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A travesty of Justice in Delaware's Courts

Updated on March 1, 2017

Injustice is evident to the viewer

There has been a travesty of justice in the Delaware Court of Chancery and the Delaware Supreme Court in regard to the TransPerfect Global case with the absurd ruling in the Chancery Court by Chancellor Andre Bouchard which was upheld by the Delaware Supreme Court by Chief Justice Leo Strine and 3 others with a brilliant and courageous dissent by Justice Karen Valihura. In my opinion this was an obvious taking of private property by the court in the wake of apparent cronyism and improprieties. Interestingly one Supreme Court Justice agreed with me.

That said, corruption is defined as “the abuse of power by a public official including the judiciary for private gain or any organized, interdependent system in which part of the system is either not performing duties it was originally intended to, or performing them in an improper way, to the detriment of the system's original purpose. The abuse of public offices for private gain or personal political philosophies is consistent with corruption.” Indeed It is hard to prove.

“A common belief is that corruption is a judge taking bribes. The definition of corruption exceeds this theory. Corruption describes any organized, interdependent system in which part of the system is either not performing duties, it was originally intended to do, or performing them in an improper way, to the detriment of the system's original purpose. Corrupt judicial systems not only violate the basic right to equality before the law, but deny procedural rights guaranteed by the United States Constitution.”

Frankly, I believe that when a judge fails to disclose that he was friends and a former business associate with the plaintiff’s attorney and served on an educational panel together with that same attorney in New Orleans during the decision making phase of a trial, without disclosing that to the court, there is a significant appearance of an impropriety. According to Delaware law, “the appearance of an impropriety is as bad as the impropriety itself”. Indeed this was the apparent situation in the TransPerfect case with Elting’s lawyer, Kevin Shannon, because Chancellor Bouchard never disclosed the relationship and then continued to rule in favor of the Plaintiff throughout the trial. Corruption? $7.1 million dollars was levied against Philip Shaw in unprecedented sanctions without evidence, including the suppression of evidence on Shawe’s behalf. $1.5 million dollars was awarded without an itemized bill to be paid by Shawe to Elting’s attorney -- more corruption??

An appointed custodian by Bouchard for TransPerfect named Bob Pincus, who was Chancellor Bouchard’s former business partner was able to receive $15 million dollars, approved by Bouchard, from TransPerfect’s coffers. Unbelievable, the appearance of an impropriety -- corruption??? Sure makes you wonder.

Which version by Phil Kaufman is the truth?

Below are significant videos of the Supreme Court Appeal, and a video of a major contradiction by Philip Kaufman, of Kramer Levin Naftalis & Frankel LLP, another one of Elting’s attorneys who says one thing to the Court and another to the media.

  1. Appeal Video - Watch and listen to the words of Philip Kaufman about the employees, the harm caused, Elting as a buyer, and more.

Among the issues that Shawe’s team is looking at is this piece. Phil Kaufman seems to have told the courts one thing and a journalist something else.

  1. Philip Kaufman talks to a reporter here:

What the record shows is that Ms. Elting’s counsel stated one thing outside the courtroom and then told the Supreme Court justices the exact opposite. Ms. Shawe’s attorney Alan Dershowitz, said, “I was not impressed by the actions of the Delaware court system when it came to resolving this issue" and issues like these opposing comments reinforce that view.

The video focuses on three instances in which Kaufman’s statements outside the courtroom directly conflict with what he said during oral arguments of the appeal of the unprecedented decision of the Chancery Court last month, leading to the first ever Delaware Court-ordered sale of a successful company.

There is no case in United States history in which a stockholder’s founder shares, absent any notice, has been forcibly taken by the government to create an exit strategy for another private citizen. Chancellor Bouchard suggested as much when he stated, "Ms. Elting, you'd be naive to think that the maximization of your 50 percent interest is this Court's driving concern. It is not. This is a court of equity, but you should not expect to get a windfall from this Court that you failed to obtain for yourself when you structured your ownership in this enterprise." Yet, rendered a decision forcing the sale.

The Delaware Supreme Court affirmed Bouchard’s decision, and in her dissent, Justice Karen L. Valihura said that absent stockholder consent, this is too drastic a measure, and that the court should consider implementation of remedies on an incremental basis. Justice Valihura writes, “In my view, the Court of Chancery failed to narrowly tailor the scope of the custodian’s authority, which contemplates the possibility that each stockholder be a seller.”

Striking similar tones, a 2015 report produced by the Center for Public Integrity gave Delaware a ‘F’ for the state’s “anemic ethics regime.” According to the report, “judges are allowed to set their own open records rules, and dole out punishment among judicial ranks in a system that operates almost completely behind closed doors.”

I urge the legislature to act. I ask House Speaker Pete Schwartzkopf (D) and Senate President Pro Tempt, Dave McBride (D), along with Senator Colin Bonini and Representative Dan Short -- all gentlemen I know and respect, to act accordingly and somehow right this wrong by passing legislation that limits the selling of a company without clearly defined just cause. Also, in my strong opinion, Chancellor Andre Bouchard should be investigated.

Did Phil Kaufman tell the truth to the courts?

Attorney Phil Kaufman tells two tales, one to a court and one to the media.  Which version is true?
Attorney Phil Kaufman tells two tales, one to a court and one to the media. Which version is true? | Source

Comments welcome

Your comments are welcome,
Respectfully Submitted,
JUDSON Bennett-Coastal Network

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