AMC: Are we there yet?
If not, where the ^&*$ are we?
As Vice Chancellor Glasscock succinctly described it in In re Riverbed Technologies, Inc. Stockholders Litigation, “much of what I do involves problems of, in a general sense, agency: insuring that those acting for the benefit of others perform with fidelity, rather than doing what comes naturally to men and women—pursuing their own interests, sometimes in ways that conflict with the interests of their principals. In this task, I am generally aided by advocates in an adversarial system, each representing the interest of his client. . . . The area of class litigation involving the actions of fiduciaries stands apart from this general rule . . . . Such cases are particularly fraught with questions of agency: among others, the basic questions regarding the behavior of the fiduciaries that are the subject of the litigation; questions of meta-agency involving the adequacy of the actions of the class representative—the plaintiff—on behalf of the class; and what might be termed meta-meta-agency questions involving the motivations of counsel for the class representative in prosecuting the litigation.”
2015 WL 5458041, at *1 (Del. Ch. Sept. 17, 2015), judgment entered sub nom. In re Riverbed Tech., Inc. (Del. Ch. 2015).
What a looooooong, strange trip it’s beeeeeeeen. 🎶
I was just going back through the annals of this case, and … do you remember when I wrote like 15k words on the motion to compel the plaintiff’s deposition? OMG what even is this life. Then I was just painfully right, and then — like Clarissa — I explained it all. Then, what was I doing up at four o’clock in the morning blogging about this damn case, obsessing about every particularity of notice, or addressing the objection to plaintiff’s motion to withdraw? How about ranting about the legislature? We have done the grand tour with this thing!
Honey, it’s not over yet!
This case has been such a wild ride, I cannot believe that it is still basically taking up a massive portion of my entire life. And although I have a strong bias in favor of the Court approving the settlement simply because I want. this. thing. to. end. … I unfortunately know in my heart that no one on Earth is more principled than the Vice Chancellor, so this thing will only get approved if it merits approval under the standards outlined by the law, so on that note, I suppose we can try to see what we can see.
Oh, my lawd, people! I have been dreading doing this for so long. I have been preparing to do this for so long. I still don’t know if I’m ready.
There is so much going on in the case right now. There is so much noise, so much hoopla! One of the plaintiffs reached out to one of the objectors’ lawyers, and no one knows why! It’s drama and intrigue at every turn, but all of that is … just that … it’s drama, and it’s not stuff that mainly matters. I mean, it could matter, around the margins, if it turns out that the plaintiff does withdraw, but even that wouldn’t be dispositive of anything. There are two more plaintiffs at the moment to take up the mantle. But it is weird that one of the plaintiffs reached out to the objectors’ counsel, ngl. (edit: I wrote this paragraph a whole day or so before publishing this post and by the time it went to press, it was so woefully outdated as to be extremely laughable, so please catch up with what’s really going on with the situation concerning who is a valid plaintiff in the next piece, linked at the end.)
Anyway, I’m here to do a thing, and that is to tell you what is coming up in broad strokes (not to obsess over every little bit of minutiae, but you know me), and then tell you what I think about the merits of the settlement, at least preliminarily.
We’ll see the Special Master’s Report and Recommendations on how the Court should handle the objections on Wednesday, and there will be a lot to say about that, so I want to put the outline of my thoughts on the record first. Unfortunately, I don’t have access to all 1,850 objections, and I have no blessed idea what this Report and Recommendations is going to look like, or how I’m going to process it, but whatever it is, it’s going to be a crazy ride.
As far as upcoming events and deadlines and things from the Scheduling Order and the Letter to Stockholders:
Wednesday: June 21st
Special Master’s Report and Recommendations
Wednesday: June 28th
Exceptions due to the Special Master’s Report and Recommendations (must be filed with the Register in Chancery)
Thursday & Friday: June 29th & 30th
Settlement Hearing (dial-in will be available, protocols here)
After June 30th
Written Opinion to be issued by the Court
Approving or denying the proposed settlement
What happens after that will depend, obviously, on what the contents of that written opinion are, because presumably if the Court denies the proposed settlement, there is one branch on the tree of possibilities that we go down, and if the Court approves the settlement as is, there is another branch that we will travel along. Each has its own set of offshoots, tendrils, new growth, leafs, leaflets, and even a couple of squirrels nests to get caught up in, so let’s set those aside for now. Needless to say, we’ll cross those precarious bridges when — and if — we come to them.
Also, no, I am not going to tell you when the Vice Chancellor is going to issue her opinion because I have no blessed idea, and I’m not going to venture a guess. I’ll tell you that she has worked with unceasing speed in this case, issuing nearly all of her decisions in smaller matters within just a few days of their being ripe for her ruling. Settlements are generally ruled on at the hearing, but the Court has made clear that this opinion will be a written ruling. The standard for a non-expedited opinion is 90 days from the end of the month in which it is taken under advisement, but this matter is technically expedited in both the originally TRO and even (somewhat uniquely) in the settlement phase, so it’s likely not to run the full timeline for various reasons. Those are the facts, y’all.
Although I’m going to focus in this piece on all the things I think could go wrong, or all the areas where the Court could find problems with the settlement, it should be said that settlements are usually nowhere near this much of a clusterfck. Like, at all. Really, obviously, not. It’s so bizarre for us all to be spending so much time obsessing about a settlement, y’all. Someday we’re going to look back on all this and think: wow, that was wild.
In 2014, in our main publication, we dubbed rejected settlements, black swan events in Delaware corporate litigation and cited six known examples from the prior two years: two from 2012, one from 2013, and three from 2014. We cited Strine’s now-famous quote:
"With every fiber of my being, I did not want my last act as Chancellor to be to reject a settlement."
— Chief Justice Leo E. Strine, Jr.
In recent years, Vice Chancellor Zurn has made some headlines of her own for rejecting settlements after close analysis of their merits (or lack thereof). She is never shy or timid about doing the right thing when justice so demands, as she has proven, time and again. That doesn’t mean she will reject this settlement for the reasons that I articulate below. It doesn’t mean that she should. All that what I’ve written below means is that I have an incredibly overactive temporal lobe, prefrontal region, and parietal lobe that will not ever leave each other alone or stfu, so I simply cannot stop thinking about all these minutiae, and for some reason, y’all have said that you want to follow along with my ramblings. That’s on you.
Speaking of which, time to pay the bills behind the paywall and take the deep dive into the merits of this settlement, as I see it. So, off we go … if you need a free trial, you can access one here, or email me if you need to. If you want to complain about me earning a living for the work that I do, please do not. Because, alternatively, you are awesome and you can, become a Founding Member and support us like the rockstar that you are.