In re Medical Action Industries Inc. Shareholders Litigation

48 Misc. 3d 544, 6 N.Y.S.3d 431
CourtNew York Supreme Court
DecidedFebruary 25, 2015
StatusPublished
Cited by1 cases

This text of 48 Misc. 3d 544 (In re Medical Action Industries Inc. Shareholders Litigation) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Medical Action Industries Inc. Shareholders Litigation, 48 Misc. 3d 544, 6 N.Y.S.3d 431 (N.Y. Super. Ct. 2015).

Opinion

OPINION OF THE COURT

Emily Pines, J.

Following a stipulation entered into between the two individual plaintiffs and the defendants in this litigation, originally commenced as a putative class action based upon a now completed merger, and predicated upon a sale of defendant Medical Action Industries Inc. to defendant Owens & Minor, Inc., plaintiffs’ counsel have submitted an application for what they term reasonable attorneys’ fees in connection with the asserted substantial benefit they achieved for the Medical Action public shareholders as a result of their actions in causing valuable supplemental disclosures in connection with the defendants’ issuance of a Form 8-K in September 2014, following their application for injunctive relief but prior to the requisite shareholder vote on the merger. The defendants oppose the application on the grounds that plaintiffs’ counsel have no legal right to seek attorneys’ fees under the American rule, as such are merely an incident of litigation under both New York and Delaware law. They further oppose the application, stating that no substantial benefit was achieved via the supplemental disclosures as they were unnecessary and/or all material issues were set forth in the prior proxy statements filed with the Securities and Exchange Commission (SEC). Defendants also take issue, should the court reach the issue of the reasonableness of the fees sought, with the amount of the request both based upon an alleged lack of proper information and upon an assertedly inflated lodestar multiple.

In reply, the plaintiffs argue that any reading of the parties’ stipulation requires the court to disregard the defendants’ initial argument, as the parties clearly agreed that in exchange for plaintiffs’ discontinuance of their action, they would be permitted to seek attorneys’ fees from the court, and the only issues to be placed before the court would be whether they [547]*547conferred a substantial benefit to the public shareholders of Medical Action by being a causative factor in the issuance of the supplemental disclosures within the Form 8-K filed in September 2014 and whether the amount sought was reasonable. Plaintiffs also provide the court with numerous examples of attorneys’ fees awarded in alleged similar actions based upon additional disclosures procured by various plaintiffs prior to merger votes.

In surreply papers, permitted by the court, defendants argue that they preserved all defenses to plaintiffs’ request for attorneys’ fees in the parties’ stipulation agreement. In addition, defendants provide the court with two recent decisions by judges in the New York County Commercial Division, in which both refuse to approve settlements of putative class actions based upon, inter alia, the purported lack of merit of the actions themselves.

American Rule

There is no question nor is there any dispute among counsel herein that, absent a statutory provision providing for attorneys’ fees to a prevailing party or a contract which permits the same, courts in this state follow what is commonly referred to as the “American rule.” In New York, an attorneys’ fee is considered “merely an incident of litigation and is not recoverable absent a specific contractual provision or statutory authority” (214 Wall St. Assoc., LLC v Medical Arts-Huntington Realty, 99 AD3d 988, 990 [2d Dept 2012], quoting Levine v Infidelity, Inc., 2 AD3d 691 [2d Dept 2003]; see Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1 [1986]). Accordingly, an award of fees must be based upon a specific contractual provision or statute (see 546-552 W. 146th St. LLC v Arfa, 99 AD3d 117 [1st Dept 2012]).

The subject stipulation contains terms providing for the following process:

(1) the defendants are relieved from the obligation to answer, move against or respond to the complaint; (2) the plaintiffs are permitted to make an application for attorneys’ fees and a schedule is set forth for opposition, reply and a hearing; (3) following the court’s order resolving the fee application, the court is to be provided with a stipulation from counsel directing the discontinuance of the action with prejudice and without fees except as provided in resolving the subject fee application; (4) the parties agree that plaintiffs were a causative factor in the [548]*548issuance of the subject Form 8-K; and (5) the above is made without prejudice to any defense any party may assert with respect to the fee application or other matter related thereto.

In the various “Whereas” clauses preceding the above, the parties specifically state why they have entered into the above agreements, stating, in pertinent part, that the parties wish to avoid the expense and uncertainty associated with continued litigation and that they desire to set forth a process that provides for dismissal of the action and allows plaintiffs’ counsel to apply to the court for a reasonable award of attorneys’ fees and expenses.

A fundamental tenet of contract law requires that agreements be interpreted in view of the intent of the parties in entering into the same (Schron v Troutman Sanders LLP, 20 NY3d 430 [2013]; Goldman v White Plains Ctr. for Nursing Care, LLC, 11 NY3d 173 [2008]). The court, when asked to interpret a contract, must look to the purpose of the parties in entering into the agreement (Greenfield v Philles Records, 98 NY2d 562 [2002]; Morgan v Herzog, 301 NY 127 [1950]; Madison Ave. Leasehold, LLC v Madison Bentley Assoc. LLC, 30 AD3d 1 [1st Dept 2006], affd 8 NY3d 59 [2006]). If the parties’ purpose in entering into a contract can be ascertained, such takes precedence over all other canons of construction (Evans v Famous Music Corp., 1 NY3d 452 [2004]).

The purpose of the stipulation at issue is clear to the extent that it sets forth a process whereby the parties have decided to avoid the expense of continued litigation and at the same time permit plaintiffs’ counsel to place before the court a request for attorneys’ fees. There is no question the defendants have reserved their right to challenge the reasonableness of the request and, in that context, whether or not plaintiffs’ counsel have achieved any benefit, substantial or otherwise, in being a causative factor in the Medical Action filing of the subject Form 8-K with the SEC. However, there exists no purpose whatsoever in allowing for the application if it is, as argued by defendants, illegal on its face. The entire purpose of the stipulation is to avoid expense of litigation and allow the application for counsel fees; to permit an application which is illegal on its face would render the agreement, in the view of the court, completely illusory.

The court does not find the additional argument raised by defendants that New York courts do not recognize the “substantial benefit” doctrine convincing. They cite the Second Depart-[549]*549merit’s reversal of the award of attorneys’ fees in a case where the trial court had awarded fees based upon a stipulation following conditional certification of a class under CPLR 909 (see Louisiana Mun. Employees’ Retirement Sys. v Cablevision Sys. Corp., 74 AD3d 1291 [2d Dept 2010]). However, the denial of fees in that case was based upon the lack of a settlement which had become void as a result of non-consummation of a contemplated transaction and a finding that the statutory provision on which plaintiffs were relying only permitted payment of attorneys’ fees out of a common fund except in extraordinary circumstances. (Id.

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Cite This Page — Counsel Stack

Bluebook (online)
48 Misc. 3d 544, 6 N.Y.S.3d 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-medical-action-industries-inc-shareholders-litigation-nysupct-2015.