Delaware Supreme Court Unable to Find Legal Justification for Lower Court Decision, Affirms Ruling Without any Supporting Case Law or Legal Reasoning

OPINION

Dear Friends,

Delaware’s Supreme Court is doing its own bidding, once again, folks. We’re seeing it in two rulings in the TransPerfect case as it upheld the dismissal of a legal malpractice lawsuit and also rubber-stamped a Chancery Court ruling refusing to terminate the custodian and allowing him to continue to dip into a slush fund that was meant to expire one year ago.

What we’re seeing here, shamefully, is that nothing has changed in these Delaware courts, as I see it, whose primary function has turned into protecting its own and keeping outsiders out — at any and all costs! See the Law360 story below detailing exactly how this outrageous behavior lives on, as they “circled the wagons and ruled without an opinion to explain their reasoning because their decisions simply cannot be supported by law or reason.”

This has been my point exactly for years, folks! No matter how deeply these Justices and Kathaleen McCormick go to justify previous rulings, without any legal precedent, no one in power in America’s First State does a damn thing about it! What happened to checks and balances in Delaware? The Delaware judiciary has gone off the rails. Those wagons are circled tight. No one from the outside is making a dent in this Protectionist Society.

I had hoped that Chief Justice Seitz would be the voice of reason and maturely lead the way out of this groupthink, but instead he “swoops in” and reiterates this cronyism. He’s the chief of all cronies. That’s how I see it, folks. This Delaware Court Groupthink is dangerous and doesn’t allow for critical thinking or analysis backed by law or reason.

See the story below and send your feedback. It’s always welcome and appreciated.

Respectfully Yours,
Judson Bennett–Coastal Network

Del. Justices OK Toss Of TransPerfect, Shawe Claims

By Jeff Montgomery

Law360 (November 17, 2022, 9:18 PM EST) — Delaware’s top court late Thursday upheld the Court of Chancery’s dismissal of a TransPerfect Global breach of duty suit against Ross Aronstam & Moritz LLP and, in a separate decision, let stand the lower court’s refusal to terminate a TransPerfect escrow that funded a court-appointed custodian.

Justice Gary F. Traynor wrote both brief orders, joined by Justice Karen F. Valihura and James T. Vaughn Jr. in the Ross Aronstam decision, and by Chief Justice Collins J. Seitz Jr. and Justice Vaughn on the escrow appeal.

The decisions resolved two controversies in an 8½-year, sometimes multistate saga that saw Chancery Court drawn into a dispute between the founders of a small translation business that now provides language services, technology and content creation and other services in 43 countries.

Disagreements between founders Philip R. Shawe and Elizabeth Elting became a bitter thread that has run through the company’s story from its founding in 1995 to the present. Personal disputes between Shawe and Elting grew over the years into a Chancery Court suit, court-ordered sale and appointment of a custodian, Skadden Arps Slate Meagher & Flom attorney Robert B. Pincus, now retired, who himself became a target of Shawe’s scrutiny and objections.

The orders on Monday agreed with a decision by Chancellor Kathaleen St. J. McCormick that rejected claims by TransPerfect’s co-founder that RAM and name partner Garrett B. Moritz breached professional duties by failing to disclose that, in opposing a shareholder demand for records on fee payments to the custodian and law firm, it was taking direction from a purportedly conflicted custodian whose fees were ultimately paid by TransPerfect.

The justices sided with the chancellor in finding that “it is not reasonably conceivable that [RAM has] breached a professional obligation, and [that] TransPerfect has therefore failed to state a claim for legal malpractice upon which relief can be granted.”

In her decision, Chancellor McCormick observed that “Defendants had one client: TransPerfect.” An earlier sale order “made the custodian TransPerfect’s exclusive authorized agent empowered to direct counsel retained in connection with the sale process. Defendants thus acted appropriately in following the instructions of the custodian.”

The justice agreed, noting: “TransPerfect’s claims against RAM, moreover, include a challenge to the custodian’s authority to retain and direct the activities of counsel on TransPerfect’s behalf; as such, they fall squarely within the exclusive-jurisdiction provisions of the Court of Chancery’s prior orders.”

Martin Russo, lead counsel for TransPerfect, said in an emailed statement late Thursday: “This is more of the same from the Delaware judiciary. They circled the wagons and ruled without reasoning because the decisions cannot be supported by law or reason.”

Separately, the justices agreed with the Chancellor in finding in November 2021 that an authority for a multimillion-dollar escrow fund — established to fund the custodian’s sale of TransPerfect, related matters and claims against the custodian — had not yet lapsed, although the sale closed in May 2018,

Pincus was discharged from his custodial duties in April 2021, but claims coverable by the escrow remained.

In August 2021, Shawe sought termination of the escrow, a request rejected by the lower court based on a conclusion that claims had yet to be settled by a final, non-appealable order.

The justices said the escrow order provided for its continuation for three years following closing of the TransPerfect sale and one year after any claims against the custodian are resolved in a non-appealable court order.

Based on the timing of remaining appeals and their resolution, “less than one year has passed since these claims were resolved,” Justice Traynor wrote. “Moreover, the Court of Chancery did not err when it declined to address the ‘unripe’ issue of whether ‘purely hypothetical’ claims identified in the future would permit the escrow fund’s survival.”

In the Pincus case, TransPerfect Global Inc. is represented by Frank E. Noyes of Offit Kurman PA and Adam K. Bult of Brownstein Hyatt Farber Schreck LLP

In the Ross Aronstam case, TransPerfect Global is represented by Frank E. Noyes II of Offit Kurman PA and Douglas Capuder of Capuder Fazio Giacoia LLP.

Philip R. Shawe is represented by Jeremy D. Eicher of Eicher Law LLC and Alan M. Dershowitz.

Robert B. Pincus is represented by Jennifer C. Voss, Cliff C. Gardner and Elisa M.C. Klein of Skadden Arps Slate Meagher & Flom LLP.

Ross Aronstam and Garrett B. Moritz are represented by David E. Ross, Bradley R. Aronstam, Eric D. Selden, S. Michael Sirkin, Adam D. Gold and Benjamin Z. Grossberg of Ross Aronstam & Moritz LLP.

The cases are TransPerfect Global Inc. et al. v. Robert Pincus, case number 132,2022, and TransPerfect Global Inc. v. Ross Aronstam & Moritz LLP et al., case number 131,2022, in the Supreme Court of the State of Delaware.

About Judson Bennett

Captain A. Judson Bennett was a life- long resident of Lewes, DE. He served the maritime industry for 33 years, primarily as a Delaware River Pilot, guiding large ships to the Port of Philadelphia. Captain Bennett has been an active and consistent entrepreneur over the years.

He was elected as a Lewes City Councilman for 6 years. Afterwards he ran for the Sussex County Council as a Republican, and with 20 thousand people voting, lost Delaware’s closest election by 3 votes to an 8 year incumbent. Abandoning his personal political ambitions, he became the Republican District leader, advocating conservative values. Captain Bennett became a lobbyist in the state legislature advocating among many ideas, financial literacy concepts in education. He managed several political campaigns, including one for Governor of Delaware and one for the US Senate against VP Joe Biden. He is now the owner, operator, and writer for the Coastal Network which communicates regularly with over 6000 people throughout the State of Delaware.

Captain Bennett is a graduate of St. Andrew’s School in Middletown, DE (where the movie “The Dead Poet’s Society was filmed) and also graduated “Magna Cum Laude” from the University of Delaware with a BA in Criminal Justice and an MA in Liberal Studies.

He is now a Widower, living in West Palm Beach, Florida. Captain Bennett has one son, three grandchildren, and one great grand-daughter, all who live in Richmond, Virginia.