OPINION
Dear Friends,
I realize I have beaten this dead horse significantly, however the articles keep coming out about Chancellor Andre Bouchard’s interesting exit from his powerful and unique post as Delaware’s Chancellor barely seven years into his term. The Law360 article below by Jeff Montgomery praises Bouchard, but toward the end describes the TransPerfect debacle which I believe is why Bouchard is running for the hills.
The article is worth a read. Please send me your feedeback. Bouchard will be gone in April and the challenge of finding someone much better should, contrary to the propaganda below, not be that hard. In my view, the needed improvement is obvious. An improved candidate, properly vetted, who rules without bias and conflicts of interest, would be a start, and good for Delaware!
Respectfully Submitted,
JUDSON Bennett-Coastal Network
Bouchard’s Surprise Exit Opens Uncertain Void On Chancery
Law360 (January 5, 2021, 8:13 PM EST) — Delaware has opened 2021 facing a looming vacuum at the top of its nationally important Court of Chancery and no clear prospect of who will fill it after the surprise retirement announcement by Chancellor Andre G. Bouchard, who is not even seven years into his 12-year term.
Chancellor Bouchard’s move on Dec. 29 will close out a widely praised career involving key rulings on a court that dates to 1792. He is scheduled to step down April 30.
Those familiar with the process said time is tight for soliciting, choosing and confirming a replacement. Although Vice Chancellor J. Travis Laster ranks as the court’s most experienced official, his 12-year appointment ends in early October, and there has been no public indication by him or other members of the court of readiness to take the helm for a full term.
“I think he is going to be sorely missed,” Peter B. Andrews of Andrews & Springer LLC, a Wilmington-based complex commercial litigation firm, said of Chancellor Bouchard. “I haven’t thought about it, and it’s very disturbing to me, because I don’t know who is prepared” to take the seat.
In the late December announcement released by the court, Chancellor Bouchard, 60, cited an interest in moving on after 34 years as either advocate or jurist in the state’s globally known business law and equity court. The announcement noted the chancellor’s statement that “it was time to step back, enjoy more time with his family, and pursue other interests.”
Gov. John Carney’s office did not immediately respond to a question regarding the activation of the state’s Judicial Nominating Commission, which has the task of vetting candidates for judicial seats and providing names of potential nominees.
Lucian A. Bebchuk, Harvard Law School’s James Barr Ames professor of law, economics and finance and director of Harvard’s Program on Corporate Governance, said in an email Monday that “Chancellor Bouchard was the fourth in a line of incredible jurists who served as chancellors.”
Bebchuk referred to the late Chancellor William T. Allen as well as former Chancellors William B. Chandler III, now a partner at Wilson Sonsini Goodrich & Rosati PC, and Leo E. Strine Jr., who went on from Chancery to serve a term as Delaware’s chief justice.
Lawrence Hamermesh, professor emeritus at Widener University Delaware Law School, praised Chancellor Bouchard for his “practicality and stewardship” at the head of the court. He also said the approach to the search for a successor “all depends, of course, on who moves where and what openings have to be filled, and when.”
In interviews with Law360, members of the legal community were quick to praise the chancellor, a 1986 Harvard Law School graduate who practiced in corporate and commercial law for 28 years before taking the bench. His private practice included the co-founding in 1996 of Lamb & Bouchard PA, a prominent boutique law firm that soon became Bouchard & Friedlander PA when Stephen Lamb became a vice chancellor. The firm became Friedlander & Gorris in 2014, when Bouchard became chancellor in May of that year.
A. Thompson Bayliss of Abrams & Bayliss LLP said that Chancellor Bouchard “gave up a lucrative spot as a partner in private practice to become a public servant” at a time when service on the Chancery Court bench had become more demanding than ever.
Members of the court have increasingly cautioned that court schedules are jammed, with trials already being scheduled well into 2022. During the chancellor’s tenure, a string of multiyear, multibillion-dollar cases involving 10-day trials have moved through the court, with jurists writing opinions of 100 or 200 pages and more.
The chancellor’s job carries enormous prestige but pays a current annual salary of $196,738, well within the upper average for attorney salaries across all specialties. Vice chancellors currently receive $185,444.
“Despite the challenges of a burgeoning caseload, increasingly complex cases, a flood of expedited matters, a pandemic, and the glare of a white-hot spotlight, Chancellor Bouchard was always prepared, always courteous and always inspired confidence that justice and equity would ultimately prevail,” Bayliss said.
Both Chancellor Bouchard and Vice Chancellor Laster have handled some of the seven-member court’s toughest cases and penned some of its most far-reaching and closely watched decisions in recent years.
Early in the chancellor’s term, he wrote a landmark decision on disclosure-only settlements in merger and acquisition litigation when deciding the In re Trulia Inc. case. Trulia followed an explosion of suits challenging deals that were quickly settled for therapeutic disclosures and fees. Chancellor Bouchard’s decision included notice of an intent to reject settlements unless disclosures are “plainly material” and liability releases “narrowly circumscribed.”
Bebchuk said the chancellor’s work “reflects a first-rate legal mind, a deep understanding of the both the nuances of doctrine and the rich institutional and economic texture within which it needs to operate, an appreciation of the importance of Delaware law to the corporate landscape, and a strong commitment to ensuring that this law retain its quality and fit to the changing environment.”
Hamermesh pointed to the chancellor’s oversight of a smooth expansion of the court from five jurists to seven in 2018, noting that “he dealt adroitly and successfully with the challenge of increased burdens on the court due to a shift in nature of the litigation — fewer low maintenance cases (quick and dirty M&A class action settlements, most notably) and more heavy-burden contract interpretation cases.”
Still on the chancellor’s docket is the Byzantine, multiyear, global litigation surrounding SoftBank Group’s attempt to jettison a $3 billion tender offer for shares of office-sharing venture WeWork. The dispute included the formation of dueling special committees of WeWork’s board, with one aligned with WeWork’s founder seeking enforcement of the deal and another, closely controlled by SoftBank, backing the walkaway.
In one WeWork-related decision in August, Chancellor Bouchard found that SoftBank’s management cannot block the earlier, hostile WeWork-aligned panel from seeing the privileged information of WeWork’s management, including communications with Skadden Arps Slate Meagher & Flom LLP.
The decision emphasized that management cannot pick and choose among director factions when responding to discovery requests.
Francis G.X. Pileggi of Lewis Brisbois Bisgaard & Smith LLP, who closely tracks and chronicles the court’s decisions, said, “Chancellor Bouchard had a profound impact on Delaware jurisprudence and his service to the State will benefit Delawareans for generations to come. Many of his decisions have had national and international importance and will be studied by lawyers and law students for many years to come.”
The chancellor’s departure announcement emerged as litigation continued in a bitter fight between the co-founders of global translation company TransPerfect Global Inc. over a Chancery Court-ordered sale of the business.
Disputes between TransPerfect co-founders Philip Shawe and Elizabeth Elting simmered and burned through much of Chancellor Bouchard’s time on the court, and expanded into disputes over the court’s jurisdiction and the actions and billings of a court-appointed custodian, represented by Skadden.
Shawe’s objections to the chancellor’s rulings, the actions of the custodian and opposing legal counsel and the court’s alleged failure to fully disclose, without strings, fees charged for custodial operations gave rise to a flock of suits.
Direct public criticism and attacks on Chancellor Bouchard — including radio and television advertising — by groups aligned with Shawe led to an unprecedented call by 19 corporate law professors and 47 corporate lawyers from Delaware and throughout the United States to end the personal criticism of the chancellor and the court.
On Dec. 24, Shawe and TransPerfect filed a federal civil rights complaint in the U.S. District Court for Delaware naming the chancellor in a suit seeking relief from an alleged gag order that the suit said would prohibit Shawe from disclosing information in billings and fees submitted by a court-appointed custodian.
Andrews of Andrews & Springer and others nevertheless said they were disappointed by the retirement announcement, with Andrews citing the chancellor’s fairness on the bench and achievements in administering a court faced with constant, complex demands.
“I think he crushed it with regard to streamlining, and he got us through COVID with little bumps, really,” Andrews said. “I don’t believe that any of the other chancellors couldn’t step up and meet the challenge, but they’re big shoes to fill.”
–Editing by Jill Coffey.