In re TransPerfect Global, Inc.

• Court: Court of Chancery of Delaware
• Decided: August 7, 2023
• Docket: C.A. No. 9700-CM, 10449-CM
• Status: Published

Opinion

COURT OF CHANCERY OF THE STATE OF DELAWARE KATHALEEN ST. JUDE LEONARD L. WILLIAMS JUSTICE CENTER MCCORMICK 500 N. KING STREET, SUITE 11400 WILMINGTON, DELAWARE 19801-3734 CHANCELLOR

August 7, 2023

Jeremy D. Eicher Douglas D. Herrmann Eicher Law LLC Troutman Pepper Hamilton Sanders LLP 1007 N. Orange Street, 4th Floor 1313 Market Street, Suite 5100 Wilmington, DE 19801 Wilmington, DE 19899

Frank E. Noyes, II Jennifer C. Voss Offit Kurman, P.A. Skadden, Arps, Slate, Meagher & Flom LLP 222 Delaware Avenue, Suite 1105 920 N. King Street, 7th Floor Wilmington, DE 19801 Wilmington, DE 19801

Re: In re TransPerfect Global, Inc., C.A. Nos. 9700-CM, 10449-CM

Dear Counsel:

This letter resolves Respondent TransPerfect Global, Inc.’s objections to Custodian

Robert Pincus’s fee petitions for legal expenses incurred between January 2021 and March

2023.1 TransPerfect’s objections are overruled, with one narrow exception explained

below.

The court assumes the reader’s familiarity with the extensive procedural history of

the above-captioned lawsuits. The short version is that, on April 30, 2021, this court issued

a memorandum opinion that, among other things, resolved TransPerfect’s objections to

1 See C.A. No. 9700-CM, Docket (“Dkt.”) 1746; see also Dkt. 848; Dkt. 1243 (“Feb. 15, 2018 Order”); Dkt. 1601; Dkt. 1605 (“Apr. 30, 2021 Order”) (together, the “Orders”). Civil Action Numbers 9700-CM and 10449-CM have been litigated in a coordinated fashion since their inception. Docket entries refer to C.A. No. 9700-CM. C.A. Nos. 9700-CM, 10449-CM August 7, 2023 Page 2 of 15

Pincus’s fee petitions from May 2019 through December 2020 (the “April 30, 2021

Opinion”).2 The court largely overruled TransPerfect’s objections, sustaining only minor

objections relating to (i) work performed to unseal confidential court records; (ii) work

performed in connection with settlement efforts; and (iii) miscellaneous billing statements

for clerical or administrative work.3 So culled, the result was a fee and expense award of

$3,242,251.4 The court also entered partial final judgment under Court of Chancery Rule

54(b) given the absence of a just reason to delay.5

TransPerfect appealed on May 14, 2021.6 On June 14, 2021, I stayed the objection

and briefing process on future quarterly fee petitions pending appeal.7 I reasoned that the

“Supreme Court’s ruling will moot or affect arguments made to this Court, such that

staying objections pending resolution of the appeal will promote efficiency and conserve

judicial and litigant resources.”8

2 In re TransPerfect Glob., Inc., 2021 WL 1711797 (Del. Ch. Apr. 30, 2021), recons. denied, 2021 WL 2030094 (Del. Ch. May 21, 2021), aff’d sub nom. TransPerfect Glob., Inc. v. Pincus, 278 A.3d 630 (Del. 2022), cert. denied, 143 S. Ct. 574 (2023). 3 See In re TransPerfect Glob., Inc., 2021 WL 1711797, at *32, *42, *47. 4 Id. at *48. 5 Dkt. 1605 ¶ 6. 6 Dkt. 1619. 7 Dkt. 1631. 8 See id. C.A. Nos. 9700-CM, 10449-CM August 7, 2023 Page 3 of 15

On June 1, 2022, the Delaware Supreme Court affirmed the part of the April 30,

2021 Opinion addressing the fee petitions and their objections.9 The high court held that

this court did not abuse its discretion, although it reversed the contempt order against Philip

Shawe with the effect that Shawe could not be personally liable for the fees.10 TransPerfect

petitioned the U.S. Supreme Court for a writ of certiorari on November 3, 2022, which the

U.S. Supreme Court denied on January 9, 2023.11

During the period when the stay was in effect, TransPerfect kept generating work

for Pincus and his counsel. So Pincus kept filing fee petitions.12 And TransPerfect kept

objecting.13 Specifically, on November 9, 2022, TransPerfect Holdings, LLC,

TransPerfect’s sole owner, initiated a federal securities fraud action against Pincus and

Credit Suisse Securities (USA) LLC for alleged misrepresentations made in their respective

roles as Custodian and financial advisor during the court-ordered auction (the “Securities

Action”).14 Pincus retained Williams & Connolly LLP and Troutman Pepper Hamilton

Sanders LLP to represent him in the Securities Action. Pincus and Credit Suisse moved to

9 See In re TransPerfect Glob., Inc., 278 A.3d at 630. 10 Id. at 636. 11 143 S. Ct. at 574. 12 See Dkts. 1581, 1617, 1654, 1675, 1683, 1703, 1720, 1730, 1750. 13 See Dkts. 1626–1628, 1704–1713, 1718, 1722–1723, 1736–1737, 1752–1756. 14 See Dkt. 1746, Ex. A (Complaint in TransPerfect Hldgs., LLC v. Pincus et al., C.A. 1:22- cv-01477-RGA (D. Del. Nov. 9, 2022) (“Securities Compl.”)). C.A. Nos. 9700-CM, 10449-CM August 7, 2023 Page 4 of 15

dismiss the Securities Action, and their motion is currently pending before the District

Court of Delaware.15

A portion of Pincus’s requested fees were incurred in defending of the Securities

Action. On January 24, 2023, Pincus filed a report and fee petition for $224,109.28 for

legal fees from October through December 2022.16 Of this amount, $106,594.03 was

incurred defending the Securities Action.17 On April 21, 2023, Pincus filed a report and

fee petition for $463,179.34 for legal fees from January through March 2023.18 In that

petition, Pincus reported a cumulative total of $384,590.57 incurred defending the

Securities Action.19

TransPerfect filed untimely objections to Pincus’s fee petitions for October and

November 2022.20 I held a status conference on March 2, 2023, as all echelons of appeal

were resolved by then.21 At the hearing, counsel for TransPerfect stated that fees for the

Securities Action are non-reimbursable under federal law and asked that I give the District

Court a first pass at evaluating the relevant fee petitions.22 I denied TransPerfect’s request

15 See Dkt. 1748 (Pincus’s Answering Br.) at 7. 16 Dkt. 1730 (Jan. 24 Rep.) at 3. 17 Id. at 2–3. 18 Dkt. 1750 (Apr. 21 Rep.). 19 Id. at 3. 20 Dkts. 1736–1737. 21 Dkt. 1747. 22 Id. at 6:4–12. C.A. Nos. 9700-CM, 10449-CM August 7, 2023 Page 5 of 15

to defer the fee requests made in connection with the Securities Action to the federal court.

I further held that I would consider TransPerfect’s fee objections, although the objections

to the months of October and November were untimely.23 The parties briefed the

objections, and TransPerfect continued filing objections for the months of January through

March 2023.24

TransPerfect’s objections to Pincus’s fee petition fall into two sets—one relating to

Skadden’s fees between January 2021 and April 2023, and the other relating to fees

incurred by Williams & Connolly and Troutman Pepper between October 2022 and April

2023 in connection with the Securities Action.

Starting with the first set of objections, TransPerfect argues that, among other

things:

• Skadden bills for work relating to this matter at a higher rate than other matters, and is in any event, its billing rates are too high;25

• Skadden’s supporting affidavits for Pincus’s fee petitions are insufficient;26

• Pincus wrongly submitted fee petitions on a quarterly, rather than monthly, basis;27

23 Id. at 8:3–19. 24 Dkts. 1752–1754. 25 See, e.g., Dkts. 1626–1628, 1704, 1709, 1712–1723. 26 See, e.g., Dkts. 1627, 1706, 1722. 27 See, e.g., Dkts. 1626, 1705–1707, 1711. C.A. Nos. 9700-CM, 10449-CM August 7, 2023 Page 6 of 15

• Pincus failed to establish that TransPerfect or Shawe have acted in bad faith, and instead, Skadden and Pincus have acted in bad faith;28

• Fees relating to the separate H.I.G. action are not recoverable or are otherwise excessive;29

• The Escrow should reimburse the fees rather than TransPerfect;30 and

• Other miscellaneous objections, including that Skadden used block billing, provided vague entries, used too many partners to do legal research, and excessively staffed this case.31

The court has heard all these arguments before. And the April 30, 2021 Opinion

addressed each when raised against Pincus’s earlier fee petitions.32 From my review of the

fee petitions and their subsequent objections, the logic of the April 30, 2021 Opinion

applies with equal force for Skadden’s fees from January 2021 onward. The April 30, 2021

Opinion was affirmed on appeal, allowing this decision to resolve them in short order.

TransPerfect’s twice failed, regurgitated objections are overruled.

This disposes of all of TransPerfect’s objections to Skadden’s fees save one, which

might be moot at this point. In January 2021, Pincus and Skadden sought reimbursement

for fees associated with the “unsealing of billing records.”33 The April 30, 2021 Opinion

28 See, e.g., Dkts. 1626–1628, 1706–1708, 1721. 29 See, e.g., Dkts. 1628, 1704–1708; see also Dkt. 1315, Ex. 1, Attach. B (H.I.G. Compl.). 30 See, e.g., Dkts. 1627–1628, 1712. 31 See, e.g., Dkts. 1626–1628, 1705–1706. In this vein, TransPerfect also notes that Pincus hired Skadden, so Skadden was not TransPerfect’s choice of law firm. See Dkt. 1711. TransPerfect does not explain why or how this fact is relevant to the fee petitions. 32 See generally In re TransPerfect Glob., Inc., 2021 WL 1711797. 33 See Dkt. 1582 at 2–3. C.A. Nos. 9700-CM, 10449-CM August 7, 2023 Page 7 of 15

stated that work performed to unseal confidential records is out of scope for

reimbursement. That reasoning applies with equal force to legal work done in January

2021, even though the April 30, 2021 Opinion only addressed fee petitions through

December 2020.34 To the extent that Pincus and Skadden seek fees for that activity, then

the petition is denied.

Turning to the second set of objections, TransPerfect raises several arguments for

why federal law prohibits Pincus from receiving attorneys’ fees in connection with the

Securities Action.35 None are availing.

TransPerfect says that Pincus’s defense of the Securities Action falls outside the

scope of his role as Custodian, so his fees may not be advanced under this court’s Order

dated February 15, 2018.36 Under that Order, Pincus may recover “fees and expenses

incurred . . . 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” from TransPerfect, “in advance of the final disposition

of such claim[.]”37

34 See In re TransPerfect Glob., Inc., 2021 WL 1711797, at *1 (stating that the court only reviewed petitions for fee reimbursement incurred between May 2019 and December 2020); id. at *42 (deciding not to reimburse expenses relating to the removal of “confidentiality restrictions”). 35 See Dkt. 1746 (“TransPerfect’s Mar. 17 Objs.”) at 8–20. 36 Id. at 10–11. 37 Feb. 15, 2018 Order ¶ 7. C.A. Nos. 9700-CM, 10449-CM August 7, 2023 Page 8 of 15

Pincus’s defense of the Securities Action is “reasonably related” to his

responsibilities as Custodian. The very first line of the complaint in the Securities Action

challenges the “conduct of Defendants Robert Pincus and Credit Suisse while acting in

their respective roles as court-appointed Custodian and the Custodian’s financial advisor

in connection with a judicially ordered auction.”38 The complaint goes on to say that Pincus

wrongly told TransPerfect Holdings that third parties had made “higher value bids[,]”

inducing TransPerfect Holdings to “bid $70 million more to win the auction.”39 Defending

the Securities Action is therefore related to Pincus’s responsibilities as Custodian.

Next, TransPerfect argues that federal securities law preempts Pincus’s request

under these circumstances, so allowing reimbursement of fees would run afoul of the U.S.

Constitution’s Supremacy Clause.40 TransPerfect cites federal case law for the proposition

that “indemnification [of defendants] runs counter to the policies” of federal securities law,

which focuses on “protect[ing] investors” as “victims” of securities fraud.41 These cases

38 Securities Compl. at 1. 39 Id. at 1; see also id. ¶¶ 94–121. 40 See TransPerfect’s Mar. 17 Objs. at 12–13; U.S. Const. art. IV, § 2. 41 Eichenholtz v. Brennan, 52 F.3d 478, 483–84 (3d Cir. 1995); see also In re Livent Sec. Litig., 193 F. Supp. 2d 750, 754 (S.D.N.Y.) (“[T]he Court concurs with the long line of cases which hold that a defendant in a securities fraud action is prohibited from availing himself of indemnification”); Fromer v. Yogel, 50 F. Supp. 2d 227, 238 (S.D.N.Y. 1999) (stating that allowing indemnification in such circumstances would “allow a tortfeasor to shift liability for intentional misconduct onto another joint tortfeasor and thereby undercut the deterrence goals of the securities laws.”); Globus v. Law Rsch. Servs., Inc., 418 F.2d 1276, 1288 (2d Cir. 1969) (explaining the rationale for this rule: “[u]nderwriters who knew they could be indemnified simply by showing that the issuer was ‘more liable’ than they (a process not too difficult when the issuer is inevitably closer to the facts) would have a C.A. Nos. 9700-CM, 10449-CM August 7, 2023 Page 9 of 15

generally hold that indemnification under contract or common law is unavailable to a

defendant found liable for “knowingly and wil[l]fully” violating federal securities law.42

The cases cited by TransPerfect are readily distinguishable in several ways. For

one, they address indemnification for a defendant’s share of damages. By contrast, the fee

petitions address advancement for a defendant’s attorneys’ fees. Relatedly, these cases

foreclose indemnification after a finding of liability. By contrast, TransPerfect Holdings

has merely alleged Pincus engaged in willful, fraudulent behavior, but the District Court in

the Securities Action has yet to make any findings and may dismiss the case at the pleading

stage. Furthermore, these cases deal with indemnification under contract or under federal

common law principles. By contrast, here, the fee-shifting at issue is the result of a court

order, which implicates policy concerns pertaining to the integrity of judicial proceedings

not addressed in TransPerfect’s cited case law. TransPerfect’s reliance on these authorities

is misplaced.

Next, TransPerfect argues that fee-shifting related to the Securities Action infringes

upon its parent entity’s First Amendment right to petition the government for a redress of

tendency to be lax in their independent investigations.”); cf. Alten v. Ellin & Tucker, Chartered, 854 F. Supp. 283 (D. Del. 1994); Lucas v. Hackett Assocs. Inc., 18 F. Supp. 2d 531, 535–37 (E.D. Pa. 1998) (holding that indemnity claims relating to “de facto” federal securities claims are barred, but not barring indemnity claims premised “solely on state law”); Alvarado P’rs, L.P. v. Mehta, 723 F. Supp. 540, 553 (D. Colo. 1989); see also TransPerfect’s Mar. 17 Objs. at 8–9 (collecting these cases). 42 Fromer, 50 F. Supp. 2d at 238. C.A. Nos. 9700-CM, 10449-CM August 7, 2023 Page 10 of 15

grievances.43 TransPerfect is apparently concerned about the “chill[ed] access to the

courts” that would result were its parent, TransPerfect Holdings, required to pay attorneys’

fees under a court order.44 Admittedly, it is hard to imagine anything deterring

TransPerfect, Shawe, or their affiliates from accessing courts (in Delaware or elsewhere).

Indulging the hypothetical, however, TransPerfect’s argument still fails.

The First Amendment protects the “right of the people . . . to petition the

Government for a redress of grievances.”45 “Petitioning serves numerous, fundamental

interests of petitioners alike. It is ‘essential to freedom,’ liberty and self-government.”46

“The right to petition allows citizens to express their ideas, hopes, and concerns to their

government and their elected representatives, whereas the right to speak fosters the public

exchange of ideas that is integral to deliberative democracy as well as to the whole realm

of ideas and human affairs.”47 “[T]he right of access to courts for redress of wrongs is an

aspect of the First Amendment right to petition the government[.]”48

43 TransPerfect’s Mar. 17 Objs. at 15–20. 44 Id. at 16–17. 45 U.S. Const. amend. I. 46 Mirabella v. Villard, 853 F.3d 641, 653 (3d Cir. 2017) (quoting Borough of Duryea v. Guarnieri, 564 U.S. 379, 382 (2011)). 47 Guarnieri, 564 U.S. at 389. 48 Sure-Tan, Inc. v. N.L.R.B., 467 U.S. 883, 896–897 (1984); see also Guarnieri, 564 U.S. at 387 (“This Court’s precedents confirm that the Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes.”). C.A. Nos. 9700-CM, 10449-CM August 7, 2023 Page 11 of 15

Although court access can implicate the Petition Clause, TransPerfect cites no cases

to support its stance that court-ordered advancement or indemnification are categorically

unconstitutional. Indeed, countless cases of this court alone have ordered fee-shifting and

reimbursement. And the U.S. Supreme Court has affirmed trial courts’ powers to enter

sanctions against litigants, which includes fee-shifting.49 By TransPerfect’s logic, these

fairly commonplace aspects of the American judicial system flout constitutional limits—

an unjustified and impractical approach to constitutional law.

Relatedly, TransPerfect seems to invoke a separate First Amendment argument

relating to free speech principles. Without explaining why, TransPerfect states that its

obligations under the Orders “can be likened to a content neutral[] time, place[,] or manner

restriction on speech[.]”50 Actually, they cannot.

TransPerfect argues in the alternative that Pincus should have to post a bond to

recover fees relating to the Securities Action if he is “adjudged liable[.]”51 But the Orders

do not require Pincus to post a bond, and the court declines to impose such a requirement

now.

Tacitly acknowledging the weakness of its constitutional arguments, TransPerfect

also lodges challenges to the fee amounts that Pincus requested for defending the Securities

49 See, e.g., Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 546 (2014) (“[C]ourts already possess the inherent power to award fees in cases involving misconduct or bad faith.”). 50 TransPerfect’s Mar. 17 Objs. at 17. 51 Id. at 7. C.A. Nos. 9700-CM, 10449-CM August 7, 2023 Page 12 of 15

Action. The court need not dilate extensively on these objections because, again,

TransPerfect largely rehashes arguments already rejected in this court’s April 30, 2021

Opinion as affirmed on appeal.52 The quasi-original spin is that TransPerfect now lobs its

objections at Williams & Connolly rather than Skadden.

TransPerfect argues that Williams & Connolly failed to meet and confer on any

disputed fees, violating the Orders.53 On January 4, 2023, however, Williams & Connolly

asked TransPerfect to pay the fees and offered “to discuss any aspect of this” by phone.54

After initially expressing interest in a meet-and-confer on January 6, counsel for

TransPerfect stridently responded on January 13 that “indemnification is not available” as

matter of law, that “any compulsion by the Delaware Court” to enforce an order to the

contrary would be unconstitutional, and suggested that Williams & Connolly raise the fee

issue in federal court rather than this court.55 Counsel for TransPerfect also accused Pincus

of a “proven track record of overspending and wantonly wasting TransPerfect’s money,”

ignoring the findings of this court and the Delaware Supreme Court to the contrary.56

Having taken this tone, TransPerfect and its counsel have no one to blame but themselves

that a meet-and-confer did not happen.

52 See In re TransPerfect Glob., Inc., 2021 WL 1711797, at *22–51. 53 TransPerfect’s Mar. 17 Objs. at 21. 54 See Dkt. 1746, Ex. B at 1. 55 See id. at 3. 56 Id. C.A. Nos. 9700-CM, 10449-CM August 7, 2023 Page 13 of 15

Next, TransPerfect argues that Williams & Connolly’s rates are off market, that its

supporting attorneys’ affidavit is deficient, that it charges higher rates than to other clients,

and that awarding fees would be unreasonable because TransPerfect “did not hire”

Williams & Connolly.57 I have reviewed the fee affidavits and billing statements at issue

along with TransPerfect’s expert reports.58 The fees are reasonable and Williams &

Connolly’s affidavit appears reliable. In its affidavit, Williams & Connolly states that the

“hourly rates charged” in its invoices “are consistent with the hourly rates charged . . . to

clients other than Mr. Pincus.”59 TransPerfect even concedes that Williams & Connolly’s

rates are lower than those Skadden charged in this case, which this court determined to be

reasonable under the circumstances.60 TransPerfect’s challenges therefore fail.

57 TransPerfect’s Mar. 17 Objs. at 22–26. 58 See Dkt. 1750, Ex. B; see also Dkt. 1730 (Aff. of Charles Davant), Exs. 1–2; Dkt. 1736, Ex. C (Studer Rep.), id., Ex. D (Paige Rep.). 59 Dkt. 1750, Ex. B ¶ 3. 60 TransPerfect’s Mar. 17 Objs. at 22–23; In re TransPerfect Glob., Inc., 2021 WL 1711797, at *24 (“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.”); see also In re TransPerfect Glob., Inc., 278 A.3d at 656–658 (holding that the trial court did not abuse its discretion in finding Skadden’s hourly rates to be reasonable based on a range evidence, including a sworn affidavit of a Skadden partner, data on peer firm billing, the complexity of the task counsel handled, and counsel’s ability to “navigate[] significant obstacles” relating to this highly unusual case (internal quotation marks omitted)). C.A. Nos. 9700-CM, 10449-CM August 7, 2023 Page 14 of 15

Separately, TransPerfect challenges Williams & Connolly’s practice of redacting

individual attorney names on its invoices, instead replacing them with “Partner,”

“Associate,” and “Counsel.”61 TransPerfect argues that these designations are not

sufficiently “distinct and definite” under paragraph 3(a) of the November 1, 2019 Order.62

I disagree. This court has already found such designations adequate when evaluating

Skadden’s fees.63

TransPerfect also lambasts Williams & Connolly for excessive billing because

Williams & Connolly’s billing invoices state that it prepared for a “potential” motion to

dismiss rather than an actual motion to dismiss.64 This too fails. As stated earlier, Williams

& Connolly filed a motion to dismiss in the Securities Action, so the reference to a

“potential” motion in the billing invoice makes no difference.

Finally, TransPerfect also reserves some ire for Troutman Pepper, attacking it for

the same reason TransPerfect criticizes Williams & Connolly.65 I have reviewed Troutman

Pepper’s fee affidavit and it appears reasonable.66 This objection fails.

For the foregoing reasons, TransPerfect’s objections are overruled, except to the

extent its objection to the January 2021 legal bills is not moot, which is sustained in part.

61 TransPerfect’s Mar. 17 Objs. at 26–28. 62 Id. at 26 (citing Dkt. 1399 (Nov. 1, 2019 Order) ¶ 3(a)). 63 See In re TransPerfect Glob., Inc., 2021 WL 1711797, at *23–24. 64 TransPerfect’s Mar. 17 Objs. at 28–29. 65 Dkt. 1752 at 10–15. 66 See Dkt. 1750, Ex. C. C.A. Nos. 9700-CM, 10449-CM August 7, 2023 Page 15 of 15

Counsel for Pincus shall prepare a revised form of order consistent with this letter decision

within ten days.

IT IS SO ORDERED.

Sincerely,

/s/ Kathaleen St. Jude McCormick

Kathaleen St. Jude McCormick Chancellor

cc: All counsel of record (by File & ServeXpress)