would be placed at issue in that action as well. In its May
2019 report, when explaining his intention to charge his time for the
Cypress and Lionbridge actions to the Company rather than obtaining
payment from the Custodian Escrow Account, the Custodian
specifically relied on, among other provisions, the compensation
provision in paragraph 14 of the Sale Order. Thus, if the Nevada action
continues beyond the pleadings stage, the Nevada court would need to
construe Section 14 of the Sale Order—and the companion
compensation provision in paragraph 10 of the [August] 2015 Order—
to determine if the Custodian is entitled to be compensated for work he
performed in connection with the Cypress and Lionbridge actions.
Second, the Nevada action specifically puts at issue—and thus
deprives this court of exclusive jurisdiction over parties to these actions
with respect to—enforcement of the Fee Orders. This is because, in
126
Id. at *10.
30
order to award the damages and/or declaratory relief sought in the
Nevada complaint, the Nevada court would have to consider the legal
effect of the Fee Orders, which require that $65,203.85 be paid to the
Custodian for work he performed concerning the Cypress and
Lionbridge actions.127
In its implementing order entered on October 17, 2019 (the “First Order”), the
court enjoined TPG, Shawe and their agents “from prosecuting or taking any other
action in” the Nevada Action, except to seek dismissal of that action.128 The court
also ordered that, if the Nevada Action was not dismissed by October 21, 2019,
“Respondents shall pay a civil fine in the amount of $30,000 per day . . . beginning
on . . . October 22, 2019, and continuing until such date as the Nevada action has
been dismissed.”129 Finally, as documented in paragraph 4 of the First Order, the
court ordered as a sanction that TPG and Shawe “shall pay all fees and expenses,
including reasonable attorneys’ fees, incurred by the Custodian and his counsel in
(i) connection with the Nevada action and (ii) prosecution of the motion for civil
contempt and sanctions in this court.”130
On October 21, 2019, TPG dismissed the Nevada Action, thereby avoiding
the per diem sanction.131
127
Id. (internal footnotes omitted).
128
Dkt. 1379 ¶ 2.
129
Id. ¶ 3.
130
Id. ¶ 4.
131
See Dkt. 1395 ¶ 3.
31
R. The Denial of the Contempt Motion as to the Fee Orders
On October 21, 2019, in a transcript ruling, the court denied the Custodian’s
motion for civil contempt and sanctions with respect to the Fee Orders.132 Although
the court found that TPG violated the two Fee Orders by failing to pay the amounts
due thereunder,133 the court declined to find contempt of the Fee Orders as a
discretionary matter because of “some practical concerns . . . at this stage of the case
about the fee petition process, particularly with respect to the lack of precision
concerning the deadlines for filing objections and making payments.”134 Based on
this ruling, the court explained that it would need to modify paragraph 4 of the First
Order to make clear that the sanction to pay the Custodian’s fees and expenses for
contempt of court would not apply to the violation of the Fee Orders:
Today’s ruling does have one collateral effect with respect to the order
I entered on October 17. Specifically, I will modify paragraph 4(ii) of
that order to require respondents to pay the fees and expenses incurred
by the custodian’s counsel only with respect to prosecution of the
motion for civil contempt insofar as those fees and expenses concern
the final order. Thus paragraph 4(ii) will not award fees and expenses
incurred with respect to the prosecution of the contempt motion insofar
as the fee orders are concerned.135
132
See Hr’g Tr. at 4-5 (Oct. 21, 2019) (Dkt. 1408).
133
Id. at 6 (“[I]t is not disputed -- nor could it be -- that TransPerfect is bound by those
orders as a party to these actions and that it has not paid $65,203.85 of the fees and expenses
that the Court approved for payment and ordered the company to pay promptly.”). The
court also rejected Respondents’ defenses for lack of notice and the failure to serve the fee
petitions through issuance of a summons. Id. at 6-8.
134
Id. at 8-9.
135
Id. at 14.
32
The court also explained that it would include a fee-shifting provision in the
implementing order if either side “acted in bad faith in the fee petition process” and
that it would “implement changes to the fee petition process.”136
On November 1, 2019, the court entered an order to implement its October 21
ruling (the “Second Order”).137 In accordance with the court’s comments, quoted
above, the Second Order modified the provision in the First Order requiring
Respondents to pay, as a sanction, the Custodian’s fees and expenses for prosecuting
the contempt motion to limit the sanction to the prosecution of the Final Order:
Paragraph 4 of the First Order is hereby modified to incorporate
the text underlined below:
Respondents shall pay all fees and expenses, including
reasonable attorneys’ fees, incurred by the Custodian and
his counsel in (i) connection with the Nevada action and
(ii) prosecution of the motion for civil contempt and
sanctions in this court, insofar as such prosecution
concerns TPG’s and Shawe’s contempt of the Final
Order.138
This provision is referred to hereafter as the “Contempt Fee Award.”
136
Id. at 9, 10. Based on the implementation of these changes to the fee petition process,
the court deemed moot an October 1, 2019 letter request from Respondents (Dkt. 1364)
for certain billing information concerning the Custodian’s September 25, 2019 fee petition
and subsequent fee petitions. Id. at 14-15.
137
Dkt. 1399.
138
Id. ¶ 7.
33
Paragraph 3(e) of the Second Order contains the reciprocal fee-shifting
provision for bad faith conduct the court discussed at the October 21 hearing, and
made clear that the addition of this provision would not alter any of the Custodian’s
pre-existing rights to recover fees and expenses:
To the extent that any party is found to have acted in bad faith regarding
the fee petition and objection process set forth in Paragraph 3(c) herein,
the Court may order that such party pay fees and expenses incurred by
the other party or parties in connection with the objection process at
issue. For the avoidance of doubt, any such order shall be in addition
to, and without prejudice to, the Custodian’s right to recover such
amounts pursuant to the Court’s orders or any other agreement or
entitlement. Nothing in this Paragraph shall be construed to allow the
Custodian a double recovery of fees and expenses, unless the Court
otherwise orders. 139
Paragraph 3 of the Second Order also established new procedures for the
Custodian’s submission of fee petitions. Specifically, paragraph 3(a) of the Second
Order requires that the Custodian attach an “invoice, billing record or other
document” to the fee petition containing certain specified information:
(a) As an exhibit to any fee petition submitted to the Court by the
Custodian, the Custodian shall attach an invoice, billing record or other
document (a “Confidential Record”) providing the following
information as to work for which payment is sought: (i) a description
of such work; (ii) the date(s) on which such work was performed; (iii)
the role (e.g., partner, associate, paralegal, etc.) of each person
performing such work; (iv) the billing rate of each person performing
such work; (v) the number of hours billed for such work; and, to the
extent that payment in respect of expenses is sought, (vi) the date on
which such expenses were incurred; (vii) the nature and amount of such
139
Id. ¶ 3(e).
34
expenses; and (viii) if expenses are to be paid to persons or entities other
than the Custodian or Skadden, (a) the party to whom such expenses
were (or are to be) paid; and (b) the invoice supplied to the Custodian
in support of such expenses. The Custodian may redact from such
Confidential Records: (i) the names of all persons performing work for
which payment is sought; provided, however, that any redacted names
of persons performing work for which payment is sought (other than
the Custodian) shall be replaced with distinct and definite designations
such as “Timekeeper A,” “Timekeeper B” or similar, and any such
designations shall remain constant throughout all Confidential Records
for any person so designated and no distinct designation shall ever be
used for more than one person; and (ii) information that the Custodian
deems in good faith to be privileged or of a sensitive nature, including,
but not limited to, the names of any individuals referenced in billing
details.140
Also on November 1, 2019, the Court issued the Records Confidentiality
Order.141 The Records Confidentiality Order limited access to the billing records the
Custodian would be required to submit in future fee petitions to specified persons,142
conditioned access for certain person on the execution of an undertaking to comply
with the order,143 and limited the use for which the billing records could be used.144
140
Id. ¶ 3(a).
141
Dkt. 1400.
142
Id. ¶ 2 (limiting access to billing records to “(i) the Court; (ii) the Custodian, his counsel
and his advisors; (iii) counsel of record representing TransPerfect Global, Inc. . . . or Philip
R. Shawe . . . in the above-referenced actions; (iv) the General Counsel of TPG; and (v)
the Chief Executive Officer of TPG”).
143
Id. ¶ 5.
144
Id. ¶ 3 (allowing billing records only to be used “for purposes of (i) any fee petition
filed with the Court by the Custodian, or (ii) any objection, opposition or reply submission
filed with the Court pursuant to Paragraph 3(c) of the Second Order”).
35
At least thirteen representatives of Respondents signed undertakings and obtained
access to information governed by the Second Records Confidentiality Order.145
S. TPG and Shawe Seek Appellate Review
In response to the court’s ruling on the Custodian’s motion for contempt, TPG
and Shawe made a flurry of filings to appeal the court’s rulings even though the
court had not yet determined the amount of the Contempt Fee Award, which would
require further submissions:
• On October 19, 2019, TPG filed a notice of appeal to the Delaware
Supreme Court from the court’s October 17, 2019 memorandum
opinion and the First Order.146
• On October 21, 2019, Shawe filed a notice of appeal to the Delaware
Supreme Court from the court’s October 17, 2019 memorandum
opinion and the First Order.147
• On October 28, 2019, TPG and Shawe filed a motion for
certification of an interlocutory appeal of the court’s October 17,
2019 memorandum opinion and the First Order.148
• On November 12, 2019, TPG and Shawe filed a motion for
certification of an interlocutory appeal of the Second Order and
Records Confidentiality Order.149
145
See Dkts. 1548, 1529 Ex. A, 1527, 1458 Ex. A, 1457 Ex. A, 1428, 1414 Ex. 2, 1407.
146
See Notice of Appeal, TransPerfect Glob., Inc. v. Pincus, No. 439, 2019 (Del. Oct. 19,
2019), Dkt. 1.
147
See Notice of Appeal, TransPerfect Glob., Inc. v. Pincus, No. 441, 2019 (Del. Oct. 21,
2019), Dkt. 1.
148
Dkt. 1395.
149
Dkt. 1405.
36
• On November 25, 2019, TPG and Shawe filed a notice of appeal to
the Delaware Supreme Court from the Second Order and Records
Confidentiality Order.150
On November 18, 2019, this court entered an order denying TPG and Shawe’s
October 28 motion for certification of interlocutory appeal.151 The court explained
that the “risk of piecemeal appeals” was “manifest,” because two “matters directly
related to the Opinion and the First and Second Orders remain outstanding: (i) the
amount of the Contempt Fee Award and (ii) the resolution of any objections
Respondents may make to the Fee Orders.”152 On November 27, 2019, the court
issued a letter decision denying TPG and Shawe’s November 12 motion for
certification of interlocutory appeal for the same reasons.153
On December 2, 2019, TPG and Shawe filed a notice of interlocutory appeal
from the Second Order and Records Confidentiality Order with the Delaware
Supreme Court.154
On December 31, 2019, the Delaware Supreme Court dismissed the October
19, October 21, and November 25 direct appeals, finding the orders “do not fall
150
See Notice of Appeal, TransPerfect Glob., Inc. v. Pincus, No. 501, 2019 (Del. Nov. 25,
2019), Dkt. 1.
151
Dkt. 1410.
152
Id. ¶ 9.
153
Dkt. 1425.
154
See Joint Notice of Appeal from an Interlocutory Order, TransPerfect Glob., Inc. v.
Pincus, No. 509, 2019 (Del. Dec. 2, 2019), Dkt. 1.
37
within the collateral order doctrine,” and refused the December 2 interlocutory
appeal.155 The Supreme Court noted that, “[a]s the Court of Chancery recognized,
the amount of fees to be awarded to the Custodian pursuant to the First Order is
unresolved.”156
T. Another Flurry of Motions and an Agreement to Mediate
The court’s rulings on the Custodian’s motion for contempt precipitated
another flurry of motions by Respondents.
On December 19, 2019, Respondents filed a 48-page brief, a 31-page report
from an expert, and numerous other materials in objection to the Custodian’s fee
petitions for fees and expenses incurred from May 2019 to October 2019 (the
“Omnibus Objection”).157 On January 23, 2020, TPG filed a motion to clarify or
modify the Second Order and the Records Confidentiality Order.158 On February 6,
2020, Respondents filed a joint motion for contempt against the Custodian.159 On
February 26, 2020, Respondents file a joint motion to preclude the Custodian from
155
TransPerfect Glob., Inc. v. Pincus, 224 A.3d 203, 2019 WL 7369433, at *2-3 (Del. Dec.
31, 2019) (TABLE).
156
Id. at *2.
157
Dkt. 1429.
158
Dkts 1437-38. The court granted this motion (with modifications) on June 8, 2020.
Dkt. 1495.
159
Dkt. 1448.
38
receiving the Contempt Fee Award.160 At Respondents’ request, a hearing on the
first two motions scheduled for March 30, 2020 was postponed and later rescheduled
for April 27.161
Sensing that the litigation was going off the rails at a time when the
custodianship should be coming to an end, the court inquired on April 13, 2020
whether the parties would be willing to mediate their remaining disputes before
former Chancellor Chandler—who graciously agreed to mediate free of charge.162
The parties agreed to mediate two days later.163 For the next seven and half months,
activity in these actions was essentially dormant while the parties engaged in
mediation. Nevertheless, Respondents continued to litigate grievances arising out
of the sale process elsewhere.
U. TPG Sues Counsel the Custodian Hired to Represent TPG
On August 18, 2020, TPG sued the law firm Ross Aronstam & Moritz LLP
(“RAM”) and Garrett B. Moritz, a partner at the firm, in New York state court.164 In
160
Dkt. 1469.
161
See Dkts. 1476, 1480, 1483.
162
Dkt. 1490. The court expresses its sincere appreciation to the former Chancellor for his
willingness to volunteer countless hours of his time to attempt to resolve the remaining
deep-seated disputes in these actions as a service to the parties, the court, and the public.
163
Dkts. 1491, 1492, 1493.
164
See Dkt. 1539 Ex. A.
39
2017, the Custodian hired RAM to represent the Company in the Section 211 and
220 actions that Ms. Shawe filed as the sale process was underway.165
In its complaint, TPG alleges that RAM and Moritz committed legal
malpractice when representing TPG by “having been retained by, and taken
directions from, a conflicted agent for TransPerfect,”—namely the Custodian.166
More specifically, the New York action alleges RAM and Moritz “recklessly or
willfully followed the custodian’s instructions, which were directly contrary to the
interests of TransPerfect and solely operated to the benefit of the custodian” and
“continued to collect tens of thousands of dollars in fees from TransPerfect while
aiding and abetting a person with interests directly adverse to their client”—again
referring to the Custodian.167
On November 19, 2020, RAM and Moritz moved to intervene in these actions
for the limited purpose of filing a motion for contempt against TPG and Shawe.168
The court granted the motion to intervene on December 16, 2020. 169 On April 14,
165
See Dkt. 1539 Exs. C, F.
166
Dkt. 1539 Ex. A ¶ 1.
167
Id. ¶¶ 9, 10.
168
Dkt. 1511.
169
Dkt. 1538.
40
2021, after briefing and argument, the court denied the motion for contempt for the
reasons explained in a letter decision.170
V. Resumption of the Litigation and Another Collateral Attack
On November 30, 2020, after it became apparent that the mediation had
reached an impasse, the court sent a letter to the parties explaining that “[o]ver seven
months have passed” since the parties agreed to engage in mediation and that “the
time has come to set firm deadlines to bring the Custodianship to a prompt
conclusion.”171 The court set forth a briefing schedule for the motions pending
before the court and provided that “the Custodian must file by no later than
December 15, 2020, (i) any petition it intends to make for attorneys’ fees and
expenses that were not included in any prior fee petition and (ii) a petition to be
discharged.”172 A hearing was scheduled for March 2, 2021 at 11 a.m. to hear these
motions and any other outstanding motions.
On December 24, 2020, TPG and Shawe sued this judicial officer in the
United States District Court for the District of Delaware.173 Their complaint, as
amended, asserted that the Second Order and Records Confidentiality Order violated
170
See Dkt. 1599.
171
Dkt. 1524 at 1.
172
Id. at 2.
173
Complaint for Violation of Civil Rights, Shawe v. Bouchard, No. 20-cv-1770 (D. Del.
Dec. 24, 2020), Dkt. 1.
41
Shawe’s First and Fourteenth Amendment rights.174 The district court dismissed this
action on April 12, 2021.175
On March 2, 2021, at 10:28 a.m., about thirty minutes before the hearing
scheduled to consider all the other motions at issue in this opinion, TPG and Shawe
filed a motion for an award of attorneys’ fees against the Custodian based on his
alleged bad faith in the fee petition process.176 Eight minutes earlier, at 10:20 a.m.,
Citizens for a Pro-Business Delaware issued a press release describing the motion
before it was filed with the court.177
II. ISSUES FOR DECISION
The core issue before the court is seemingly straightforward: a request for
judicial approval to reimburse a court-appointed custodian and his advisors for fees
and expenses they incurred in connection with the performance of the custodian’s
174
See Shawe v. Bouchard, 2021 WL 1380598, at *1 (D. Del. Apr. 12, 2021).
Id. at *18. The action was dismissed, in part, on mootness grounds due to the court’s
175
modification of the Second Order and rescission of the confidentiality restrictions in the
Records Confidentiality Order, which is discussed in Part V.B.3 below.
176
Dkt. 1589.
177
See Citizens for a Pro-Business Delaware Renews Calls for Transparency in
TransPerfect Court Case in Light of “Bad Faith” Attorney Fees from Skadden Arps, Bus.
Wire (Mar. 2, 2021 10:20 AM), https://www.businesswire.com/news/home/2021030
2005823/en/Citizens-for-a-Pro-Business-Delaware-Renews-Calls-for-Transparency-in-
TransPerfect-Court-Case-in-Light-of-%E2%80%9CBadFaith%E2%80%9D-Attorney-
Fees-from-Skadden-Arps (“Today, following a motion from TransPerfect alleging “bad
faith” fees from attorneys at Skadden Arps, the company’s court-ordered Custodian,
Citizens for a Pro-Business Delaware renewed calls for transparency and access to today’s
hearing scheduled on the case.” (emphasis added)).
42
duties. In these actions, however, the court’s task is anything but straightforward
given Shawe’s insatiable appetite for litigation and proclivity to engage in scorched-
earth tactics using an army of lawyers.
Between May 2019 and December 2020, the Custodian and his advisors
incurred approximately $3.87 million in fees and expenses. The subject matter of
the work performed falls into eighteen categories listed on a chart attached as Exhibit
A to this opinion. On March 9, 2021, following oral argument, the Custodian
withdrew his request with respect to $204,485 of this amount.178 The withdrawn
amount is allocated among four of the subject matter categories in Exhibit A under
the “Administrative” column. The amount now at issue is approximately $3.66
million.
Respondents have attacked the Custodian’s fee petitions in every way
imaginable. They have filed three rounds of objections, consisting of approximately
192 pages of briefing and 108 pages from an expert.179 The objections take issue
with virtually every time entry in the fee petitions. Respondents also have filed three
motions seeking to knock out certain categories of fees and expenses outright: one
178
See Dkt. 1592 at 5. Respondents objected that $204,485 should be disallowed as “fees
on fees” for expenses incurred in preparing fee petitions. Dkt. 1573 at 7. The Custodian
contends these expenditures are appropriate and that the amount related to preparing fee
petitions is less than $204,485, but has withdrawn his request for this amount “solely for
purposes of mooting the dispute.” Dkt. 1592 at 5.
179
See Dkts. 1429, 1451, 1571, 1573, 1585, 1588.
43
styled as a motion for contempt, a second to preclude certain billings, and a third
accusing the Custodian of bad faith over certain categories of expenses to which
Respondents already had filed extensive objections.180
The court will address the mélange of issues Respondents have raised in four
parts. Parts III and IV will address their motions for contempt and preclusion,
respectively. Part V will address their three objections to the fee petitions and Part
VI will address their belated “bad faith” motion.
III. THE CONTEMPT MOTION
On February 6, 2020, Respondents filed a joint motion for an order to show
cause why the Custodian and Skadden should not be held in contempt for violating
the August 2015 Order and the Sale Order for “intentionally withholding the
required Court-ordered monthly fee petitions” with respect to “work purportedly
performed in November and December 2019.”181 As a sanction, they seek the
“forfeiture of any unbilled fees or expenses purportedly incurred in November 2019
180
See Dkts. 1448, 1469, 1589.
181
Dkt. 1448 ¶¶ 1, 18.
44
and December 2019,”182 which equates to approximately $374,000.183 Respondents
also assert that the Custodian should “be held responsible for any and all costs
incurred by Respondents in connection with this Motion” under paragraph 3(e) of
the Second Order.184
Court of Chancery Rule 70(b) authorizes the court to find a party in contempt
for the “failure . . . to obey or to perform any order.”185 “To be held in contempt, a
party must be bound by an order, have notice of it, and nevertheless violate it.” 186
The violation “must not be a mere technical one, but must constitute a failure to obey
the Court in a meaningful way.”187 “Whether a party should be held in contempt is
a discretionary matter for the Court.”188 The “party petitioning for a finding of
182
Id. ¶ 6.
183
Respondents’ contempt motion does not concern fees and expenses relating to the
Contempt Fee Award, some of which were incurred during the November-December 2019
period. See id. at 6 n.4 (noting that “any fee application in connection with the Court’s
finding of contempt . . . is not governed by the August 15, 2015 and July 18, 2016 Orders”).
Backing out the amounts attributable to the Contempt Fee Award, the balance of the fees
and expenses incurred in November and December 2019 is $374,296. See Dkt. 1537 Ex.
A (breaking down the total fees and expenses incurred in November and December 2019
($203,242 and $214,266, respectively) and the portion attributable the Contempt Fee
Award ($23,745 and $19,467, respectively)).
184
Dkt. 1448 ¶ 22.
185
Ch. Ct. R. 70(b).
186
Aveta Inc. v. Bengoa, 986 A.2d 1166, 1181 (Del. Ch. 2009).
187
Dickerson v. Castle, 1991 WL 208467, at *4 (Del. Ch. Oct. 15, 1991) (internal quotation
marks omitted).
188
TransPerfect, 2019 WL 5260362, at *10.
45
contempt bears the burden to show contempt by clear and convincing evidence.”189
Any sanction imposed by the court for a contempt finding “should be directed
towards coercing compliance with the order being violated and remedying the injury
suffered by other parties as a result of the contumacious behavior.”190 “In all civil
cases, a contempt determination must be coercive or remedial rather than
punitive”191 and the court must “use the least possible power adequate to the end
proposed.”192
Paragraph 10 of the August 2015 Order and paragraph 14 of the Sale Order
both provide, in relevant part, that “[t]he Custodian shall petition the Court on a
monthly basis, or such other interval as the Court may direct, for approval of fees
and expenses.”193 Respondents contend the Custodian and Skadden violated these
provisions by failing, as of February 6, 2020, to submit petitions for the fees and
expenses they incurred during November and December 2019.194
189
Trascent Mgmt. Consulting, LLC v. Bouri, 2018 WL 6338996, at *1 (Del. Ch. Dec. 4,
2018).
190
Aveta, 986 A.2d at 1188 (Del. Ch. 2009).
191
Mitchell Lane Publ’rs, Inc. v. Rasemas, 2014 WL 4804792, at *2 (Del. Ch. Sept. 26,
2014) (internal quotation marks omitted).
192
TR Inv’rs, LLC v. Genger, 2009 WL 4696062, at *18 n.74 (Del. Ch. Dec. 9, 2009)
(quoting Am. Jur. 2D Contempt § 195), aff’d, 26 A.3d 180 (Del. 2011).
193
Dkt. 607 ¶ 10; Dkt. 848 ¶ 14.
194
See Dkt. 1448 ¶ 18.
46
The Custodian responds that he did not violate either the August 2015 Order
or the Sale Order because those orders do not require “the Custodian to file fee
petitions by or on a particular date.”195 According to the Custodian, those orders
simply identify “the interval that must be covered by the Custodian’s petitions,” i.e.,
“[a]pplications must cover a month period, not a longer interval.”196 The Custodian
further explains that TPG and Shawe “[a]t most . . . have raised an interpretive
dispute” and there “has been no injury or prejudice to anyone.”197
As an initial matter, the contempt motion proceeds from the counter-intuitive
premise that the Custodian was motivated to delay when he and his advisors would
be paid. The opposite premise is more logical, i.e., there would be no reason for the
Custodian to delay seeking payment. In that vein, the Custodian’s contemporaneous
explanation for the delay makes perfect sense.
On February 10, 2020, four days after the contempt motion was filed, the
Custodian explained in a letter to the court that he had “not sought Skadden’s bills
for November and December” and had “not submitted petitions for those months”
because he believed it would promote efficiency for purposes of future fee petitions
to have the benefit of the court’s ruling on Respondents’ then-pending Omnibus
195
Dkt. 1533 ¶ 28.
196
Id. ¶ 29.
197
Id. ¶ 39.
47
Objection concerning fees and expenses incurred from for May to October 2019.198
Having now pored through 74 pages of briefing from Respondents and 45 pages
from their expert relating to the Omnibus Objection199 and seen firsthand the extent
to which it covers the same ground as Respondents’ later objections, it is apparent
that the Custodian’s position was sensible and asserted in good faith. Putting that
issue aside, Respondents have failed to meet their burden to show contempt by clear
and convincing evidence for two independent reasons.
First, the key phrase in the court orders at issue—“monthly basis”—is too
vague as used in those orders to support a finding of contempt. Respondents and the
Custodian each have advanced a reasonable interpretation of the phrase as it appears
in the orders, i.e., that (i) the Custodian must file a fee petition each month for the
prior month, although the orders do not impose a specific deadline for the filing—
as Respondents contend;200 or (ii) the Custodian may decide in his discretion when
to file a fee petition but must provide billing information in monthly intervals (i.e.,
on a “monthly basis”) when he does so—as the Custodian contends. “A cardinal
requirement for any adjudication of contempt is that the order allegedly violated give
198
Dkt. 1450 Ex. 1 at 3.
199
See Dkts. 1429, 1451.
200
Contrary to Respondents’ position, the Custodian previously filed a petition seven
weeks after the end of a month without objection from Respondents. See Dkt. 1412
(petition filed on November 21, 2019, for fees and expenses incurred as of September 30,
2019).
48
clear notice of the conduct being proscribed.”201 Here, it is ambiguous what the
phrase “monthly basis” was intended to mean. Thus, the Custodian was not provided
“clear notice” that he was required to file fee petitions each month for the prior
month and cannot be held in contempt for failing to do so.
Second, even assuming arguendo the Custodian had clear notice that he was
required to file petitions for fees and expenses incurred in November and December
2019 by some undefined date before the end of the next month, his failure to do so
was nothing more than a technical breach that did not prejudice Respondents.202 Had
the Custodian filed the fee petitions at issue here on February 7, 2020, the day after
the contempt motion was filed, Respondents certainly could not be heard to argue
they were prejudiced by having to wait one to five additional weeks to receive that
information.203 As highlighted by Part V below, furthermore, the exhaustive
201
Mother Afr. Union First Colored Methodist Protestant Church v. Conf. of Afr. Union
First Colored Methodist Protestant Church, 1992 WL 83518, at *9 (Del. Ch. Apr. 22,
1992), aff’d, 633 A.2d 369 (Del. 1993) (TABLE).
202
See Mitchell Lane Publ’rs, Inc., 2014 WL 4804792, at *3 (declining to hold plaintiff in
contempt when “Defendants have not suffered any real injury from [plaintiff’s] technical
violation”).
203
Even under Respondents’ interpretation, the fee petitions for time incurred in November
and December 2019 would not have been due until December 31, 2019 and January 31,
2020, respectively, given the lack of any specific deadline in the August 2015 Order or the
Sale Order for filing fee petitions.
49
submissions Respondents filed in opposition to the Custodian’s petitions for fees and
expenses incurred in November and December 2019204 belie any credible suggestion
they were hampered in their ability to challenge those amounts by receiving the
billing records when they did.205
For the reasons explained above, Respondents’ motion for contempt is denied.
IV. THE PRECLUSION MOTION
On February 26, 2020, Respondents filed a joint motion for an order
precluding the Custodian from receiving attorneys’ fees and expenses to make the
Custodian and his advisors whole for work they performed to address TPG and
Shawe’s contempt of court (as defined above, the “Contempt Fee Award”).206 The
order documenting the Contempt Fee Award was entered on October 17, 2019 and
modified on November 1, 2019.207 The amount the Custodian seeks for the
Contempt Fee Award is approximately $1.15 million, which covers fees and
204
See Dkts. 1571, 1588.
205
Respondents acknowledge they were afforded access to these billing records in mid-
2020 during mediation before former Chancellor Chandler. Dkt. 1546 ¶ 7. The formal
petition for these fees and expenses was filed on December 15, 2020. Dkts. 1536, 1537,
1540 (corrected filing). The circumstances of this delay are addressed in Part IV below.
206
Dkt. 1469.
207
Dkts. 1379, 1399.
50
expenses related to (i) defending against the improperly filed Nevada Action and (ii)
successfully prosecuting the motion for contempt of the Final Order.208
In the preclusion motion, Respondents contend the Custodian should forfeit
the entire Contempt Fee Award because, as of February 26, 2020, the Custodian had
“failed to file the required fee petitions and billing records” for receipt of court
approval for the amount involved.209 More specifically, Respondents argue that the
Custodian’s delay in petitioning the court to approve the Contempt Fee Award (i)
was an “improper attempt to prejudice Respondents by blocking them from
appealing the contempt sanctions set forth in the First Order”210 and (ii) constitutes
a “waiver.”211 Both grounds are without merit.
Some background is important to understand this motion. After the court
found TPG and Shawe in contempt for filing the Nevada Action in violation of the
exclusive jurisdiction provision in the Final Order, they each sought to appeal that
decision by filing motions for interlocutory review and three direct appeals to the
Delaware Supreme Court even though this court had not yet determined the amount
of the Contempt Fee Award.212 On December 31, 2019, the Delaware Supreme
208
See Dkt. 1399 ¶ 7.
209
Dkt. 1470 ¶ 15.
210
Id. ¶ 3.
211
Id. ¶ 19.
212
See Dkts. 1382, 1395, 1405, 1422; TransPerfect, 2019 WL 7369433, at *1-2.
51
Court dismissed all of their direct appeals for failing to “fall within the collateral
order doctrine” and refused a request they made for interlocutory review,213 which
this court previously rejected based on the strong policy against piecemeal
appeals.214
This context highlights the draconian relief Respondents seek. In their
motion, Respondents concede that “the Contempt Fee award did not fix a set time
for filing the mandated fee application.”215 Despite this concession, Respondents
seek forfeiture of a fee award intended to reimburse the Custodian and his counsel
for fees and expenses they were forced to incur due to TPG and Shawe’s own
contumacious conduct simply because the Custodian did not file that fee application
within two months of the Supreme Court’s rejection of Respondents’ numerous
premature appeals based on the Custodian’s good faith belief that it would be more
efficient for the court to resolve the Omnibus Objection first 216—before the parties
expended additional resources briefing objections to subsequent fee petitions.217
213
TransPerfect, 2019 WL 7369433, at *2.
214
Dkts. 1410, 1425.
215
Dkt. 1470 ¶ 16.
216
See supra Part III.
217
See Dkts. 1450 Ex. 1 at 3, 1474 at 2-4.
52
Respondents cite no court rule or case authority to support such an extreme and
inequitable result, which the court rejects.218
As importantly, Respondents’ subsequent conduct betrays their assertion of
prejudice. On April 15, 2020, after the parties agreed to mediate their remaining
disputes, TPG’s counsel confirmed that an April 27 hearing to consider the Omnibus
Objection would be adjourned.219 Thereafter, contrary to their assertion of prejudice,
Respondents made no effort to press for resolution of the open issues concerning the
Contempt Fee Award for the next seven and one-half months.
On November 30, 2020, when it became apparent the mediation had reached
an impasse, the court intervened and set a schedule to resolve the remaining
218
Respondents misplace reliance on Maurer v. International Re-Insurance Corp., 96 A.2d
347 (Del. Ch. 1953) and Mattel, Inc. v. Radio City Entertainment, 210 F.R.D. 504(S.D.N.Y. 2002) for the proposition that “the failure to submit the requisite Contempt Fee
Award application constitutes undue and unreasonable delay as a matter of law constituting
waiver of any right to recover fees and expenses.” Dkt. 1470 ¶ 19. In Maurer, this court
denied a petition for reimbursement based on laches, finding that the delay in filing the
petition was prejudicial because it “seriously interfere[d] with the proper winding up of the
receivership” and the petitioners “had notice through their attorney that this court desired
all applications for fees to be filed promptly so that the notice to be sent interested parties
would contain a reference thereto.” Maurer, 96 A.2d at 348. Here, no deadline was in
place for filing the Contempt Fee Award petition and Respondents’ assertion of prejudice
is without merit. In Mattel, the federal court denied a motion for attorneys’ fees because
“Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure prescribes a tight time limit for
any motion for attorneys’ fees, to wit, within 14 days of the entry of judgment.” Mattel,
210 F.R.D. at 505. That rule has no application here.
219
Dkt. 1492. The April 27 hearing had been scheduled to occur on March 30 but was
postponed at TPG and Shawe’s request. Dkt. 1480 at 2.
53
motions.220 The Custodian then promptly filed, on December 15, 2020, a petition
for fees and expenses incurred from November 2019 to November 2020, a motion
for an order of discharge, and oppositions to the contempt and preclusions
motions.221 Given these circumstances, in particular Respondents’ lengthy
abandonment of any expressed concern for resolving the Contempt Fee Award more
promptly, the record belies any credible suggestion of prejudice to Respondents to
warrant preclusion of the Custodian’s fee application relating to the Contempt Fee
Award.
The second ground of the preclusion motion—waiver—is frivolous. Waiver
involves “the voluntary and intentional relinquishment of a known right.”222
Respondents have provided no evidence that the Custodian intended to relinquish
his right to be reimbursed for fees and expenses he and his counsel were forced to
incur as a result of TPG and Shawe’s contempt of court. To the contrary, the record
reflects that the Custodian fully intended to seek the Contempt Fee Award and
merely disagreed with Respondents about the timing for doing so.
For the reasons explained above, Respondents’ preclusion motion is denied.
220
Dkt. 1524.
221
Dkts. 1533-37.
222
Amirsaleh v. Bd. of Trade of City of N.Y., Inc., 27 A.3d 522, 529 (Del. 2011).
54
V. THE OBJECTIONS
This section addresses objections Respondents filed in three tranches to the
Custodian’s petitions for fees and expenses incurred from May 2019 through
December 2020: (i) the first was filed on December 23, 2019, for fees and expenses
incurred from May through October 2019 totaling $242,886 (as defined above, the
“Omnibus Objection”);223 (ii) the second was filed on January 29, 2021, for fees and
expenses incurred from November 2019 through November 2020 totaling
$3,164,510 (the “Second Objection”);224 and (iii) the third was filed on February 2,
2021 for fees and expenses incurred in December 2020 totaling $460,966 (the “Third
Objection”).225 Given the substantial overlap of the legal and factual issues, the court
223
See Dkt. 1429. Unless otherwise noted, all numbers are rounded to the nearest dollar in
this opinion and the chart attached as Exhibit A hereto.
224
See Dkt. 1571.
225
See Dkt. 1573. In its November 30, 2020 letter, the court directed the Custodian to
make several filings by December 15, 2020, including “any petition [the Custodian] intends
to make for attorneys’ fees and expenses that were not included in any prior fee petition.”
Dkt. 1524 at 2. Construing these words illogically, Respondents contend the court should
(i) cut off the Custodian’s right to recover any fees and expenses incurred after December
15, 2020 and (ii) deny reimbursement for any fees and expenses incurred between
December 1-15, 2020 (totaling about $383,000) because they were sought in a petition
filed after December 15. Dkt. 1573 at 5-6. As the court explained during the March 2,
2021 hearing, it would make no sense to impose a December 15, 2020 hard stop on the
Custodian’s right to recover fees and expenses. Oral Arg. Tr. at 141 (Mar. 2, 2021) (Dkt.
1595). Indeed, Respondents’ own proposed discharge order recognized that the Custodian
was entitled post-discharge to “retain the same protections and indemnification rights
granted to him under the Securities Purchase Agreement, the Sale Order and the Final
Order in his individual capacity as he has had in his capacity as Custodian.” See Dkt. 1566.
As to the second point, it is preposterous for Respondents to suggest that the Custodian
55
will address the three tranches of objections together. The total amount of fees and
expenses that remains at issue following the Custodian’s withdrawal of $204,485 in
fees is $3,663,878.
Respondents’ objections to the Custodian’s fee petitions fall into two
categories: (i) general objections that apply to all of the fees and expenses incurred
regardless of the subject matter for which they were incurred and (ii) objections that
are specific to the subject matter for which certain fees and expenses were incurred.
Respondents’ general objections are based almost exclusively on opinions
expressed in a series of reports by David H. Paige,226 the managing director of a
“legal fee advising firm,” who holds himself out “as an expert regarding the billing
practices of Robert Pincus, Esq. and the firm, Skadden, Arps, Slate, Meagher &
Flom, LLP.”227 According to Paige’s report included with the Second Objection—
which constitutes the lion’s share of the amount at issue—the Custodian’s fees and
expenses should be reduced by 56% based on the general objections alone.228 This
amount fluctuates slightly between the three objections, based primarily on
unexplained and seemingly arbitrary changes in the reductions Paige recommends.
should forfeit his right to seek reimbursement for fees and expenses incurred during the
first half of December because they were included in a fee petition covering the full month,
which was filed promptly on January 8, 2021. Dkts. 1554, 1555.
226
See Dkt. 1429 Ex. B; Dkt. 1571 Ex. A; Dkt. 1573 Ex. A.
227
Dkt. 1429 Ex. B at 3.
228
Dkt. 1571 Ex. A at 7, 25.
56
For example, Paige increased the reduction for “Excessive Hourly Rates” from 30%
in his report filed with the Omnibus Objection to 40% in later reports without any
substantive explanation.229
Wholly apart from their general objections, Respondents seek additional
reductions to the fees and expenses incurred for specific subject matters, contending
that the Custodian is not legally entitled to recover certain of those amounts.230 As
a fallback position to their assertion that certain amounts must be categorically
excluded, Respondents repeatedly refer to and reiterate Paige’s 56% figure in their
Second Objection.231 By my calculations, based on their general and specific
objections, Respondents seek a total reduction of the amount of fees sought in the
petitions of approximately 75% of the amount still at issue.232
229
Compare Dkt. 1429 Ex. B at 12 (“Accordingly, I conservatively recommend that the
Total Fees be reduced by at least 30%, based solely upon the Wolters Kluwer rate
analysis.”), with Dkt. 1571 Ex. A at 13 (“Accordingly, I conservatively recommend that
the Total Fees be reduced by at least 40%, based solely upon the Wolters Kluwer rate
analysis . . . .”).
230
See Dkt. 1429 at 16; Dkt. 1571 at 42.
231
See Dkt. 1571 at 22, 26, 52, 56, 57; Dkt. 1588 at 17, 32.
232
Respondents seek to categorically exclude over $1.6 million in fees and expenses. See
generally Dkt. 1429 at 22-29, 32-36; Dkt. 1571 at 14-38; Dkt. 1573 at 5-6, 8, 10-11.
Cutting the remaining roughly $2 million in fees by an additional 56%—as Respondents
and Paige recommend—leaves a balance of approximately $900,000. Respondents do not
provide an exact amount in fees and expenses they contend is reasonable.
57
The overarching issue underlying Respondents’ objections is the
reasonableness of the fees and expenses charged. Rule 1.5(a) of the Delaware
Lawyers’ Rules of Professional Conduct provides that “[a] lawyer shall not make an
agreement for, charge, or collect an unreasonable fee or an unreasonable amount for
expenses.”233 Rule 1.5(a) recites eight non-exhaustive factors “to be considered in
determining the reasonableness of a fee”:
(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.234
233
Del. Lawyers’ R. Prof’l Conduct 1.5(a).
234
Id.; see also Mahani v. Edix Media Grp., Inc., 935 A.2d 242, 246 (Del. 2007) (“To
assess the reasonableness of EDIX’s award for attorneys’ fees and other expenses, we
consider the factors identified in Rule 1.5(a) of the Delaware Lawyers’ Rules of
Professional Conduct and [relevant] case law.” (alteration in original) (internal quotation
marks omitted)).
58
The court turns next to consider the general and specific objections, in turn.
A. The General Objections
Respondents’ general objections fall into three categories that track Paige’s
reports, namely objections for (i) for “excessive hourly rates,” (ii) “inappropriate
timekeepers” and “non-billable disbursements,” and (iii) “generally objectionable
billing practices.”235 The court addresses each of those categories next.
1. Hourly Rates
From May 2019 to December 2020, the Custodian charged $950 per hour for
his time, which reflected a reduced rate following his retirement from Skadden as of
December 31, 2018.236 During this same period, the rates Skadden charged fell
within the following ranges:
235
In his reports, Paige reduces the Custodian’s fees and expenses by taking three steps: (i)
eliminating fees for “inappropriate timekeepers” and expenses for “non-billable
disbursements”; (ii) then reducing fees by 30% or 40% for “excessive hourly rates”; and
(iii) then reducing fees by 20% for “generally objectionable billing practices.” See Dkt.
1429 Ex. B at 6; Dkt. 1571 Ex. A at 6-7; Dkt. 1573 Ex. A.
236
Dkt. 1281 Ex. 1 at 3. Pincus represents that his $950 per hour rate was the amount he
had been “charging for non-Skadden mediation and consulting matters on which [he]
worked since [he] became Of Counsel on April 1, 2018.” Id.59
Position Hourly Rate Range
237
Partner $ 1,225 to 1,775
Counsel $ 1,200
Associate $ 695 to 1,120
Law Clerk $ 475
Paralegal/Legal Assistant $ 180 to 495
Respondents do not specifically take issue with the rate the Custodian himself
charged during the period in question. Rather, their contention is that Skadden’s
overall rates “are extraordinarily, indeed outrageously, unreasonable by any
measure.”238 The court disagrees. In my opinion, a firm of Skadden’s stature was
necessary to support the Custodian under the circumstances of this case and the
hourly rates Skadden charged are reasonable because they are consistent with the
rates Skadden charges other clients, as the court’s orders require, and are in line with
the rates of firms that can fairly be considered Skadden’s peers. Skadden’s hourly
rates also reflect the complexity of the work performed and the results obtained both
during the sale process and after the closing.
The August 2015 Order, which the court entered after trial when granting
judgment in Elting’s favor under 8 Del. C. § 226, expressly provides that “[t]he
Custodian shall be compensated at the usual hourly rate he charges as a partner of
237
Timekeeper N, a tax partner, billed 1.6 hours at a rate of $1,775 per hour and 6.2 hours
at $1,695 per hour. See Dkt. 1441 App. A; Dkt. 1540 Ex. A. No other partner at Skadden
billed over $1,565 per hour. See Dkt. 1441 App. A; Dkt. 1540 Ex. A; Dkt. 1555 Ex. A.
238
Dkt. 1429 at 38.
60
Skadden” and that “[t]he fees of any counsel or advisors” retained by the
Custodian—“including Skadden”—“shall be calculated on the same hourly rates
charged by such counsel or advisors to clients represented outside this matter.”239
The Sale Order, entered on July 19, 2016, again expressly authorized the Custodian
“to utilize the services of Skadden” and contained substantively identical provisions
governing the hourly rates the Custodian and his counsel may charge.240 As reflected
in the Final Order, entered on February 18, 2018, these provisions remained in place
throughout the May 2019 to December 2020 period.241
On March 9, 2021, Jennifer Voss, Skadden’s lead litigation partner in these
actions, submitted an affidavit attesting that she had reviewed the outstanding fee
petitions, which cover fees and expenses Skadden incurred from May 2019 to
December 2020; that the fees and expenses in those petitions “are reasonable for the
tasks performed”; and that “[t]he hourly rates charged by Skadden in this matter are
consistent with the hourly rates charged by Skadden (including by the Delaware
239
Dkt. 607 ¶¶ 10-11. The Initial Order appointing Pincus as a custodian to serve as a
mediator contained the same provisions. See Dkt. 515 ¶¶ 7-8.
240
Dkt. 848 ¶¶ 7, 14.
241
Dkt. 1243 ¶ 8 (“The rights and authority granted to the Custodian . . . under the Sale
Order and all other orders of the Court in Civil Action Nos. 9700-CB and 10449-CB shall
remain in full force and effect in accordance with their terms until otherwise modified or
discharged by the Court.”).
61
office of Skadden) to clients represented outside this matter.”242 The Custodian also
provided filings from three actions where federal courts approved applications in
2019 to compensate Skadden at rates in line with the rates set forth above.243 Voss’s
affidavit and these filings confirm that Skadden’s rates in the outstanding petitions
complied with this court’s orders.
In addition, the Custodian provided filings from actions—including seven in
Delaware—where federal courts approved fee applications for twelve other firms
whose hourly rates were in line with the rates Skadden charged here.244 These twelve
firms,245 which the court would consider peers of Skadden, include Shawe’s lead
trial counsel when the Custodian was appointed: Sullivan & Cromwell LLP.246
242
Dkt. 1593 ¶¶ 3-4, 6. The court asked Skadden to provide such an affidavit at oral
argument. See Oral Argument Tr. at 137-38 (Mar. 2, 2021) (Dkt. 1595).
243
See Dkt. 1441 App. B at Exs. F, J, M.
244
See Dkt. 1441 App. B at Exs. A-E, G-I, K-L, N-O.
245
The twelve firms are: Debevoise & Plimpton LLP; Paul, Weiss, Rifkind, Wharton &
Garrison LLP; Simpson Thacher & Barlett LLP; Davis Polk & Wardell LLP; Kirkland &
Ellis LLP; Baker Botts LLP; Wachtell, Lipton, Rosen & Katz; Sullivan & Cromwell LLP;
Weil, Gotshal & Manges LLP; Latham & Watkins LLP; Gibson, Dunn & Crutcher LLP;
and Wilson Sonsini Goodrich & Rosati, P.C. Id.
246
Dkt. 1441 App. B at Ex. I. The 2019 filing for Sullivan & Cromwell disclosed the
following hourly rates: $1,275 to $1,560 for partners, $595 to $1,040 for associates, and
$335 to $480 for legal assistants. Id. ¶ 8. In its filing for court approval of its fee and
expense request, Sullivan & Cromwell represented that it “does not ordinarily determine
its fees solely on the basis of hourly rates,” that the ranges it provided were “determined
with reference to the rates charged by other leading law firms for similar work,” and that
the “rates for the more senior timekeepers in each class represent a discount from the rates
currently used by S&C when preparing estimates of fees . . . for non-bankruptcy
engagements.” Id. ¶¶ 7-8.
62
As important as the fact that the rates Skadden charged were specifically
authorized under this court’s orders, is the reason the court entered those orders in
the first place. From the beginning, these actions were extraordinarily contentious.
Shortly before trial, the parties deluged the court with twelve discovery and in limine
motions.247 The day before trial, Elting filed a motion for sanctions alleging
extremely serious acts of misconduct by Shawe, which ultimately led to the
imposition of a sanction against Shawe of approximately $7.1 million. 248 After
completing a six-day trial, two things were painfully clear to the court concerning
the selection of a custodian.
First, it was clear that the custodian and his counsel needed to have the
necessary M&A knowledge and experience to conduct a sale process for a
substantial company—one that earned almost $80 million in net income on over
$470 million in revenues the year before trial and that ended up being valued at
approximately $770 million.249 Second, and more directly relevant here, the
custodian needed to have a firm with the experience, resources, and ability to deal
with Shawe, a serial litigator who vehemently opposed the sale process, exhibited
irrational and erratic behavior, and demonstrated a willingness to do pretty much
247
In re Shawe & Elting, LLC, 2015 WL 4874733, at *24.
248
See supra Part I.D.
249
Shawe & Elting LLC, 2015 WL 4874733, at *4; TransPerfect, 2018 WL 904160, at *12.
63
anything to get his way without regard for the cost. For example, as the court found,
“Shawe threatened to shut down the entire Company” and “dismantle this place” on
multiple occasions if Elting did not give in on matters where they disagreed, 250 and
“bullied Elting and those aligned with her, expressing his desire to ‘create constant
pain’ for Elting until she agreed with Shawe’s plans.”251 Given these circumstances,
it was essential that the custodian have the ability to utilize the full resources of his
firm (Skadden) and that they both be compensated fairly for their time, i.e., at the
rates they would charge other clients.252
250
Shawe & Elting LLC, 2015 WL 4874733, at *5.
251
Shawe v. Elting, 157 A.3d at 157.
252
As the court feared might happen, Shawe attempted to impede the sale process, driving
up the cost along the way. Various litigations Shawe pursued for this purpose are described
in Part I. In addition, Shawe “refused to sign a management representation letter that was
necessary for Grant Thornton to complete its audit” until “the Custodian threatened to
exclude [him] from the sale process.” TransPerfect, 2018 WL 904160, at *17. Late in the
process, furthermore, Shawe contended that Wordfast LLC—an entity Shawe and Elting
owned on a 50–50 basis—was owed “a material amount of fees from 2006 forward [from
the Company] and, upon a sale [of the Company] to a third party, likely would be facing
annual fees of up to $10 million to use Wordfast’s technology.” Id. at *9. To address this
issue, the Custodian “filed an application for a declaration that the Company and/or its
subsidiaries held a non-exclusive, irrevocable, and royalty-free implied license to use any
and all software and source code owned by Wordfast.” Id. at *10. On the night before
Shawe’s deposition was to be taken in connection with an expedited hearing the court had
scheduled concerning the Wordfast dispute, “Shawe and Ms. Shawe filed a notice of
removal of the Wordfast matter to the United States District Court for the District of
Delaware,” which “necessitated cancellation of the evidentiary hearing unless and until the
district court remanded the case.” Id. The controversy over Wordfast contributed to one
bidder dropping out of the sale process. Id.
64
In his reports, Paige asserts that Skadden’s hourly rates are more than double
what he refers to as “applicable mean market rates” and must be reduced by 30% or
40%, depending on the report.253 Paige reaches this conclusion by comparing
Skadden’s rates to two sets of data compiled by Wolters Kluwer. In my opinion,
neither comparison provides a reliable basis upon which to conclude that Skadden’s
rates were not reasonable under the circumstances of this case.
Paige first compares Skadden’s hourly rates “to the mean hourly rates for
firms engaged in bankruptcy and collection matters in Wilmington, DE, during the
period in question,”254 using data limited to “firms with 201-500 lawyers.”255
According to Paige, these data reflect “rates charged by similar firms for similar
work.”256 Paige fails to provide, however, any basis for either conclusion. First,
Paige provides no analysis to support his assumption that “bankruptcy and collection
matters” constitute “similar work” to the services the Custodian and Skadden
253
Dkt. 1429 Ex. B at 12; Dkt. 1571 Ex. B at 12-14; Dkt. 1573 Ex. A. As noted above,
this shift from 30% in Paige’s “first report” to 40% in later reports is unexplained and
seemingly arbitrary.
254
Dkt. 1429 Ex. B at 11; see also Dkt. 1571 Ex. A at 12.
255
Dkt. 1429 Ex. B at 11-12; see also Dkt. 1571 Ex. A at 12. In his second report, filed
with the court on January 29, 2021, Paige included an additional comparison between
Skadden’s rates and the rates charged in “Bankruptcy and Collection matters in
Philadelphia, PA [which includes Wilmington, DE] for Firms with more than 1,000
Lawyers.” Dkt. 1571 Ex. A at 12. This additional comparison suffers the same flaws as
the other two comparisons. The work Skadden performed throughout these actions did not
concern “bankruptcy and collection matters.”
256
Dkt. 1429 Ex. B at 11; Dkt. 1571 Ex. A at 12.
65
rendered here—none of which involved a bankruptcy or collections matter. Second,
despite his admission that “firm size is a large factor in determining hourly rates,”257
Paige provides no basis for his conclusion that firms with 201-500 lawyers are
“similar firms” to Skadden, a global firm with more than 1,700 lawyers.258 The
unsubstantiated and grossly apples-to-oranges nature of Paige’s first comparison
makes it unreliable on its face.
Paige’s second comparison “analyzed the Custodian’s rates against the mean
hourly rates for firms with more than 1,000 lawyers engaged in corporate matters in
Wilmington, DE, during the period in question.”259 Although facially closer to the
mark, this comparison suffers from similar deficiencies. Paige provides no
elaboration for what constitutes “corporate matters” as used in the data samples and
again makes no comparison to the services that Skadden performed in these actions.
Additionally, beyond merely controlling for firm size, Paige’s reports lack any
explanation for how the firms in the sample actually compare to Skadden. No
visibility is provided as to how many and which firms are included in the data
samples to enable the court to assess their comparability to Skadden. As
257
Dkt. 1429 Ex. B at 12; Dkt. 1571 Ex. A at 12.
258
Dkt. 1441 at 36.
259
Dkt. 1429 Ex. B at 12; see also Dkt. 1571 Ex. A at 13. Although the quote refers to
firms in “Wilmington, DE,” the actual data is based on firms in Philadelphia, PA and
includes Wilmington. See Dkt. 1429 Ex. B at 12; Dkt. 1571 Ex. A at 13.
66
significantly, Paige does not provide any persuasive explanation for why the twelve
firms referenced above—whose hourly rates are in line with the rates charged here—
are not more reflective of Skadden’s peers.260 In sum, as with his other rate
comparison, the second comparison in Paige’s report does not provide a reliable
basis to conclude that Skadden’s hourly rates are not reasonable.
Critically, Paige’s reports focus myopically on only one of the Rule 1.5(a)
factors—“the fee customarily charged in the locality for similar legal services”261—
and make no effort to consider any of the other Rule 1.5(a) factors that “case
law directs a judge to consider” in determining reasonableness.262 Paige does not
analyze or consider, for example, “the experience, reputation, and ability” of the
Custodian and other attorneys at Skadden, “the amount involved and the results
obtained” throughout the custodianship or the sale process, or “the novelty and
difficulty of the questions involved” in these actions.263 Indeed, Respondents
260
Respondents contend that the rates of these twelve firms consist of “approved rates in
Bankruptcy cases mostly in New York City.” Dkt. 1588 at 5. This is incorrect. In fact, of
the sixteen cited cases, eight were in Delaware, five were in New York, two were in Texas,
and one was in Oklahoma. See Dkt. 1441 App. B.
261
Del. Lawyers’ R. Prof’l Conduct 1.5(a)(3).
262
Mahani, 935 A.2d at 245-46 (citation omitted).
263
Del. Lawyers’ R. Prof’l Conduct 1.5(a).
67
concede that Paige “was not privy to Skadden’s work product, nor in a position to
evaluate the relative complexity or simplicity of the legal issues involved.”264
Consideration of the other Rule 1.5(a) factors reinforces the court’s
conclusion that Skadden’s hourly rates were reasonable in this case. As discussed
above, when selecting Pincus to be Custodian, the court believed it was imperative
that he have the experience, resources, and ability of a firm of Skadden’ stature at
his disposal because of the challenges the court foresaw in implementing the remedy.
Despite Shawe’s consistent efforts to undermine the sale process, the Custodian with
Skadden’s assistance ran a successful modified auction in accord with the court’s
directive “to sell the Company with a view toward maintaining the business as a
going concern and maximizing value for the stockholders.”265 Shawe later conceded
as much in an appellate brief: “The Custodian and his consultants created a court-
approved auction process, ran an extended auction, selected a winner, and
recommended the sale of TPG to Shawe for economic and non-economic reasons,
which fulfilled the Custodian’s dual mandate.”266
After the sale process concluded, the Custodian was forced to deal with
collateral litigations and motions pressed by Respondents, which he and his advisors
264
Dkt. 1571 at 7 n.5.
265
Shawe & Elting LLC, 2015 WL 4874733, at *32.
266
Answering Br. of Resp’t-Below Appellee Philip R. Shawe at 46, Elting v. Shawe, No.
90, 2018 (Del. April 5, 2018), Dkt. 18.
68
handled with similar skill, often under significant “time limitations imposed by . . .
circumstances” Respondents created.267 The Contempt Fee Award, which accounts
for almost one-third of the fees at issue, is case in point. In violation of this court’s
orders, the Company filed suit against the Custodian in Nevada over the amount
owed under the Fee Orders and failed to stand down even in the face of a contempt
motion, necessitating that the Custodian simultaneously—and successfully—litigate
in two forums at once under significant time pressures.268
Finally, as an equitable matter, Respondents cannot “be heard to complain”
that the amount Skadden charged for work performed after the sale process was
“excessive when [they] may be blamed for so much of the cost.” 269 Knowing full-
well that Skadden had been representing the Custodian on a non-contingent basis
since the inception of the custodianship and was entitled to be paid at the rates it
charged other clients, Shawe chose to go to battle with the Custodian rather than to
cooperate during the wind-up process—acting in contempt of court, filing baseless
motions and appeals, and quarreling with virtually every time entry in the
267
Del. Lawyers’ R. Prof’l Conduct 1.5(a)(5).
268
TransPerfect, 2019 WL 5260362, at *9, *13.
269
EDIX Media Grp., Inc. v. Mahani, 2007 WL 417208, at *2 (Del. Ch. Jan. 25, 2007)
(refusing to reduce fees awarded to plaintiff when, “[w]ith ample opportunity to minimize
the costs of litigation, defendant at every step chose to draw out the conflict”), aff’d, 935
A.2d 242 (Del. 2007).
69
Custodian’s fee petitions.270 As noted above, the Custodian deftly opposed this
onslaught of attacks. The results obtained and the skill he and his counsel
demonstrated throughout these actions reinforces the reasonableness of the
Custodian and Skadden’s hourly rates.
2. Billing for Non-Attorney Time and Certain Expenses
Respondents argue that the Custodian and Skadden should not be reimbursed
for non-attorney time and “other administrative expenses” because such
reimbursement “is improper under applicable legal, commercial and ethical billing
practices, in which such non-professional costs are subsumed in law firm
overhead.”271 In the alternative, Respondents argue “if the Court were to allow some
amount of non-attorney fees, . . . those fees should be limited to cost, not profit
270
As part of their Omnibus Objection, Respondents submitted an affidavit from Adam
Mimeles, TPG’s general counsel. Mimeles identifies numerous law firms and attorneys
Respondents hired after Shawe lost at trial and the hourly rates they charged for working
on various matters at issue in the Custodian’s fee petitions. See Dkt 1429 Ex. A ¶¶ 5-7.
These hourly rates are irrelevant. As Respondents note, they “are free to hire and to utilize
as many attorneys and advisors as they desire” and pay those attorneys or advisors
whatever hourly rates they can negotiate. Dkt. 1588 at 31. But Respondents’ decision—
after being represented at trial and on appeal of the Sale Order by Sullivan & Cromwell
LLP and a prominent Delaware law firm—to switch to law firms charging lower hourly
rates has no bearing on whether Skadden’s rates are reasonable for purposes of this motion.
Skadden was engaged at the outset of these actions and developed vast institutional
knowledge and experience. The Custodian was not obligated to switch counsel after the
sale transaction closed, of course, and it would have been illogical and inefficient for him
to do so as Shawe continued his attacks on the Custodian.
271
Dkt. 1429 at 37.
70
centers for Skadden at TPG’s or the Escrow’s expense.”272 In total, Respondents
seek a reduction of $167,711 in fees for “Inappropriate Timekeepers” and a
reduction of $194,980 for “Non-Billable Disbursements.”273
a. Non-Attorney Timekeepers
In his reports, Paige contends that Skadden should not be reimbursed for any
entries in its billing records attributable to “Legal Assistants,” “Legal Assistant
Specialists,” “Client Specialists,” and “Law Clerks.”274 Paige attempts to distinguish
these classifications from paralegals, asserting that they “appear to be non-
professionals,” which he defines as “non-lawyers and non-paralegals.”275 The court
disagrees with Paige’s proposed exclusion of these time entries.
To start, Paige provides no support for defining “legal assistants” as “non-
professionals.” This lack of support is unsurprising, given that ABA Model
Guidelines use the terms “legal assistant” and “paralegal” interchangeably.
Specifically, the 2018 ABA Model Guidelines for the Utilization of Paralegal
Services explains that:
In 1986, the ABA Board of Governors approved a definition for the
term “legal assistant.” In 1997, the ABA amended the definition of legal
assistant by adopting the following language: “A legal assistant or
272
Id.273
See Dkt. 1429 Ex. B at 6; Dkt. 1573 Ex. A.
274
Dkt. 1429 Ex. B at 9; Dkt. 1571 Ex. A at 9.
275
Dkt. 1429 Ex. B at 9.
71
paralegal is a person qualified by education, training or work
experience who is employed or retained by a lawyer, law office,
corporation, governmental agency or other entity who performs
specifically delegated substantive legal work for which a lawyer is
responsible.” To comport with current usage in the profession, these
guidelines use the term “paralegal” rather than “legal assistant;”
however, lawyers should be aware that the terms legal assistant and
paralegals are often used interchangeably.276
The ABA Model Guidelines further explain that “the titles assigned to paralegals
must be indicative of their status as nonlawyers and not imply that they are lawyers.
The most common titles are ‘paralegal’ and ‘legal assistant’ . . . .”277
In a seminal decision on the meaning of “reasonable attorney’s fees,” the
United States Supreme Court held in Missouri v. Jenkins by Agyei that “[c]learly, a
‘reasonable attorney’s fee’ . . . cannot have been meant to compensate only work
performed personally by members of the bar,” but also includes the work of
paralegals, “law clerks,” and “recent law graduates” at market rates for their
services.278 Specifically addressing the issue of paralegal time, the Court held that
“if the prevailing practice in a given community were to bill paralegal time
separately at market rates, fees awarded the attorney at market rates for attorney time
would not be fully compensatory if the court refused to compensate hours billed by
276
ABA Model Guidelines for the Utilization of Paralegal Serv. at 1 n.1 (emphasis added).
277
Id. at 10-11 (emphasis added). The ABA Model Guidelines also frequently cite to the
“National Association of Legal Assistant’s Model Standards and Guidelines for the
Utilization of Legal Assistants.” See id. at 5-7, 14, 17, 18.
278
491 U.S. 274, 285, 289 (1989).
72
paralegals or did so only at ‘cost.’”279 The Supreme Court thus expressly rejected
“the argument that compensation for paralegals at rates above ‘cost’ would yield a
‘windfall’ for the prevailing attorney.”280
In accord with the ABA Model Guidelines—which also provides that “[a]
lawyer may charge ‘market rates’ for paralegal services, rather than actual
costs”281—Delaware courts have used the terms “legal assistant” and “paralegal”
synonymously and permitted payment for their time. In Ciappa Construction, Inc.
v. Innovative Property Resources, LLC, the Superior Court held that “Delaware
courts have routinely included fees charged for a legal assistant’s time when
granting attorney’s fees.”282 For support, the Superior Court cited to other Delaware
cases, including two decisions of the Court of Chancery that applied the practice of
this court to compensate paralegals and legal assistants based on their hourly rates.283
279
Id. at 287.
280
Id.281
ABA Model Guidelines for the Utilization of Paralegal Serv. at 17.
282
2007 WL 1705632, at *1 (Del. Super. June 12, 2007) (emphasis added); see also
McMackin v. McMackin, 651 A.2d 778, 779 (Del. Fam. Ct. 1993) (“The phrase ‘all or part
of the costs of the other party of maintaining or defending’ has previously been found broad
enough to include fees incurred by a legal assistant or paralegal.” (emphasis added)); In
re Dendreon Corp., et al., Case No. 14-12515-PJW, Dkt. 72 (Bankr. D. Del. Nov. 12,
2014), application granted, Dkt. 152 (Dec. 9, 2014) (granting application authorizing
employment and retention of Skadden, including rates of “$195 to $340 for legal
assistants”).
283
See In re First Interstate Bancorp Consol. S’holder Litig., 756 A.2d 353, 364 & n.6
(Del. Ch. 1999), aff’d sub nom. First Interstate Bancorp v. Williamson, 756 A.2d 388 (Del.
2000); In re Diamond Shamrock Corp., 1989 WL 17424, at *1, *3 (Del. Ch. Feb. 23, 1989).
73
Given these authorities, and the lack of any persuasive Delaware authority to
the contrary cited in Paige’s reports,284 the court declines to exclude the entries from
Skadden’s billing records attributable to legal assistants, legal assistant specialists,
client specialists, and law clerks. Each of these entries, which connote the provision
of professional services,285 are properly subject to reimbursement and
indemnification at their hourly rates.
b. Out-of-Pocket Expenses
This court’s orders provide that the Custodian’s counsel’s “reasonable fees
and expenses . . . shall be paid promptly by TPG.”286 Pursuant to these orders, the
284
Paige cites Baker v. Baker, 1990 WL 320333 (Del. Fam. Ct. July 6, 1990) for the
assertion that “paralegals and law clerks are part of the attorney’s overhead and should not
be reimbursed.” Dkt. 1429 Ex. B at 20. That case is an outlier. Indeed, it specifically
acknowledged “[t]here is a difference among the Judges of the Delaware Family Court as
to whether fees of paralegals and law clerks are allowable or should be considered part of
the attorney’s overhead and reflected in the attorney’s hourly fee.” Baker, 1990 WL
320333, at *11. Indeed, three years later, in a well-reasoned decision applying the rationale
of the Supreme Court’s decision in Jenkins by Agyei, the Family Court held that
“[p]aralegal fees are not a part of the overall overhead of a law firm” and that “these legal
assistants have the potential for greatly decreasing litigation expenses and, for that matter,
greatly increasing the efficiency of many attorneys.” McMackin, 651 A.2d at 779(emphasis added).
285
In his answering brief, the Custodian asserts that “Skadden did not bill for clerical or
administrative tasks.” Dkt. 1441 at 31 n.9. Respondents separately object to what Paige
defines as “Administrative and/or Clerical Tasks.” Dkt. 1571 Ex. A at 14-15; see also Dkt.
1429 Ex. B at 5. This objection is addressed below.
286
Dkt. 607 ¶ 11 (emphasis added); see also Dkt. 848 ¶ 14.
74
54(d)293—which provides that “costs shall be allowed as of course to the prevailing
party unless the Court otherwise directs.”294
This court has recognized that “[t]he term ‘costs’ as employed by Court of
Chancery Rule 54(d) is not synonymous with ‘expenses’ incurred by a party in
successfully pursuing his claims.”295 To the contrary, the term “expenses,” as used
in this court’s orders, “has a legally recognized broader definition” than “costs.”296
Turning to the proper scope of the term “expenses,” Comment 1 under Rule
1.5 of the Delaware Lawyers’ Rules of Professional Conduct provides that “[a]
lawyer may seek reimbursement for the cost of services performed in-house, such as
copying, or for other expenses incurred in-house, such as telephone charges . . . by
charging an amount that reasonably reflects the cost incurred by the lawyer.”297 The
ABA Committee on Ethics and Professional Responsibility similarly provides in a
formal opinion that “it seems clear that lawyers may pass on reasonable charges for”
293
See Dkt. 1571 at 48 (citing Tanyous v. Happy Child World, Inc., 2008 WL 5424009, at
*1 (Del. Ch. Dec. 19, 2008)); Dkt. 1429 Ex. B at 22-23.
294
Ch. Ct. R. 54(d) (emphasis added).
295
Tanyous, 2008 WL 5424009, at *1.
296
Ivize of Milwaukee v. Compex Litig. Support, 2009 WL 1930178, at *1 (Del. Ch. June
24, 2009)
297
Del. Lawyers’ R. Prof’l Conduct 1.5 Cmt. 1.
76
in-house services, such as “photocopying, computer research, on-site meals,
deliveries and other similar items.”298
In Lillis v. AT & T Corp., Vice Chancellor Lamb ruled that certain expenses,
including “Westlaw charges [that] were incurred in performing the research assigned
by [an] associate” were properly subject to reimbursement where a contractual
provision “entitle[d] a party to recover attorneys’ fees and expenses from an
adversary party.”299 Our Superior Court similarly concluded that a contract
requiring a party “pay all costs and expenses (including attorneys’ fees and
disbursements)” of the other party was broad enough to include expenses such as
“the cost of photocopying; travel costs; mail and courier expenses; the cost of
automated research; [and] manual research expenses” and found the amount billed
298
ABA Formal Op. 93-379 § C (Dec. 6, 1993).
299
2009 WL 663946, at *2, *6 (Del. Ch. Feb. 25, 2009); see also Blank Rome, LLP v.
Vendel, 2003 WL 21801179, at *9 (Del. Ch. Aug. 5, 2003) (upholding arbitrator’s decision
to permit reimbursement for certain expenses under a fee agreement, including expenses
“for photocopies, telephone calls, and computer research” and noting that “[c]ommon sense
suggests that when a client hires a lawyer, the client implicitly agrees that the lawyer will
have certain resources to accomplish the task at hand. The client cannot require the lawyer
to give diligent representation and at the same time handcuff the lawyer from having access
to the customary tools of the profession (e.g. photocopies, telephone calls and legal
research) and techniques (e.g. summarizing the relevant portions of lengthy depositions)”).
77
for those expenses was reasonable.300 Based on this precedent, I find Respondents
and Paige’s reliance on Court of Chancery Rule 54(d) unpersuasive.
Based on an independent review of these expenses, the court finds they are
reasonable as a general matter. A substantial portion of the expenses sought (over
86%) stem from Westlaw, Lexis/Nexis, and “Outside Research” charges. 301 These
research-related expenses are reasonable in light of the numerous legal issues
Respondents created across multiple jurisdictions during the relevant time period.302
Respondents’ objection is overruled.
3. Objectionable Billing Practices
In their final and most granular general objection, Respondents seek a
reduction of $429,335 based on what Paige characterizes as “Generally
Objectionable Billing Practices.”303 In his reports, Paige used a “Tagging Guide” to
track instances of allegedly “Generally Objectionable Billing Practices” using
seventeen different “tags.”304 To be more specific, attached to Paige’s reports are
300
Salaman v. Nat’l Media Corp., 1994 WL 465535, at *4 (Del. Super. Ct. July 22, 1994).
301
“Outside Research” accounts for $9,718.30 of the expenses sought and includes
expenses related to File & ServXpress LLC and Pacer Service Center. See Dkt. 1441 App.
A; Dkt. 1537 Ex. A; Dkt. 1555 Ex. A.
302
The court addresses one specific Westlaw charge in Part V.B.9, infra.
303
Dkt. 1429 Ex. B at 19; Dkt. 1571 Ex. A at 6, 21; Dkt. 1573 Ex. A.
304
See Dkt. 1429 Ex. B at Ex. 4; Dkt. 1571 Ex. A at Ex. 4.
78
copies of Skadden’s billing records where he has applied directly to the billing record
“tags” using a numbering system to virtually every attorney time entry.
The tags are not mutually exclusive. A single time entry may have more than
one tag. Indeed, to my eye, most of the entries included multiple tags for allegedly
objectionable billing practices.305 For example, time entries tagged for “block
billing” frequently were also tagged as “vague.”
Two of the seventeen tags—for “inappropriate timekeepers” and “non-
billable disbursements” (Tags #7 and #12)—have been addressed in Part V.A.2
above. Two of the other tags—for “update letters” and “motion for certification”
(Tags #16 and #17)—overlap with the subject matter specific objections addressed
in Part V.B. below. The court considers the remaining thirteen tags next.
a. Block Billing (Tag #1)
Respondents argue that “Skadden’s practice of block billing contaminated”
thousands of hours of work and “block this Court, Objectors, or an expert’s ability
to analyze the reasonableness of the claimed fees.”306 Paige opines that “[l]egal
authorities and other generally accepted commercial standards . . . discuss why the
305
For entries with multiple tags, the entire dollar amount is attributed to each tag in Paige’s
“Objection Totals.” Dkt. 1429 Ex. B at Ex. 3; Dkt. 1571 Ex. A at Ex. 3; Dkt. 1573 Ex. A.
As a result, the sum of the “Total Amount of Objection” figures in Paige’s first report
($390,576) is significantly more than the amount at issue for that period ($242,886). Dkt.
1429 Ex. B at Ex. 3.
306
Dkt. 1571 at 42, 49-50.
79
use of block billing is not a reasonable billing practice.”307 This objection is
overruled.
Respondents cite no case where a Delaware court has ruled that block billing
is impermissible as a matter of law. In fact, Delaware courts have noted the absence
of “any Delaware case that finds block-billing objectionable per se.”308 The relevant
inquiry is whether the use of block billing “make[s] it more difficult for a court to
assess the reasonableness of the hours claimed.”309
Having reviewed a large number of the “block billing” time entries that Paige
“tagged,” the court is satisfied that the level of description provided has not impeded
its ability to assess the reasonableness of Skadden’s fees. The entries typically
explained both the type of work performed (e.g., legal research, analysis, motion or
brief drafting, etc.) along with the “case-related event to which this work specifically
related.”310 Indeed, my review of tagged entries—many of which appeared on
307
Dkt. 1571 Ex. A at 17. For support, Paige refers to the appendix to his “First Report.”
Id. That appendix cites three cases, none of which support his opinion that “block billing
is not a reasonable billing practice” as a matter of law. See Dkt. 1429 Ex. B at 25-26.
308
Concord Steel, Inc. v. Wilm. Steel Processing Co., Inc., 2010 WL 571934, at *3 n.22
(Del. Ch. Feb. 5, 2010), aff’d, 7 A.3d 486 (Del. 2010) (TABLE); see also Immedient Corp.
v. HealthTrio, Inc., 2007 WL 656901, at *4 (Del. Super. Ct. Mar. 5, 2007) (noting that
“block billing is not prohibited per se”).
309
Immedient, 2007 WL 656901, at *4.
310
Morris v. Astrue, 2013 WL 257108, at *4-5 (D. Del. Jan. 23, 2013) (declining to reduce
fees that were “collected together in large blocks of time” because “[t]he tasks grouped
together here (such as legal research, brief writing, and record review) are frequently
80
copies of billing records Skadden color-coded by subject matter311—confirm my
confidence in Skadden’s categorization of the entries so as to allow me to assess the
reasonableness of the fees charged for particular tasks.
b. Vague Entries (Tag #2)
Respondents argue that certain time entries “are extraordinarily vague,
preventing Objectors from considering the reasonableness of the work actually
performed.”312 This objection is overruled.
Based on the same review of time entries discussed above, the court observes
that the time entries almost uniformly include a brief description of the work or task
performed and the subject matter at issue. The court is satisfied that the time entries
provide Respondents and the court with sufficient detail to assess the reasonableness
of the charges.313
completed in conjunction with one another, often in a manner that can make specific time
allocations for each difficult to cull out”).
311
See Dkt. 1571 Ex. A.
312
Dkt. 1571 at 21.
313
It appears Paige was over-inclusive in deciding which entries to “tag” as vague. For
example, Paige tagged an entry of 0.20 hour with the description “confer with B. Pincus
re: Cypress subpoena and follow up re: subpoena.” See Dkt. 1429 Ex. B. It is not clear
what about this entry is too vague, especially given the twelve minutes it covers.
81
c. Quarter Hour Billing (Tag #3)
Paige opines that “[q]uarter, half and full hour billing is disallowed.”314
Indicative of the caviling mentality of Paige’s assignment, this criticism applies to
three entries that add up to 1.75 hours of a partner’s time.315 This objection is
overruled. Paige provides no support for the proposition that billing in quarter hour
increments is improper under Delaware law or that the miniscule number of entries
involved resulted in inflated billing hours.
d. Clerical/Administrative Tasks (Tag #4)
Paige tagged 31 entries “for clerical and/or administrative tasks, requiring no
clear professional-level skill.”316 This objection is sustained in part.
The United States Supreme Court held in Jenkins by Agyei that “purely
clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who
performs them.”317 Delaware courts are in accord.318 Importantly, the 31 entries at
issue—which add up to $84,014—included all the time within the entry as clerical
314
Dkt. 1429 Ex. B at Ex. 4; Dkt. 1571 Ex. A at Ex. 4.
315
See Dkt. 1571 Ex. A.
316
Dkt. 1571 Ex. A at 5, 14; see also Dkt. 1429 Ex. B at 5.
317
491 U.S. at 288 n.10.
318
Lillis, 2009 WL 663946, at *3 (“First, secretarial services (like other overhead) are
normally included in a law firm’s hourly rates.”); Lamourine v. Mazda Motor of Am., Inc.,
2008 WL 8058954, at *2 (Del. Super. Ct. Dec. 29, 2008) (“Additionally, as to the
reasonableness of fees, Defendants argue that it is unreasonable for Plaintiffs’ counsel to
bill his hourly rate for administrative or clerical tasks. The Court agrees.”).
82
or administrative, even when the entry included other tasks properly subject to
reimbursement for professional services.319 Based on my independent review of
each of the 31 time entries, the court concludes that the fees in question should be
reduced by 20% or $16,803 because it is reasonably inferable from the face of the
entries that only a small portion of the services performed involved work that appears
to have been administrative in nature.320
e. Excessive Staffing (Tag #5)
Respondents contend the Custodian and Skadden’s fees stem from “massive
overstaffing”321 and reference “overstaffing” twenty-three times in their
objections.322 In contrast to Respondents’ hyperbole, Paige tagged as “Excessive
Staffing” only ten entries totaling 15.3 hours.323 Four of these entries, totaling 7.6
hours, focus on a single day, October 21, 2019, during which the court provided a
319
As an example, Paige tagged as administrative an entry of 2.3 hours with the description
“review and edit, finalize and supervise filing of opposition to Rule 42 motion; review
authority cited therein and respondents’ application.” Dkt. 1571 Ex. A at 15 (emphasis
added). The part of this entry about “supervise filing” is administrative work but the
remaining work reflects professional services.
320
Twenty percent is the deduction Paige applied to all of the allegedly “Generally
Objectionable Billing Practices.” See Dkt. 1429 at 6, 19; Dkt. 1571 Ex. A at 6, 21, 25; Dkt.
1573 Ex. A.
321
Dkt. 1571 at 3.
322
Dkt. 1429 at 4, 16, 40, 43, 44; Dkt. 1451 at 22; Dkt. 1571 at 3, 25, 26, 30, 37, 54, 55,
59; Dkt. 1573 at 2; Dkt. 1585 at 5, 10; Dkt. 1588 at 2, 10 n.7, 16, 25, 27, 33.
323
Dkt. 1573 Ex. A.
83
telephonic ruling relating to the Custodian’s motion for civil contempt.324 The time
entries in question on that day reference preparing for and attending the hearing,
analysis of the court’s decision, work on a proposed order, and discussion with the
client, i.e., the Custodian. This objection is overruled.
The October 21, 2019 hearing was not a minor matter. Two partners and two
associates from Skadden attended. At least four lawyers for Respondents attended
as well, including Alan Dershowitz.325 It was not unreasonable for either side to
have four lawyers attend this hearing. Those four entries also reflect other work the
lawyers performed relating to the subject of the hearing apart from attending the
hearing itself. Paige’s other tags for “Excessive Staffing” are similarly without
merit.326
f. Long Days (Tag #6)
Paige tagged any entries where a timekeeper billed more than ten hours in a
day.327 This objection is overruled. Paige provides no legal support for the
324
See Dkt. 1408.
325
See id.326
The other six entries Paige objects to under this tag relate to a conference call between
six Skadden attorneys regarding “responses to TPG/Shawe’s opposition to fee petition and
opposition to proposed discharge order.” Dkt. 1573 Ex. A. The call appears to have lasted
approximately one hour. See id. A one-hour teleconference regarding Respondents’
extensive objections on a matter as important as the Custodian’s discharge does not strike
the court as unreasonable.
327
Dkt. 1429 Ex. B at Ex. 4 (“Rule: A ‘long day’ is defined as more than 10 hours billed
in a day.”); Dkt. 1571 Ex. A at Ex. 4 (same).
84
proposition that billing more than ten hours in a day is improper or unreasonable.
As much as attorneys (or their families) may wish it were otherwise, working more
than ten hours in a day is part of life when practicing in this court, particularly in
expedited matters. Attorneys are entitled to be compensated for all their work in a
given day and not just an arbitrary portion of it.
g. Travel (Tag #8)
Paige tagged two billing entries for a total of 12.9 hours on the assumption
they were “purely for travel only,” meaning “there is no substantive work being
performed.”328 This objection is overruled.
This court has held “[i]t is common practice to bill for ‘dead’ travel time
where, for whatever reason, the attorney was unable to perform other work during
that time.”329 Apart from that, the two entries in question—which concern one
attorney traveling to and from Nevada for a hearing on an emergency motion to stay
that TPG declined to postpone despite the pending motion for contempt in this
court330—reflect that substantive work also was performed.331
328
Dkt. 1429 Ex. B at Ex. 4.
329
Lillis, 2009 WL 663946, at *6.
330
See TransPerfect, 2019 WL 5260362, at *9, *13.
331
See Dkt. 1537 Ex. A (time entry with description “travel from Nevada in connection
with TPG hearing; attention to ruling by Chancellor Bouchard; confer with Custodian;
attention to/edit letter to Nevada court”).
85
h. Pattern Entries (Tag #9)
Respondents argue that Skadden’s fee petitions should be reduced for
“numerous vague, pattern entries, such as ‘researching case law regarding appeals’;
‘research re appeals’ and ‘research’ for interlocutory appeal brief.”332 This objection
is overruled.
As with block billing, there is nothing inherently unreasonable about an
attorney having multiple billing entries with similar or identical language. Indeed,
the entries Paige highlights in his reports indicate that these “pattern entries” reflect
substantive work that simply occurred over more than one day, such as drafting and
legal research.333 Using the same words to describe the same task that is performed
over more than one day is not unreasonable.
i. Legal Research (Tag #10)
Respondents assert that Skadden engaged in “excessive legal research”
because “the issues that arose during this billing time period were not at all
complex.”334 Paige opines that “a firm such as Skadden should be presumed to have
a firm grasp on such issues without the devotion of such a massive amount of time”
332
Dkt. 1429 at 43.
333
See Dkt. 1571 Ex. A at 18-19.
334
Dkt. 1571 at 26, 46.
86
and that “such large amounts of research should not be needed for a firm of this
stature to understand the law.”335 This objection is overruled.
Law firms—even those as large as Skadden—are not expected to have
encyclopedic knowledge of every legal issue they confront in an engagement. More
to the point, careful preparation through legal research is an expected and
fundamental element of virtually any legal representation to understand the nuances
of legal issues as they arise in various contexts.336 Paige’s report proves the point.
He focuses on nine entries by two timekeepers totaling 57.3 who conducted research
“re judicial immunity and privilege in connection with subpoenas.”337 Putting aside
that the entries show that the work also included the preparation of a memo, the
subject matter—judicial immunity—is hardly an everyday issue. As this court
335
Dkt. 1571 Ex. A at 21. In his “Tagging Guide,” Paige states that he would only apply
this tag “if legal research is more than 3 hours in a [day] for single [sic] issue for an
individual timekeeper and no approval is indicated.” Dkt. 1429 Ex. B at Ex. 4; Dkt. 1571
Ex. A at Ex. 4. Paige’s reports, however, use two “tags” under this objection, one described
as “Legal Research,” and the other described as “Legal Research [Hours over 3].” Dkt.
1429 Ex. B at Ex. 3 (brackets in original); Dkt. 1571 Ex. A at Ex. 3 (same); Dkt. 1573 Ex.
A (same). Paige does not explain why he uses two numbers under this objection or how
both numbers comport with his “rule.” In any event, the implication in Paige’s reports that
a research session exceeding three hours is “excessive” is arbitrary and unsubstantiated.
336
See Del. Lawyers’ R. Prof’l Conduct 1.1 Cmt. 1 (“In determining whether a lawyer
employs the requisite knowledge and skill in a particular matter, relevant factors include .
. . the preparation and study the lawyer is able to give the matter . . . .”); Clark v. State
Farm Ins. Co., 1990 WL 139382, at *3 (E.D. Pa. Sept. 20, 1990) (Sanctioning attorney
“for his failure to conduct a normally competent level of legal research”); Bonilla v. State,
62 So. 3d 1233, 1234 n.1 (Fla. Dist. Ct. App. 2011) (“Competent legal research is the
responsibility of counsel.”).
337
Dkt. 1571 Ex. A at 20-21.
87
explained in a custodianship case in 2013, the “scope of [judicial immunity] has not
yet been defined in Delaware.”338 It is not unreasonable that an appreciable amount
of time was devoted to this task.
j. Training/Supervision (Tag #11)
Paige tagged five entries for “Training/Supervision.” Paige’s “Tagging
Guide” asserts the rule for this classification as follows: “The charge must clearly
show that the client is being charged for training. It should not just be somehow
‘implied.’”339 Based on the court’s review of each of the five entries in question, the
court is not satisfied that any of the entries clearly show that the time incurred was
for training.340 This objection is overruled.
k. Overqualified (Tag #12)
Respondents contend that Skadden “inappropriately utilized overqualified
attorneys.”341 They further explain: “For example, attorneys billing at rates of
around $1,000/hour spent extensive time on numerous . . . entries, such as ‘Research
Re and Draft Motion for Contempt’, [sic] ‘Draft Riders for Reply for Motion for
338
Jepsco, Ltd. v. B.F. Rich Co., Inc., 2013 WL 593664, at *6 (Del. Ch. Feb. 14, 2013).
339
Dkt. 1429 Ex. B at Ex. 4; Dkt. 1571 Ex. A at Ex. 4 (same).
340
Paige presumably classified some of the entries as such because they included words
like “coordinate” and “supervise” within descriptions that, in my view, do not “clearly
show” that Skadden was charging for training. See Lillis, 2009 WL 663946, at *7
(permitting fees and expenses related to “time spent by a Weil Gotshal associate conferring
with a summer associate on a research task”).
341
Dkt. 1571 at 53.
88
Contempt,’ ‘Research for Motion for Contempt,’ and ‘Attention to Drafting Motion
for Contempt and Sanctions and Related Matters.’”342 This objection is overruled.
This objection is, in effect, a reprise of Respondents’ challenge to Skadden’s
hourly rates, which the court previously addressed and overruled. As noted above,
Skadden’s lead litigation partner for this engagement submitted an affidavit under
penalty of perjury attesting that the fees “are reasonable for the tasks performed.”343
Respondent’s ask the court to second-guess the judgment of more senior attorneys
in how to delegate legal tasks, such as researching and drafting, to associate
attorneys.344 Nothing about the entries Respondents have cited warrant the court
doing so with respect to what are quintessential legal tasks.
l. Internal Conferences (Tag #14)
Paige takes issue with 205 entries that include a reference to “internal
conferences,”345 which he opines “suggest[s] that the Action continues to be
conducted without efficiency.”346 This objection is overruled.
342
Id. at 53-54.
343
Dkt. 1593 ¶ 6.
344
See Weil v. VEREIT Operating P’ship, L.P., 2018 WL 834428, at *13 (Del. Ch. Feb.
13, 2018) (declining to second guess questions about staffing and hours based on sworn
affidavit of a senior partner attesting to the reasonableness of the fees and expenses sought).
345
Dkt. 1429 Ex. B at Ex. 3; Dkt. 1571 Ex. A at Ex. 3; Dkt. 1573 Ex. A.
346
Dkt. 1571 Ex. A at 19; see also Dkt. 1429 Ex. B at 16-17. As Paige admits, however,
this figure is inflated because he did not attempt “to separate the conferencing time from
other time within the same block.” Dkt. 1429 Ex. B at 5 n.3; Dkt. 1571 Ex. A at 6 n.6.
89
Notably, four of the ten entries discussed in the body of Paige’s reports cannot
fairly be characterized as “internal” conferences. Three of them concern conferences
with the client, i.e., the Custodian, and a fourth is a teleconference with Nevada
counsel.347 In any event, as detailed above, the Custodian was tasked with
responding to and defending against multiple litigations, appeals, and motions in
multiple jurisdictions during the period at issue. It is eminently reasonable that
Skadden attorneys would need to communicate with each other to coordinate
strategy and assignments in an “all fronts” assault instigated by Shawe.348 Once
again, nothing in the entries Paige has identified warrants the court second-guessing
how this was done when Skadden’s lead litigation partner has attested that the fees
“are reasonable for the tasks performed.”349
Thus, for example, this figure includes the entire 1.33 hours in a time entry with the
description “review revised opposition; emails and TCS with Timekeeper A – re
sanctions.” Dkt. 1571 Ex. A at 19.
347
See Dkt. 1429 Ex. B at 16-17; Dkt. 1571 Ex. A at 19.
348
The cases on which Respondents rely are inapposite. See Gillberg v. Shea, 1996 WL
406682, at *5 (S.D.N.Y. May 31, 1996) (finding that a case involving “simple factual and
legal issues” and only $100,000 in controversy did “not justify so large a ‘team’” of “five
lawyers (and a paralegal)”); Immedient, 2007 WL 656901, at *4 (reducing fee award by
20% where “the fact that forty individuals, the vast majority being attorneys, billed to this
case strikes the Court as unnecessarily high” (emphasis added)).
349
Dkt. 1593 ¶ 6.
90
m. Redacted Entries (Tag #15)
Paige objects to six time entries totaling less than $5,000 that are partially
redacted.350 This objection is overruled. The redactions at issue are minimal and do
not prevent Respondents from understanding the basis for the charges or their
reasonableness. Five of the entries merely redact a name. For example, Paige
objects to an entry of .25 hours with the description “attention to communications
from [redacted] of Credit Suisse.”351
*****
For the reasons explained above, Respondents’ general objections are denied,
with the exception of their objection “for clerical and/or administrative tasks,” which
is sustained in part. The $13,803 reduction for clerical/administrative tasks is
reflected on the chart attached as Exhibit A.
B. Subject Matter Specific Objections
This section considers Respondents’ objections to the Custodian’s fee
petitions based on the subject matter of the work performed. As depicted in the chart
attached as Exhibit A to this opinion, the services Skadden provided fall into
eighteen categories. The Custodian has withdrawn his request for reimbursement
350
See Dkt. 1429 Ex. B at Ex. 3; Dkt. 1573 Ex. A.
351
See Dkt. 1429 Ex. B at 14 & Ex. 3.
91
concerning category 10352 and Respondents do not object to the amounts sought for
categories 17 and 18.353
In their subject matter objections, Respondents reiterate many of the
challenges advanced in Paige’s reports concerning, among other things, Skadden’s
billing rates, block billing and allegedly vague entries, the amount of legal research,
and use of “overqualified attorneys.” Those issues were addressed in Part V.A.
above and will not be repeated here. This section only considers Respondents’ other
arguments with respect to the subject matter of the services rendered.
1. Contempt Fee Award and Fee Order Violations
On October 17, 2019, the court found TPG and Shawe in contempt of court
for filing the Nevada Action in violation of the exclusive jurisdiction provision in
the Final Order.354 As a sanction, the court ordered that TPG and Shawe shall pay
the Contempt Fee Award, i.e., “all fees and expenses, including reasonable
attorneys’ fees, incurred by the Custodian and his counsel in (i) connection with the
352
See Dkt. 1592 at 5.
353
Dkt. 1571 at 59 n.31. Category 17 (“other TPG litigations”) concerns (i) TPG’s legal
malpractice claim against RAM and one of its partners and (ii) TPG’s lawsuit against this
judicial officer, which was filed on December 24, 2020 and dismissed on April 12, 2021.
See supra Parts I.U-V. Category 18 (“escrow matters”) involved the Custodian responding
to a request from Elting’s counsel concerning distributions from the escrow fund and its
current holdings. Dkt. 1576 at 24. The amounts sought for both categories ($5,478 and
$3,000, respectively) are reasonable and will be approved, with the $3,000 related to
“Escrow Matters” coming out of the Escrow.
354
TransPerfect, 2019 WL 5260362, at *1, *15.
92
Nevada action and (ii) prosecution of the motion for civil contempt and sanctions in
this court, insofar as such prosecution concerns TPG’s and Shawe’s contempt of the
Final Order.”355 The October 17 opinion reserved decision on “the motion for
contempt insofar as it concerns the Fee Orders.”356
On October 21, 2019, the court found that TPG also violated the two Fee
Orders by failing to pay the amounts due thereunder.357 In the exercise of its
discretion, however, the court did not hold Respondents in contempt for those
violations, “because of some practical concerns . . . at this stage of the case about the
fee petition process, particularly with respect to the lack of precision concerning the
deadlines for filing objections and making payments.”358
The Custodian now seeks a total of $1,573,418 of fees and expenses that he
and his counsel incurred with respect to the contempt motion and the Nevada Action,
divided as follows: (i) $1,148,291 as a sanction pursuant to the Contempt Fee
Award and (ii) $425,127 pursuant to the reimbursement and indemnification
provisions in this court’s orders with respect to the Fee Orders.359 The Custodian
355
Dkt. 1399 ¶ 7.
356
TransPerfect, 2019 WL 5260362, at *1.
357
Hr’g Tr. at 6-8 (Oct. 21, 2019) (Dkt. 1408).
358
Id. at 8-9.
359
See Dkt. 1576 at 17, 19.
93
summarizes the work he and his counsel performed with respect to the Contempt
Fee Award as follows:
After analyzing the original Nevada complaint and retaining
Nevada counsel, Pincus filed the motion for contempt in this Court and
an opening brief in support. Pincus’s counsel then participated in a
scheduling conference. Immediately after the Court entered a schedule
on the contempt motion, Objectors filed an amended complaint in the
Nevada action, raising entirely new arguments and necessitating further
analysis from the Custodian and his counsel.
Pincus and his counsel responded to two separate oppositions to
the contempt motion, addressed a specious request for an adjournment
of the contempt hearing, and prepared for the hearing, which the Court
had indicated would “primar[ily] focus” on Objectors’ violation of the
Final Order.
Three days before the contempt hearing, Objectors moved for
partial summary judgment in the Nevada proceeding and then refused
a straightforward stay of that action while the contempt motion was
being decided. Thus, Pincus and his counsel prepared an expedited
motion to stay the Nevada litigation. They also prepared a motion to
dismiss the amended complaint and an opposition to Objectors’ motion
for partial summary judgment, which were both due within a week of
the contempt hearing. Pincus’s counsel then attended an in-person
hearing in Las Vegas on the motion to stay.360
As to the Fee Orders, the Custodian describes the work he and his counsel
performed as follows:
The fees were incurred in seeking to enforce the Court’s Fee Orders,
including efforts to seek payment from TPG in accordance with the Fee
Orders, analyzing the Custodian’s right to payment under Court orders
and agreements, drafting a motion for contempt and researching issues
related to TPG’s failure to pay, analyzing two motions to compel Pincus
360
Dkt. 1576 at 17-18 (internal citations and footnote omitted).
94
to provide billing records, participating in a meet and confer with
Objectors regarding that motion, analyzing and responding to discovery
requests Objectors served related to Pincus’s fee petitions, responding
to two oppositions to the motion for contempt, including addressing
issues of constitutional law and negotiating a proposed order
implementing the Court’s ruling on the fee dispute.361
Respondents make essentially three arguments in opposition to paying the Contempt
Fee Award and reimbursing the Custodian with respect to the Fee Orders. None
have merit.
First, Respondents object to the Custodian’s allocation of fees between the
work relating to the Contempt Fee Award (74%) and the Fee Orders (26%),
contending that “the fees should be near equal for the two parts.”362 The court
disagrees. Backing out $370,029 that was expended to defend against the Nevada
Action,363 which is only relevant to the violation of the Final Order, the allocation
between (i) the balance of the amount sought for the Contempt Fee Award
($778,262) and (ii) the amount sought for work relating to the Fee Orders ($425,127)
is approximately 65% to 35%, respectively. This allocation is appropriate in my
view given, as the court explained when scheduling the contempt hearing, the
361
Id. at 19.
362
Dkt. 1571 at 18.
363
Dkt. 1576 at 42 n.19.
95
“primary focus” of the “hearing [was] whether or not there ought to be an anti-suit
injunction” based on TPG and Shawe’s violation of the Final Order.364
Second, Respondents argue that none of the $425,127 the Custodian seeks
related to the Fee Orders is subject to reimbursement because “the Court explicitly
held that Skadden could not recover its fees for the unsuccessful effort to hold TPG
and Shawe in contempt concerning the Fee Orders.”365 More specifically, TPG and
Shawe assert that the “Second Order . . . expressly requiring allocation of fees
between the two parts of the contempt motion . . . was required precisely and only
because the Fee Orders fees are not recoverable.”366
This argument misconstrues the plain meaning of the court’s contempt rulings
and implementing orders. Read correctly, allocation was required because the
Contempt Fee Award was ordered as a sanction for intentional misconduct while, as
expressly addressed in the Second Order, the Custodian maintained the right to seek
reimbursement under prior court orders for fees and expenses incurred with respect
to other subject matters.
In its October 17, 2019 memorandum opinion finding TPG and Shawe in
contempt of the Final Order, the court explained it would order them to pay the
364
Hr’g Tr. at 27 (Sept. 13, 2019) (Dkt. 1375).
365
Dkt. 1571 at 14.
366
Id. at 15.
96
Custodian’s attorneys’ fees and expenses as a sanction because of their contempt
without regard to the Custodian’s other rights to recover these fees and expenses, as
follows:
Finally, the court will order that Respondents bear all of the expenses,
including reasonable attorneys’ fees, that the Custodian has incurred
because of the Respondents’ contempt. This sanction includes all the
expenses the Custodian and his counsel have incurred in defending the
Nevada action and in connection with the prosecution of the contempt
motion. Awarding this sanction is particularly appropriate given the
intentional and willful nature of the contempt violation, including
Respondents’ insistence on pressing its prosecution of the Nevada
action in the face of the contempt proceedings. The court will award
the payment of these expenses as a sanction, without regard to whatever
rights the Custodian has to recover these amounts under this court’s
orders and/or the Sale Agreement.367
Paragraph 4 of the First Order, which implemented the court’s October 17 ruling,
reflected the sanction award.368
In its October 21, 2019 transcript ruling, the court denied the Custodian’s
motion for contempt as to the Fee Orders “in the exercise of [its] discretion,” and
explained that “paragraph 4(ii)” of the First Order—which concerned the fee
sanction the court awarded—thus would need to be modified to “not award fees and
expenses incurred with respect to the prosecution of the contempt motion insofar as
the fee orders are concerned.”369 As the court’s reference to paragraph 4 of the First
367
TransPerfect, 2019 WL 5260362, at *15 (emphasis added) (footnote omitted).
368
See Dkt. 1379.
369
Hr’g Tr. at 5, 14 (Oct. 21, 2019) (Dkt. 1408).
97
Order makes clear, the modification the court planned to make in the implementing
order for the October 21 ruling solely concerned the sanction the court had imposed
against TPG and Shawe for their contempt of court. It had nothing to do with altering
any of the Custodian’s pre-existing rights; nor was that issue even before the court.
On November 1, 2019, the court entered the Second Order implementing its
October 21 ruling.370 Consistent with the court’s denial of contempt with respect to
the Fee Orders on October 21, the Second Order modified paragraph 4 of the First
Order imposing a sanction for prosecuting the contempt motion to limit the sanction
to the prosecution of the Final Order, as follows:
Paragraph 4 of the First Order is hereby modified to incorporate
the text underlined below:
Respondents shall pay all fees and expenses, including
reasonable attorneys’ fees, incurred by the Custodian and
his counsel in (i) connection with the Nevada action and
(ii) prosecution of the motion for civil contempt and
sanctions in this court, insofar as such prosecution
concerns TPG’s and Shawe’s contempt of the Final
Order.371
The court also included in paragraph 3(e) of the Second Order a fee-shifting
provision to apply if any party acted in bad faith in the fee petition process.372 The
second sentence of paragraph 3(e) expressly preserved all of the Custodian’s rights
370
See Dkt. 1399.
371
Dkt. 1399 ¶ 7.
372
Id. ¶ 3(e).
98
to recover fees and expenses under prior court orders or any other form of pre-
existing protection: “For the avoidance of doubt, any [order finding that a party
acted in bad faith] shall be in addition to, and without prejudice to, the Custodian’s
right to recover such amounts pursuant to the Court’s orders or any other agreement
or entitlement.”373
In sum, for the reasons just explained, nothing in this court’s October 17
memorandum opinion, its October 21 transcript ruling, or the orders implementing
those rulings fairly can be read to have precluded the Custodian from seeking
reimbursement for reasonable fees and expenses or to be indemnified to the fullest
extent permitted by law under prior orders of the court with respect to the Fee
Orders.374
Third, Respondents contend that “[t]he fees charged for the Nevada Litigation
and the Contempt Motion concerning the Final Order are disproportionate to the
reasonable and necessary work performed by Skadden ” and “must be significantly
reduced by at least 56%.”375 The 56% reduction equates to the net reduction
373
Id.
374
The Custodian expressly reserved his “rights to petition for fees and expenses that I
have incurred . . . separate and apart from pursuing” contempt and sanctions against TPG
and Shawe. Dkt. 1334 Ex. 1 at 14; Dkt. 1358 Ex. 1 at 4.
375
Dkt. 1571 at 50, 56.
99
proposed by Paige in his report filed with the Second Objection376 and Respondents’
underlying criticisms largely rehash the issues covered in the Paige’s reports. 377
Having rejected virtually all of these criticisms for the reasons explained in Part
V.A., the court sees no basis for applying any reduction, much less one for 56%.
Notably, Respondents deviate widely from their own expert on one issue. Out
of all of Skadden’s billing records, Paige tagged ten entries totaling only 15.3 hours
as involving “excessive staffing.”378 By contrast, Respondents accuse Skadden of
“overstaffing and excessive preparation time” with respect to the contempt motion
because of the amount of time they expended over a seven-day period to prepare a
32-page reply brief they belittle as “excessive.”379 This after-the-fact criticism rings
hollow. As an initial matter, because of the exigencies, the Custodian only had one
week to respond to two briefs—not one as Respondents misleadingly represent380—
that TPG (23 pages) and Shawe (31 pages) filed separately in opposition to the
376
Dkt. 1571 Ex. A at 7 (recommending that the fees and expenses be reduced by
“$1,804,125.74, or 56% from the original fees and expenses requested by the Custodian”).
377
See Dkt. 1571 at 50-56 (challenging, among other things, billing practices, hourly rates,
use of “overqualified attorneys,” and time expended on legal research).
378
See supra Part V.A.3.e; Dkt. 1573 Ex. A. The dollar amount Paige tags for excessive
staffing ($18,386) totals approximately 0.5% of the total amount at issue. See Dkt. 1429
Ex. B at Ex. 3; Dkt. 1571 Ex. A at Ex. 3; Dkt. 1573 Ex. A.
379
Dkt. 1571 at 55.
380
See id.
100
contempt motion, along with an affidavit attacking the Custodian over a range of
issues.381 In short, the work Skadden did was commensurate to the task at hand.
More broadly, it bears emphasis that the need to file the contempt motion and
to proceed expeditiously, which is often less cost efficient, were problems entirely
of Respondents’ own making. They chose to disregard this court’s payment orders
and to sue the Custodian over his fee petitions in Nevada state court, in violation of
the exclusive jurisdiction provision in the Final Order. And, when confronted with
the contempt motion, Respondents doubled down. Instead of staying the Nevada
Action to allow the parties to proceed in a more orderly manner, they insisted on
pushing ahead in Nevada while trying to delay the contempt proceedings,382 forcing
the Custodian to fight a highly expedited, two-front litigation battle. Having created
the exigency—unnecessarily—to which the Custodian and his counsel were forced
to marshal resources and respond quickly, Respondents have no equity in quarreling
over fees and expenses they caused to be incurred.383
According to the Custodian, “Pincus, 3 partners, 5 associates and 5 legal
assistants from Skadden worked on the contempt motion and the Nevada litigation”
381
See Dkts. 1359, 1360, 1362.
382
See Dkts. 1369, 1370, 1371, 1372, and 1373.
383
Mahani, 935 A.2d at 248 (noting “that it would be inequitable to deny [a party] the full
amount of its attorneys’ fees and other expenses since [the opposing party] was responsible
for inflating those fees and expenses”).
101
in addition to “1 partner and 2 associates from Pisanelli Bice, Pincus’s Nevada
counsel, [who] assisted with the Nevada litigation.”384 A smaller team performed
the work on the Fee Orders, with 1 partner and 3 associates accounting for 78% of
the work.385
Having presided over innumerable expedited proceedings, this level of
staffing was entirely reasonable under the circumstances. For this reason, and the
other reasons discussed above, Respondents’ objections over the amount sought for
the Contempt Fee Award, as a sanction, and for reimbursement with respect to the
Fee Orders are overruled.386
2. Appeals
The Custodian seeks reimbursement of $336,128 of attorneys’ fees that were
incurred in preparing papers he was obligated to file in connection with two
applications for interlocutory review and three direct appeals filed by Respondents.
More specifically, the Custodian prepared and filed (i) oppositions to two motions
for certification of interlocutory appeals,387 as required under Supreme Court Rule
384
Dkt. 1576 at 18.
385
Id. at 19.
386
For the reasons discussed in Part V.B.3 below, the court will reduce the amount sought
for the Fee Orders by $60,000, which accounts for the work done drafting and
implementing the confidentiality restrictions in the Second Order and Records
Confidentiality Order. Thus, the amounts allowed are $1,148,291 for the Contempt Fee
Award and $365,127 for the Fee Orders.
387
Dkts. 1404, 1419, 1420.
102
42; and (ii) three replies to Respondents’ responses to Notices to Show Cause issued
by the Delaware Supreme Court.388 Respondents assert two objections.
First, Respondents contend that $122,500 of this amount should be allocated
to a different subject matter category, namely the category for “confidentiality
motions,”389 which is addressed in the next section. This objection is overruled. The
Custodian’s filings did not concern the merits of any confidentiality issue. Rather,
the relevant issue in those filings was whether the requirements for taking an
interlocutory or direct appeal had been satisfied—they were not. The direct appeals
were dismissed because they failed to “fall within the collateral order doctrine”390
and the interlocutory appeals were refused based on the policy against piecemeal
appeals.391 Thus, there is no basis for the reallocation Respondents seek.
Second, Respondents contend the amount sought should be reduced by “at
least 56%” based on the factors considered in Paige’s reports.392 Because the court
388
Notice to Show Cause, TransPerfect Glob., Inc. v. Pincus, No. 439, 2019 (Del. Nov.
27, 2019), Dkt. 11; Notice to Show Cause, TransPerfect Glob., Inc. v. Pincus, No. 441,
2019 (Del. Nov. 27, 2019), Dkt. 8; Notice to Show Cause, TransPerfect Glob., Inc. v.
Pincus, No. 501, 2019 (Del. Nov. 27, 2019), Dkt. 2.
389
Dkt. 1571 at 33.
390
TransPerfect, 2019 WL 7369433, at *2.
391
Dkt. 1410 ¶¶ 8-10; Dkt. 1425 at 2.
392
Dkt. 1571 at 57; see also Dkt. 1429 at 42-43.
103
has rejected Paige’s analysis, with one exception not relevant here, this objection is
overruled.
3. Confidentiality Motions
The Custodian seeks $265,592 relating to Respondents’ motions challenging
the confidentiality measures the court implemented on November 1, 2019, in the
Second Order and the Records Confidentiality Order.393 The Respondents object to
this amount. They contend, among other things, that the Custodian is not entitled to
any of this amount “because the information was not confidential and it was
improper all along for [the Custodian] to claim otherwise.”394
When the court approved the confidentiality restrictions in the Second Order
and the Records Confidentiality Order, it believed the restrictions were legally
permissible395 and were “necessary to prevent against the risk of misuse of this
information . . . given instances of misconduct by Mr. Shawe that have been well
393
Dkt. 1576 at 22.
394
Dkt. 1571 at 34.
395
See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37 (1984) (holding that “where . . . a
protective order is entered on a showing of good cause as required by Rule 26(c), is limited
to the context of pretrial civil discovery, and does not restrict the dissemination of the
information if gained from other sources, it does not offend the First Amendment”); Nixon
v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (“It is uncontested . . . that the right
to inspect and copy judicial records is not absolute. Every court has supervisory power over
its own records and files, and access has been denied where court files might have become
a vehicle for improper purposes. For example, the common-law right of inspection has
bowed before the power of a court to insure that its records are not used to gratify private
spite or promote public scandal . . . .” (internal citation and quotation marks omitted)).
104
documented in these actions.”396 The documented instances of misconduct in the
record at the time included the following:
• Actions Shawe took “in bad faith and vexatiously during the course
of the litigation,”397 which formed the basis for the court’s
imposition of a $7.1 million sanction against him.398
• An action Shawe filed in New York state court in 2016 against
Elting and her counsel, which the court dismissed along with two
other cases Ms. Shawe filed against Elting’s financial advisor and
husband, noting that the three cases were replete with “revisionist
history” of the Delaware actions “that borders on downright
frivolity.”399
• An action Shawe filed against the Custodian in the United States
District Court for the Southern District of New York, which
reflected, “in my view, Shawe’s displeasure with the Custodian’s
steadfast refusal to bend to his will during the sale process.”400
• Shawe’s misuse of billing records that Elting’s Delaware counsel
(Potter Anderson & Corroon) filed in these actions in support of a
fee application for the purpose of filing a frivolous action against the
firm and its lead litigation counsel (Kevin R. Shannon) in the United
States District Court for the District of Delaware. The district court
dismissed the action and sanctioned Shawe and his counsel, noting
that “Shawe’s purpose in presenting the Court with the complaint
and the amended complaint was to harass the Defendants and to
abuse the court system, in violation of Rule 11(b)(1).”401
396
Hr’g Tr. at 12 (Oct. 21, 2019) (Dkt. 1408).
397
Shawe & Elting, LLC, 2016 WL 3951339, at *1.
398
Dkt. 885 ¶ 13; see supra Part I.D.
399
Shawe, 2017 WL 2882221, at *1; see supra Part I.E.
400
TransPerfect, 2018 WL 904160, at *15.
401
Shawe, 2017 WL 6397342, at *4.
105
• The filing of the Nevada Action in contempt of the Final Order.402
By January 2021, the situation had changed. On June 8, 2020, the court
granted (with modifications) TPG’s motion for an order clarifying the Second Order
and Records Confidentiality Order.403 In October 2020, the court unsealed all
records that had been filed confidentially, except for Skadden’s billing records.404
On November 30, 2020, the court established a schedule to bring the custodianship
to a close, which meant that a public hearing would be held in the near future to
discuss, among other matters, the Custodian’s fee petitions.405 Given these
circumstances, and the court’s own review of many of the billing records at issue,
the court entered an order on January 13, 2021, modifying the Second Order,
rescinding the confidentiality restrictions in the Records Confidentiality Order,
unsealing Skadden’s billing records, and requiring that “any future fee petitions of
the Custodian and/or his counsel and any Billing Records filed with the Court shall
not be filed under seal.”406
Given the circumstances described above, while reasonable minds can differ
about who should bear the expense of implementing and fighting over the
402
TransPerfect, 2019 WL 5260362, at *13.
403
Dkt. 1495.
404
Dkts. 1509, 1514.
405
Dkt. 1524.
406
Dkt. 1559 ¶ 4.
106
confidentiality restrictions in the Second Order and the Records Confidentiality
Order that have now been lifted, the equitable result in the court’s view is not to
impose this expense on Respondents. Thus, Respondents’ objection is sustained and
the Custodian’s request for reimbursement of $265,592 for the confidentiality
motions and $60,000 for the Fee Orders attributable to the implementation of the
confidentiality restrictions will be disallowed.407
4. The Contempt and Preclusion Motions
The Custodian seeks $274,887 for fees and expenses incurred in opposing
Respondents’ motions for contempt against the Custodian and motion to preclude
the Custodian from recovering the Contempt Fee Award.408 Respondents challenge
the rates charged by certain timekeepers, descriptions in the billing records, and the
propriety of charging for “internal” conferences.409 Respondents contend that these
“fees must be radically slashed to no more than 25% or $60,000”—an arbitrary
figure that is not supported by any reasoned explanation.410
407
This $60,000 stems from the approximately $74,470 within the Fee Orders for work on
the Second Order and Records Confidentiality Order. Respondents contend that
approximately 80% of this amount—or $60,000—relates to confidentiality matters. See
Dkt. 1571 at 33-34. Having reviewed many of the entries at issue, the court agrees. For
the reasons discussed in Part V.B.2 above, the court rejects Respondents’ argument that
$122,500 of the Custodian’s fee petition for work on appeals should be reallocated to the
“confidentiality motions” subject matter category.
408
Dkt. 1576 at 22; Dkt. 1577 at 4.
409
See Dkt. 1573 at 9-10.
410
Id. at 10.
107
The objection is overruled. Respondents’ objections rehash criticisms in
Paige’s reports and are without merit for the same reasons the court already has
discussed in detail. More broadly, Respondents’ objections are rejected as
manifestations of the “pizza principle” discussed at the outset of this decision. The
contempt and preclusions motions are easy “pizzas” to throw at the wall, but they
take much more time to clean up with an appropriately prepared response,
particularly in this case where the docket is massive (currently over 1,600 entries)
and providing context is imperative. For the reasons discussed in Parts III and IV
above, both motions are devoid of merit. The Custodian is entitled to recover the
fees and expenses he and his counsel appropriately and reasonably incurred to clean
up a mess of Respondents’ own making.
5. The Cypress and H.I.G. Actions
The Custodian seeks reimbursement for fees and expenses incurred in
responding to requests for deposition and document discovery in the Cypress and
H.I.G. Actions totaling $30,920 and $280,013, respectively.411 As to the H.I.G.
Action, the “fees were incurred in responding to four subpoenas served on Pincus
and Skadden,” which required reviewing documents for privilege and potential
production.412 The work performed also required coordinating “with three of
411
Dkt. 1441 at 14, 16; Dkt. 1576 at 23, 25; Dkt. 1577 at 6.
412
Dkt. 1577 at 6.
108
Pincus’s advisors in the sale process” who also received subpoenas and “analyzing
potentially privileged communications in those advisors’ possession.”413
Respondents assert these fees are not recoverable because “nothing in the
[Sale Agreement] or the Court’s orders authorize Pincus or Skadden to charge either
TPG or the Escrow for time spent on litigations in which they are non-parties.”414
The objection is overruled.
In my opinion, at least two provisions of this court’s orders entitle the
Custodian to receive payment for fees and expenses he and his counsel incurred in
connection with the Cypress and H.I.G. Actions. First, paragraph 14 of the Sale
Order provides that the Custodian “shall be reimbursed for reasonable travel and
other expenses incurred in performance of his duties” and that the fees and expenses
of the Custodian’s “counsel or advisors shall be paid promptly by the Company.”415
The Sale Order broadly defines the scope of the Custodian’s duties related to the sale
process416 and, as the court previously held, “the pleadings in [the Cypress and H.I.G.
413
Id.
414
Dkt. 1429 at 23.
415
Dkt. 848 ¶ 14.
416
For example, the Sale Order authorized the Custodian to, among other things (i)
“establish any and all procedures and processes for the Modified Auction,” (ii) “determine
the winning bidder of the Modified Auction,” (iii) “negotiate, draft and execute on behalf
of the Company appropriate confidentiality agreements to be executed by any potential
bidders,” and (iv) “act through and in the name of the Company to carry out his duties.”
Id. ¶¶ 1, 3, 4, 9.
109
Actions] and Shawe’s own explanation of them in his opposition indicates that they
both relate to the sale process the Custodian was appointed to oversee.”417 Indeed,
the focus of a subpoena issued to Pincus in the H.I.G. Action, which seeks 68
categories of documents, is on the “Auction,” which is defined as “the sale of
TransPerfect ordered by the Delaware Chancery Court in August 2015 and
conducted by you, as the Custodian.”418
Second, the Sale Order and the Final Order both entitle the Custodian and
Skadden “to be indemnified by the Company (or its successor in interest) . . . to the
fullest extent permitted by law.”419 Respondents have cited no authority suggesting
it would be legally impermissible to indemnify Pincus for discovery-related
expenses incurred as a non-party that stem directly from his role as the Custodian,
and the court is aware of none. In fact, consistent with the broad entitlement to
indemnification in the Sale Order and the Final Order, Respondents acknowledged
that TPG is obligated to pay Pincus for post-closing litigation costs in the H.I.G.
Action under these provisions: “With respect to the issue of fees, this is covered by
the indemnification provisions already in place.”420 Pursuant to these provisions,
furthermore, the Company paid Pincus $75,000 as reimbursement for some (but far
417
TransPerfect, 2019 WL 5260362, at *11 (footnote omitted).
418
Dkt. 1576 Ex. 3.
419
Dkt. 848 ¶ 16; Dkt. 1243 ¶ 7.
420
Dkt. 1576 Ex. 1 at 1 (emphasis added).
110
from all) of the expenses that were incurred in responding to discovery requests in
the H.I.G. Action.421
6. Response to the Omnibus Objection
The Custodian seeks $605,793 for work performed in responding to
Respondents’ Omnibus Objection.422 As an initial matter, the court observes that
approximately $11,000 of the time entries in this category refer to the preparation of
billing statements for submission to the court.423 This amount will be excluded by
allocating $7,190 of this amount to the $204,485 the Custodian withdrew from his
overall request for preparing the fee petitions, with the remaining $3,810 allocated
as an additional reduction. Thus, the amount at issue for responding to the Omnibus
Objection is $594,793.
Respondents advance essentially two objections concerning the amount
sought for responding to the Omnibus Objection. Because neither is meritorious,
the objections are overruled.
First, Respondents contend that the entire amount sought is not recoverable
“[b]ecause Skadden made no assertion that the Omnibus Objection was in bad
421
Dkt. 1554 Ex. 1 at 5.
422
Dkt. 1576 at 21.
423
As an example, Timekeeper A billed 2.2 hours with the description “attention to billing
records and preparation of submissions re: fee orders and prior submissions; confer with
associate re: same” to this subject matter. Dkt. 1537 Ex. A.
111
faith.”424 They base this argument on the first sentence from paragraph 3(e) of the
Second Order quoted below, which states that the court may shift fees if either party
is found to have acted in bad faith in connection with the fee petition/billing process:
To the extent that any party is found to have acted in bad faith regarding
the fee petition and objection process set forth in Paragraph 3(c) herein,
the Court may order that such party pay fees and expenses incurred by
the other party or parties in connection with the objection process at
issue. For the avoidance of doubt, any such order shall be in addition
to, and without prejudice to, the Custodian’s right to recover such
amounts pursuant to the Court’s orders or any other agreement or
entitlement.425
Significantly, the very next sentence in paragraph 3(e), italicized above,
expressly provides that fee-shifting for bad faith is “in addition to, and without
prejudice to, the Custodian’s right to recover such amounts pursuant to the Court’s
orders or any other agreement or entitlement.” By its terms, paragraph 3(e) was not
intended to and plainly does not eliminate or modify any of the Custodian’s pre-
existing rights to recover fees and expenses under any court order, agreement, or
other form of entitlement and, to the contrary, expressly preserved those rights.
Thus, the Custodian had no obligation to demonstrate bad faith in order to recover
fees and expenses for responding to the Omnibus Objection.
424
Dkt. 1571 at 24.
425
Dkt. 1399 ¶ 3(e) (emphasis added).
112
Respondents cite our Supreme Court’s decision in DCV Holdings, Inc. v.
Conagra, Inc.,426 for the proposition that “[w]here there is both a general and a
specific provision that pertains to the same subject, courts ordinarily qualify the
meaning of the general provision according to the meaning of the more specific
provision.”427 The Supreme Court’s decision makes clear, however, that this
interpretative principle applies only “where specific and general provisions
conflict.”428 Here, the two sentences at issue do not conflict. The first sentence from
paragraph 3(e) quoted above is intended to deter abuse in the fee petition process by
putting both sides on notice that the court may shift fees for bad faith conduct429—a
stigma any rational person would want to avoid. The second sentence makes it
crystal clear—precisely to avoid any “doubt”—that the Custodian retained all of his
rights to recover fees under this court’s orders and other sources. Further,
426
889 A.2d 954 (Del. 2005).
427
Dkt. 1571 at 23 (quoting DVC Hldgs., 889 A.2d at 961).
428
DCV Hldgs., 889 A.2d at 961 (emphasis added); see also ITG Brands, LLC v. Reynolds
Am., Inc., 2019 WL 4593495, *9 (Del. Ch. Sept. 23, 2019) (“Finally, to repeat, our law
provides that ‘the specific provision ordinarily qualifies the meaning of the general one’ in
situations ‘where specific and general provisions conflict.’” (quoting DCV Hldgs., 889
A.2d at 961)).
429
RBC Cap. Mkts, LLC v. Jervis, 129 A.3d 816, 877 (Del. 2015) (explaining that the bad
faith exception to the American Rule “is premised on the theory that when a litigant
imposes unjustifiable costs on its adversary by bringing baseless claims or by improperly
increasing the costs of litigation through other bad faith conduct, shifting fees helps to deter
future misconduct and compensates the victim of that misconduct” (internal quotation
marks omitted)).
113
Respondents’ contention that the Custodian is barred from recovering fees and
expenses incurred with respect to the Omnibus Objection would render meaningless
the second sentence expressly preserving “the Custodian’s right to recover such
amounts pursuant to the Court’s orders,” contrary to bedrock principles of contract
interpretation.430
Second, Respondents contend that, “[i]f the court determines that such fees
are recoverable,” they “should be reduced by at least 56% from $606,000 to
$266,640” because the requested fees “are grossly unreasonable for a single 28-page
brief in opposition.”431 There is intuitive appeal to the notion that it is unreasonable
to seek reimbursement for opposing an objection in an amount ($594,793) that is
more than two times the amount of the underlying fee request ($242,886). But this
is where the “pizza principle” is salient.
Whether a coincidence or not, there is a good reason this objection is called
the “Omnibus Objection.” It is because Respondents threw the kitchen sink at the
430
O’Brien v. Progressive N. Ins. Co., 785 A.2d 281, 287 (Del. 2001) (“Contracts are to
be interpreted in a way that does not render any provisions illusory or meaningless.”
(internal quotation marks omitted)); see also In re Trico Marine Servs., Inc., 450 B.R. 474,
482 (Bankr. D. Del. Apr. 15, 2011) (“When construing an agreed or negotiated form of
order, such as the Sale Order in this case, the Court approaches the task as an exercise of
contract interpretation rather than the routine enforcement of a prior court order.”); United
States v. ITT Cont’l Baking Co., 420 U.S. 223, 238 (1975) (“Since a consent decree or
order is to be construed for enforcement purposes basically as a contract, reliance upon
certain aids to construction is proper, as with any other contract.”).
431
Dkt. 1571 at 24, 26.
114
Custodian’s fee petitions for May through October 2019 in the form of a 48-page
brief, a 31-page report from their expert (excluding exhibits), and other materials.432
Paige’s report challenges Skadden’s hourly rates; its billing for legal assistants and
other non-attorney timekeepers; its billing to recover certain out-of-pocket expenses;
and numerous other billing practices, which Paige scrutinizes using a seventeen-part
“Tagging Guide.” It took the court over 30 pages in this opinion to address this
smorgasbord of issues and it understandably took the Custodian and Skadden
“significant time parsing through the sprawling [objection] and researching the
applicable law”433 in order to drill down on all the issues and defend itself
appropriately.434
As previously explained, Respondents contend that the fees sought in
Skadden’s petitions should be cut by approximately 56% based on all the criticisms
detailed in Paige’s report.435 Because the court has rejected all of these criticisms,
with one minor exception relating to less than $17,000 of administrative expenses,
there is no basis for rejecting the Custodian’s request to be reimbursed for the fees
432
See Dkt. 1429.
433
Fitracks, 58 A.3d at 999.
434
Respondents inaccurately minimize the work the Custodian and Skadden performed,
arguing that “the requested fees should be significantly reduced as they are grossly
unreasonable for a single 28-page brief in opposition.” Dkt. 1571 at 24. The Custodian’s
answering brief to the Omnibus Objection was 47 pages (not 28)—a relatively restrained
length given the number of arguments placed at the Custodian’s feet. See Dkt. 1441.
435
Dkt. 1571 at 26.
115
and expenses he and his counsel reasonably had to incur to defend themselves, even
though that amount exceeds the underlying fee request.
7. Update Letters
In his fee petitions, the Custodian originally sought $121,935 for fees and
expenses related to preparing monthly update letters and fee petitions that were
submitted to the court after May 2019.436 The court has excluded this entire amount
as part of the Custodian’s withdrawal of $204,485 from his overall fee request to
moot the dispute over seeking reimbursement for fees and expenses incurred in
preparing fee petitions.437 The chart attached as Exhibit A reflects this reduction.
Separately, the Custodian seeks $23,063 for fees and expenses incurred in
connection with preparing a 12-page letter that was filed with the court along with
various attachments on May 8, 2019.438 The letter informed the court about the filing
of the Cypress and H.I.G. Actions, described the nature of the allegations therein,
and apprised the court that the Custodian and Skadden had received “Litigation Hold
Notices” with respect to the H.I.G. Action and that the Custodian had been informed
436
See Dkt. 1441 at 22; Dkt. 1576 at 25; Dkt. 1577 at 4.
437
See Dkt. 1592 at 4 n.2 (explaining that “all of the costs related to his fee petitions and/or
update letters submitted to the Court after August 2019 [i.e., $103,124],” were included as
part of the withdrawn amount), 5 n.3 (explaining that an additional “$15,631.25 related to
the months of September and October 2019 was incurred for preparing fee petitions and
allocating fees”).
438
Dkt. 1315 Ex. 1.
116
that discovery would be sought from him in the Cypress Action as well.439 The
Custodian also explained that, under the circumstances and based on the nature of
the litigations, he intended to seek payment “in future applications” directly from
TPG for expenses he would be forced to incur in connection with those litigations,
“while reserving all rights vis-à-vis the Escrow Fund.”440
During the course of these actions, the court entered two orders requiring the
Custodian to provide updates to the court on a monthly basis. Although that formal
obligation appears to have ended when the sale transaction closed,441 it was entirely
within the Custodian’s discretion as part of his duties as an officer of the court to
provide the court with the update contained in the May 8, 2019 letter. Indeed, the
court would have expected nothing less. For this reason, the court approves the
Custodian’s request for reimbursement of the fees and expenses incurred in
connection with providing the May 8, 2019 update to the court. This amount
($23,063) will be paid out of the Escrow.
439
See id.440
Id. at 10-11.
441
See Dkt. 607 ¶ 8 (“The Custodian shall provide a report to the Court concerning a
proposed plan of sale as promptly as practicable after the Court receives confirmation of
his willingness to serve as Custodian, and shall provide a report to the Court every thirty
days after entry of this Order concerning the progress of his efforts.”); Dtk. 848 ¶ 17
(“During the sale process, the Custodian shall file under seal with the Court monthly
updates generally addressing the progress of the sale process . . . .”).
117
8. Discharge of the Custodian
The Custodian seeks $136,425 for fees and expenses incurred in connection
with analyzing, researching, and drafting the proposed discharge order and related
motion, which included addressing inquiries from Elting’s counsel regarding the
proposed discharge order.442 Respondents do not contest the Custodian’s right to be
reimbursed for fees and expenses incurred in connection with the discharge, but
challenge the amount of fees sought as “grossly unreasonable.”443 According to
Respondents, “a far shorter, straightforward petition” than the one the Custodian
proposed “was all that was necessary and proper.”444
In its letter decision resolving the parties’ disputes over the discharge order,
the court found that the one-paragraph form of order the Respondents proposed was
“inadequate for the task.”445 The court further explained that a “more nuanced
discharge order [was] necessary to provide clarity on the terms of the discharge”
because of “the lengthy and fractious history of these actions, the numerous (and
often frivolous) collateral litigations spawned from the sale process that have
442
Dkt. 1577 at 3.
443
Dkt. 1573 at 11.
444
Id.
445
In re TransPerfect Glob., Inc., 2021 WL 1401518, at *1 (Del. Ch. Apr. 14, 2021).
118
embroiled the Custodian and many others, and the complexity of the issues
involved.”446
The only issue for decision is what percentage of the amount of fees and
expenses the Custodian seeks in connection with his discharge application should be
awarded. Using the comprehensive form of order the Custodian submitted as a
starting point, the court addressed Respondents’ objections paragraph-by-paragraph
and prepared a revised form of order.447 As the end product reflects, the court found
that most of the provisions the Custodian sought were appropriate—indeed many
were not opposed specifically—but also found that some of them were not
appropriate.448 Having gone through that process in laborious detail, the court
concludes that the Custodian should receive two-thirds, or $90,950, of the fees and
expenses sought from the Escrow and that the remainder ($45,475) will be
disallowed.
9. Other Categories
The remaining four categories involve a total of $136,353 for fees and
expenses incurred working on tax matters, preparing for the Second Objection and
446
Id. (citation omitted).
447
See id. at *2-3.
448
See id. at *2 (explaining that the deletion of certain paragraphs in the Custodian’s
proposed order of discharge was necessary “to avoid confusion over the scope of the pre-
existing protections”); Dkt. 1601.
119
objections to the Custodian’s discharge order, certain document demands from TPG,
and miscellaneous items. They are addressed, in turn, next.
Tax Matters. The Custodian seeks reimbursement from the Escrow for
$67,590 of fees and expenses for tax matters.449 Respondents did not address and
thus waived the right to object to $26,487 of this amount for work performed during
the November 2019 to November 2020 period,450 $19,800 of which is sought on
behalf of Ernst & Young.451 With respect to the balance ($41,103), which concerns
the May 2019 to October 2019 period, the work involved a dispute between Shawe
and Elting concerning their rights under a letter agreement executed at closing,
which had tax implications for them relating to TPG’s 2018 tax returns.452
Respondents’ primary challenge is that the time entries are vague or
repetitive.453 Based on the Custodian’s detailed explanation of the dispute and the
work performed,454 and Respondents’ apparent failure to meet and confer on the
issue in good faith before filing their objection,455 the court is satisfied that the
449
Dkt. 1441 at 11; Dkt. 1576 at 23.
450
See Dkt. 1571 at 59 n.31.
451
Dkt. 1576 at 23.
452
Dkt. 1441 at 11-13 & Exs. 7-12.
453
See Dkt. 1429 at 45-46; Dkt. 1451 at 25.
454
See Dkt. 1441 at 11-13 & Exs. 7-12.
455
Id. at 13 & Ex. 4.
120
amount sought is appropriate.456 Accordingly, the objection is overruled and the full
amount will be paid from the Escrow.
Anticipated Objections. The Custodian seeks $49,589 in fees and expenses
for work done in December 2020 concerning objections he and his counsel
anticipated would be made to certain fee petitions and to the discharge motion.457
This category also includes work done in connection with “proposing a fee
compromise” to settle the parties’ fee petition disputes.458 Respondents assert two
objections.
First, Respondents assert that “Skadden is not entitled to these fees because
Pincus failed to claim, let alone establish, that TPG or Shawe acted in bad faith as
required by the Second Order.”459 This is objection is overruled. As explained in
Part V.B.6, the Custodian is entitled to seek reimbursement and/or indemnification
for fees and expenses under the terms of the court’s orders without having to
demonstrate that Respondents acted in bad faith. Given the numerous and sweeping
nature of the objections Respondents had filed in response to prior fee petitions,
furthermore, it was reasonable as a general matter for the Custodian and his counsel
to spend time preparing in advance to address objections they anticipated
456
Id. at 11-13 & Exs. 7-12.
457
Dkt. 1577 at 5.
458
Id.
459
Dkt. 1573 at 10.
121
Respondents would raise with respect to future fee petitions and the discharge
motion.460
Second, the Respondents challenge $11,500 of fees Skadden incurred in
connection with making a settlement offer that, according to Respondents, “Skadden
knew . . . would be rejected outright.”461 Having reviewed the time entries at issue,
this objection is sustained. Although the court certainly encourages parties to make
every effort to reach amicable resolutions of disputes, the court does not believe that,
in effect, one party to a dispute should charge the counterparty for time spent
pursuing a settlement between the two.
Apart from Respondents’ objections, the court observed in reviewing the time
entries in this category a Westlaw charge incurred on December 28, 2020 for
$20,497.50, apparently for research an associate conducted on that date for 5.6
hours.462 This charge (perhaps a mistaken entry) is a significant outlier from other
Westlaw charges in the billing records463 and will reduced by 90%, or $18,448.
460
See Lillis, 2009 WL 663946, at *7 (ruling that “research time expended . . . in
expectation of an appeal” was “reasonable in preparation for the appellate argument that
was expected to, and in fact did, come”).
461
Dkt. 1573 at 11.
462
Dkt. 1555 Ex. A.
463
See Dkt. 1441 App. A; Dkt. 1537 Ex. A; Dkt. 1555 Ex. A.
122
In sum, for the reasons explained above, $29,948 of the amount sought for
“anticipated objections” will be disallowed, leaving a balance of $19,641 that will
be allowed.
TPG Document Demands. The Custodian seeks $16,856 for work arising
from document demands TPG sent to the Custodian’s advisors (Credit Suisse and
Alvarez & Marsal), who then contacted the Custodian.464 “At the Custodian’s
request, Skadden reviewed the relevant contracts, court records and law, and
prepared a written response.”465
Respondents do not contest the Custodian’s right to be reimbursed for fees
and expenses incurred for this purpose but contend in conclusory fashion that the
amount is “unreasonable” and should be reduced in accordance with “the Paige
Report analysis.”466 Because the court has rejected that analysis, with one minor
exception not relevant here, the objection is overruled and the full amount will be
allowed.
Miscellaneous. The Custodian seeks $2,318 for less than 3 hours of time spent
dealing with miscellaneous matters, including review of a U.S. Department of
Justice complaint against TPG after the Custodian was contacted by a reporter
464
Dkt. 1441 at 18.
465
Id. at 19.
466
Dkt. 1429 at 46-47.
123
($1,112) and time spent addressing a request from TPG’s general counsel for a report
Ernst & Young prepared during the sale process.467 Respondents do not contest
$1,207 of this amount. Respondents do contest the amount sought for the
Department of Justice matter,468 which the court will allow because it was reasonable
for the Custodian to spend a brief amount of time (1.17 hours) looking into a matter
that, according to Respondents, occurred during the custodianship. This amount will
be paid from the Escrow.
*****
In sum, most of Respondents’ general and specific objections are without
merit. Taking into account the objections that are sustained, the court finds that the
Custodian is entitled to fees and expenses totaling $3,242,251. The court has
evaluated this amount considering each of the Rule 1.5(a) factors and concludes it is
reasonable in light of, among other things, the extensive time and labor required over
the roughly twenty months at issue, the results obtained, the time limitations imposed
on the Custodian and his counsel by Respondents, and the reputation and ability of
the Custodian and the attorneys at Skadden.
467
Dkt. 1441 at 21.
468
Dkt. 1429 at 47.
124
C. Source of Payment
For the reasons discussed above, and as reflected on the chart attached as
Exhibit A, payments are owed for fifteen of the eighteen subject matter categories.
The court already has ordered that TPG and Shawe must pay the Contempt Fee
Award.469 The court determined in Part V.B. that five categories should be paid
from the Escrow.
The parties disagree over the source of payment for the remaining nine
categories: (i) fee order violations, (ii) appeals, (iii) contempt and preclusion
motions, (iv) Cypress Action, (v) H.I.G. Action, (vi) response to omnibus objection,
(vii) anticipated objections, (viii) TPG document demands, and (ix) other TPG
litigations. The Custodian contends that the payment for these categories should
come from TPG. Respondents contend that, if any payment is owed for these
categories, it must come from the Escrow.
To be more specific, Respondents assert in their Omnibus Objection that the
fees and expenses sought by the Custodian for the Cypress and H.I.G. Actions should
come from the Escrow, not TPG directly, because “there is no reason Elting should
not share in the costs via the Escrow,” as she “is not blameless in the events leading
to the [H.I.G.] litigation” and “the Custodian’s decision to bill TPG, not the Escrow,
469
Dkt. 1399 ¶ 7 (modifying Dkt. 1379 ¶ 4).
125
for the Litigations is inconsistent and arbitrary.”470 Respondents further assert in
their Second Objection that this argument is “equally applicable to all other fees
currently sought against TPG,” contending that “this Court has already ruled that
Pincus’ fees in connection with litigation arising from the sale of TPG must be
charged to the Escrow.”471
In my opinion, Respondents’ contention that the Custodian must seek his fees
and expenses from the Escrow is without merit. Nothing in this court’s orders or the
Sale Agreement requires that the Custodian seek fees and expenses from the Escrow.
The compensation provision in the Initial Order and the August 2015 Order
both expressly state that: “Any fees and expenses approved by the Court shall be
paid promptly by TPG.”472 The compensation provision in the Sale Order does
likewise: “Any fees and expenses approved by the Court shall be paid promptly by
the Company.”473 Additionally, the Initial Order, the August 2015 Order, the Sale
Order, and the Final Order each expressly provide that the Custodian and Skadden
“are entitled to judicial immunity and to be indemnified” by the Company, “in each
case, to the fullest extent permitted by law.”474
470
Dkt. 1429 at 30-31.
471
Dkt. 1571 at 38.
472
Dkt. 515 ¶ 7 (emphasis added); Dkt. 607 ¶ 10 (emphasis added).
473
Dkt. 848 ¶ 14 (emphasis added).
474
Dkt. 515 ¶ 6; Dkt. 607 ¶ 9; Dkt. 848 ¶ 16; Dkt. 1243 ¶ 7.
126
Turning to the Sale Agreement, it expressly provides that Shawe
“acknowledges and agrees that nothing in this Agreement shall limit the
indemnification obligations of any Person and its Affiliates under the Order.”475
Consistent with this covenant, the Sale Agreement does not require that the
Custodian seek fees and expenses to which he is entitled from the Escrow. To the
contrary, Section 2.2 of the Sale Agreement expressly provides that the “Custodian
Escrow Amount”—which was funded equally by Elting and Shawe—is “a non-
exclusive source of funds” from which the Custodian may draw:
The Escrow Amount shall be comprised of the following: . . . (b) five
million dollars ($5,000,000) as a non-exclusive source of funds for
securing (i) amounts payable to the Custodian or his advisors,
including, without limitation, investment banking, legal and accounting
fees and expenses for services performed prior to or after the Closing
and (ii) any payments required to be made by the Company or any of
the Company Subsidiaries to any current or former employee or officer
of the Company or any Company Subsidiary after the Closing as a
result of the transactions contemplated by this Agreement pursuant to
any agreement or arrangement entered into with any such current or
former employee or officer by the Custodian (on behalf of the Company
or the applicable Company Subsidiary), including any retention, change
in control or similar agreement or arrangement (the “Custodian Escrow
Amount”).476
475
Dkt. 1185 Ann. C § 7.5(c).
476
Id. § 2.2 (emphasis added). Respondents’ argument that paragraph 9 of the Sale Order
requires that the Custodian’s fees and expenses be shared equally by Shawe and Elting is
without merit. Dkt. 1571 at 39. That paragraph provides, in relevant part, that “any liability
relating to the representations, warranties and covenants (and other related indemnities)
and other indemnification obligations set forth in the Definitive Sale Agreement shall be
shared by all stockholders pro rata.” Dkt. 848 ¶ 9 (emphasis added). Nothing about
paragraph 9, which is expressly limited to those obligations “set forth in the Definitive Sale
127
In short, to repeat, nothing in the Sale Agreement or this court’s orders requires that
the Custodian seek fees and expenses from the Escrow. Instead, determining as
between the Escrow and the Company the source from which fees and expenses
owed to the Custodian should be paid is a matter for the Custodian to determine in
his good faith judgment.
Respondents argue there is an inconsistency between, on the one hand, the
Custodian contending—and the court finding477—that the Cypress and H.I.G.
Actions “relate to the sale process” and, on the other hand, the Custodian making the
judgment that the Company should pay bear the cost of the fees and expenses he and
his counsel incur in connection with those litigations rather than the Escrow.478 The
court disagrees.
To be sure, both litigations relate to the sale process in certain respects. In the
H.I.G. Action, for example, the discovery sought from the Custodian is directed to
exploring H.I.G.’s access to TPG information during that process.479 But that does
Agreement,” eliminates the Custodian’s continuing right to be indemnified by and seek
payment of his fees and expenses from the Company under the orders of this court.
477
See TransPerfect, 2019 WL 5260362, at *11 (explaining that the pleadings in the
Cypress and H.I.G. Actions “and Shawe’s own explanation of them in his opposition
indicates that they both relate to the sale process the Custodian was appointed to oversee
and not to his role as a tie-breaking director”).
478
See Dkt. 1451 at 13.
479
See Dkt. 1576 Ex. 3.
128
not mean that Elting has or had a proximate role in the events at the heart of either
litigation—both of which were filed more than one year after sale transaction closed
in May 2018—sufficient as an equitable matter to warrant imposing on her 50% of
the discovery-related expenses the Custodian incurred related to those litigations.
Indeed, in my view, the circumstances of those litigations support the Custodian’s
judgment that Elting should not bear the cost of those expenses as an equitable
matter.
The Cypress Action, which was filed in May 2019 and has since been
resolved,480 concerned a dispute between Shawe and a financial advisor (Cypress)
he retained during the course of the sale process. Cypress contended that Shawe
breached his obligation “to pay Cypress a ‘Financing Fee’ of $1 million (less a
previously paid retainer of $200,000), on the closing date of the Transaction.”481
That was a fight between Cypress and Shawe. Elting was not named as party in the
litigation and did not stand to receive any benefit from the litigation.
In April 2019, TPG sued H.I.G. and its majority-owned subsidiary
(Lionbridge) seeking over $300 million in damages for allegedly misusing TPG
trade secrets or confidential information that H.I.G. acquired during the sale process
480
See Dkt. 1473 Ex. 1.
481
Dkt. 1315 Ex. 1 Attach. A ¶ 22.
129
to compete unfairly with the Company.482 The relief sought in the H.I.G. Action
only would benefit TPG. Once again, Elting is not a party to the H.I.G. Action and
stands to receive no benefit from the litigation.
Elting also had no proximate role in any of the other seven subject matter
categories for which the Custodian seeks payment from TPG sufficient to warrant
imposing on her 50% of the expenses the Custodian and his counsel have incurred
in those matters. All of those matters concern post-closing decisions or actions of
TPG while under Shawe’s 99% ownership that have no apparent connection to
Elting. Rather, their common denominator appears to be Shawe’s self-proclaimed
modus operandi to “create constant pain” for those who oppose him.483
For example, three of the categories—Fee Order violations, appeals, and the
contempt and preclusion motions TPG filed against the Custodian—stem from
TPG’s refusal in 2019 to pay amounts it was ordered to pay under the Fee Orders
and its decision in August 2019 to sue the Custodian concerning those amounts in
Nevada state court in violation of the exclusive jurisdiction provision in the Final
Order.484 Two other categories—omnibus objections and anticipated objections—
concern TPG’s decision to challenge in a scorched-earth manner every fee petition
482
Dkt. 1315 Ex. 1 Attach. B at 1 (¶ 1), 43 (¶ h).
483
Shawe & Elting, 2015 WL 4874733, at *6.
484
See TransPerfect, 2019 WL 5260362, at *7-8.
130
of the Custodian since May 2019. The remaining two categories concern document
requests TPG propounded on the Custodian’s financial advisors in August 2019, and
litigations the Company filed against RAM and Moritz in August 2020 and against
this judicial officer on December 24, 2020.
In sum, for the reasons explained above, the court agrees with the Custodian
that the fees and expenses he and his counsel incurred in connection with the nine
subject matter categories listed at the beginning of this section should be paid by
TPG. The chart attached as Exhibit A identifies for each of the fifteen categories at
issue the source of payment for the amounts owed.
VI. THE BAD FAITH MOTION
On March 2, 2021, Respondents filed a filed a motion for an award of
attorneys’ fees in their favor and against the Custodian for his alleged bad faith in
the fee petition process.485 Specifically, Respondents contend that the Custodian
acted in bad faith by (i) seeking “$425,126.87 in fees for the Fee Orders portion of
the Motion for Contempt in direct violation of this Court’s order declining to award
those fees,” (ii) requesting “more than $700,000 for fees concerning the fee petition
process without first establishing bad faith, as required,” and (iii) “charging more
485
Dkt. 1589.
131
than $204,000 for preparing the deficient December Petition after refusing to file
monthly petitions for over a year.”486
The bad faith exception to the American Rule that each party pays his or her
own attorneys’ fees “applies only in extraordinary cases,” such as where a party
“unnecessarily prolonged or delayed litigation, falsified records, . . . knowingly
asserted frivolous claims . . . misled the court, altered testimony, or changed position
on an issue.”487 The exception does not apply here. Indeed, Respondents’ assertions
that the Custodian acted in bad faith are frivolous in my view.
Respondents’ first and second arguments are meritless for the same reasons
detailed above in Part V.B.1 and Part V.B.6. To summarize, nothing in the Second
Order implementing the court’s October 21, 2019 transcript ruling (i) precluded the
Custodian from seeking to recover fees and expenses incurred with respect to TPG’s
violations of the Fee Orders or its objections to the Custodian’s fee petitions under
the reimbursement and indemnification provisions in the court’s prior orders or (ii)
required the Custodian to prove bad faith as a predicate to seeking reimbursement of
such fees.
To the contrary, the October 21 ruling was intended to leave undisturbed the
court’s October 17, 2019 holding that the Custodian’s right to recover the Contempt
486
Id. at 2.
487
RBC Cap. Mkts., 129 A.3d at 877 (cleaned up).
132
Fee Award as a sanction was “without regard to whatever rights the Custodian has
to recover these amounts under this court’s orders and/or the Sale Agreement.”488
This is documented in paragraph 3(e) of the Second Order, which implemented the
October 21 ruling. That paragraph expressly states that the reciprocal bad faith fee-
shifting provision therein applies “in addition to, and without prejudice to, the
Custodian’s right to recover such amounts pursuant to the Court’s orders or any other
agreement or entitlement.”489 Thus, as paragraph 3(e) makes clear, the Custodian
had no obligation to demonstrate bad faith as a predicate to seeking fees incurred
with respect to TPG’s violations of the Fee Orders or Respondents’ voluminous
objections to his fee petitions.490
488
TransPerfect, 2019 WL 5260362, at *15.
489
Dkt. 1399 ¶ 3(e).
490
In support of their motion, Respondents attach a report from W. Bradley Wendel, a
Cornell Law School professor. In his report, Wendel opines generally about how Skadden,
as counsel to the Custodian “owes duties to the beneficiary of the Custodian’s fiduciary
obligations,” before concluding summarily that “Skadden has not acted in good faith in its
dealings with TPG.” Dkt. 1590 Ex. B ¶¶ 3,10. These opinions constitute recitations of the
law and legal conclusions, which is not the proper role of an expert. See In re Maxus
Energy Corp., 2021 WL 1259411, at *8 n.62 (Bankr. D. Del. Apr. 6, 2021) (“Importantly,
however, the Court finds that Professor Wendel’s declarations consist entirely of a
recitation of the law and legal conclusions. While thorough and informative in the general
sense, this is not the proper role of expert testimony. The Court need not apply expert
testimony to reach its own conclusions as to the law. Indeed, it should not.”) (citing Kansas
v. Colorado, 1994 WL 16189353, at *155 (1994) (“Opinion testimony providing legal
conclusions is not admissible.”)); see also United Rentals, Inc. v. RAM Hldgs., Inc., 2007
WL 4465520, at *1 (Del. Ch. Dec. 13, 2007) (“This Court, however, has made it
unmistakably clear that it is improper for witnesses to opine on legal issues governed by
Delaware law. It is within the exclusive province of this Court to determine such issues of
domestic law.” (footnotes omitted)). Thus, the court does not credit these opinions.
133
As to the third issue, the court stated in its March 15, 2021 order establishing
a briefing schedule that the parties’ “response and reply need not address the issue”
because it was “moot” given the Custodian’s withdrawal of $204,485 of his fee
request that, according to Respondents, related to the preparation of fee petitions.491
Consistent with that direction, Respondents did not address the issue in their reply
brief but stated they “reserve all rights.”492
To be clear, on the merits, the Custodian—when first seeking to recover fees
incurred in preparing certain fee petitions—cited authorities where this court
permitted such applications.493 Indeed, Respondents’ own expert opines that
“perhaps some reasonable amount may be charged to a client for preparing
invoices.”494 As such, the court cannot conceive how bad faith could be shown here,
particularly after the Custodian withdrew the application to moot the dispute.
Respondents’ bad faith motion hereby is denied.
VII. CONCLUSION
For the reasons explained above, Respondents’ contempt, preclusion, and bad
faith motions are all denied. The Objections are overruled in part and sustained in
491
Dkt. 1596.
492
Dkt. 1598 at 6 n.3.
493
See Dkt. 1441 at 28-29 (citing Papastavrou v. Stage III Techs., LLC, 2013 WL 269120(Del. Ch. Jan. 23, 2013) (ORDER) and All Pro Maids, Inc. v. Layton, 2004 WL 3029869,
at *6 (Del. Ch. Dec. 20, 2004), aff’d, 880 A.2d 1047 (Del. 2005)).
494
Dkt. 1590 Ex. B ¶ 19.
134
part. The Custodian shall be paid his reasonable fees and expenses, totaling
$3,242,251, in the manner set forth in the chart attached as Exhibit A and in
accordance with the implementing order that accompanies this decision.
135
Exhibit A
Initial Payor
Amount at
Subject Matter Amount Admin. Reduction Balance
Issue TPG/Shawe TPG Escrow
Sought1
1 Contempt Fee Award $1,174,541 $26,250 $1,148,291 $0 $1,148,291 $1,148,291
2 Fee Order Violations $425,127 $0 $425,127 $60,000 $365,127 $365,127
3 Appeals $336,128 $0 $336,128 $0 $336,128 $336,128
4 Confidentiality Motions $265,592 $0 $265,592 $265,592 $0 --- --- ---
5 Contempt and
Preclusion Motions $274,887 $0 $274,887 $0 $274,887 $274,887
6 Cypress Action $30,920 $0 $30,920 $0 $30,920 $30,920
7 HIG Action2 $280,013 $0 $280,013 $0 $280,013 $280,013
8 Response to
Omnibus Objection $605,793 $7,190 $598,603 $3,810 $594,793 $594,793
9 Fee Petitions and
Update Letters $121,935 $121,935 $0 $0 $0 --- --- ---
10 Fee Petitions re:
Contempt Motion $49,110 $49,110 $0 $0 $0 --- --- ---
11 May 2019 Update Letter $23,063 $0 $23,063 $0 $23,063 $23,063
12 Discharge of Custodian $136,425 $0 $136,425 $45,475 $90,950 $90,950
13 Tax Matters3 $67,590 $0 $67,590 $0 $67,590 $67,590
14 Anticipated Objections $49,589 $0 $49,589 $29,948 $19,641 $19,641
15 TPG Document Demands $16,856 $0 $16,856 $0 $16,856 $16,856
16 Miscellaneous $2,318 $0 $2,318 $0 $2,318 $2,318
17 Other TPG Litigations $5,478 $0 $5,478 $0 $5,478 $5,478
18 Escrow Matters $3,000 $0 $3,000 $0 $3,000 $3,000
Total $3,868,363 $204,4854 $3,663,878 $404,825 $3,259,054 $1,148,291 $1,923,842 $186,921
General Objection
Reduction $16,803 $16,803 $16,803
Final Calculation $421,628 $3,242,251 $1,148,291 $1,907,039 $186,921
1
All numbers rounded to the nearest dollar. Totals reflect non-rounded inputs.
2
Excludes $75,000 paid by TPG. Dkt. 1576 at 25 n.11.
3
Includes $19,800 for Ernst & Young. Dkt. 1576 at 23.
4
This amount reflects the allocation of the $204,485 the Custodian withdrew from his initial request. Dkt. 1592 at 5.