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1
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PLAINTIFFS REPLY BRIEF IN SUPPORT OF MOTION FOR PARTIAL FINAL ORDER
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EXTRACTED KEY WORDS
SD1 INVOICES EXPENSES REASONABLENESS LAW FIRMS COURT FEES THOMAS CUTHBERT MOTION COUNSEL JOHN FACTS DEFENDANTS REQUIRING ORDER REQUIRING LEHMAN ACTION CONNECTION OBJECTING ATTORNEYS DAB OBJECTION LITIGATION COUNTERCLAIMS SEPARATE COUNSEL GENERIC STATEMENTS DETAILED STATEMENTS SDI EXISTENCE |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
THOMAS F. TREINEN, THOMAS J.
TREINEN, JOHN M. CUTHBERT,
and JOHN T. VINKE,
1
Plaintiffs, Civil Action No. 18265
;
V. 1
SPECIAL DEVICES INCORPORATED, i
Defendant.
PLAINTIFFS' REPLY BRIEF IN SUPPORT OF THEIR
MOTION FOR A PARTIAL FINAL ORDER REQUIRING
THE ADVANCEMENT OF CERTAIN EXPENSES
Allen M. Terrell, Jr.
Peter B. Ladig
Dominick T. Gattuso
Richards, L,ayton & Finger, P.A.
One Rodney Square
I?. 0. Box 551
Wilmington, DE 19899
(302) 658-6541
Attorneys fbr Plaintiffs
Dated: May 22,200l
I
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2
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DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR A PARTIAL FINAL ORDER
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EXTRACTED KEY WORDS
EXPENSES REASONABLENESS LAW FIRMS SD1 MOTION COUNSEL PLAINTIFF THOMAS ASSESS INDEMNIFICATION LITIGATION SEPARATE LAW FIRMS CIVIL ACTION COURT INVOICES ATTORNEYS COUNTERCLAIMS CITADEL HOLDING SHAREHOLDERS CALIFORNIA OBLIGATION DIRECTORS REASONABLENESS DETERMINATION DUPLICATION DYER ELLIS JOSEPH ALEX BLANTON WATERGATE HAMPSHIRE AVENUE WASHINGTON |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE -i
IN AND FOR NEW CASTLE COUNTY
THOMAS F. TREINEN, THOMAS J.
TREINEN, JOHN M. CUTHBERT, and ;
JOHN T. VINKE, >
Plaintiffs, 1 Civil Action No. 18265 `,
V. i
>
SPECIAL DEVICES, INC.
Defendant. 1
DEFENDANT'S OPPOSITION TO PLAINTIFFS'
MOTION FOR A PARTIAL FINAL ORDER
MORRIS, NICHOLS, ARSHT & TUNNELL
Kenneth J. Nachbar
1201 N. Market Street
P.O. Box 1347
Wilmington, DE 19899-1347
(302) 658-9200
Attorneys for Defendant
O'F COUNSEL:
DYER ELLIS & JOSEPH
Alex Blanton
Watergate, Eleventh Floor
600 New Hampshire Avenue, N.W.
Washington, DC 20037
(;!02) 944-3000
May 14,200l
i.
TABLE OF CONTENTS
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3
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OPPOSITION OF SPECIAL DEVICES TO MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
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EXTRACTED KEY WORDS
SD1 REASONABLENESS EXPENSES THOMAS PARAGRAPH COURT MOTION DEFEND PROPOSED ORDER FEES PLEADINGS CONNECTION ATTORNEYS JOHN FORMER OFFICERS/DIRECTORS LEHMAN PROSECUTING CALIFORNIA GRAND JURY SPECIAL DEVICES PARTIAL JUDGMENT PARTNERS LAW FIRMS REASONABLE LEGAL EXPENSES AMOUNTS DECLARE FAIL FACTS ENTRY |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
THOMAS F. TRElNEN, et al.,
/.
Plaintiffs, _.
: r
;
V. ) Civil Action No. 18265 ' :
SPECIAL, DEVICES, :INCORPORATED, 1
.
Defendant. 5c
OPPOlSITION OF SPECIAL DEVICES, INCORPORATED
TO MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
Defendant Special Devices, Incorporated (SDI) does not dispute that plaintiffs
have a current right to advancement of their reasonable legal expenses in connection with the
three matters identified in paragraph 2 of their motion. SD1 does, however, dispute the
reasonableness of the expenses they have incurred to date and appear likely to incur in the future.
See Delphi Easter Partners Ltd. Partnership v. Spectacular Partners. Inc., Del. Ch., C.A. No.
12409, Allen, C., slip op. at 17 (Aug. 6, 1993) (recognizing that corporation may challenge the
reasonableness of amounts sought to be advanced) (Exhibit A). While paragraph 1 of plaintiffs'
proposed order would direct SD1 to advance only plaintiffs "reasonable attorneys' fees and
expenses," paragraphs 2 and 3 would declare SD1 liable for plaintiffs' enforcement expenses
irrespective of their reasonableness.
As the rnotion makes clear, the four plaintiffs seek advancement of the fees of ten
different law firms in connection with three proceedings. What the pleadings fail to reveal is that
(1) the three proceedings all arise out of essentially the same facts, (2) the facts are peculiarly
within the knowledge of the plaintiffs themselves, (3) SD1 has already advanced approximately
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4
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MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
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EXTRACTED KEY WORDS
SD1 FEES INDEMNIFICATION MERGER ATTORNEYS MERGER AGREEMENT EXPENSES COURT CHARTER BYLAWS DEFENDANT COMPL SDI OFFICERS LANGUAGE DELAWARE MANDATORY DEL OBLIGATION THOMAS LEHMAN SURVIVING DIRECTORS CONNECTION LAW SD1 ACQUISITION ANS PERMITS SLIP |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
THOMAS F. TREINEN, THOMAS J.
TREINEN, JOHN M. CUTHBERT,
and JOHN T. VINKE, 1
Plaintiffs, 1 Civil Action No. 18265 z
ski
V. ; gE
-"-i
-..
$1,
-.,
SPECIAL DEVICES, INCORPORATED, 1 _'-.<... Lisi
Defendant. 7`
1 F,-.
g t:.
.`.
NOTICE OF MOTION 5
TO: Patrick 0. Cavanaugh, Esquire Kenneth J. Nachbar, Esquire
Dyer Ellis & .Joseph Morris Nichols Arsht & Tunnel1
Watergate - Eleventh Floor 1201 North Market Street
600 New Hampshire Avenue, N.W. P.O. Box 1347
Washington, :DC 20037 Wilmington, DE 19899-l 347
PLEASE TAKE NOTICE that the attached Motion for Partial Judgment on the
Pleadings will be presented to the Court at a time convenient to Court and counsel.
Allen .M. Terrell, Jr.
Peter B . Ladig
Dominick 7`. Gattuso
RICHARDS, LAYTON & FINGER, P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
(302)658-6541
Attorneys for Plaintiffs
Dated: January 15,200l
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5
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ANSWER
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EXTRACTED KEY WORDS
ALLEGATIONS AVERS SPEAKS LETTER SPEAKS DENIES REFERENCED LETTER SPEAKS PARAGRAPH PLAINTIFFS RESPONSE UNDERTAKING INVOICES PARAGRAPH STATES COMPLAINT DEFENDANT SD1 SUFFICIENT INFORMATION ADDRESSING REFERENCED BY-LAW DENY COMPLAINT EXHIBIT LAW THOMAS JOHN CUTHBERT VINKE INCORPORATION CERTIFICATE ADDRESSING ATTORNEYS FEES |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN .4ND FOR NEW CASTLE COUNTY
THOMAS I;. TREINEN, THOMAS J. TREINEN, )
JOHN M. CUTHBERT and JOHN T. VINKE,
1
Plaintiffs,
i
V. > C.A. No. 18265
SPECIAL DEVICES, INCORPORATED
>
Defendant.
ANSWER
With respect to .the numbered paragraphs of the complaint, defendant responds as
foll'ows:
1. Admits the allegations.
2. Admits the allegations.
3. Admits the allegations.
4. Admits the allegations.
5. Admits the allegations.
6. Admits the allegations. :~
7. Admits the allegations.
8. Admits the allegations
9. Admits that plaintiffs have incurred and continue to incur legal expenses
as a result `of the Present Proceedings (as defined in the complaint)1 and avers that the remainder
of this para.graph states a legal conclusion to which no response is -required. To the extent that a
response may be required, the remainder of the paragraph is denied.
10. Avers that the corporate documents cited by plaintiffs speak for
themselves.
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6
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COMPLAINT
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EXTRACTED KEY WORDS
FEES THOMAS ATTORNEYS VINKE PLAINTIFFS SDI CUTHBERT OFFICER INVOICE LAW COUNSEL OFTHE PURSUANT PAYMENT GRAND JURY INVESTIGATION INCORPORATION LEHMAN ACTION REIMBURSEMENT INDEMNIFICATION UNDERTAKING MCDERMOTT DEFENDANT VICE PRESIDENT CONNECTION PROSECUTING AGREEMENT CALIFORNIA DTSC INVESTIGATION SD1 BY-LAWS REPRESENTATION |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
n IN AND FOR NEW CASTLE COUNTY
.f
THOMAS F. TREINEN, THOMAS J.
TREINEN, JOHN M. CUTHBERT,
and JOHN T. VINKE, >
Plaintiffs, ; Civil Action No. /gJ cc@Mc
V. i
SPECIAL DEVICES, INCORPORATED ,'>
Defendant. )
COMPLAINT
Plaintiffs Thomas F. Treinen, Thomas J. Treinen, John M. Cuthbert and John
Vinke, by and through their undersigned attorneys, bring this Complaint against defendant
Devices, Incorporated ("SDI") seeking summary adjudication pursuant to Section 145(k) of the
General Corporation Law of the State of Delaware ("DGCL") of their right to (i) advancement of
certain. fees and expenses, and (ii) reimbursement ofthe fees and expenses incurred in
action for enforcement. In support of their claims, plaintiffs allege as follows:
PARTIES
1. Plaintiff Thomas F. Treinen was Co-President and Co-ChiefExecutive
of SDI from March 1976 until April 1981. He was the sole President and Chief Executive Officer
from 1981 until December 1998. Thomas F. Treinen was Chairman ofthe Board ofDirectors of SD1
from 1991 until December 1998.
2. Plaintiff Thomas J. Treinen was Vice President of SD1 from in or
to in or about 1998.
RLFl-2189842-1
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