It strikes me that Vice Chancellor Glasscock's words bear repeating against the backdrop of the fee request here:
“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). (Chance quoted the Vice Chancellor in her June 21 post; I simply recalled that she had.)
For those of us whose knowledge of corporate law is minimal, the essay by Issacson, et al., "How much is a $30 million settlement worth?", 41 Del. J. Corp. L. 537 (2017) helpfully identifies the issues in calculating fee awards to class counsel. (The essay is available online; no paywall hides it from view.) The authors opine in the halcyon days of 2017 that Chancery is “receptive to hearing arguments that the actual value of a settlement payment may be more or less than its nominal cash value.” 41 Del. J. Corp. L. at 543. The cases suggested, inter alia, that defendants had the burden of proving “whether and to what extent the settlement payment will be made by the corporation, as opposed to its insurers or co-defendants.” In turn, defendants would be well advised to obtain “an expert declaration explaining how the cash payment translates into a reduction in enterprise value” and how much of any reduction is shouldered by the class. 41 Del. J. Corp. L. at 543. “To the extent they are able to provide the necessary evidence, defendants will have a valuable tool for opposing excessive fee requests.” The dispatch with which this case has moved, as described by Chance, suggests that it will be the rare case in which that “valuable tool” comes out of the toolbox.
It strikes me that Vice Chancellor Glasscock's words bear repeating against the backdrop of the fee request here:
“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). (Chance quoted the Vice Chancellor in her June 21 post; I simply recalled that she had.)
For those of us whose knowledge of corporate law is minimal, the essay by Issacson, et al., "How much is a $30 million settlement worth?", 41 Del. J. Corp. L. 537 (2017) helpfully identifies the issues in calculating fee awards to class counsel. (The essay is available online; no paywall hides it from view.) The authors opine in the halcyon days of 2017 that Chancery is “receptive to hearing arguments that the actual value of a settlement payment may be more or less than its nominal cash value.” 41 Del. J. Corp. L. at 543. The cases suggested, inter alia, that defendants had the burden of proving “whether and to what extent the settlement payment will be made by the corporation, as opposed to its insurers or co-defendants.” In turn, defendants would be well advised to obtain “an expert declaration explaining how the cash payment translates into a reduction in enterprise value” and how much of any reduction is shouldered by the class. 41 Del. J. Corp. L. at 543. “To the extent they are able to provide the necessary evidence, defendants will have a valuable tool for opposing excessive fee requests.” The dispatch with which this case has moved, as described by Chance, suggests that it will be the rare case in which that “valuable tool” comes out of the toolbox.