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TransPerfect Case Exposes the Risk to Delaware Economy from Bouchard's Unchecked Power
The Play's the Thing
William Shakespeare in his play Henry VI, incorporated (no pun intended) through his character “Dick the Butcher”, the famous line -- “The first thing we do, is kill all the lawyers”. Even today, lawyers themselves often smile at the inference made by Shakespeare about the perceived opinion so many citizens have about the ethics, standards, and practices of the legal profession. Unfortunately, when we need a lawyer, it is an expensive proposition. I know this to be true from personal experience as do many of my readers. The bottom line is that most attorneys will take either side in a civil matter as long as the money is there. In my mind, having to hire a lawyer to protect you is a necessary evil, because even your advocates are incentivized for a long, drawn-out, and financially draining process.
The only protection we have when we find ourselves entangled in a legal situation is the hope that the Courts will rule fairly and equitably. The lawyers are supposed to operate under strict ethical guidelines established by the Bar Association. The Judiciary is supposed to be held to an even higher standard, being impartial, unbiased, fair -- without the appearance of impropriety, much less impropriety itself. When that does not happen, then it becomes a form of corruption leading to a loss of confidence in the judiciary system. In Delaware, the TransPerfect case has many in our state questioning the ethics of Andre Bouchard, the Chief Chancellor himself. When this happens, our democratic process becomes tainted, constitutional rights to a fair trial are trampled, and the damage to a company, the litigants, and the operation can be irreparable.
All this being said, Chancellor Andre Bouchard seems to have gone beyond "abusing his discretion" in the TransPerfect case. In my opinion he has obliterated it from any objective consideration. He has set a frightening standard for all Delawareans, which is of significant concern to our state. I have been writing regularly about this case in an attempt to bring Bouchard's actions out of the shadows and into the light, as he single-handedly not only endangers TransPerfect, a private profitable Delaware enterprise -- but also endangers Delaware’s corporate bonanza, which is responsible for 25% to 33% of our entire state budget. What happens if the money goes away? Bouchard will remain perched on his arrogant mountain, after recently entering the judiciary via a political appointment vs real bench experience. Indeed, he will not suffer, while the average man, woman, and child in Delaware stands to be meaningfully impacted by the rogue nature of his decisions.
The question is: Should a rogue Judge, through his capricious, arbitrary legal decisions, be able to sell off a successful company that employs 4,000 people for no good reason? Or should Bouchard be held accountable for his complete disregard of the law and precedence, his audacious appearances of impropriety during the case, his unreasonable -- unheard of -- and wholly-unsupported sanctions, and his complete disregard and disrespect for all true evidence in the case? Should he be permitted to cherry-pick testimony out of context to "back into" his desired (and predetermined result)? Simply put, in my opinion, to not hold Bouchard accountable for his actions of possibly destroying years of the Chancery Court’s sterling reputation, and turning it into a Kangaroo Court -- as it has done during the TransPerfect case, would be an injustice. This may be my subjective opinion, but it is based on objective observations from many days of intense research which I have devoted to this case. Why? Because I believe Delaware deserves to know how Bouchard operates, and how his judicial overreach can damage our state.
Why the hell would any business owner incorporate in Delaware once they're aware of Bouchard’s rulings? Businesses want stability and predictability. In this case, one shareholder, without a controlling share, ran into Court, produced no witness, spewed self-serving nonsense -- and is now getting the company dissolved and auctioned off?! Who would take this risk by incorporating here? It is just a matter of time before Bouchard's reputation for destruction starts taking more and more food off the table of the average Delawarean.
In brief, let us look at the facts:
1) A woman gets mad (Elizabeth Elting) and sues her partner Phillip Shawe in the Delaware Chancery Court.
2) Judge orders the company to be sold which makes $500 million a year - causing 4,000 workers and their families uncertainty – and the distinct possibly of losing their jobs.
3) There is no evidence of "irreparable harm" (the false hook Bouchard used to seize the company and install his cronies), is absurd. Bouchard himself admitted that since Elting and Shawe have fought for many years, his ruling was speculative in nature! It is outrageous -- and folks -- this cannot be what the Delaware Legislature intended!! In the “Harm” Section-226 of the Delaware law, is an indication that to show harm is something Bouchard must have evidence of -- instead, he tells the world he's “guessing”.
4) The company has 3 stockholders -- ruling is undisputed, yet Kevin Shannon of Potter Anderson somehow convinced the judge that Shawe's mom was not a real person, and not entitled to her own independent vote. There's nothing in the evidence record that says Shirley Shawe will only vote with her son -- another key ruling based on “NO EVIDENCE” other than Shannon's say so (Elting’s lawyer).
5) The Plaintiff (Elting) (unlike Shawe who loves the company), stands to profit more, if the company is sold in its entirety, than she would if she just sold what she owned (her stock). So her game, for which the Court has been a willing accomplice, has been to use attorneys to create infighting and the illusion of problems at TransPerfect, and ask the court to force Mr. Shawe and his mother to exit their positions involuntarily. An un-American proposition under any circumstances.
6) Defendant, Phillip Shawe, was not allowed to present key evidence, because Bouchard intentionally suppressed it. This evidence was alleged to show Elting and her attorneys participating in Crime-Frauds, yet Bouchard would not allow the evidence to be used or even look at it in private.
7) Shawe is being sanctioned for the investigating of his own computer servers -- as the employee handbook allows him to do. He is also facing sanctions for lying when there is NO EVIDENCE whatsoever that he did so. Bouchard paid no attention to the minor and immaterial differences in Shawe’s 10 witnesses vs. Elting's 0 witnesses. Bouchard accused Shawe of destroying records, when indeed he did not. Shawe made a mirror image to preserve all computer evidence; what's the difference whether it is employee X (Elting) (out of 4,000) or employee Y -- the material point is all evidence was preserved. Bouchard seems incapable of understanding that once something is preserved, it cannot be destroyed, spoilated, or even deleted. Bouchard drones on and on (in his opinion) speaking of how Shawe "deleted" files, when in actuality, he did not. He made a mirror image and all was preserved. Three experts verified this in the hearing.
3) Plaintiff’s attorney Kevin Shannon is an old friend of Chancellor Bouchard. During the deliberation phase, while Bouchard was supposed to be weighing evidence adduced at trial, he instead went to “boondoggle” in New Orleans and co-paneled together with Shannon in a PUBLIC FORUM. If a member of a jury did this in deliberations, they'd be dismissed. An obvious appearance of an impropriety? This investigative reporter is convinced that it is more than that.
4) Sanctions imposed on Phillip Shawe in the amount of $7.1 million dollars. High? I wonder what your family gets if you get hit by a Delaware bus? ... probably a lot less. This amount is obscene and biased. Bouchard’s miscarriages of justice keep adding up. Singularly, they could possibly be justified? Together, they do not pass the laugh test.
5) The custodian, appointed to run the company is a member of Chancellor Bouchard’s former law firm and has already run up an $8 million dollar tab and is being sued in federal court along with Bouchard for violating the employees’ 1st and 4th amendment rights. And that $$ meter is still running!
6) The legal fees to date for both parties are estimated to be around $42 million dollars, plus $8 million in costs mandated by the court ordered custodian. That's $50 million the Chancery Court has forced a DE corporation to spend on cronies and cronies of cronies. This calls out for judicial reform by the legislature and must stop.
Frankly, from what I have gleaned from this case, which I have devoted countless hours to studying, the only person who should be sanctioned is Chancellor Andre Bouchard. Let's say you incorporate in Delaware, you fulfill the American dream of life, liberty, and the pursuit of happiness by creating a successful business, but then you have a judge order the company to be sold, fine one of the owners to the tune of 7.1 million dollars, fleece the company out of $ 8 million (or arguably $50 million) bucks, and ultimately risk its destruction. Wow, doesn’t make incorporating in Delaware very attractive, does it?
This is an issue that all Delawareans must be aware of, must be concerned about, and must take a stand on. I will say it again, why the hell would anybody want to incorporate in Delaware under Bouchard's unprecedented, unpredictable and "no evidence" rulings? Make no mistake: Nevada and Rhode Island are salivating at the possibility of usurping Delaware from its main economic driver of corporate revenue, and Andre Bouchard is giving our competitor states all the ammo they need.
As always your comments are welcome and subject to being forwarded.
JUDSON Bennett-Coastal Network