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