I am constantly monitoring the decisions of Delaware’s Chancellor Bouchard and frankly, in my view, after his grotesque and extremely biased handling of the infamous TransPerfect case, and the well-known fiasco involving the corrupt appointment of one of his cronies as Clerk of the Sussex County Register of Wills office prior to the TransPerfect debacle, I believe he no longer passes the ethical standards of legality. These incidents have given this investigative reporter many reasons to bird-dog this political, poorly-vetted, and as I see it, predisposed, and subjective Chancellor of Delaware’s nationally acclaimed equity court.
Check out the recent decision in the Meso vs. Roche case covered in Law360’s story below. Here we go again with Andre Bouchard and, in my opinion, his court full of never-ending conflicts of interest. In this case, Chancellor Andre Bouchard apparently cost a legitimate company big time.
Bouchard, as a private lawyer, was hired by the Chancery Court in 2011 — which was run by his former intern at Skadden Arps, Leo Strine, then Chancery Court Chancellor — to defend the Chancery Court from a lawsuit filed by the Delaware Coalition for Open Government seeking to prevent the Chancery Court from holding their proceedings secretly. At the time of that lawsuit, Vice Chancellor Donald Parsons was sitting on the bench and obviously got to know his lawyer Andre Bouchard very well, as most clients do. Fast forward to June 2014 and Bouchard is now representing Roche Diagnostics GmbH in an intellectual property dispute with the Plaintiff Meso Diagnostics while he was still a private lawyer.
Prior to starting the case, it is required by all attorneys to inform their adversaries of any special relationships they might have had with the judge prior to the case starting. Of course, Bouchard made no mention of the glaring conflict of interest that he had defended Vice Chancellor Parsons just a few years before, which would have surely prompted the opposition to file a motion to have Chancellor Parsons recuse himself from the case. Seems to be a habitual problem with this Chancellor?
Sure enough, two months before Chancellor Parsons filed a decision dismissing the case against Bouchard’s client Roche Diagnostics and thereby costing the plaintiff, Meso Scale Diagnostics, millions of dollars, Bouchard withdraws from the case to become — that’s right you guessed it, folks — the new Chief Chancellor of the Chancery Court, effectively becoming Parson’s boss. It wasn’t until a few years later in 2018 that Meso discovered Bouchard’s huge conflict of interest with Chancellor Parsons.
This discovery prompted Meso to make a motion to vacate the judgment. The motion was heard by Chancellor Slights in the Chancery Court, whose office is a few doors down the hall from Bouchard. Of course, to no one’s surprise, Chancellor Slights ruled that it was ridiculous to think that this relationship between Bouchard and Parsons would have any effect on the case. While most people would recognize this as outrageous, in Delaware, it’s just another day. My friends, this kind of underhanded trickery, from my perspective, is exactly what’s wrong with Delaware these days, under Andre Bouchard. He’s apparently made a mockery of the Chancery Court while making millions representing them.
These vice-chancellors, under “Boss” Bouchard, in my opinion, stick together, collude and regulate accordingly! Folks– IT STINKS! It’s bad news for all concerned. It has become apparent to this lifetime Delawarean that making up laws to suit profitable friendships is a uniquely Delaware trait.
As far as I’m concerned, Bouchard never should have been given the job in the first place. Perhaps the Delaware Senate should spend some more time researching prospective candidates for judgeships. When he was confirmed, his friends on the judiciary committee led by now “thrown out” Greg LaVelle, didn’t ask one question! After years of observation, research, and poring over court documents, I truly believe Andre Bouchard is protected by a very friendly Bar Association, which provides cover for his arrogant incompetence! Delaware has evolved into an incestuous legal community with poorly-planned and ill-conceived appointments that betray the businesses incorporated there.
Folks, please read the Law360 news story below, written by Jeff Montgomery, who captures the difficulties that are created in a Chancery Court, where controversial rulings are constantly happening, caused indirectly or directly by Andre Bouchard. In my view, Delaware would be better off cleaning house and removing Chancellor Bouchard from the bench.
SCROLL DOWN and read the article and let me know if you agree.
As always your comments are welcome and appreciated!
Law360 (May 18, 2020, 6:08 PM EDT) — The Delaware Chancery Court dismissed with prejudice on Monday a suit seeking to vacate a 2014 ruling allegedly tainted by Chancellor Andre G. Bouchard’s work on the case before taking the bench while also representing the court in a separate lawsuit.
In a telephone ruling, Vice Chancellor Joseph R. Slights III rejected Meso Scale Diagnostics LLC’s claim that now-retired Vice Chancellor Donald Parsons should have recused himself because of alleged conflicts created by Chancellor Bouchard’s representation of Meso adversary Roche Diagnostics GmbH in an intellectual property dispute while still at the helm of Bouchard Margules & Friedlander PA.
Then-litigator Bouchard left the Meso-Roche case a month before taking his current position, and two months before Vice Chancellor Parsons ruled against Meso on June 25, 2014, finding that Meso was not a party to a license agreement Roche acquired in a merger. Meso had claimed that Vice Chancellor Parsons had been influenced by Chancellor Bouchard’s representation of the Chancery in unrelated litigation over the closing of arbitration proceedings presided over by members of the court.
But Vice Chancellor Slights said there was no reasonable inference of harm from Vice Chancellor Parsons’ actions or the claims made by Meso in connection with the overlap of Chancellor Bouchard’s work for Roche and his work for the Chancery Court and the state in that case, which involved First Amendment issues.
“The best the complaint can muster is that Vice Chancellor Parsons may have felt a debt of gratitude to then-attorney Bouchard,” Vice Chancellor Slights said, rejecting Meso’s due process claims that “the typical judge in Vice Chancellor Parson’s position would have had an unconstitutional potential for bias while presiding over the Meso v. Roche litigation.”
Vice Chancellor Slights pointed to a string of state, federal and appellate decisions supporting a finding that Meso’s claims failed to meet court rules for relief from judgment, and failed to support claims that the decision should be automatically void because of the lack of recusal.
“Notwithstanding our judicial system’s strong interest in the finality of judgment, Meso argues, in essence, that I should completely ignore that it is seeking to vacate this court’s final judgment in Meso v Roche long after it was entered,” the vice chancellor noted.
In particular, the vice chancellor rejected arguments that a 2010 U.S. Supreme Court decision in United Student Aid Funds v. Espinosa supported the idea that “any due process violation” will trigger relief from a decision. He also said that a 2016 high court decision in Williams v. Pennsylvania , which found an impermissible risk of bias in a judge’s personal involvement with a prosecutor in a case before him, did not apply to the facts in the Delaware case.
Meso’s argument, Vice Chancellor Slights said, would mean that any decisions or judgments in a case that was before Vice Chancellor Parsons during the First Amendment case in Delaware “are now instantly void, without any assessment of materiality.” He added: “Such a holding would, to borrow from Espinosa, ‘swallow the rule.’
Also working against Meso’s position, the vice chancellor said, is that a separate part of the court’s rules require prompt action on motions to vacate a judgment.
Meso argued that it learned of Chancellor Bouchard’s involvement in the overlapping First Amendment case only during an internet search in 2018. The company said that it took another year to find Delaware counsel for the suit to void the ruling and require a new trial.
“Meso has not requested relief in a reasonable time nor has it identified the type of extraordinary circumstances that might justify relief,” the vice chancellor said. He described as “conspicuously absent” any information on whether or not any of Meso’s attorneys were aware of Chancellor Bouchard’s involvement in the First Amendment case.
“Meso maintained it had reached out to its agents, including its former counsel’s law firm, but that is not pled in the complaint,” the vice chancellor said, adding that “Meso is not entitled to reasonable inferences flowing from facts it has not pled.”
Neither Meso nor Roche immediately responded to requests for comment.
Meso is represented by David L. Finger of Finger & Slanina LLC, and William S. Consovoy and J. Michael Connolly of Consovoy McCarthy Park PLLC.
Roche is represented by Donald J. Wolfe, Matthew E. Fischer, Timothy R. Dudderar, J. Matthew Belger and Andrew H. Sauder of Potter Anderson & Corroon LLP, and Thomas L. Shriner Jr. and James T. McKeown of Foley & Lardner LLP.
The case is Meso Scale Diagnostics LLC et al., v. Roche Diagnostic GmbH et al., case number 2019-0167, in the Court of Chancery of the State of Delaware.
–Additional reporting by Vince Sullivan, Caroline Simson and Vin Gurrieri. Editing by Adam LoBelia.
Read more at: https://www.law360.com/articles/1274491?utm_source=ios-shared&utm_medium=ios&utm_campaign=ios-shared?copied=1
One might believe the legislature needn’t pass SB 53, because it already did such incredible vetting of Andre Bouchard before placing an attorney from private practice, with zero bench experience, into one of the most powerful jobs in the world; way too powerful in my opinion. Except, they’d be wrong. After watching Senator Elizabeth Warren’s endless ripping up of Supreme Court Justice Gorsuch before his confirmation, I thought it would be interesting to see what diligence the Delaware legislature did in confirming Bouchard as Delaware’s Chancellor?? Why should TransPefect Global owners and employees have been worried about how Bouchard would legislate this case? They assumed this judge would rule fairly because he was supposed to be well-versed in the law, judicial ethics, the Constitution, and his Chancery Court powers?? Ahead of his approval to the bench, was Bouchard asked the following questions?: Would you apply the law fair and impartially? No he was not asked! Will you govern your decision by U.S. Constitution? No he was not asked! Was he asked whether he was familiar with the Constitution? No, he was not! Did anyone even ask him if he read the Constitution?! No! Was he asked how he would apply what he knew about the Constitution? No! Was he asked about his politics and if he would remain impartial? No! Was he asked about how he saw his role as head of Delaware’s Court of Equity? No! Did anyone ask him ANY tough questions at all? Not a single question! Was he asked what he knew about being a judge? No. How do I know the answer is no to all these questions? Folks, there were Zero questions in his 13 minute hearing — I can prove it. Now is the chance to make this right, by contacting your Delaware State Senators! Please get involved and help pass SB 53! Mistakes and mis-judgements like this only matter if we don’t take action in the present. I’m appealing to our lawmakers in Delaware… now is the time to help! There have been hundreds of articles in the U.S. and around the globe about how this case has been mishandled and may hurt jobs at TransPerfect and hurt Delaware too! Plea with your legislators to help now. Folks, now is the time where we can make this right! It took just 13 minutes for Chancellor Bouchard to get rubber-stamped by the Senate’s Executive Committee in 2014. Unanimous vote. Can you see the cronyism that exists at a high-degree in America’s First State. Buying a new pair of shoes has been known to take longer! Please look at this story below from just two years ago by Celia Cohen about our esteemed Chancellor of Delaware’s equity court, the Court of Chancery, which is famous for its fair decisions, which is one of the reasons Delaware is the nation’s incorporation leader. Read about Bouchard’s 13-mintues below, and see for yourself my friends:By Celia Cohen
Posted: April 10, 2014
Grapevine Political Writer
“Thirteen minutes were all it took for Delaware to get a new chancellor.
Seven minutes for a confirmation hearing by the Senate’s Executive Committee, another six minutes for consideration by the full Senate for a unanimous 21-0 vote on Wednesday in Legislative Hall in Dover, and that was that.
It put Andy Bouchard a swearing-in ceremony away from the most storied judgeship in the state as the chief of the Court of Chancery, the famed forum for corporate law.
Buying a new pair of shoes has been known to take longer. A lot longer.
It went so fast that Greg Lavelle, the Republican minority whip, felt compelled to explain the rapid roll call, almost sheepishly, to a visiting delegation of lawmakers from Kenya.
“For our guests, sometimes this is worth repeating, there’s a nominating process for all these positions, a lot of vetting, a lot of interviews and discussions. While there are not any questions here today, the questions have been asked on the front side of these proceedings,” Lavelle said.
Without the words to the Kenyans, Bouchard could have been out of there in twelve minutes.
Still, Lavelle had something there. This is the way it goes in a small state, where everybody knows everybody else or at least they like to think they do. Even the official nominating channels — with candidates passing from the Judicial Nominating Commission to the governor to the Senate — seem to hold less sway than the informal evaluation that goes on.
Bouchard, who will be leaving behind a corporate practice at Bouchard Margules & Friedlander, is a well-regarded presence in legal circles. If he was not a unanimous choice for chancellor among the bench and bar — and who would be? — there was certainly a consensus he was up to it.
The downside to the small-state familiarity that makes a known quantity out of its judicial candidates is the coziness that goes with it.
Ever since Myron Steele announced shortly after Labor Day he would be stepping down as chief justice, it was regarded as a foregone conclusion that Leo Strine Jr. would be elevated from chancellor to chief justice with Bouchard in line to take over in Chancery.
While there was nevertheless a robust pool of applicants for chief justice, the sense of inevitability prevailed by the time it came to choose a chancellor, and the Judicial Nominating Commission was left to beg for candidates not named Bouchard.
Bouchard has 30 days from his confirmation to take his judicial oath for a 12-year term.
He is a graduate of Salesianum, Boston College and Harvard Law, and he chaired the Judicial Nominating Commission until he left it to apply himself. He was a regular contributor to Democratic campaigns, although those contributions have to stop now, with checks going to Jack Markell, the governor who appointed him, as well as the vice president and the congressional delegation.
Another reason for the speed-voting on Bouchard may well be judgeship fatigue.
The Senate had to plow through nine confirmations for judges last year, and it has handled the nominations for chief justice and chancellor, the state’s premier judicial assignments, this year.
Nor is it done yet. Not only is there a Superior Court opening, but Jack Jacobs, a Supreme Court justice, unexpectedly announced his retirement as of July 4.
Since Jacobs is departing four days after the legislature’s regular session ends on June 30, the Senate will have to return for a special session, probably in August or September, just as the campaign season is coming on.
If Jacobs’ replacement is drawn from a lower court, it would mean yet another special session.
At least Bouchard comes from private practice, so nobody has to be nominated to replace him.”