In the world of courts, lawyers, and the intricate threads of justice, the concept of fairness often takes center stage. The constitution and legislative endeavors have, over time, aimed to define, enforce, and modify the laws that judges and attorneys are bound by. Yet, the labyrinthine path of justice extends further – encompassing the distinct set of rules that corporations traverse under the watchful eyes of certain states. Enter the Delaware Court of Chancery and the Delaware General Corporation Law (DGCL), an embodiment of equity that veers from the conventional legal realm. Here, the scales of justice tip towards remedies beyond mere financial compensation – think injunctions, writs, and specific performance.
Let it not be misunderstood that equity courts forsake legality; the demarcation between the two has blurred since the Federal Rules of Civil Procedure found a home in the United States in 1938, granting courts shared authority over legal and equitable matters. In this juncture of shifting tides, Delaware emerges as one of the steadfast proponents of separation.
In the heart of Delaware’s jurisprudential tug-of-war lies an enduring saga dating back to 2014, a tale of corporate parting involving the founders of TransPerfect Global. The private translation and legal services juggernaut found itself ensnared in a vortex of equity versus law quandaries. A controversial public auction, decried by some as misguided or even illicit, orchestrated by the Chancery Court, led to the sale of TransPerfect Global. The justification? A chorus claiming shareholder deadlock and impending financial collapse. The subsequent sale, yielding a staggering $770 million, was underpinned by the company’s uninterrupted financial strength, casting shadows over the court’s verdict.
Phil Shawe, founder and now sole proprietor, sought refuge in constitutional guru Professor Alan Dershowitz’s guidance, alleging an unconstitutional “taking” grounded in the Fifth Amendment. Alas, the Delaware Supreme Court upheld the initial ruling, propelling the sale forward. The narrative unfolds for all eyes to peruse, unabated and unyielding.
In the aftermath of a 2017 public auction, where Shawe steered his ship back into his grasp as CEO, a novel chapter of litigation unfolded. The battleground? Delaware, where the embittered cries of Shawe and his company resonated against a system seemingly tailored by insiders to nourish Delaware’s incorporation ecosystem.
The victory exacted not only hundreds of millions for Shawe’s purchase, a foreseen sacrifice, but an additional $125 million in legal fees and disbursements. Yet, beyond pecuniary losses, Shawe alleges gouging by law firms and complicity by the former Chancellor of Delaware’s Chancery Court, who purportedly rubber-stamped extravagant fee requests, notably by the legal behemoth Skadden Arps.
When TransPerfect faced the auctioneer’s gavel, Chancellor Andre Bouchard, later retreating to private practice, anointed Robert Pincus, a Skadden partner, as custodian. Pincus wielded unbridled authority, overseeing the sale with carte blanche powers, cloaked in opaque billing and elusive invoices. Skadden, where Bouchard had previously resided, rendered Shawe and TransPerfect blind to over $15 million in legal fees, compelling payment sight unseen.
Shrouded in secrecy, Pincus, a friend and former colleague of Bouchard, allegedly billed TransPerfect nearly $50 million under sealed invoices, endorsed and validated by the Chancellor. Amidst the tug-of-war, Shawe managed to pry open the invoice vault, revealing an astonishing $200,000 for an invoice’s very creation – a revelation that even the Chancellor found unprecedented.
As Bouchard’s tenure neared its twilight in April 2021, a parting gift materialized: a $625,000 disallowance of Skadden’s fees. The company’s legal fee expert opined $1.7 million of Skadden’s $3.5 million invoice was unwarranted overbilling. Bouchard urged Skadden’s future transparency, signaling change on the horizon. A federal court’s ruling in April 2021 declared Bouchard’s imposition of “undocumented fees and costs,” further stirring the waters.
A four-year tide has ebbed since the auction’s closure, yet Skadden’s billing umbilical to TransPerfect endures. Shadows cast over Delaware’s legal-business nexus deepen, intensified by whispers surrounding President Joe Biden’s kin and their entanglement in the Chancery’s web.
Shawe’s refrain rings loud: Delaware’s legal and business conduits, its judicial web and barrister fraternity, entwine to perpetuate the cycle of litigation. A parallel emerges – Skadden’s Robert Pincus, appointed special master, piloting the sale of Citgo, faced allegations of fee overreach, raising the question of an unspoken pact between Delaware’s legal players.
Delaware’s intricate dance of justice marches on, a perplexing labyrinth woven with threads of equity and law. In this complex choreography, TransPerfect’s chapter raises more questions than answers, casting a lingering shadow over a company that, despite its Chancery-choreographed turmoil, continues to thrive.
As the years roll by, the company that once faced “hopeless deadlock” in 2015 revels in soaring revenues, recently celebrating its 30th anniversary. Perhaps, as we ponder the past, we must factor in these successes to fully fathom the motives behind the Chancery’s and custodian’s actions. The alchemy of Delaware’s legal stage unfolds a saga that weaves business, law, and justice into an intricate tapestry of equity and enigma.