Opinion
Submitted: August 21, 2006.
Decided: August 22, 2006.
Jessica Zeldin, Esquire Rosenthal, Monhait Goddess, P.A. Wilmington, DE.
Daniel A. Dreisbach, Esquire Richards, Layton Finger Wilmington, DE.
Stephen C. Norman, Esquire Potter Anderson Corroon Wilmington, DE.
Dear Counsel:
I have read and considered the letter submissions regarding the form of order and judgment to be entered. The issues presented are resolved as follows:
1. The order and judgment shall include a bonding requirement as proposed in paragraph 12 of the form of order submitted as Exhibit A to Ms. Zeldin's letter of August 17. In lieu thereof, the responsible defendants may timely pay the entire judgment into an escrow account controlled by either the plaintiff's counsel or the court, if that can be done conveniently and consistently with UK law.
2. The court will not retain jurisdiction to entertain a further request to shift fees from the plaintiff to the defendants. That issue was presented, albeit halfheartedly, in the plaintiff's post-trial briefing (one sentence on pages 83-84) and in passing at oral argument. If the plaintiff was dissatisfied by the court's failure to address the issue in its opinion, the remedy was to move within five days for reargument in accordance with Rule 59(f). Having failed to do so, the plaintiff cannot now relitigate this claim. In any event, I note that, while the court's opinion is justifiably critical of the manner in which Filer and CP Holdings Ltd. undertook this going private transaction, their pre-litigation misconduct would not normally result in the wholesale shifting of fees. This case was filed in reaction to the accomplishment of the going private transaction, not in response to the revelation of any fraud, as was true in HMG/Courtland Properties, Inc. v. Gray, 749 A.2d 94 (Del.Ch. 1999), the only case cited or relied on by the plaintiff. Here, the defendants' misconduct came to light in the course of discovery and played a critical role in proving the absence of entire fairness in the transaction, but it did not precipitate the litigation. In the circumstances, there is no ground to conclude that this case falls into HMG/Courtland's narrow pre-litigation misconduct exception to the usual American Rule requirement that litigants bear their own counsel fees. Moreover, as the defendants point out, there was nothing in their defense of the litigation that would justify an order shifting fees on grounds of bad faith or vexatious conduct.
Ms. Zeldin is asked to submit a form of order consistent with this opinion, on notice.