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1
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LETTER OPINION
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EXTRACTED KEY WORDS
PRE-JUDGMENT AWARD CHANCELLOR POST-JUDGMENT LAW DETERMINATION CINERAMA MOTION LANGUAGE RESPONSE VALUATION ARGUES TECHNICOLOR STOCK SUPREME CONTENDS EVIDENCE PARTIES COURT CONNECTION COMPOUND WILMINGTON QUESTION CHANCELLOR COMPELS DISCRETIONARY NATURE CITED LANGUAGE SUPR DEL STRAIGHT ARROW PUBLISHERS GONSALVES |
LUUKI WI- LHANLtKY
OF THE
STATE OF DELAWARE
WILLIAM B. CHANDLER III
CHANCELLOR GEORGETOWN.
TELEPHONE
April 23,2002 FASCIMILE
Robert K. Payson
Potter Anderson & Corroon LLP
13 13 N. Market Street
Wilmington, DE 19899
Thomas J. Allingham II
Skadden Arps Slate Meagher & Flom
One Rodney Square
Wilmington, DE 19899
Re: Cede & Co. and Cinerama, Inc. v. Technicolor, Inc.
Civil Action No. 7129
Dear Counsel:
I have considered your respective positions regarding Cinerama's
motion to declare pre-judgment 10.32% annual compound interest as law of
the case in connection with the retrial. Cinerama requests that this Court
order that the parties and their experts "limit themselves in connection with
the retrial to offering evidence and arguments concerning only the rate and
form of post-judgment interest and the definition of the post-judgment
period (i.e. whether it is to begin August 2, 1991 or only after the judgment
entered after retrial)." It is my opinion that this motion should be granted.
Cinerama contends that the Supreme Court's remand in Technicolo?
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2
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MEMORANDUM OPINION AND ORDER REFUSING CERTIFICATION OF INTERLOCUTORY APPEAL
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EXTRACTED KEY WORDS
CINERAMA CHANCERY CERTIFICATION COUNSEL OPINION MOTION SUPREME COURT LAW TECHNICOLOR PARTIES WITNESSES DELAWARE ALLINGHAM REARGUMENT CEDE TESTIMONY EXHIBITS SUCCESSOR JUDGE WILMINGTON PETITIONERS RESPONDENT SKADDEN ARPS SLATE CHANCELLOR TRANSCRIPT DETERMINATION CHANCERY COURT REPORTERS DISCRETION CONFERENCE SCHEDULE |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
CEDE & CO. and CINERAMA, )
INC., )>
Petitioners, 11
V. 1 Civil Action No. 7129
1
TECHNICOLOR, INC., >1
Respondent. )
MEMORANDUM OPINION AND ORDER REFUSING
CERTIFICATION OF AN INTERLOCUTORY APPEAL
Date Submitted: April 26,200l
Date Decided: May 7,200l
Robert K. Payson, Arthur L. Dent, of POTTER ANDERSON & CORROON
LLP, Wilmington, Delaware: OF COUNSEL: Gary J. Greenberg, Law
Offices, New York, NY, Attorneys for Petitioners.
Thomas J. Allingham II, Leonard P. Stark, of SKADDEN ARPS SLATE
MEAGHER & FLOM LLP, Wilmington, Delaware, Attorneys for
Respondent.
Chandler, Chancellor
Petitioners, Cede & Co. and Cinerama, Inc. ("Cinerama"), have
applied for certification of an interlocutory appeal (the "Application") of this
Court's February 16, 2001, Order Governing Further Proceedings,' as well
as the Court's March 30,2001, Letter Opinion2 denying Cinerama's motion
for reargument of the Order.
Cinerama has presented four distinct grounds for an interlocutory
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3
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TECHNICOLORS MEMORANDUM IN OPPOSITION TO CINERAMAS MOTION FOR RECONSIDERATION OF ORDER
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EXTRACTED KEY WORDS
TECHNICOLOR CINERAMA SUPREME COURT MOTION PARTIES REMAND RECONSIDERATION WITNESSES CHANCERY SUCCESSOR JUDGE MOT FACTS INTERPRETATION FIRST SENTENCE DISCRETION PREJUDICE PETITIONER REARGUMENT TESTIMONY FAMILIARITY EVIDENTIATY MEMORANDUM OPPOSITION WRITTEN SUBMISSIONS VALUATION THIRD SENTENCES PRETRIAL ORDER MISINTERPRETATION DETERMINATIONS |
IN THE COURT OF CHANCERY OF THE STATE OF DELA#$$!& f p;j 6: 5 5
lN AND FOR NEW CASTLE COUNTY iiF. .I *
i~.~l,l.~. :.I.
CEDE & CO. and CINERAMA, )
INC.,
j'
Petitioners,
i
V. Civil Action No. 7129
;
TECHNICOLOR, INC.,
;
Respondent. 1
TECHNICOLOR'S MEMORANDUM IN
OPPOSITION TO CINERAMA'S MOTION FOR
RECONSIDERATION OF ORDER DATED FEBRUARY 16,200l
As the Court is well 1 aware, this appraisal case was remanded to the Court
of Chancery by the Supreme Court in July 2000. See Cede & Co. v. Technicolor. Inc.,
Del. Supr., 758 A.2d 485 (2000), re denied (July 26,200O) (order) ("Technicolor V").
Following written submissions from the parties, this Court held a hearing on November
14,200O to consider and rule on procedural issues relating to the remand proceedings
mandated by the Supreme Court in Technicolor V. After receiving further written
submissions from the parties, the r.rlings announced at the November hearing were
adopted by Order dated February 16,200l ("Order").
Petitioner, Cinerama, Inc., has moved for reconsideration of the Order.
See Corrected h4otion of Petitioner Cinerama, Inc. For Reconsideration of Order Dated
February 16, 2001 ("Motion" or ">/lot."). This is Technicolor's Memorandum in Opposi-
tion to the Motion.
The Decisions Incorporated In 7'he Order Are Reasoned Exercises Of This Court's
Discretion And Are Consistent With The Mandate Of Technicolor-J
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CORRECTED MOTION OF CINERAMA FOR RECONSIDERATION OF ORDER DATED 2/16/2001
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EXTRACTED KEY WORDS
TECHNICOLOR CINERAMA MOTION DEL EXHIBITS WITNESSES PARTIES RECONSIDER SUPR LAW SUPREME COURT REMAND MANDATE WITNESS PRIOR TESTIMONY SUCCESSOR JUDGE CHANCERY RULE VALUATION PRE-TRIAL ORDER PERELMAN PLAN DETERMINATIONS CREDIBILITY FUTURE PROSPECTS SUBMISSION CONFERENCE STIPULATIONS RELITIGATE STIPULATE |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
CEDE & CO. and CINERAMA, INC., 1
Petitioners, ;
V. i Civil Action No.:7129
TECHNICOLOR, INC., ;
Respondent. ;) p.1
-4'
CORRECTED MOTION OF PETITIONER CINERAMA, INC. FOR
RECONSIDERATION OF ORDER DATED FEBRUARY 16,200l
Petitioner Cinerama, Inc. ("Cinerama") moves pursuant to Court of Chancery
Rule 59(f) for reco.nsideration of the Court's Order dated February 16, 2001 (the "Order"). (A
copy of the Order is attached as Exhibit A.) This motion constitutes Cinerama's first opportunity
to make a record relative to the procedural issues on remand following the decision in Cede &
Co. v. Technicolor,&, Del. Supr., 758 A.2d 485 (2000) ("Technicolor V"). Also, this motion
constitutes Cinerama's first opportunity to submit legal arguments on those issues. The purpose
of this submission is to demonstrate to the Court that various of the provisions of the Order
conflict with the mandate of Technicolor V and with the requisites of Court of Chancery Rule 63.
The Court is respectfully requested to reconsider the issues addressed below in the light of the
record and the law and modify the Order as suggested hereinafter.
Cinerama demonstrates below that there is a way to efficiently and promptly retry
this appraisal case without prejudicing the rights of the parties. Such retrial can be accomplished
within a reasonable number of trial days consistent with the direction in Technicolor V that &l of
the material fact and expert witnesses be recalled. Rather than consign the parties to further
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5
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MOTION OF CINERAMA FOR RECONSIDERATION OF ORDER OF 2/16/200
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EXTRACTED KEY WORDS
TECHNICOLOR CINERAMA MOTION DEL EXHIBITS WITNESSES PARTIES RECONSIDER SUPR LAW SUPREME COURT WITNESS PRIOR MANDATE RULINGS TESTIMONY SUCCESSOR JUDGE VALUATION PRE-TRIAL ORDER PERELMAN PLAN CREDIBILITY DETERMINATIONS SUBMISSION FUTURE PROSPECTS CONFERENCE STIPULATIONS PREJUDICE RELITIGATE STIPULATE |
:, (
is`. ,,j 2 7j h.Gi
: 1:
/!A,
-1,;
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
CEDE & CO. and CINERAMA, INC.,
Petitioners, ">L
1 ar7
- Xl
V. ) Civil Action No. 7129
TECHNICOLOR, INC.,
.Respondent.
MOTION OF PETITIONER CINERAMA, INC. FOR
RFXONSIDERATION OF ORDER DATED FEBRUARY 16,ZOOl
Petitioner Cinerama, Inc. ("Cinerama") moves pursuant to Court of Chancery
Rule 59(f) for reconsideration of the Court's Order dated February 16, 2001 (the "Order"). (A
copy of the Order is attached as Exhibit A.) This motion constitutes Cinerama's first opportunity
to make a record relative to the procedural issues on remand following the decision in Cede &
Co. v. Technicolor, Inc., Del. Supr., 758 A.2d 485 (2000) ("Technicolor V"). Also, this motion
constitutes Cinerama's first opportunity to submit legal arguments on those issues. The purpose
of this submission is to demonstrate to the Court that various of the provisions of the Order
conflict with the mandate of Technicolor V and with the requisites of Court of Chancery Rule 63.
The Court is respectfLJly requested to reconsider the issues addressed below in the light of the
record and the law and modify the Order as suggested hereinafter.
Cinerama demonstrates below that there is a way to efficiently and promptly retry
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6
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LETTER
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EXTRACTED KEY WORDS
PARTIES TECHNICOLOR WITNESS SUPREME COURT EVIDENCE CHANDLER TESTIMONY HONORABLE WILLIAM CINERAMA PROCEEDING RESOLVE OPINION JUDGE PRIOR NEUTRAL EXPERT PROFESSOR KLOPFENSTEIN RULING AGREEMENT STIPULATE REGARDLESS ACCORDANCE CONTENDS MANNER HONOR CONFERENCE OUTSTANDING RECALL SUCCESSOR JUDGE TESTIFY |
S K A D D EN , A RPS , S LATE , M EAGHER & F LOM LLP
O N E R O D N E Y S Q U A R E
P . O . E3OX 6 3 6
W I L M I N G T O N , D E L A W A R E 1 9 8 9 9 - 0 6 3 6
-
T E L : ( 3 0 2 ) 6 5 1 - 3 0 0 0
FAX: (302) 651..3 0 0 I
http://www.skadden.com
November 9, :2000
B`Y FACSIMILE I
The Honorable William B, Chandler, III
Chancellor = .
C~ourt of Chancery -- ~
Sabo Bldg., 1 South Race St. r
Georgetown, Delaware 19947
Re: Cede & Co. and Cinerama, Inc. v. Technicolor, Inc.,
C.A. No. 7129
Dlear Chancellor Chandler:
As Your Honor is aware, the Court will hold an office conference next
Tuesday, November 14,2000, at 1:00 p.m., to consider various issues relating to the
retrial ordered by the Supreme Court. In response to the Court's October 13 letter to
counsel, Mr. Dent on October 20 wrote to Your Honor to describe the nature of the
outstanding issues (which had been listed in Mr. Dent's earlier letter of September
25). I am writing to provide the Court with Technicolor's response to Your Honor's
letter.
1. The nature an-e of the retrial.
This first issue is the most crucial. Indeed, in our view it is likely to
`oe dispositive of all or most of the other issues. Cinerama apparently believes that
the Supreme Court has ordered a Rule 63 "do over" of the original trial, with the
parties limited to the same witnesses, the same evidence, and the same analyses they
offered in the first trial. Technicolor believes, instead, that the "completely new
trial" ordered by the Supreme Court (Technicolor V, July 7,200O at 18 (hereinafter
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7
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LETTER
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EXTRACTED KEY WORDS
PRIOR COURT TECHNICOLOR CONTENDS TESTIMONY WITNESSES ORIGINAIL EVIDENCE PARTIES EXHIBITS FACT EXHIBITS NEUTRAL EXPERT RULINGS CONNECTION REPORTS HONORABLE WILLIAM COURT-DESIGNATED EXPERT COUNSEL CONFERENCE SUPREME COURT TESTIFY DESIGNATIONS INTENDS SCRATCH OPPOSES CHANDLER DEPOSITIONS REVIEW VALUATION |
Reference is made to Yo'ur Honor's October 13,200O letter to counsel and to the
upcoming November 14,200O conference scheduled in the referenced case. On behalf of
Cinerama, this letter responds to Your Honor's suggestion that, prior to the conference, counsel
submit letters describing briefly the nature of each of the issues identified in my September 2Sh
letter to the Court. The numbersed paragraphs that follow correspond to those in my prior letter.
1. The Nature and scalpe of the retrial.
Is the retrial ordered by the Supreme Court a Rule 63 retrial or is it a start from scratch
new triai? Cinerama is of the vi.ew that it is the former; Technicolor contends it is the latter.'
Cinerama is of the view that what the Supreme Court did was order a retrial pursuant to
Chancery Court Rule 63, but in lieu of the general discretion allowed a successor judge in
deciding which witnesses are required to be recalled, the Supreme Court held that Your Honor
must hear all of the witnesses to be relied upon by the parties (unless the parties stipulate
oth.erwise or a witness is now dead, incompetent or unable to testify due to reasons of ill
Thus, Cinerama believes the Supreme Court has mandated a "do over" of the prior trial, using the
original pretrial order, the fact exhibits admitted into evidence and the previously called
witnesses. Technicolor contendls that the retrial should be a start from scratch new trial, with the
parties free to call new witnesse:s, including new experts to proffer new valuation contentions.
In `Technicolor's view, nothing remains of the old record -- not the pretrial order, the designated
' The statements as to Technicolor's contentions are based on counsel's discussions during the
conferences leading up to my Slepternber 2Yh letter.
The Honorable William B. Clhandler, III
Oct'ober 20, 20007
Page 2
witnesses, the evidentiary rulings or the exhibits in evidence. Technicolor has indicated to us
that it intends to call new expert witnesses who will offer new evidence on valuation. Cinerama
opposes the start from scratch concept, contending that that is not what the Supreme Court
o&red, that it would lead to prejudice, delay and the imposition of significant financial burdens.
2. The status of the original pretrial order.
See 7 1 above. Cinerama contends that the original pretrial (order is still binding and
should be used in connection with the retrial. Technicolor contends that a new pretrial order
should be negotiated and that thle new order should be used in connection with the retrial.
3. The use to be made of the depositions of fact witnesses, and the best way to
get that evidence beffore the Court.
The parties agree that the depositions of fact witnesses should be part of the record on
retrial. They further agree that -the most efficient manner of presenting to the Court the material
evidence found in the depositions would be for the parties to prepare pretrial designations of
testimony to be relied upon, with counterdesignations and objections, if any, which compilation
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8
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LETTER OPINION
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EXTRACTED KEY WORDS
OPINION APPRAISE COURT CHANCERY TECHNICOLOR NEUTRAL EXPERT APPOINT SUPREME EVIDENCE PARTIES MASTER MOTION FINDINGS REMAND OPINION TRIAL JUDGE DISCOUNT RATE DEBT INDEPENDENT EXPERT PROCEEDING COST LAW BRIEFS PLAN REPORT TESTIMONY CALCULATIONS PERELMAN PLAN ASSETS LIQUIDATION |
C OURT OF C HANCERY
OF THE
STATE OF D ELAWARE
WILLIAM 8. CHANDLER tli T H E F A M I L Y C
CH*NCE`LOR PO. BOX 581
GEORGETOWN. DELAWARE
February 25,1999
Robert K. Payson
Arthur L. Dent
Potter, Anderson & Corroon, LLP
P.O. Box 95 1
Wilmington, DE 19899
Thomas J. Allingham, II
Leonard P. Stark
Skadden, Arps, Slate, Meagher & Flom
P.O. Box 636
Wilmington, DE 19899
John G. Day
Morris and Morris
P.O. Box 2166
Wilmington, DE 19899
Re: Cinerama, Inc. v. Technicolor, Inc.
C. A. No. 7129
Dear Counsel:
This is my decision on Cinerama's Motion for Reconsideration of my January
29, 1999 Memorandum Opinion appointing an appraisal expert to appraise
Technicolor's stock. The press of other matters prevents me from providing you with
a more expansiv'e response to Cinerama's motion. Accordingly, I will briefly address
Cinerama's motion point by point.
Cinerama, Inc. v. Technicolor, Inc.
C. A. No. 7129
February 25,1999
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9
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MEMORANDUM OPINION
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EXTRACTED KEY WORDS
SUPREME COURT MERGER CHANCELLOR CINERAMA SHAREHOLDERS APPRAISALS OPINION APPRAISAL REMAND CASH FLOWS CHANCERY MAP ACQUISITION PERELMAN PLAN DELAWARE STATUTORY VALUATION MANAGEMENT PETITIONER MAF METHODOLOGY REAPPRAISE TECHNICOLOR FILM PROCESSING RESPONDENT MERGER COMPLETED MAPS INTERIM MANAGEMENT APPRAISAL ACTION OHP INTERPRETATION LIQUIDATION |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
CEDE & CO. and >
CINERAMA, INC., >>
Petitioners, 1> Civil Action No. 7129
V. >
1
TECHNICOL.OR, INC., >) _
Respondents. )
MEMORANDUM OPINION
Date Submitted: October 2 1, 1998
Date Decided: January 29, 1999
Robert K. Payson and Arthur L. Dent, of POTTER ANDERSON &
CORROON LLP, Wilmington, Delaware; OF COUNSEL: Gary J.
Greenberg, New York, New York, Attorneys for Petitioners.
Thomas J. Allingham II and Leonard P. Stark, of SKADDEN, ARPS,
SLATE, MEAGHER & FLOM LLP, Wilmington, Delaware; and John G.
Day, of BOUCHARD, FRIEDLANDER & MALONEYHUSS, Wilmington,
Delaware, Atto.meys for Respondent.
CHANDLER, Chancellor
This litigation arose from the merger of Technicolor, Inc. and Macanfor
Corp., a shell subsidiary wholly owned by MarAndrew and Forbes Group, Inc.
("l&W"). The merger completed MAPS acquisition of Technicolor and instigated
two lawsuits b:y former Technicolor shareholder, Cinerama, Inc. The lengthy
background of petitioner Cinerama's challenge to this transaction has been
exhaustively recounted in earlier opinions.' Most recently, the Supreme Court
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