in the united states court of appeals for the third...

No. 15-2831

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________________________

ELI MOR,

derivatively on behalf of AMERISOURCEBERGEN CORPORATION and

individually on behalf of himself and all other similarly situated shareholders of

AMERISOURCEBERGEN CORPORATION,

Plaintiff-Appellant

vs.

STEVEN COLLIS, RICHARD GOCHNAUER, RICHARD GOZON,

EDWARD HAGENLOCKER, KATHLEEN HYLE, MICHAEL

LONG, HENRY MCGEE, CHARLES COTROS, JANE HENNEY,

and AMERISOURCEBERGEN CORPORATION,

Defendants Below

_______________________________

Appeal of Order Dated June 30, 2015 by the

United States District Court for the District of Delaware

Civil Action No. 1:13-cv-00242-RGA

_______________________________

APPELLANT’S BRIEF AND APPENDIX VOLUME I, PP. 1-23

_______________________________

Of Counsel:

LEVI & KORSINSKY LLP

Eduard Korsinsky

30 Broad Street, 24th Floor

New York, New York 10004

Telephone: (212) 363-7500

Facsimile: (212) 363-7171

FARNAN LLP

Rosemary J. Piergiovanni

919 N. Market Street, 12th Floor

Wilmington, Delaware 19801

Telephone: (302) 777-0300

Facsimile: (302) 777-0301

Attorneys for Plaintiff-Appellant Eli Mor

Case: 15-2831 Document: 003112118882 Page: 1 Date Filed: 11/02/2015

i

CORPORATE DISCLOSURE STATEMENT

Pursuant to FED. R. APP. P. 26.1, Plaintiff-Appellant Eli Mor, makes the

following disclosure:

1. Is said party a subsidiary or affiliate of a publicly owned corporation?

NO

2. Is there a publicly owned corporation, not a party to the appeal, that has a

financial interest in the outcome? NO


ii

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT ......................................................... i

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES ................................................................................... iv

JURISDICTIONAL STATEMENT .......................................................................... 1

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................. 1

STATEMENT OF THE CASE .................................................................................. 2

A. Facts Relevant to the Appeal ...................................................................... 2

B. Procedural History ...................................................................................... 5

C. The Ruling Presented for Review .............................................................. 8

RELATED CASES AND PROCEEDINGS.............................................................. 8

STANDARD OF REVIEW ....................................................................................... 9

SUMMARY OF THE ARGUMENT ......................................................................10

ARGUMENT ...........................................................................................................12

I. The District Court Misapprehended the Facts Relevant to the

Application for Attorneys’ Fees ....................................................................12

The District Court relied on a clearly erroneous understanding of the A.

inception of the case .................................................................................12

1. Any demand would have been futile, and ultimately refused……….13

2. Plaintiff’s proprietary Complaint required complex investigation….15

The District Court undervalued the recovery obtained by Plaintiff .........18 B.

The District Court failed to credit the significant majority of C.

hours worked by counsel ...............................................................................20

II. The District Court Abused Its Discretion by Conducting a Deeply

Flawed And Arbitrary Percentage-of-Recovery Analysis.............................21

The common fund doctrine supports a higher fee award .........................22 A.

1. The District Court determined a figure outside the lower bound

of the applicable range(s)…..………………………………………..22

2. The litigation and efforts of Plaintiff’s counsel support a higher

percentage-of-recovery…………………………………………… ..24


iii

a. Plaintiff engaged in meaningful litigation efforts………………..25

b. The total amount recovered justifies a higher percentage……….26

3. The District Court failed to properly value the corporate

therapeutics obtained by Plaintiff……...……………………………28

A proper lodestar crosscheck supports a larger award .............................29 B.

III. The District Court’s Order Conflicts with Public Policy ..............................31

Public policy favors early resolution of litigation and the A.

monitoring of public companies on behalf of shareholders .....................31

Public policy favors negotiation of attorneys’ fees by B.

capable parties………….. ........................................................................33

CONCLUSION ........................................................................................................35


TABLE OF AUTHORITIES

Page

Cases

Ams. Mining Corp. v. Theriault,

51 A.3d 1213 (Del. 2012) ............................................................................ passim

Carsanaro v. Bloodhound Techs., Inc.,

65 A.3d 618 (Del. Ch. 2013) ................................................................................16

Dee v. Borough of Dunmore,

548 F. App’x. 58 (3d Cir. 2013) ..........................................................................28

Dewey v. Volkswagen Aktiengesellschaft,

558 F. App’x. 191 (3d Cir. 2014) ........................................................................21

Erie County Retirees Ass'n v. County of Erie,

192 F. Supp. 2d 369 (W.D. Pa. 2002) ..................................................................26

Gunter v. Ridgewood Energy Corp.,

223 F.3d 190 (3d Cir. 2000) .................................................................................23

Ieradi v. Mylan Lab., Inc.,

230 F.3d 594 (3d Cir. 2000) .................................................................................19

In re Activision Blizzard, Inc. S’holder Litig.,

2015 Del. Ch. LEXIS 140 (Del. Ch. May 20, 2015) ...........................................20

In re AremisSoft Corp. Sec. Litig.,

210 F.R.D. 109 (D.N.J. 2002) ..............................................................................26

In re Cendant Corp. PRIDES Litig.,

243 F.3d 722 (3d Cir. 2001) ................................................................ 9, 24, 26, 27

In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig.,

55 F.3d 768 (3d Cir. 1995) ............................................................................ 22, 33

In re NAHC, Inc. Sec. Litig.,

306 F.3d 1314 (3d Cir. 2002) ...............................................................................19

In re Plains Res. Inc.,

2005 Del. Ch. LEXIS 12 (Del. Ch. Feb. 4, 2005) ................................................20

In re Rite Aid Corp. Sec. Litig.,

396 F.3d 294 (3d Cir. 2005) .......................................................................... 21, 29

In re Schering-Plough Corp.,

2013 U.S. Dist. LEXIS 147981 (D.N.J. Aug. 27, 2013) .....................................29

Ingram v. Coca-Cola Co.,

200 F.R.D. 685 (N.D. Ga. 2001) ..........................................................................32


i

Johnson v. Georgia Highway Express, Inc.,

488 F.2d 714 (5th Cir. 1974)................................................................................32

Jurinko v. Medical Protective Co.,

305 F. App’x. 13 (3d Cir. 2008) ............................................................................ 9

Lachance v. Harrington,

965 F. Supp. 630 (E.D. Pa. 1997) ........................................................................30

Maher v. Zapata Corp.,

714 F.2d 436 (5th Cir. 1983)................................................................................28

Olson v. ev3, Inc.,

2011 Del. Ch. LEXIS 34 (Del. Ch. Feb. 21, 2011) ....................................... 27, 31

Oran v. Stafford,

226 F.3d 275 (3d Cir. 2000) .................................................................................17

Phila. Marine Trade Ass’n-Int’l Longshoremen’s Ass’n Pension Fund v.

Comm’r,

523 F.3d 140 (3d Cir. 2008) .................................................................................20

Pro v. Hertz Equip. Rental Corp.,

2013 U.S. Dist. LEXIS 86995 (D.N.J. June 20, 2013) ........................................33

Rode v. Dellarciprete,

892 F.2d 1177 (3d Cir. 1990) ................................................................................. 9

Scherer v. Lu, et al.,

1:13-cv-00358 (D. Del. Sep. 9, 2014) ..................................................................26

United States v. Legros,

529 F.3d 470 (2d Cir. 2008) ................................................................................... 9

United States v. Richards,

674 F.3d 215 (3d Cir. 2012) .............................................................................9, 11

United States v. Zats,

298 F.3d 182 (3d Cir. 2002) .................................................................................12

Wal-Mart Stores, Inc. v. Visa U.S.A. Inc.,

396 F.3d 96 (2d Cir. 2005) ...................................................................................31

Weiss v. Mercedes-Benz of N. Am., Inc.,

66 F.3d 314 (3d Cir. 1995) ...................................................................................30

Williams v. First Nat'l Bank of Pauls Valley,

216 U.S. 582 (1910) .............................................................................................30

Woods v. Interstate Realty Co.,

337 U.S. 535 (1949) .............................................................................................20


ii

Zucker v. Westinghouse Elec. Corp.,

265 F.3d 171 (3d Cir. 2001) .................................................................................22

Statutes

28 U.S.C. § 1291 ........................................................................................................ 1

28 U.S.C. § 1332 ........................................................................................................ 1

28 U.S.C. § 1367 ........................................................................................................ 1

Other Authorities

Manual for Complex Litigation § 14.121 (2004) ............................................. 23, 24

Richard A. Rosen, David C. McBride, & Danielle Gibbs,

Settlement Agreements in Commercial Disputes: Negotiating, Drafting

and Enforcement, § 27.10 (2010) ........................................................................23

Third Circuit Task Force on the Selection of Class Counsel, Final Report

(January 2002) ......................................................................................................25

Third Circuit Task Force, Court Awarded Atty. Fees,

108 F.R.D. 237, 1985 U.S. App. LEXIS 31653 (3d Cir. 1985) ............. 26, 31, 32

Rules

Fed. R. App. P. 4 ........................................................................................................ 1


JURISDICTIONAL STATEMENT

Plaintiff appeals from the Memorandum Opinion (Appendix (“A”) 4-17

(Memorandum Opinion)) and the corresponding Order (A3 (Order)) of the United

States District Court for the District of Delaware (the “District Court”), entered on

July 1, 2015, granting in part the request for attorneys’ fees filed by Plaintiff on

August 15, 2013 (A83-89). The District Court had jurisdiction over this matter

under 28 U.S.C. § 1332(a), as the matter in controversy exceeded the sum or value

of $75,000, exclusive of interest and costs, and was between citizens of different

States, as well as under 28 U.S.C. § 1367(a), because Plaintiff’s direct claim forms

part of the same case or controversy as his derivative claims.

After issuance of the Memorandum Opinion and Order, Plaintiff timely filed

a Notice of Appeal on July 30, 2015, within thirty days of the order as required by

FED. R. APP. P. 4(a). (A1-2 (Notice of Appeal).) This Court has appellate

jurisdiction under 28 U.S.C. § 1291 because Plaintiff appeals from the final

judgment of the District Court.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

Whether the District Court abused its discretion by reducing the legal fee

negotiated between the parties to resolve the litigation below. (A3.)

Suggested Answer: Yes.


2

STATEMENT OF THE CASE

A. Facts Relevant to the Appeal

On February 29, 2012 and November 14, 2012, the Compensation

Committee of the Board of Directors of Nominal Defendant-Below

AmerisourceBergen Corporation (“AmerisourceBergen” or the “Company”)

awarded Steven Collis (“Collis”), the Company’s President and Chief Executive

Officer, various types of equity awards covering 758,810 shares of

AmerisourceBergen common stock. (A28-29, ¶¶ 26-28 (Complaint).) Previously,

following the recommendation of the Board of Directors (“Board” or

“Defendants”), the Company’s shareholders had approved the AmerisourceBergen

Corporation Management Incentive Plan (“Plan”) on February 19, 2009. (Id. at

A27-28, ¶ 20.) The Plan had been most recently amended and restated effective as

of January 1, 2011, and this iteration of the Plan was the version relevant to

Plaintiff’s Complaint. (Id. at A28, ¶ 22.) It provided, in relevant part, that “the limit

on grants of Awards to Eligible Individuals in respect of any calendar year . . .

shall be 300,000 shares of Common Stock.” (Id. at A28, ¶ 24.)

The Board’s Compensation Committee (“Compensation Committee”)

exceeded the authority granted to it under the shareholder-approved Plan when it

approved awards to Collis in 2012, and the stock awards given to Collis in excess

of the 300,000 share per-year limit were ultra vires. (Id. at A29, ¶¶ 29-30.)


3

Moreover, on January 18, 2013, the Board filed with the U.S. Securities and

Exchange Commission (“SEC”) a schedule 14A proxy statement (“2013 Proxy”)

in which the Board solicited shareholder approval for the re-election of certain

directors, including defendants Collis, Richard Gochnauer, Richard Gozon,

Edward Hagenlocker, Kathleen Hyle, Michael Long, and Henry McGee. (Id. at

A29, ¶ 31.) The 2013 Proxy failed to disclose that in 2012 Collis had been granted

awards in excess of the 300,000 share limit set forth in the Plan, and suggested that

the Board and its Compensation Committee had, in fact, acted in compliance with

the Plan. (Id. at A29-30, ¶ 33.)

Plaintiff did not make a demand upon the Board relating to the excess stock

awards because a majority of the Board members were incapable of objectively

considering any such demand, rendering any such demand futile. (Id. at A31, ¶ 42.)

At the time Plaintiff filed his Complaint, a majority of the Board either participated

in the grants or, in Collis’ case, received the grants. (Id. at A31, ¶ 41; A32, ¶¶44-

45.) Moreover, the entire Board had failed to disclose the Plan violation in the

2013 Proxy (Id. at A32-33, ¶ 43.) Because the Board was not competent to

consider a demand and the underlying decision to grant the excess awards was not

a valid exercise of business judgment, Plaintiff filed his Complaint on February 15,


4

2013, naming AmerisourceBergen and nine of ten Board members1 as Defendants.

(Id.)

As a direct result of Plaintiff’s prosecution of the action, AmerisourceBergen

cancelled 100% of the stock options, related to 272,423 shares, that were

challenged in the Complaint as being granted in excess of the limitation set forth in

the Plan. (A55.) Plaintiff’s expert, Brian T. Foley, opined that the options had a

spread value of $5.047 million on August 7, 2013, the date they were cancelled by

the Company, and that using the Black-Scholes option valuation method “would

have been even higher[.]” (A104, ¶ 9(c)-(d).)

This action was litigated before the District Court for over two years, during

which time (as detailed further below) the parties briefed a motion to dismiss, and

addressed a proposed intervenor and meritless objections from parties who filed

cases in other jurisdictions. Plaintiff’s counsel negotiated, briefed, and secured

approval of the settlement, which provided for 100% redress and prophylactic

corporate governance reforms. In so doing, Plaintiff’s counsel expended

approximately 775 hours, for a total lodestar value of approximately $437,000.

(A138, ¶ 5; A218.) In recompense for the benefits conferred and considering the

time, effort, as well as the contingency risk assumed, Plaintiff’s counsel sought,

1 Director Douglas Conant was not named as a Defendant because he joined the

Board subsequent to the wrongdoing challenged in the Complaint.


5

and Defendants agreed to pay, and in fact did pay, a fee of $1 million dollars.

(A57.) The District Court approved a total of only $550,000.00 in fees and

expenses, which is the basis for this appeal.

B. Procedural History

Defendants moved to dismiss Plaintiff’s Complaint on April 12, 2013. (A20-

21, Dkt. No. 11, 12.) This motion was fully briefed by the parties. (See A39-42;

A45-46; A21, Dkt. No. 17.) On April 26, 2013, non-party ICLUB Investment

Partnership (“ICLUB”) wrote the Court advising of a related action it had filed.

(A43-44.) On July 11, 2013, KBC Asset Management N.V. (“KBC”) moved to

intervene. (A47-49.) On August 15, 2013, Plaintiff filed and Defendants entered

into a Stipulation of Settlement and terms. That day Plaintiff filed the Stipulation

and advised the Court that the Defendants had agreed to cancel 272,423 stock

options, representing the overage from FY 2012 (79,800 shares granted on

February 29, 2012) and FY 2013 (192,623 shares granted on November 14, 2012)

at the November 14, 2012 strike price. (A55.)

The Stipulation of Settlement further provided that Defendants had agreed to

implement certain corporate governance reforms for a period of five years, viz: (i)

the General Counsel of the Company must verify that all awards made under the

Plan are compliant; and (ii) the General Counsel of the Company must certify that


6

all amendments to the Plan have been disclosed in the Company’s SEC filings.2

(Id. at A54-55.) The stipulation further provided that Plaintiff would file an

application for an award of attorneys’ fees and reimbursement of costs and

expenses in an amount not to exceed $1,000,000, a figure which “[t]he Parties

mutually agree[d] [was] fair and reasonable.” (Id. at A57.) Defendants agreed not

to oppose Plaintiff’s fee application so long as it did not seek an amount in excess

of the agreed upon fee. (Id.). Upon execution of the stipulation, Defendants paid

the agreed-upon fee to Plaintiff’s counsel.

In an order dated August 16, 2013, the Court dismissed the Motion to

Dismiss and Motion to Intervene and stayed the Stipulation of Settlement until

such time as KBC had finished its books and records request. (A91-92.) On

September 10, 2013, Plaintiff moved to lift the stay. (A93-94.) In support of his

motion, Plaintiff argued that, because the proposed settlement achieved a complete

recovery in the form of both cancellation of the excess stock options and corporate

governance reforms, there was no reason to stay its approval pending KBC’s

prosecution of its books and records request. (A96-100.) Following briefing, on

October 21, 2013 the Court declined to lift the stay and ordered that a status

2 In their motion to dismiss, Defendants had argued that a 2-for-1 stock split in

May 2009 had effectively doubled the 300,000 share limitation in the Plan. (RE 12

at 7.)


7

conference be held on December 20, 2013. On February 4, 2014, the Court of

Chancery of the State of Delaware granted the Company’s motion for judgment on

the pleadings as to the aspect of KBC’s books and records demand pertaining to

AmerisourceBergen’s excessive grants of stock options in 2012 on the basis that,

because AmerisourceBergen had cancelled the excess options, any shareholder

derivative claims based upon the 2012 equity awards would be moot. (See A110-

11.)

After being advised of the Court of Chancery’s ruling, the Court ordered

another in-person status conference to be held on May 5, 2014. The stay remained

in place, however, until counsel for KBC wrote the Court on July 23, 2014 to

advise that the books and records demand had been resolved with respect to the

excessive awards, and that KBC would not seek to intervene and did not object to

the Court’s consideration of the proposed settlement. (See A115.) On August 6,

2014, the Court entered an order preliminarily approving the settlement, and

Plaintiff timely moved for final approval of the settlement and an award of

attorneys’ fees. (A116-34.)

Thereafter, ICLUB objected to the settlement and moved for its own

attorneys’ fees, which Plaintiff opposed. (A251-314, A315-316.) On October 17,

2014, the Court ordered Plaintiff and ICLUB “to submit, under oath, detailed time


8

records related to this case for each of its attorneys, with their usual hourly billing

rates.” (A23 (Docket Sheet).)

Plaintiff agreed to tweak the language of the release in the Proposed Final

Judgment in exchange for ICLUB withdrawing its objection, which the District

Court ordered on October 28, 2014. (A319-321.) That same day, the District Court

held a hearing on the settlement and entered its Final Order and Judgment,

reserving judgment on the amount of attorneys’ fees to award. (A353.) On July 1,

2015, the Court issued its Memorandum Opinion (“Opinion”) and an order

(“Order”), from which Plaintiff appeals herein. (A4-17; A3.)

C. The Ruling Presented for Review

In its Opinion, the Court deviated from the uncontested fee negotiated

between the parties, instead awarding only $500,000 in connection with the

canceled stock options and $50,000 for the corporate governance reforms. If this

appeal is unsuccessful, Plaintiff’s counsel will be forced to reimburse Defendants

$450,000 they agreed to pay even though counsel achieved a recovery of the entire

$5.047 million spread value of the options for shareholders and the Company.

Plaintiff submits that, in reducing the award, the District Court abused its

discretion, and that no payment to Defendants should follow.

RELATED CASES AND PROCEEDINGS


9

This case is related to ICLUB Investment Partnership v. Collis, et al., Case

No. 2:13-cv-00688-PBT (E.D. Pa.), which was voluntarily dismissed on December

15, 2014, and KBC Asset Management NV v. AmerisourceBergen Corp., C.A. No.

8907-ML (Del. Ch.), the aforementioned books and records request which is still

ongoing with respect to matters other than those relevant to the case at bar.

Counsel for KBC wrote the District Court on July 23, 2014 to advise it would “not

be renewing its Motion to Intervene” and had “no objection to the court’s

consideration of the proposed settlement[.]” (A115.)

STANDARD OF REVIEW

The Third Circuit reviews the reasonableness of a district court’s award of

attorneys’ fees for abuse of discretion. Jurinko v. Medical Protective Co., 305 F.

App’x. 13, 19 (3d Cir. 2008) (citing Rode v. Dellarciprete, 892 F.2d 1177, 1182

(3d Cir. 1990)). It is an abuse of discretion if the District Court “fails to apply the

proper legal standard or to follow proper procedures in making the determination,

or bases an award upon findings of fact that are clearly erroneous.” In re Cendant

Corp. PRIDES Litig., 243 F.3d 722, 727 (3d Cir. 2001) (internal quotation marks

omitted). In other words, “[t]he abuse-of-discretion standard incorporates de novo

review of questions of law . . . and clear-error review of questions of fact.” United

States v. Richards, 674 F.3d 215, 223 (3d Cir. 2012) (quoting United States v.

Legros, 529 F.3d 470, 474 (2d Cir. 2008)).


10

SUMMARY OF THE ARGUMENT

In awarding fees in an amount less than that which was freely negotiated by

the parties and supported by the efforts and achievement of Plaintiff’s counsel, the

District Court abused its discretion. Plaintiff’s successful prosecution and

settlement of his derivative action directly and indisputably resulted in the

Company canceling stock options covered by 272,423 shares of stock worth at

least $5,047,000 at the time of cancellation. The value of the options constituted a

substantial benefit running to the shareholders of AmerisourceBergen, justifying a

fee award commensurate with the figure negotiated by the parties. The District

Court’s decision to reduce this award was (i) based on a misapprehension of

relevant facts, (ii) the result of legal error, and (iii) contrary to public policy.

First, the District Court based its decision on a clearly erroneous

understanding of the applicable facts. Although Plaintiff alleged facts sufficient to

demonstrate that any demand he might have made upon the Board would have

been futile, the District Court nevertheless believed that the wrongdoing which was

the subject of Plaintiff’s action should have been addressed in a letter making

demand on AmerisourceBergen’s Board of Directors. The District Court also

undervalued the recovery achieved by Plaintiff, as well as the time expended by

Plaintiff’s counsel during the course of litigation.


11

Second, the District Court wrongly applied the law governing awards of

attorneys’ fees under the common fund doctrine. The fee award falls outside the

ranges set forth in controlling precedent, particularly in light of the meaningful

litigation efforts and result obtained, justifying a higher figure. With specific

regard to the corporate governance controls implemented at the Company as a

result of the settlement, the District Court significantly undervalued the reforms

relative to comparable determinations reached by other courts. The District Court

also conducted a flawed lodestar crosscheck by disregarding the significant

majority of hours worked by Plaintiff’s counsel and declining to apply a multiplier

in consideration of the contingent nature of Plaintiff’s representation.

Third, the District Court’s decision to award substantially less than the

requested agreed-upon fee is contrary to public policy. It is well settled that courts

favor the early settling of litigation, particularly where complete recovery can be

achieved, and the District Court’s determination to penalize Plaintiff’s counsel for

achieving resolution of the wrongdoing swiftly runs counter to this goal. Moreover,

the reduction of the requested fee award is contrary to numerous cases recognizing

the valuable public service provided by firms who monitor the activities of public

companies. Finally, the District Court’s refusal to honor the fee negotiated by

adverse parties operating at arms’-length conflicts with firmly established


12

precedent. Accordingly, the District Court abused its discretion in setting the fee

award.

ARGUMENT

I. THE DISTRICT COURT MISAPPREHENDED THE FACTS RELEVANT TO THE

APPLICATION FOR ATTORNEYS’ FEES

A district court abuses its discretion when it bases a decision on clearly

erroneous facts. Richards, 674 F.3d at 223; United States v. Zats, 298 F.3d 182,

185 (3d Cir. 2002) (“The question is not whether the District Court abused its

discretion in choosing among different courses of action. Instead, it is whether the

Court perceived the facts correctly.”). Here, there are multiple examples of clear

error in the District Court’s apprehension of facts underlying the reasoning in its

Opinion and associated Order.

The District Court relied on a clearly erroneous understanding of the A.

inception of the case

The District Court stated that, “[i]n [its] opinion, this matter would have

been an appropriate matter for a demand on the board.” (A12.) The District Court

also failed to recognize the degree of sophistication of this litigation, twice

downplaying the fact that the wrongdoing was ascertained by an analysis of

publicly available documents, and going so far as to opine that “the only

complexity was the jockeying among the shareholders’ attorneys for their pieces of

the pie.” (A5, A12.) Based on this understanding, the District Court concluded that


13

“[t]he relative straightforwardness of this case suggests a smaller fee award.”

(A12.) These statements are unsupported, and even contradicted, by the record.

1. Any demand would have been futile, and ultimately refused

In opining that the subject matter of the Complaint was ripe for a demand,

the Court claimed that “[i]t was a ‘one-off’ mistake by ABC” that “was not

corporate malfeasance,” but “corporate carelessness.” (Id.) The record, however,

bears no indication that, absent the filing of the Complaint, reoccurrences of the

Plan violation would not have happened each year, indefinitely. The District

Court’s belief that a demand was appropriate—which motivated it to discount the

importance of the litigation—was directly contradicted by the record. Plaintiff

alleged facts sufficient to demonstrate that any demand on the Board would have

been futile. (See A31-32, ¶¶ 37-45.) In their motion to dismiss the Complaint,

Defendants in fact argued that no Plan violation had actually occurred. (See, e.g.,

A41-42 (“Taking these vesting differences into account, the Complaint does not

identify any calendar year for which Mr. Collis will receive more than the

maximum number of shares set forth in the Plan.”).) Thus, even counterfactually

assuming that the Board was competent to consider a demand, the record

demonstrates that demand certainly would have been refused.

The District Court also stated that it believed the Plan violation was not

“willful.” (A11 (“While Gifford involved willful misconduct in the form of option


14

backdating . . . .”).) Yet, nothing in the record indicates that this was a mere

mistake, and Plaintiff—who did not have the benefit of discovery at the time the

Complaint was filed—in fact pled that Defendants intentionally granted or

received the awards to Collis notwithstanding the “express, unambiguous” nature

of the limitation in the Plan. (A31-32, ¶¶ 43-45.) Indeed, the Defendants’ intent

was further manifested by their attempt to constructively modify the Plan ex post.

As detailed in briefing before the District Court, 10 days after Plaintiff filed his

Complaint, Defendants filed a Form 8-K in which they claimed that the

Compensation Committee had, on June 10, 2009, adjusted the 300,000 share limit

to account for a two-for-one stock split that month, notwithstanding that the

operative version of the Plan, which was amended and restated as of January 1,

2011—i.e., over eighteen months after the split—still limited the grants of awards

to individual participants to 300,000 shares per year. (A45-46.) Defendants’ after-

the-fact attempt to rationalize the Plan violation is evidence that they knew

precisely what they were doing.

In sum, Defendants exceeded the authority granted to them by

AmerisourceBergen’s shareholders through their vote to approve the Plan, and

subsequently fought to exculpate themselves rather than rectify the breach. The

District Court’s unsupported conclusion that the Board did not intend to violate the

Plan was clearly in error, imbuing entirely that aspect of the Opinion characterizing


15

the corporate governance reforms as “relatively modest” and leading the District

Court to opine that the “benefit is not commensurate with the agreed-upon fee

award.” (A11-12.)

2. Plaintiff’s proprietary Complaint required complex investigation

The District Court’s line of reasoning is further belied by the effort and skill

necessary to detect the Plan violation. As set forth in briefing before the District

Court:

Because Plaintiff’s counsel regularly monitors and analyzes certain

SEC filings on behalf of clients and potential clients, counsel

reviewed the 2013 Proxy the same day it was issued. After cross-

referencing the 2013 Proxy against filings made by ABC in 2011,

counsel detected that the equity awards granted to Collis, ABC’s

President, Chief Executive Officer, and a director, may have exceeded

the limit authorized by the Plan. . . . Accordingly, on January 18,

2013, Plaintiff’s counsel publicly announced that it had instituted an

investigation of ABC’s Board.

(A95.) In its Opinion, the District Court suggests that the fact that the Complaint

was based on publicly available information calls into question the complexity of

the action, as evidenced by other actions by ICLUB and KBC. (See A5, A12.) That

other firms also filed suit is less a testament to the obviousness of the Plan

violation, however, than the ability of other counsel to reverse engineer the efforts

of Plaintiff’s counsel after it had issued a press release announcing their

investigation into this issue. Other than Plaintiff’s Counsel, no one had previously

detected the violation. Indeed, as Plaintiff pointed out in briefing before the


16

District Court, “in the months leading up to the institution of this litigation,

ICLUB’s counsel essentially stalked Mor’s counsel, filing three separate follow-on

actions shortly after Mor’s counsel filed cases, parroting claims developed

exclusively by Mor’s counsel which attacked wrongful awards of executive

compensation.” (A328 (citing A331-332, ¶¶ 4-7 (describing three copy-cat

actions).) Similarly, KBC’s books and records inspection action was filed six

months after this case was a matter of public record. Compare Mor v. Collis, et al.,

1:13-cv-242 (D. Del. Feb. 15, 2013) with KBC Asset Management NV vs

AmerisourceBergen Corp, C.A. No. 8907-ML (Del. Ch. Sep. 16, 2013).

Nothing in the record suggests that the Plan violation would have been

detected but for the investigation by Plaintiff’s counsel. Stockholders are not on

inquiry notice where they would have to comb through multiple documents in

order to detect a wrongdoing. See Carsanaro v. Bloodhound Techs., Inc., 65 A.3d

618, 646 (Del. Ch. 2013) (explaining that inquiry notice required a stockholder to

be “reasonably diligent,” and holding that a stockholder was “not required to

examine every managerial act with a jaundiced eye, independently obtain and cull

through corporate filings, and figure out the implications of four numbers in 27

pages of dense, singlespaced, legal text” (emphasis omitted)). Moreover,

Defendants denied there was even any violation in the motion to dismiss papers,

and tried to explain it away in a Form 8-K publicly filed with the SEC.


17

The District Court erroneously believed that the very Board responsible for

following the Plan must also have purportedly “missed” the violation, as

Defendants would self-servingly later contend. (See Definitive 14A Proxy

Statement filed with the SEC on January 24, 2014 (“2014 Proxy”), at 38

(“However, a portion of the option granted to Mr. Collis in November 2012 was

void because the aggregate number of shares of common stock subject to equity

grants made to Mr. Collis in calendar year 2012 inadvertently exceeded the per

person limit under our Equity Incentive Plan by 272,423 shares.” (emphasis

added)).)3 As discussed above, Plaintiff pled, and there is every reason to believe,

that the Plan violation was, in fact, intentional. However, if the Defendants charged

with administering the Plan had, arguendo, “inadvertently” granted awards in

excess of the 300,000 share limitation,4 such an oversight would just be further

testament to the complexity and diligent nature of Plaintiff’s counsel’s

investigation, which the District Court downplayed in support of its decision to

reduce to reduce the agreed-upon fee award. (A12.) Regardless of whether the

excess award was inadvertent or intentional, there is no dispute that the award

3 A court may take judicial notice of documents filed with the SEC “not to prove

the truth of their contents but only to determine what the documents stated.” Oran

v. Stafford, 226 F.3d 275, 289 (3d Cir. 2000). 4 And if this had indeed been the case, then the District Court should have

instructed Plaintiff to conduct discovery concerning the intentionality of the

Compensation Committee’s actions.


18

would not have been identified and Defendants would never had agreed to cancel

the improper awards without Plaintiff’s efforts in this litigation.

The District Court undervalued the recovery obtained by Plaintiff B.

The District Court did note that two independently (in fact adversely)

retained experts to opine on the matter observed that the “spread value of the

272,423 cancelled options, as of the cancellation date, August 7, 2013, would have

been about $5.048 million.” (A10.)5 While the District Court claimed to, “for

purposes of [its] analysis . . . accept that the benefit to ABC is $5.048 million,” a

discussion in the Opinion belies that this $5.048 million figure truly factored into

its analysis:

In my opinion, however, the common fund calculated by determining

the spread value of the returned excess stock options overstates the

significance of the recovery predicated as it is by the value of a

volatile asset on the day it was returned. Once the various lawsuits

and records demands were made in February 2013, the excess stock

options were, for all practical purposes, frozen. They were going to

end up back with ABC. On February 15, 2013, the stock closing price

was $45.24 per share. The spread value was then $1,370,287.69. As of

June 29, 2015, the per share value of ABC stock was about $106,

more than double what it was on August 7, 2013. Thus, depending on

the perspective taken, the benefit to ABC caused solely by this lawsuit

is smaller than Plaintiff’s argument suggests, as most of the benefit

has arisen from the rapid appreciation of the stock.

5 It is further noteworthy that Plaintiff’s expert found that the updated Black-

Scholes valuation of the options would have been even higher than $5.047 million

because the options were not set to expire for another six years, and ABC stock

might increase during that time. (See A104, ¶ 9.)


19

(A10-11.)

This reasoning evinces a fundamental factual error in the District Court’s

reasoning, viz: that the value of the stock options returned to AmerisourceBergen

was set in stone at the inception of this action. On the contrary, the options were

returned to the Company, not the cash equivalent. Indeed, had AmerisourceBergen

offered the cancelled options for public sale on June 30, 2015, the date of the

opinion, it would have likely realized a gain of over $17.5 million6:

272,423 x $106.04 $28,887,734.92

272,423 x $40.21 $10,954,128.83

$17,933,606.09

See generally In re NAHC, Inc. Sec. Litig., 306 F.3d 1314, 1331 (3d Cir. 2002)

(“[P]rior decisions of this court sufficiently support judicial notice of . . . stock

prices[.]” (citing Ieradi v. Mylan Lab., Inc., 230 F.3d 594, 600 n.3 (3d Cir. 2000))).

6 Considering appreciation in the value of replacement options awarded to Collis

subsequent to the settlement, the cancelled options are worth significantly more

than the District Court credited. The 2014 Proxy discloses that on August 7, 2013,

Collis was awarded a “corrective equity grant” consisting of (i) 77,995 shares of

restricted stock that will vest between August 7, 2016 and November 14, 2019 and

(ii) 107,826 stock options at a strike price of $58.74. Even ignoring the restrictions,

which substantially decrease the present value of the restricted shares, these awards

would still have been worth approximately $13,370,759.60 if sold on the Opinion

date ((77,995*$106.04) + ((107,826*$106.40) - (107,826*$58.74))); i.e., millions

of dollars less than the value of the cancelled options. There is, therefore, no

factual basis for the District Court’s belittling of the recovery achieved by Plaintiff.


20

This discussion concerning the magnitude of the recovery is not a mere aside

by the District Court; other statements in the Opinion suggest that the District

Court rested its decision not on the experts’ figure, but on its own assessment of

the options’ value. (See, e.g., A14 (“[B]ut for the agreement, I would think

$250,000 was about what reasonable attorney’s fees would be.”); discussion § II,

infra; see generally Phila. Marine Trade Ass’n-Int’l Longshoremen’s Ass’n

Pension Fund v. Comm’r, 523 F.3d 140, 147 n.5 (3d Cir. 2008) (“[W]here a

decision rests on two or more grounds, none can be relegated to the category of

obiter dictum.” (quoting Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949)

(emphasis added)). Because there was no basis for conceptually freezing the value

of the options at the time of this suit’s inception, all conclusions drawn therefrom

are fatally flawed.

The District Court failed to credit the significant majority of hours C.

worked by counsel

In determining that Plaintiff’s counsel only worked “a total of 235.5 hours,

amounting to around $150,000 in attorney’s fees,” the District Court fails to

explain, nor could it, why it ignored those hours spent litigating the case

subsequent to the beginning of settlement discussions (discounting all hours

worked after counsel had “shifted their focus to settlement”). (A12.) Plaintiff’s

counsel in fact worked 741 hours litigating the action, including 475.45 hours

worked through the resolution of KBC’s proposed intervention. (A138, ¶ 5; A218,


21

¶ 4.) The Opinion is devoid of reasoning as to why these hours were discounted. “It

is the ‘public policy of Delaware to reward risk-taking in the interests of

shareholders.’” In re Activision Blizzard, Inc. S’holder Litig., 2015 Del. Ch. LEXIS

140, at *126 (Del. Ch. May 20, 2015) (quoting In re Plains Res. Inc., 2005 Del.

Ch. LEXIS 12, at *22 (Del. Ch. Feb. 4, 2005)). This policy is not served by

disregarding time that attorneys work on contingency.

Plaintiff’s counsel’s efforts—all of them—were necessary to the successful

prosecution of this litigation. This is true not only of the time spent preparing for

and conducting settlement negotiations, which resulted in 100% recovery for the

Company’s shareholders, but also the time spent responding to the intervention and

stay motions as required by the District Court. The Opinion identifies no precedent

or policy for ignoring this time (A12), and its lodestar crosscheck “suggest[ing] a

smaller fee” (id.) is fundamentally flawed as a result.

II. THE DISTRICT COURT ABUSED ITS DISCRETION BY CONDUCTING A DEEPLY

FLAWED AND ARBITRARY PERCENTAGE-OF-RECOVERY ANALYSIS

In the Third Circuit, “the percentage of common fund approach is the proper

method of awarding attorneys’ fees,” In re Rite Aid Corp. Sec. Litig., 396 F.3d 294,

306 (3d Cir. 2005). Delaware state law also calls for application of the common

fund doctrine, “a well-established basis for awarding attorneys’ fees . . . founded

on the equitable principle that those who have profited from litigation should share

its costs.” Ams. Mining Corp. v. Theriault, 51 A.3d 1213, 1253 (Del. 2012)


22

(citations omitted). This Court “need not decide what law governs an award of

attorney’s fees in a class action settlement based purely on diversity jurisdiction

because, in this case, there is no sound reason to believe the result would be

different depending on the law applied,” as the District Court abused its discretion

under either the state or federal standard. Dewey v. Volkswagen Aktiengesellschaft,

558 F. App’x. 191 (3d Cir. 2014). Specifically, the District Court (i) failed to

properly apply cases concerning the proper percent of recovery, and (ii) failed to

conduct a proper lodestar crosscheck.

The common fund doctrine supports a higher fee award A.

Because Plaintiff’s suit was meritorious when filed and resulted in the

cancellation of all the stock options at issue, an award of attorneys’ fees is

appropriate under Delaware and/or Third Circuit law. Zucker v. Westinghouse

Elec. Corp., 265 F.3d 171, 176 (3d Cir. 2001) (citing both federal and Delaware

law in performing a “substantial benefits” analysis). As detailed herein, the District

Court’s award in this action impermissibly deviates from governing law.

1. The District Court determined a figure outside the lower bound of

the applicable range(s)

The Third Circuit and the State of Delaware each have different fee ranges

they find appropriate. In the Third Circuit, “fee awards have ranged from nineteen

percent to forty-five percent of the settlement fund.” In re GMC Pick-Up Truck

Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 822 (3d Cir. 1995). In Delaware:


23

When a case settles early, the Court of Chancery tends to award 10-

15% of the monetary benefit conferred. When a case settles after the

plaintiffs have engaged in meaningful litigation efforts, typically

including multiple depositions and some level of motion practice, fee

awards in the Court of Chancery range from 15-25% of the monetary

benefits conferred. “A study of recent Delaware fee awards finds that

the average amount of fees awarded when derivative and class actions

settle for both monetary and therapeutic consideration is

approximately 23% of the monetary benefit conferred; the median is

25%.” Higher percentages are warranted when cases progress to a

post-trial adjudication.

Ams. Mining, 51 A.3d at 1259-60 (quoting Richard A. Rosen, David C. McBride,

& Danielle Gibbs, Settlement Agreements in Commercial Disputes: Negotiating,

Drafting and Enforcement, § 27.10, at 27-100 (2010)); Manual for Complex

Litigation § 14.121, at 188 (2004) (“Attorney fees awarded under the percentage

method are often between 25% and 30% of the fund.”).

The District Court ignored both ranges, stating that, “but for the agreement, I

would think $250,000 was about what reasonable attorney’s fees would be.”

(A14.) This $250,000 would have amounted to less than 5% of the common fund;

that the District Court raised this figure—purportedly “giving weight to the”

parties’ agreement—is a post hoc rationalization, and evinces that the governing

jurisprudence played no part in the District Court’s analysis. Gunter v. Ridgewood

Energy Corp., 223 F.3d 190, 196 (3d Cir. 2000) (“[I]t is incumbent upon a district

court to make its reasoning and application of the fee-awards jurisprudence clear,

so that we, as a reviewing court, have a sufficient basis to review for abuse of


24

discretion.”). The Opinion does not even discuss the comparable cases concerning

surrendered equity awards discussed in the briefing below, wherein courts awarded

fees from 20-33% of the benefit conferred. (See A136, n.3.)

The District Court’s (eventual) award of $550,000, which includes

remuneration for the corporate governance reforms, is a mere 10.90% of the

common fund, well below the Third Circuit range (≥19%), Delaware range

(“average amount of fees awarded when derivative and class actions settle for both

monetary and therapeutic consideration is approximately 23% of the monetary

benefit conferred; the median is 25%” (Ams. Mining, 51 A.3d at 1260 (citations

omitted)), or the range set forth in the Manual for Complex Litigation (25-30%)

demonstrating that the District Court abused its discretion. Id. (“[I]f a district court

does not fulfill its duty to apply the relevant legal precepts to a fee application, it

abuses its discretion by not exercising it.”).

2. The litigation and efforts of Plaintiff’s counsel support a higher

percentage-of-recovery

Assuming, arguendo, that Plaintiff had not achieved any corporate

therapeutics, the award of 9.91% of the common fund (i.e., $500,000) was below

any of the applicable ranges. This figure, which the District Court characterized as

“roughly 10% of the common fund” and was double what the District Court

believed was “reasonable,” fails to account for several factors supporting a higher

fee. The District Court’s arrival at this figure, without discussion of several


25

relevant factors identified in governing precedent, is precisely the type of rote

“analysis” proscribed by the Third Circuit. See Cendant, 243 F.3d at 736 (“These

varying ranges of attorneys’ fees confirm that a district court may not rely on a

formulaic application of the appropriate range in awarding fees but must consider

the relevant circumstances of the particular case.”). “If applied in a by-rote fashion,

the percentage of recovery method can justly be criticized as arbitrary.” See Third

Circuit Task Force on the Selection of Class Counsel, Final Report, at 21 (January

2002)7 (rote percentage analysis may result in “awarding windfall recoveries to

lawyers in some cases and denying reasonable compensation in others”).

a. Plaintiff engaged in meaningful litigation efforts

The Supreme Court of Delaware has stated that, “[w]hen a case settles after

the plaintiffs have engaged in meaningful litigation efforts, typically including

multiple depositions and some level of motion practice, fee awards in the Court of

Chancery range from 15-25% of the monetary benefits conferred.” Ams. Mining,

51 A.3d at 1259-60. Here, Plaintiff’s counsel briefed Defendants’ motion to

dismiss, briefed a motion to lift a stay imposed by the District Court, reviewed

hundreds of pages of documents produced by Defendants, appeared at multiple

hearings/conferences concerning related cases and prospective intervention, and

7 available at:

http://www.ca3.uscourts.gov/sites/ca3/files/final%20report%20of%20third%20circ

uit%20task%20force.pdf


www.ca3.uscourts.gov/sites/ca3/files/final%20report%20of%20third%20circuit%20task%20force.pdf

www.ca3.uscourts.gov/sites/ca3/files/final%20report%20of%20third%20circuit%20task%20force.pdf

26

engaged in extensive correspondence regarding the foregoing. (A18-23 (Docket

Sheet).)

The District of Delaware has recently awarded 20% in an analogous case

where counsel expended less effort than in the matter at bar, applying Delaware

state law on fee awards. (See A135-136 (discussing Scherer v. Lu, et al., 1:13-cv-

00358, Dkt. No. 33 (ORDER) (D. Del. Sep. 9, 2014)).) District courts in the Third

Circuit have granted significantly larger awards when applying federal law based

on comparable procedural postures and number of hours expended. See, e.g., In re

AremisSoft Corp. Sec. Litig., 210 F.R.D. 109, 133 (D.N.J. 2002) (awarding over

28% of $194,000,000 gross class recovery where case settled “before any formal

discovery took place” but plaintiffs had consulted with experts); Erie County

Retirees Ass’n v. County of Erie, 192 F. Supp. 2d 369, 383 (W.D. Pa. 2002)

(awarding 38% of total fund where counsel worked 737.85 hours of attorney time

and 298.25 hours of paralegal time). Plaintiff’s counsel’s litigation efforts merit a

higher fee award.

b. The total amount recovered justifies a higher percentage

The Third Circuit has observed that “district courts setting attorneys’ fees in

cases involving large settlements must avoid basing their awards on percentages

derived from cases where the settlement amounts were much smaller.” Third

Circuit Task Force, Court Awarded Atty. Fees, 108 F.R.D. 237, 256, 1985 U.S.


27

App. LEXIS 31653, *41 (3d Cir. 1985) (“a sliding scale dependent upon the

ultimate recovery, the expectation being that, absent unusual circumstances, the

percentage will decrease as the size of the fund increases”); Cendant, 243 F.3d at

736. By the same token, smaller common funds justify a higher percentage of

recovery. Erie Cnty., 192 F. Supp. 2d at 381 (“Fee awards ranging from thirty to

forty-three percent have been awarded in cases with funds ranging from $ 400,000

to $ 6.5 million, funds which are comparatively smaller than many.”).

Here, Plaintiff achieved a total recovery, insofar as all of the excessive stock

options were cancelled. Olson v. ev3, Inc., 2011 Del. Ch. LEXIS 34, at *49 (Del.

Ch. Feb. 21, 2011) (“I give no weight to the hours expended. Counsel achieved via

settlement all of the relief that they could have obtained by litigating through a

merits hearing. Counsel should not be penalized for achieving complete victory

quickly.”) Nonetheless, this recovery is comparatively small relative to the massive

amounts at issue in many actions where a common fund is created. See Cendant,

243 F.3d at 737 (collecting cases where nine figure settlements resulted in lesser

fees as a percentage of recovery). Because the recovery by Plaintiff was small in

comparison to other common fund cases, the District Court’s determination that an

award of less than 5% was “reasonable,” and eventual decision to award less than

10%, was particularly egregious.


28

3. The District Court failed to properly value the corporate

therapeutics obtained by Plaintiff

The District Court acknowledged that the governance reforms obtained by

Plaintiff “are reasonably likely to prevent the conduct that gave rise to the present

litigation.” (A11.) Nevertheless, it characterized these reforms as “fairly modest”

and awarded only $50,000, far below the amounts awarded for corporate

therapeutics in the cases cited by Plaintiff in briefing below. (Id.; see A136, n.4).

The District Court did not consider comparable cases, discuss the reforms beyond

identifying them, or give any reasoning or indication as to how it arrived at a figure

of $50,000. Dee v. Borough of Dunmore, 548 F. App’x. 58, 65 (3d Cir. 2013) (“We

have vacated and remanded fee petitions for terseness when a district court’s vague

analysis leaves us without a basis for review.”) The fact that Defendants negotiated

for a five year sunset on the therapeutics suggests that Defendants viewed them as

material consideration.

Indeed, as the Fifth Circuit has noted, non-monetary benefits are often more

important to a company’s shareholders than common-fund recoveries:

[W]here, as here, the derivative suit is largely an attack on past

corporate management practices, as well as on some present officers

and directors, the dollar amount of a possible judgment, which is

essentially the sole goal in the class action damage suit, is not the sole,

and may well not be the most important, matter to be considered, for

the effects of the suit on the functioning of the corporation may have a

substantially greater economic impact on it, both long- and short-term,

than the dollar amount of any likely judgment in its favor in the

particular action.


29

Maher v. Zapata Corp., 714 F.2d 436, 461 & n.123 (5th Cir. 1983) (noting that “by

the time of settlement the beneficial effect had been achieved, and it could

reasonably be concluded that further continuation of the suit posed the likelihood

of materially adverse effect on corporate functioning, in addition to the current out-

of-pocket expenses directly associated therewith.”). The corporate governance

reforms obtained, for at least the five years following the settlement, will provide

important checks on option grants and presumably prevent future Plan violations.

The District Court failed to identify any valid reason why so little value was

afforded to the corporate governance reforms obtained.

A proper lodestar crosscheck supports a larger award B.

“In the Third Circuit, the lodestar of plaintiffs’ counsel is used as a ‘cross-

check’ to test whether the fee that would be awarded under the POR approach is

reasonable.” In re Schering-Plough Corp., 2013 U.S. Dist. LEXIS 147981, at *95

(D.N.J. Aug. 27, 2013) (citations omitted). A multiplier may be appropriate to

account for the contingent nature or risk involved in a particular case and the

quality of the attorneys’ work. Rite Aid, 396 F.3d at 305-06. The crosscheck need

not entail “mathematical precision” or “bean-counting,” and the “multiplier need

not fall within any pre-defined range, provided that the District Court’s analysis

justifies the award.” Id. at 306-07.


30

As noted supra § I.C, the District Court, with little explanation, ignored the

significant majority of hours worked by Plaintiffs’ counsel, notwithstanding that

these hours were necessary litigation efforts. The Opinion sets forth no reason for

disregarding these hours, even though they were essential to the prosecution and

resolution of the litigation. The District Court thus credited Plaintiff’s attorneys

with “a total of 235.5 hours, amounting to around $150,000 in attorney’s fees.”

(A12.) In fact, Plaintiff’s counsel spent a total of 775.45 hours litigating this action

for a total of $437,000. (A138, ¶ 5; A330.) Counsel also incurred substantial

expenses in the course of litigation that were not addressed in the Opinion,

including $11,587 in expert fees, and totaling $14,606.

Despite these efforts, the District Court did not apply any multiplier, much

less one which would account for the risks assumed or quality and efficiency of

work by Plaintiff’s counsel. See, e.g., Weiss v. Mercedes-Benz of N. Am., Inc., 66

F.3d 314 (3d Cir. 1995), aff’g 899 F. Supp. 1297, 1304 (D.N.J.) (awarding a fee

that resulted in a multiplier of 9.3 and an average hourly rate of $ 2,779.63). While

Plaintiff’s counsel did not (nor do they now) seek a fee resulting in an outlier

multiplier, even a fairly ordinary 2.5x multiplier would have resulted in a

crosscheck figure greater than the $1,000,000 negotiated fee.


31

III. THE DISTRICT COURT’S ORDER CONFLICTS WITH PUBLIC POLICY

Public policy favors early resolution of litigation and the monitoring A.

of public companies on behalf of shareholders

In reducing the negotiated award because the parties settled at the motion to

dismiss stage, the District Court effectively penalized Plaintiff’s counsel for

following the law “supporting early resolution of litigation through settlement.”

Lachance v. Harrington, 965 F. Supp. 630, 638 (E.D. Pa. 1997) (citing Williams v.

First Nat’l Bank of Pauls Valley, 216 U.S. 582, 595 (1910) (“Compromises of

disputed claims are favored by the courts . . . .”)).

The percentage-of-recovery method is designed, in part, to eliminate the

possibility that attorneys will churn hours to drive up their fees. Court Awarded

Atty. Fees, 108 F.R.D. at 248. As the Second Circuit has observed, the percentage-

of-recovery method “directly aligns the interests of the class and its counsel and

provides a powerful incentive for the efficient prosecution and early resolution of

litigation” while the lodestar method “create[s] an unanticipated disincentive to

early settlements, tempt[s] lawyers to run up their hours” Wal-Mart Stores, Inc. v.

Visa U.S.A. Inc., 396 F.3d 96, 122 (2d Cir. 2005). Through its superficial,

purported application of Americas Mining—and concomitant failure to look to

Third Circuit precedent—the District Court effectively undercut this rationale, and

the Opinion would encourage future litigants to forego early resolution in favor of

reaching a stage justifying a higher percentage.


32

In the instant matter, for example, Plaintiff’s counsel may have elected to

conduct discovery and litigate the action into the summary judgment stage. Under

a slavish reading of Americas Mining, settlement at that juncture would justify a

25% fee, amounting to $1,262,000 plus the value of corporate governance reforms.

Because Plaintiff achieved a total recovery early in litigation, however, settlement

was appropriate, saving AmerisourceBergen and the Court the time and expense of

further litigation. Indeed, Delaware law recognizes that this is commendable and

should not be discouraged. See Olson, 2011 Del. Ch. LEXIS 34, at *49 (“Counsel

achieved via settlement all of the relief that they could have obtained by litigating

through a merits hearing. Counsel should not be penalized for achieving complete

victory quickly.”)

The $1,000,000 fee negotiated by the parties reflects that Plaintiff and his

attorneys performed a service for AmerisourceBergen’s shareholders by

monitoring the behavior of its officers and directors. In order to detect this

violation, it was necessary for Plaintiff and his counsel to closely study the

Company’s public filings filed over several years, identify the violation, and do so

entirely on a contingent basis. And as the Third Circuit’s Task Force cautioned, a

reduction in this negotiated amount would serve to deter future litigants from

reaching early resolution of litigation, even where their goals have been achieved,

in the hopes of securing a greater award at a later procedural posture, after more


33

(fruitless) hours had been worked. See Court Awarded Atty. Fees, 108 F.R.D. at

248.

Public policy favors negotiation of attorneys’ fees by capable parties B.

When considering an application for attorneys’ fees, courts should give

“substantial weight to a negotiated fee amount[.]” Ingram v. Coca-Cola Co., 200

F.R.D. 685, 695 (N.D. Ga. 2001); see also Johnson v. Georgia Highway Express,

Inc., 488 F.2d 714, 720 (5th Cir. 1974) (“In cases of this kind, we encourage

counsel on both sides to utilize their best efforts to understandingly,

sympathetically, and professionally arrive at a settlement as to attorney’s fees.

Although a settlement generally leaves every litigant partially dissatisfied, so does

a judicial award for attorney’s fees.”).

Here Defendants were in a position to adequately negotiate the settlement, as

the amount of the fee award was to be paid by them and not by the common fund

created by the cancellation of the wrongfully granted stock-options. The concern

that counsel’s interests would become adverse to that of AmerisourceBergen’s

shareholders is not applicable here, and Defendants at all times were incentivized

to negotiate the lowest possible fee. See GMC, 55 F.3d at 820 (calling for

“thorough judicial review of fee applications” in common fund cases because “the

allocation between the class payment and the attorneys’ fees is of little or no

interest to the defense”); Pro v. Hertz Equip. Rental Corp., 2013 U.S. Dist. LEXIS


34

86995, at *17 (D.N.J. June 20, 2013) (“Here, any award of attorneys’ fees and

costs is wholly separate and apart from the relief provided for the Settlement Class

and that relief will not be reduced by an award of the fees.”). The District Court

nevertheless usurped its role and substituted its own judgment for that of the

Defendants. While rigorous review may be proper where the Defendants are

indifferent to how funds are allocated between plaintiffs and their attorneys, the

substitution of a court’s opinion for that of a properly-situated defendant generally

serves to undermine confidence that settlement agreements will be honored in the

future.


35

CONCLUSION

For the foregoing reasons, the District Court’s decision to reduce the

negotiated fee was an abuse of discretion, and this matter should be remanded to

the District Court for further proceedings consistent with this Court’s decision.

Dated: November 2, 2015 Respectfully submitted,

/s/ Rosemary J. Piergiovanni


FARNAN LLP

919 N. Market Street, 12th Floor

Wilmington, Delaware 19801

Telephone: (302) 777-0300

Facsimile: (302) 777-0301

Attorneys for Plaintiff

Of Counsel:

LEVI & KORSINSKY LLP

Eduard Korsinsky

30 Broad Street, 24th

Floor

New York, New York

Tel: (212) 363-7500

Fax: (212) 363-7171


CERTIFICATE OF COMPLIANCE WITH

FED. R. APP. P. 32(a) AND 3d CIR L.A.R 31.1(c)

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 7,965 words, excluding the parts of

the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

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detected.

Date: November 2, 2015 /s/ Rosemary J. Piergiovanni

Rosemary J. Piergiovanni (Del. Bar No.

3655)

FARNAN LLP

919 North Market Street, 12th Floor

Wilmington, DE 19801

(302) 777-0300 (Telephone)

(302) 777-0301 (Facsimile)

[email protected]

Attorney for Appellant-Plaintiff Eli Mor


mailto:[email protected]

CERTIFICATE OF BAR MEMBERSHIP

I, Rosemary J. Piergiovanni, hereby certify pursuant to 3d Cir. L.A.R.

28.3(d) that Eduard Korsinsky and I are each members of the bar of this Court.

Dated: November 2, 2015 /s/ Rosemary J. Piergiovanni Attorney for Appellant-Plaintiff Eli Mor


TABLE OF CONTENTS

Page

NOTICE OF APPEAL ........................................................................................... 001

ORDER GRANTING PLAINTIFF’S REQUEST

FOR ATTORNEY’S FEES ................................................................................... 003

MEMORANDUM OPINION REGARDING MOTION FOR ATTORNEY’S

FEES AND REIMBURSEMENT OF EXPENSES .............................................. 004

U.S. DISTRICT COURT CIVIL DOCKET, District of Delaware,

Mor v. Collis et al., 1:13cv242 .............................................................................. 018

VERIFIED SHAREHOLDER DERIVATIVE

CLASS ACTION COMPLAINT ........................................................................... 024

EXCERPT FROM DEFENDANTS’ OPENING BRIEF IN SUPPORT

OF MOTION TO DISMISS .................................................................................. 039

LETTER TO JUDGE BURKE FROM ERIC L. ZAGAR,

DATED APRIL 26, 2013 ...................................................................................... 043

EXCERPT FROM PLAINTIFF’S ANSWERING BRIEF

IN OPPOSITION TO MOTION TO DISMISS .................................................... 045

KBC ASSET MANAGEMENT N.V.’S MOTION

FOR INTERVENTION ......................................................................................... 047

STIPULATION OF SETTLEMENT ..................................................................... 051

ORDER STAYING THE STIPULATION OF SETTLEMENT

AND DISMISSING WITHOUT PREJUDICE THE

MOTION TO DISMISS AND MOTION TO INTERVENE ................................ 091

PLAINTIFF’S MOTION TO LIFT STAY OF SETTLEMENT ........................... 093

EXCERPT FROM PLAINTIFF’S OPENING BRIEF IN SUPPORT

OF MOTION TO LIFT STAY OF SETTLEMENT ............................................. 095


EXCERPT FROM DECLARATION OF BRIAN T. FOLEY

REGARDING VALUE OF CANCELLED STOCK OPTION GRANT .............. 101

LETTER FROM GEOFFREY G. GRIVNER REGARDING

CASE STATUS, DATED FEBRUARY 18, 2014 ................................................ 110

LETTER TO THE HONORABLR RICHARD G. ANDREWS

FROM BRIAN LONG, DATED JULY 23, 2014 ................................................. 115

ORDER PRELIMINARILY APPROVING SETTLEMENT

AND NOTICE ....................................................................................................... 116

DECLARATION OF BRIAN E. FARNAN IN SUPPORT OF

PLAINTIFF’S MOTION FOR FINAL APPROVAL OF SETTLEMENT

AND AN AWARD OF ATTORNEY’S FEES AND EXPENSES ....................... 137

DECLARATION OF EDUARD KORSINSKY IN SUPPORT

OF PLAINTIFF’S MOTION FOR FINAL APPROVAL OF

SETTLEMENT AND AN AWARD OF ATTORNEY’S FEES AND EXPENSES216

OBJECTION OF ICLUB INVESTMENT PARTNERSHIP

TO PROPOSED DERIVATIVE SETTLEMENT AND

NOTICE OF INTENT TO APPEAR ..................................................................... 251

PETITION FOR ATTORNEY’S FEES AND REIMBURSEMENT

OF EXPENSES MADE BY AMERISOURCEBERGEN CORP.

STOCKHOLDER ICLUB INVESTMENT PARTNERSHIP .............................. 315

STIPULATION CONCERNING AMENDED FINAL ORDER AND

JUDGMENT AND WITHDRAWAL OF ICLUB INVESTMENT

PARTNERSHIP’S OBJECTION TO SETTELEMENT....................................... 319

DECLARATION OF EDUARD KORSINKSY IN FURTHER

SUPPORT OF APPROVAL SETTLEMENT AND AN AWARD OF

ATTORNEYS’ FEES AND EXPENSES .............................................................. 329

FINAL ORDER AND JUDGMENT ..................................................................... 349


IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

ELI MOR, derivatively on behalf of AMERISOURCEBERGEN CORPORATION, and individually on behalf of himself and all other similarly situated shareholders of AMERISOURCEBERGEN CORPORATION, Plaintiff,

v. STEVEN COLLIS, et al., Defendants,

and AMERISOURCEBERGEN CORPORATION, a Delaware Corporation,

Nominal Defendant.

Civil Action No. 13-242-RGA

NOTICE OF APPEAL

PLEASE TAKE NOTICE that plaintiff Eli Mor hereby appeals to the United States Court

of Appeals for the Third Circuit from the Order granting Plaintiff’s request for attorney’s fees

entered in this action on July 1, 2015 (D.I. 79) and the corresponding Memorandum Opinion

entered in this action on July 1, 2015 (D.I. 78).

Case 1:13-cv-00242-RGA Document 80 Filed 07/30/15 Page 1 of 2 PageID #: 2431

001


Dated: July 30, 2015 Of Counsel: LEVI & KORSINSKY LLP Eduard Korsinsky 30 Broad Street, 24th Floor New York, New York 10004 Tel: (212) 363-7500 Fax: (212) (363)-7171 [email protected]

Respectfully submitted, FARNAN LLP /s/ Brian E. Farnan Brian Farnan (Bar No. 4089) Rosemary J. Piergiovanni (Bar No. 3655) 919 N. Market Street, 12th Floor Wilmington, Delaware 19801 Tel: (302) 777-0300 Fax: (302) 777-0301 [email protected] Attorneys for Plaintiff


002


IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

ELI MOR, derivatively on behalf of AMERISOURCEBERGEN CORPORATION and individually on behalf of himself and all other similarly situated shareholders of AMERISOURCEBERGEN CORPORATION,

Plaintiff,

v.

STEVEN COLLIS, et al.,

Defendants,

and

AMERISOURCEBERGEN CORPORATION, a Delaware Corporation,

Nominal Defendant.


ORDER

For the reasons set forth in the Court's accompanying Memorandum Opinion, IT IS

HEREBY ORDERED that Plaintiffs request for attorney's fees (D.I. 26-5) is GRANTED, and

ICLUB's Petition for Attorney's Fees (D.I. 62) is DENIED. Plaintiff is awarded $550,000 in

attorney's fees and expenses.

Entered this 30 day of June, 2015.


003


IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELA WARE

ELI MOR, derivatively on behalf of AMERISOURCEBERGEN CORPORATION and individually on behalf of himself and all other similarly situated shareholders of AMERISOURCEBERGEN CORPORATION,

Plaintiff,

v.

STEVEN COLLIS, et al.,

Defendants,

and

AMERISOURCEBERGEN CORPORATION, a Delaware Corporation,

Nominal Defendant.


MEMORANDUM OPINION

Brian E. Farnan, Esq. (argued), Rosemary J. Piergiovanni, Esq., FARNAN LLP, Wilmington, DE; Eduard Korsinsky, Esq., Douglas Julie, Esq. (argued), LEVI & KORSINSKY LLP, New York, NY.

Attorneys for Plaintiff.

Geoffrey G. Grivner, Esq., BUCHANAN INGERSOLL & ROONEY PC, Wilmington, DE; Steven E. Bizar, Esq. (argued), Thomas P. Manning, Esq., BUCHANAN INGERSOLL & ROONEY PC, Philadelphia, PA.

Attorneys for Defendants and Nominal Defendant.

Michael Hanrahan, Esq. (argued), Paul A. Fioravanti, Esq., PRICKETT, JONES & ELLIOTT, P.A., Wilmington, DE; Eric L. Zagar, Esq., Matthew A. Goldstein, Esq., KESSLER TOPAZ MELTZER & CHECK, LLP, Radnor, PA.

Attorneys for ICLUB Investment Partnership.

June 3o , 2015


004


A~-~~~ Presently before the Court are Plaintiffs and ICLUB Investment Partnership's

("I CLUB") requests for attorney's fees. Plaintiff and Defendants agreed upon $1 million in

attorney's fees in their stipulation of settlement, which they submitted for court approval on

August 15, 2013. (D.I. 26 at 7-9). Plaintiff submitted a memorandum in support of its request

for $1 million in attorney's fees on September 30, 2014. (D.1. 57). On October 14, 2014,

ICLUB filed a petition for attorney's fees and reimbursement of expenses (D.I. 62) and a

supporting brief. (D.I. 63). Plaintiff submitted an answering brief to ICLUB's petition on

October 23, 2014. (D.I. 72). Oral argument was held on October 28, 2014. (D.I. 77). For the

reasons that follow, Plaintiff is entitled to attorney's fees, but ICLUB is not. The Court will

award Plaintiff $550,000 in attorney's fees.

I. BACKGROUND

In considering the fee request, I think it is worth considering the litigation history.

Plaintiff filed the complaint on February 15, 2013. (D.I. 1). Before the complaint was filed,

Plaintiffs lead counsel spent about 63 .5 hours of lawyer and paralegal time investigating the

matter, finding a client, and drafting the complaint. (D.I. 71-1 at 5-6). Plaintiffs complaint was

based on public record information (which perhaps explains why at more or less the same time,

I CLUB was filing suit in the Eastern District of Pennsylvania, KBC Asset Management, N.V.

("KBC")1 was making a books and records demand on Defendant AmerisourceBergen Corp.

("ABC"), and some other plaintiff was filing suit in Chester County, Pennsylvania). Defendants

1 KBC moved to intervene in this case on July 11, 2013 (D.1. 20), informing the Court of its books and records demand filed in the Delaware Court of Chancery. (D.1. 21). In light ofKBC's motion, the Court stayed the stipulation of settlement in the present case, and dismissed without prejudice Defendants' Motion to Dismiss and KBC's Motion to Intervene. (D.1. 27). On July 23, 2014, KBC informed the Court that it had reached an agreement with ABC to resolve its books and records lawsuit, and would not be renewing its Motion to Intervene. (D.I. 54).

1

I


005


responded with a motion to dismiss on April 12, 2013. (D.I. 11). Plaintiffs answering brief was

filed May 3, 2013. (D.I. 15). Plaintiffs attorneys and paralegals thus spent about another 172

hours, through May 3, 2013, mostly working on the answering brief in opposition to the motion

to dismiss. (D.I. 71-1at5-11). On May 17, 2013, Defendants filed their reply brief. (D.1. 17).

As Plaintiff states, "Shortly after the motion to dismiss was fully briefed the parties entered into

settlement discussions." (D.I. 57 at 9). Indeed, Plaintiff did not wait for the briefing to be

complete to start working on settlement. Time entries beginning May 6, 2013 reflect that the

attention of the attorneys working on the case was directed to settlement: "preparation for

settlement discussions," "communications regarding settlement," "attention to potential

settlement," and, by May 14, 2013, "drafted settlement demand." (D.I. 71-1at11-12). As a

rough approximation, lead counsel for Plaintiff had put about $150,000 worth of time into the

case when counsel turned its focus from litigation to settlement.

On February 7, 2013, prior to the filing of Plaintiffs complaint, I CLUB, another

stockholder of ABC, initiated a substantially similar action in the United States District Court for

the Eastern District of Pennsylvania. (D.1. 64-1). On April 12, 2013, Defendants filed a motion

in the Pennsylvania District Court to transfer the Pennsylvania action to the District of Delaware.

(D.1. 64-12). In response, I CLUB filed an answering brief opposing the motion to transfer and a

cross-motion to enjoin the Delaware action. (D.I. 64-13). ICLUB submitted a letter to this Court

on April 26, 2013, informing the Court of the pending motions in the Pennsylvania action and

ICLUB's opposition to Defendants' motion to transfer. (D.I. 14). Defendants submitted a letter

in response on May 20, 2013. (D.I. 19).

On July 26, 2013, Plaintiff and Defendants entered into a memorandum of understanding

to settle the present action, and filed a letter informing the Court that same day. (D.I. 23).

2 I I


006


Pursuant to the proposed settlement, ABC filed a Form 8-K with the Securities and Exchange

Commission, dated August 7, 2013. (D.I. 30-3 at 3). ABC explained that in November 2012,

the company changed its equity award policy, and began reviewing annual equity awards in

November, rather than in February and March. (Id.). As a result of this change, ABC noted that

the equity awards for the 2012 and 2013 fiscal years were made in the same calendar year. (Id.).

ABC admitted that "[a] portion of the November 2012 option was void because the aggregate

number of shares of Common Stock subject to equity grants made to Mr. Collis in calendar year

2012 inadvertently exceeded the per person limit under the Plan by 272,423 shares." (Id.). For

this reason, ABC reduced the number of stock options granted to Mr. Collis for the 2012

calendar year by 272,423. (Id.). On the same date, ABC granted Mr. Collis an equity award of

185 ,821 new stock options, intending to replace the value of the voided options. (Id.).

The parties filed a stipulation of settlement on August 15, 2013. (D.I. 26). On January 6,

2014, Defendants informed the Pennsylvania District Court that the parties in the Delaware

action had agreed to settle, which they asserted would moot the claims in all other actions. (D.I.

64-22). On January 7, 2014, the Pennsylvania District Court entered an order placing the

Pennsylvania action in civil suspense pending resolution of the Delaware action. (D.I. 64-18).

This Court issued an order preliminarily approving the proposed settlement agreement on August

6, 2014. (D.I. 55). ICLUB filed an objection to the proposed settlement agreement and an intent

to appear on October 14, 2014.2 (D.I. 61). The parties agreed to revise the final order and

judgment, and ICLUB withdrew its objection. (D.I. 70). The Court issued a final order and

judgment approving the settlement on October 28, 2014, leaving the issues about attorney's fees

to be determined. (D.I. 74).

2 Burton L. Raimi, another stockholder of ABC, filed a letter with the Court objecting to the proposed settlement as well. (D.1. 60).

3


007


II. LEGALSTANDARD

"In diversity cases, we apply state rules concerning the award of attorneys' fees." Sec.

Mut. Life Ins. Co. of New York v. Contemporary Real Estate Assocs., 979 F.2d 329, 331-32 (3d

Cir. 1992). "In the realm of corporate litigation, the Court may order the payment of counsel

fees and related expenses to a plaintiff whose efforts result in the creation of a common fund, or

the conferring of a corporate benefit." Tandycrafts, Inc. v. Initio Partners, 562 A.2d 1162, 1164

(Del. 1989) (citations omitted). "Under the common fund doctrine, a litigant or a lawyer who

recovers a common fund for the benefit of persons other than himself or his client is entitled to a

reasonable attorney's fee from the fund as a whole." Ams. Mining Corp. v. Theriault, 51 A.3d

1213, 1252-53 (Del. 2012) (internal quotation marks omitted). "[S]uccessful derivative or class

action suits which result in the recovery of money or property wrongfully diverted from the

corporation, or which result in the imposition of changes in internal operating procedures that are

designed to produce such monetary savings in the future, are viewed as fund creating actions."

Tandycrafts, 562 A.2d at 1164--65.

Under the common corporate benefit doctrine, "a litigant who confers a common

monetary benefit upon an ascertainable shareholder class is entitled to an award of counsel fees

and expenses." United Vanguard Fund, Inc. v. TakeCare, Inc., 693 A.2d 1076, 1079 (Del. 1997).

In order to be entitled to an award of attorney's fees under the common corporate benefit

doctrine, the applicant must show that: "(l) the suit was meritorious when filed; (2) the action

producing benefit to the corporation was taken by the defendants before a judicial resolution was

achieved; and (3) the resulting corporate benefit was causally related to the lawsuit." Cal-Maine

Foods, Inc. v. Pyles, 858 A.2d 927, 928-29 (Del. 2004) (quoting United Vanguard, 693 A.2d at

1079). "While the benefit achieved may have an indirect economic effect on the corporation ...

4


008


the benefit need not be measurable in economic terms. Changes in corporate policy or ... a

heightened level of corporate disclosure, if attributable to the filing of a meritorious suit, may

justify an award of counsel fees." Tandycrafts, 562 A.2d at 1165.

III. DISCUSSION

A. Plaintiff's Request for Attorney's Fees

1. Sugar/and Factors

The Delaware Supreme Court has made clear that determining an award of attorney's

fees is "within the sound judicial discretion" of the court. In re Infinity Broad Corp. S 'holders

Litig., 802 A.2d 285, 293 (Del. 2002). When evaluating the reasonableness of a fee award, the

court must consider the following factors: "(1) the results accomplished for the benefit of the

shareholders; (2) the efforts of counsel and the time spent in connection with the case; (3) the

contingent nature of the fee; (4) the difficulty of the litigation; and (5) the standing and ability of

counsel involved." Id (citing Sugar/and Indus., Inc. v. Thomas, 420 A.2d 142, 149 (Del. 1980)).

"[T]ime is also a relevant inquiry in determining fee awards." In re Abercrombie & Fitch Co.

S'holders Derivative Litig., 886 A.2d 1271, 1273 (Del. 2005). When applying the Sugar/and

factors, "Delaware courts have assigned the greatest weight to the benefit achieved in litigation."

Ams. Mining, 51 A.3d at 1254. "When the benefit is quantifiable ... by the creation of a

common fund, Sugar land calls for an award of attorneys' fees based upon a percentage of the

benefit." Id. at 1259. "Under a percentage of the fund method, courts calculate fees based on a

reasonable percentage of the common fund." Id at 1253.

a. Benefit Conferred

Plaintiff argues that "[t]he cancellation of 272,423 of the stock options forfeited by Collis

conferred a monetary benefit on ABC." (D.I. 57 at 18). ABC cancelled Mr. Collis's excess

5


009


options in accordance with the settlement agreement between Plaintiff and Defendants, which

states that "[t]he Compensation Committee and/or the Board will cancel, and Collis shall

relinquish all rights to 272,423 of the stock options awarded to Collis on November 14, 2012

pursuant to the Plan." (D.I. 26 at 5, II.A~ 1). Plaintiffs and ICLUB's experts agree that the

spread value of the 272,423 cancelled options, as of the cancellation date, August 7, 2013, would

have been about $5.048 million. (D.I. 30-12 ~ 9(c) & D.I. 66 ~ 4). Plaintiffs expert notes that

the "updated Black-Scholes value" of the cancelled stock options would have been even higher

than the spread value because the options would not have expired for another six years. (D.I. 30-

12 ~ 9(d)). Plaintiffs expert also explains that even ifthe cancelled options were offset by the

185,821 options issued to Mr. Collis in August 2013, "the 86,602 net balance of the recovered

shares ... had a face value of more than $5.087 million as of August 7, 2013." (Id.~ 9(f)).

Thus, Plaintiff argues that the cancellation of Mr. Collis's excess stock options created a

common fund in the amount of $5.048 million-the "spread value" of the 272,423 cancelled

options.

In my opinion, however, the common fund calculated by determining the spread value of

the returned excess stock options overstates the significance of the recovery predicated as it is by

the value of a volatile asset on the day it was returned. Once the various lawsuits and records

demands were made in February 2013, the excess stock options were, for all practical purposes,

frozen. They were going to end up back with ABC. On February 15, 2013, the stock closing

price was $45.24 per share. The spread value then was $1,370,287.69. As of June 29, 2015, the

per share value of ABC stock was about $106, more than double what it was on August 7, 2013.

Thus, depending on the perspective taken, the benefit to ABC caused solely by this lawsuit is

smaller than Plaintiffs argument suggests, as most of the benefit has arisen from the rapid

6


010


appreciation of the stock. Nonetheless, for purpose of this analysis, I accept that the benefit to

ABC is $5.048 million.

Plaintiff also argues that ABC received an additional benefit in the form of corporate

governance reforms that are intended to prevent future violations of the compensation limits

provided by ABC's equity incentive plan. (DJ. 57 at 19). These types of corporate governance

reforms constitute the "changes in internal operating procedures" that the Delaware Supreme

Court referred to in its Tandycrafts decision. The Delaware Court of Chancery has also held that

corporate governance reforms can provide a substantial corporate benefit, even if they are non

pecuniary in nature. See Ryan v. Gifford, 2009 WL 18143, at* 10 (Del. Ch. Jan. 2, 2009). The

court in Gifford made clear that non-monetary recovery, such as cancellation and surrender of

stock options and "significant corporate governance reforms designed to prevent future wrongful

option grants" were "properly considered by the Court in determining a fee award and in the past

[have] served as the sole basis for a fee award." Id. at * 13. While Gifford involved willful

misconduct in the form of option backdating, and required more significant corporate

governance reforms, the reforms here are reasonably likely to prevent the conduct that gave rise

to the present litigation. The added procedures require ABC's board of directors to obtain

written certification from ABC's general counsel, verifying that all awards made under the

management incentive plan conform to the terms of the plan. (D.I. 26 at 6, II.A~ 2(a)). The

corporate governance reforms also require written certification that all amendments to the

management incentive plan have been disclosed in ABC's SEC filings. (Id. ~ 2(b)). These

"changes in internal operating procedures" were "designed to prevent future wrongful option

grants," and thus are properly considered in the attorney's fees analysis. That being said, the

corporate governance reforms are fairly modest. Therefore, Plaintiff conferred a benefit to ABC

7


011


in the form of a common fund and corporate governance reforms, but, in my opinion, that benefit

is not commensurate with the agreed-upon fee award.

b. Time and Effort Expended

The parties were in the very early stages of litigation when settlement discussions began,

and settled the case before any discovery had commenced. Nevertheless, Plaintiffs counsel

spent 63.5 hours on the case prior to filing the complaint, and another 172 hours through the

motion to dismiss. Thus, Plaintiffs attorneys spent a total of 235.5 hours, amounting to around

$150,000 in attorney's fees, prior to shifting their focus to settlement. The early stage at which

the case settled, and the low number of hours spent prior to settlement, suggest a smaller fee

award.

c. Complexity of Litigation

The present case was less complicated than most shareholder derivative actions. The

case was developed from public disclosures, and the only complexity was the jockeying among

the shareholders' attorneys for their pieces of the pie. In my opinion, this matter would have

been an appropriate matter for a demand on the board. It was a "one-off' mistake by ABC.

ABC should, of course, have been more careful, but what happened here was not corporate

malfeasance, it was corporate carelessness. The relative straightforwardness of this case

suggests a smaller fee award.

d. Contingent Nature of Representation

Plaintiffs counsel initiated the current litigation on a contingency fee basis, which

supports an award of attorney's fees. (D.I. 59 ~ 3).

8


012


e. Standing and Ability of Counsel

I have no reason to question the standing and ability of Plaintiffs counsel. The firm of

Levi & Korsinsky LLP has extensive experience litigating shareholder derivative actions, and

Farnan LLP has extensive experience litigating before this Court. (D.I. 57 at 24-25).

2. Amount of Fee Award

Plaintiff and Defendants agreed to an award of $1 million in attorney's fees in the

stipulation of settlement, and agreed that this amount is fair and reasonable. (D.I. 26 at 7, II.D ~~

1-2). "In reviewing the settlement of a derivative suit, the Court must determine, using its

business judgment, whether the settlement terms are fair, reasonable, and adequate." Gifford,

2009 WL 18143, at *5. I recognize that "a court should give weight to an agreement regarding

attorneys' fees," but Delaware courts have made clear that such a rule "does not require blind

acceptance." In re Abercrombie, 886 A.2d at 1275. Rather, the court "must make an

independent determination of reasonableness on behalf of the common fund's beneficiaries,

before making or approving an attorney's fee award." Goodrich v. E.F. Hutton Grp., Inc., 681

A.2d 1039, 1046 (Del. 1996). "[T]he weight given derives from and depends on the court's

sense of confidence that the negotiations over the fee agreement were conducted in good faith

and had no effect on the other terms of the settlement. In re Prodigy Commc 'ns Corp. S'holders

Litig., 2002 WL 1767543, at *6 (Del. Ch. July 26, 2002). The Delaware Supreme Court has

recognized that "[w]hen a case settles early, the Court of Chancery tends to award 10-15% of the

monetary benefit conferred," and "[w]hen a case settles after the plaintiffs have engaged in

meaningful litigation efforts, typically including multiple depositions and some level of motion

practice, fee awards in the Court of Chancery range from 15-25% of the monetary benefits

conferred." Ams. Mining, 51 A.3d at 1259-60.

9


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The present litigation resulted in the creation of a common fund, and thus, I will apply the

percentage of the common fund method to determine a reasonable fee award. The common fund

equals $5.048 million, and the agreed-upon $1 million fee award amounts to 19.8% of the

common fund. While I have no doubt that the parties negotiated the settlement in good faith, I

believe that the amount of attorney's fees agreed upon far exceeds what is appropriate in this

case. I am giving weight to the agreement, because, but for the agreement, I would think

$250,000 was about what reasonable attorney's fees would be. In light of the Delaware Supreme

Court's statements in Americas Mining regarding settlements that occur in the early stages of

litigation, and according to my own business judgment, see Gifford, 2009 WL 18143, at *5, I

think a reasonable fee award is $550,000, which is roughly 10% of the common fund plus

$50,000 for the corporate governance reforms.

B. ICLUB's Petition for Attorney's Fees

I CLUB argues that it is entitled to an award of attorney's fees under the corporate benefit

doctrine. (D.I. 63 at 16-17). Plaintiff does not dispute that ICLUB's action was meritorious

when filed, or that the action producing benefit was taken before judicial resolution. Thus, the

only point of dispute is whether the corporate benefit received by ABC is causally related to

ICLUB's efforts in the Pennsylvania litigation.

ICLUB argues that it is entitled to a rebuttable presumption that its action brought in the

Eastern District of Pennsylvania was among the causes of the benefit received by ABC. (Id. at

21). The Delaware Supreme Court has made clear that "[w]hen a case is litigated in Delaware,

our courts recognize a presumption that there is a causal relationship between the benefit and a

timely filed suit," and "[t]o overcome this presumption, defendants have the burden of

demonstrating that the lawsuit did not in any way cause their action." Alaska Elec. Pension

10


014


Fund v. Brown, 941 A.2d 1011, 1015 (Del. 2007) (internal quotation marks omitted). "Where ...

similar lawsuits are litigated in multiple jurisdictions," however, "the presumption of a causal

relationship generally applies only to the Delaware litigation." Id "[A]ttorneys who litigate in

other jurisdictions are entitled to share in a Delaware fee award, if their efforts elsewhere

conferred a benefit realized as part of the Delaware settlement. But, they must substantiate their

contribution to the result achieved."3 Id (internal quotation marks omitted). "When determining

the amount and distribution of an award, the mere pendency of litigation alone does not establish

the causal connection between counsel's efforts and changes in the merger terms that benefit the

shareholder class." In re Infinity, 802 A.2d at 293.

Here, I CLUB was not a plaintiff in the Delaware action, and thus is not entitled to the

presumption of causation. Therefore, I CLUB has the burden of substantiating its contribution to

the benefit received by ABC. The only argument I CLUB presents in its briefing is that ABC

cancelled the excess stock options after ICLUB filed its complaint in the Eastern District of

Pennsylvania. (D.I. 63 at 22). Plaintiff, on the other hand, argues that the benefit to ABC was

created by the settlement between Plaintiff and Defendants, which I CLUB played no part in

negotiating. (D.I. 77 at 23:13-24). ICLUB maintains that the benefit to ABC was not the

settlement itself, but rather the cancellation of the excess options. (Id at 3 7 :4-9). While I agree

that cancellation of Mr. Collis's wrongfully issued stock options was the benefit to ABC, ICLUB

has not presented any evidence showing that its litigation in Pennsylvania had an impact on

ABC's decision to cancel those options. ICLUB contends that the actual settlement agreement

3 The Delaware Supreme Court explains that "it is reasonable to presume that, if the Delaware plaintiffs are able to negotiate a settlement, they, rather than out-of-state plaintiffs, are the ones who contributed to the benefit." Alaska Elec., 941 A.2d at 1015. Further, "the trial court is able to determine an appropriate fee award based on its knowledge of the Delaware plaintiffs' activities in court." Id. Finally, "if the presumption were extended to all plaintiffs litigating similar claims in other jurisdictions, such a rule would encourage the filing of multiple 'mere pendency' lawsuits, wasting judicial resources and making it more difficult to reach settlements." Id.

11


015


was not important because the options could have been canceled without an agreement. (Id. at

37:23-24). This, however, did not occur. ABC canceled the excess stock options only after

Plaintiff and Defendants entered into a memorandum of understanding with regard to settlement.

One of the terms of the settlement agreement was canceling the excess options. ICLUB does not

claim to have played any part in negotiating the settlement agreement between Plaintiff and

Defendants, and opposed transferring its case to the District of Delaware. Thus, the cancellation

of Mr. Collis's options was a direct result of the settlement agreement between Plaintiff and

Defendants, and did not result from the mere pendency ofICLUB's litigation in the Eastern

District of Pennsylvania. I conclude that ICLUB's action in Pennsylvania was not causally

related to the cancellation of the excess stock options.

I CLUB also argues that it caused further benefit to ABC by negotiating amendments to

the final order and judgment prior to the Court's approval of the settlement. (Id. at 46: 17-49: 17).

In its objection to the proposed settlement agreement, ICLUB argued that the proposed release

was overly broad and exceeded the release described in the notice sent to stockholders. (D.I. 61

at 19). ICLUB also argued that the original release was not limited to the claims arising out of

the circumstances alleged in the Delaware complaint. (Id. at 20). Finally, ICLUB argued that

the original release applied to claims arising not only out of past conduct by Defendants, but also

out of future conduct. (Id. at 22). Prior to oral argument, the parties submitted an amended final

order and judgment that incorporated ICLUB's changes, and ICLUB withdrew its objection.

While ICLUB's amendments were incorporated into the final order and judgment, they did not

contribute to the cancellation of the excess options or seek to prevent wrongful issuances of

stock options in the future. The amendments merely protected the prospect of future litigation,

the likelihood of which I have no way of determining. Thus, I CLUB 's amendments did not

12


016


confer a cognizable corporate benefit to ABC. It follows that ICLUB is not entitled to an award

of attorney's fees.

IV. CONCLUSION

For the reasons stated above, Plaintiffs request for attorney's fees is granted, and

ICLUB's petition for attorney's fees is denied. Plaintiff is awarded $550,000 in attorney's fees

and expenses. A separate order consistent with this memorandum opinion will be issued.

13


017


US District Court Civil Docket

U.S. District Delaware(Wilmington)

1:13cv242

Mor v. Collis et al

This case was retrieved from the court on Thursday, October 29, 2015

Update Now

Date Filed: 02/15/2013Assigned To: Judge Richard G. AndrewsReferred To:

Nature of suit: Stockholders' Suits (160)Cause: DiversityBreach of Fiduciary Duty

Lead Docket: NoneOther Docket: Third Circuit, 1503831Jurisdiction: Diversity

Class Code: CLOSEDClosed: 10/28/2014Statute: 28:1332

Jury Demand: PlaintiffDemand Amount: $0NOS Description: Stockholders' Suits

Litigants Attorneys

Eli Morderivatively on behalf of AmerisourceBergen Corporation and individuallyon behalf of himself and all other similarly situated shareholders ofAmerisourceBergen CorporationPlaintiff

Brian E. FarnanLEAD ATTORNEY;ATTORNEY TO BE NOTICEDFarnan LLP919 North Market Street 12th FloorWilmington , DE 19801USA(302) 7770300Fax: (302) 7770301Email:[email protected]

Douglas E. JuliePRO HAC VICE;ATTORNEY TO BE NOTICED

Email:[email protected]

Rosemary Jean PiergiovanniATTORNEY TO BE NOTICEDFarnan LLP919 North Market Street 12th FloorWilmington , DE 19801USA(302) 7770300Fax: (302) 7770301Email:[email protected]

Steven CollisDefendant

Geoffrey Graham GrivnerLEAD ATTORNEY;ATTORNEY TO BE NOTICEDBuchanan Ingersoll & Rooney P.C.919 North Market Street, Suite 1500Wilmington , DE 19801USA302 5524207Fax: 3025524295Email:[email protected]

Richard GochnauerDefendant

Geoffrey Graham GrivnerLEAD ATTORNEY;ATTORNEY TO BE NOTICEDBuchanan Ingersoll & Rooney P.C.919 North Market Street, Suite 1500Wilmington , DE 19801

018


USA302 5524207Fax: 3025524295Email:[email protected]

Richard GozonDefendant


Edward HagenlockerDefendant


Kathleen HyleDefendant


Michael LongDefendant


Henry McgeeDefendant


Charles CotrosDefendant


Jane HenneyDefendant


Amerisourcebergen CorporationDefendant


Steven E. BizarPRO HAC VICE;ATTORNEY TO BE NOTICED


Thomas P. ManningPRO HAC VICE;ATTORNEY TO BE NOTICED


019


Documents

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Items 1 to 108 of 108

Availability No. Date Proceeding Text

FilterSource

Free 1 02/15/2013

VERIFIED SHAREHOLDER DERIVATIVE AND CLASS ACTION COMPLAINT filed with Jury Demand againstAmerisourceBergen Corporation, Steven Collis, Charles Cotros, Richard Gochnauer, Richard Gozon, EdwardHagenlocker, Jane Henney, Kathleen Hyle, Michael Long, Henry McGee Magistrate Consent Notice to Pltf. ( Filingfee $ 350, receipt number 3111230503.) filed by Eli Mor. (Attachments: # 1 Verification, # 2 Civil Cover Sheet)(dmp, ) (Entered: 02/19/2013)

Online 2 02/15/2013 Notice, Consent and Referral forms re: U.S. Magistrate Judge jurisdiction (dmp, ) (Entered: 02/19/2013)

Runner 02/19/2013Summons Issued with Magistrate Consent Notice attached as to AmerisourceBergen Corporation on 2/19/2013.Requesting party or attorney should pick up issued summons at the Help Desk, Room 4209, or call 3025736170and ask the Clerk to mail the summons to them. (dmp, ) (Entered: 02/19/2013)

Runner 02/20/2013

Summons Issued with Magistrate Consent Notice attached as to Steven Collis on 2/20/2013; Charles Cotros on2/20/2013; Richard Gochnauer on 2/20/2013; Richard Gozon on 2/20/2013; Edward Hagenlocker on 2/20/2013;Jane Henney on 2/20/2013; Kathleen Hyle on 2/20/2013; Michael Long on 2/20/2013; Henry McGee on2/20/2013. (cla) (Entered: 02/20/2013)

Online 3 02/22/2013NOTICE of Appearance by Geoffrey Graham Grivner on behalf of Steven Collis, Charles Cotros, Richard Gochnauer,Richard Gozon, Edward Hagenlocker, Jane Henney, Kathleen Hyle, Michael Long, Henry McGee (Grivner, Geoffrey)(Entered: 02/22/2013)

Online 4 02/26/2013

SUMMONS Returned Executed by Eli Mor. AmerisourceBergen Corporation served on 2/19/2013, answer due3/13/2013; Steven Collis served on 2/20/2013, answer due 3/13/2013; Charles Cotros served on 2/20/2013,answer due 3/13/2013; Richard Gochnauer served on 2/20/2013, answer due 3/13/2013; Richard Gozon servedon 2/20/2013, answer due 3/13/2013; Edward Hagenlocker served on 2/20/2013, answer due 3/13/2013; JaneHenney served on 2/20/2012, answer due 3/12/2012; Kathleen Hyle served on 2/20/2013, answer due3/13/2013; Michael Long served on 2/20/2013, answer due 3/13/2013; Henry McGee served on 2/20/2013,answer due 3/13/2013. (Farnan, Brian) (Entered: 02/26/2013)

Runner 02/27/2013

Case Assigned to Judge Christopher J. Burke. Please include the initials of the Judge (CJB) after the case numberon all documents filed. This case has been randomly selected for direct assignment to a Magistrate Judge. If allparties consent to the case proceeding before a Magistrate Judge, they should submit Form AO 85 (Notice,Consent, and Reference of a Civil Action to a Magistrate Judge), signed by all parties or their attorneys, within sixty(60) days; that is, on or before 4/29/2013. All parties have a right to proceed before a District Judge. Accordingly,this case will be randomly reassigned to a District Judge upon the earlier of: (a) the filing of a casedispositivemotion (e.g., motion to dismiss, motion for judgment on the pleadings, or motion for summary judgment) or (b)the expiration of sixty (60) days without the filing of a signed copy of Form AO 85. No request to extend the sixtyday period shall be filed. More information on the Court`s Pilot Program on direct assignment of cases to MagistrateJudges is available in the Court`s Standing Order, dated November 3, 2011, available on the Court`s website. (rjb)(Entered: 02/27/2013)

Online 5 02/27/2013

MOTION for Pro Hac Vice Appearance of Attorney Steven Bizar filed by Steven Collis, Charles Cotros, RichardGochnauer, Richard Gozon, Edward Hagenlocker, Jane Henney, Kathleen Hyle, Michael Long, Henry McGee.(Attachments: # 1 Text of Proposed Order, # 2 Certificate of Compliance)(Grivner, Geoffrey) (Entered:02/27/2013)

Online 6 02/28/2013 NOTICE of Appearance by Geoffrey Graham Grivner on behalf of All Defendants (Grivner, Geoffrey) (Entered:02/28/2013)

Online 7 02/28/2013

MOTION for Pro Hac Vice Appearance of Attorney Thomas P. Manning filed by AmerisourceBergen Corporation,Steven Collis, Charles Cotros, Richard Gochnauer, Richard Gozon, Edward Hagenlocker, Jane Henney, KathleenHyle, Michael Long, Henry McGee. (Attachments: # 1 Certificate of Compliance, # 2 Text of Proposed Order)(Grivner, Geoffrey) (Entered: 02/28/2013)

Free 8 03/01/2013MOTION for Extension of Time to File Response/Reply as to 1 Complaint, filed by AmerisourceBergen Corporation,Steven Collis, Charles Cotros, Richard Gochnauer, Richard Gozon, Edward Hagenlocker, Jane Henney, KathleenHyle, Michael Long, Henry McGee. (Grivner, Geoffrey) (Entered: 03/01/2013)

Online 9 03/04/2013

MOTION for Pro Hac Vice Appearance of Attorney Steven Bizar filed by AmerisourceBergen Corporation, StevenCollis, Charles Cotros, Richard Gochnauer, Richard Gozon, Edward Hagenlocker, Jane Henney, Kathleen Hyle,Michael Long, Henry McGee. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Compliance)(Grivner,Geoffrey) (Entered: 03/04/2013)

Runner 03/06/2013

SO ORDERED D.I. 9 MOTION for Pro Hac Vice Appearance of Attorney Steven Bizar filed by Edward Hagenlocker,Michael Long, Kathleen Hyle, Jane Henney, Charles Cotros, AmerisourceBergen Corporation, Steven Collis, RichardGochnauer, Richard Gozon, Henry McGee, and D.I. 7 MOTION for Pro Hac Vice Appearance of Attorney Thomas P.Manning filed by Edward Hagenlocker, Michael Long, Kathleen Hyle, Jane Henney, Charles Cotros,AmerisourceBergen Corporation, Richard Gochnauer, Steven Collis, Richard Gozon, Henry McGee. Ordered by JudgeChristopher J. Burke on 3/6/2013. (dlk) (Entered: 03/06/2013)

Runner 03/13/2013

SO ORDERED D.I. 8 MOTION for Extension of Time to File Response/Reply as to 1 Complaint, filed by EdwardHagenlocker, Michael Long, Kathleen Hyle, Jane Henney, Charles Cotros, AmerisourceBergen Corporation, StevenCollis, Richard Gochnauer, Richard Gozon, Henry McGee, Set/Reset Answer Deadlines: AmerisourceBergenCorporation answer due 4/12/2013; Steven Collis answer due 4/12/2013; Charles Cotros answer due 4/12/2013;Richard Gochnauer answer due 4/12/2013; Richard Gozon answer due 4/12/2013; Edward Hagenlocker answerdue 4/12/2013; Jane Henney answer due 4/12/2013; Kathleen Hyle answer due 4/12/2013; Michael Longanswer due 4/12/2013; Henry McGee answer due 4/12/2013. Ordered by Judge Christopher J. Burke on3/13/2013. (dlk) (Entered: 03/13/2013)

Runner 03/15/2013 Pro Hac Vice Attorney Steven E. Bizar for AmerisourceBergen Corporation added for electronic noticing. (dmp, )(Entered: 03/15/2013)

Runner 03/19/2013 Pro Hac Vice Attorney Thomas P. Manning for AmerisourceBergen Corporation added for electronic noticing. (dmp, )(Entered: 03/19/2013)

Free 10 04/10/2013STIPULATION Enlarging Motion to Dismiss Brief Length re 1 Complaint, by AmerisourceBergen Corporation, StevenCollis, Charles Cotros, Richard Gochnauer, Richard Gozon, Edward Hagenlocker, Jane Henney, Kathleen Hyle,Michael Long, Henry McGee. (Grivner, Geoffrey) (Entered: 04/10/2013)

Runner 04/11/2013

SO ORDERED D.I. 10 Stipulation to enlarge page limitations for the anticipated filing of a Motion to Dismiss, filed byEdward Hagenlocker, Michael Long, Kathleen Hyle, Jane Henney, Charles Cotros, AmerisourceBergen Corporation,Steven Collis, Richard Gochnauer, Richard Gozon, Henry McGee. Ordered by Judge Christopher J. Burke on4/10/2013. (dlk) (Entered: 04/11/2013)

Free 11 04/12/2013MOTION to Dismiss for Failure to State a Claim filed by AmerisourceBergen Corporation, Steven Collis, CharlesCotros, Richard Gochnauer, Richard Gozon, Edward Hagenlocker, Jane Henney, Kathleen Hyle, Michael Long, HenryMcGee. (Attachments: # 1 Text of Proposed Order)(Grivner, Geoffrey) (Entered: 04/12/2013)

020


Free 12 04/12/2013

OPENING BRIEF in Support re 11 MOTION to Dismiss for Failure to State a Claim filed by AmerisourceBergenCorporation, Steven Collis, Charles Cotros, Richard Gochnauer, Richard Gozon, Edward Hagenlocker, Jane Henney,Kathleen Hyle, Michael Long, Henry McGee.Answering Brief/Response due date per Local Rules is 4/29/2013.(Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit7)(Grivner, Geoffrey) (Entered: 04/12/2013)

Runner 04/17/2013 Case Reassigned to Judge Richard G. Andrews. Please include the initials of the Judge (RGA) after the case numberon all documents filed. (rjb) (Entered: 04/17/2013)

Runner 04/17/2013

ORAL ORDER REFERRING CASE to Magistrate Judge Christopher J. Burke: IT IS HEREBY ORDERED that the abovecaptioned case is referred to Magistrate Judge Christopher J. Burke to hear and resolve all pretrial matters, up toand including the resolution of casedispositive motions, subject to 28 U.S.C. § 636(b) and any further Order ofthe Court; all subsequent filings in this action shall be captioned as follows: Civil Action No. 13242RGACJB.Ordered by Judge Richard G. Andrews on 4/17/2013. Motions referred to Christopher J. Burke.(nms) (Entered:04/17/2013)

Runner 04/17/2013 CASE REFERRED to Magistrate Judge Christopher J. Burke for Mediation. (dlk) (Entered: 04/22/2013)

Free 13 04/22/2013STIPULATION TO EXTEND TIME for Plaintiff to file its Response to Defendants' Motion to Dismiss and for Defendantto file its Reply in Support of its Motion to Dismiss to 5/3/2013 and 5/17/2013 filed by Eli Mor. (Farnan, Brian)(Entered: 04/22/2013)

Runner 04/23/2013SO ORDERED D.I. 13 STIPULATION TO EXTEND TIME for Plaintiff to file its Response to Defendants' Motion toDismiss and for Defendant to file its Reply in Support of its Motion to Dismiss to 5/3/2013 and 5/17/2013 filed byEli Mor. Ordered by Judge Christopher J. Burke on 4/23/2013. (dlk) (Entered: 04/23/2013)

Runner 04/23/2013 Set Briefing Schedule: re 11 MOTION to Dismiss for Failure to State a Claim . Answering Brief due 5/3/2013. ReplyBrief due 5/17/2013. (dlk) (Entered: 04/23/2013)

Free 14 05/03/2013Letter to Judge Burke dated 4/26/13 from Eric L. Zagar, Esquire, Counsel for ICLUB Investment Partnership,informing the Court of an action filed in the Eastern District of Pennsylvania which is believed to be "virtuallyidentical" to the Delaware action. (dlk) (Entered: 05/03/2013)

Free 15 05/03/2013 ANSWERING BRIEF in Opposition re 11 MOTION to Dismiss for Failure to State a Claim filed by Eli Mor.Reply Briefdue date per Local Rules is 5/13/2013. (Farnan, Brian) (Entered: 05/03/2013)

Free 16 05/03/2013DECLARATION of Brian E. Farnan re 15 Answering Brief in Opposition, by Eli Mor. (Attachments: # 1 Exhibit A, # 2Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Farnan, Brian) Modified on 5/6/2013 (nms).(Entered: 05/03/2013)

Free 17 05/17/2013REPLY BRIEF re 11 MOTION to Dismiss for Failure to State a Claim filed by AmerisourceBergen Corporation, StevenCollis, Charles Cotros, Richard Gochnauer, Richard Gozon, Edward Hagenlocker, Jane Henney, Kathleen Hyle,Michael Long, Henry McGee. (Grivner, Geoffrey) (Entered: 05/17/2013)

Free 18 05/20/2013REQUEST for Oral Argument by AmerisourceBergen Corporation, Steven Collis, Charles Cotros, Richard Gochnauer,Richard Gozon, Edward Hagenlocker, Jane Henney, Kathleen Hyle, Michael Long, Henry McGee re 11 MOTION toDismiss for Failure to State a Claim . (Grivner, Geoffrey) (Entered: 05/20/2013)

Free 19 05/20/2013Letter to Judge Burke from Geoffrey G. Grivner regarding In response to April 26, 2013 letter regarding ICLUBInvestment Partnership v. Collis, No. 2:13cv00688PBT (E.D.Pa.). (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Grivner, Geoffrey) (Entered: 05/20/2013)

Runner 05/28/2013 ORAL ORDER: This case is no longer referred to Judge Christopher J. Burke. Ordered by Judge Richard G. Andrewson 5/28/2013. (nms) (Entered: 07/26/2013)

Free 20 07/11/2013 MOTION to Intervene filed by KBC Asset Management N.V.. (Attachments: # 1 Proposed Order)(Long, Brian)Modified on 7/12/2013 (nms). (Entered: 07/11/2013)

Free 21 07/11/2013OPENING BRIEF in Support re 20 MOTION to Intervene, filed by KBC Asset Management N.V..AnsweringBrief/Response due date per Local Rules is 7/29/2013. (Long, Brian) Modified on 7/12/2013 (nms). (Entered:07/11/2013)

Free 22 07/22/2013

NOTICE of Supplemental Authority in Support of 11 Motion to Dismiss, by AmerisourceBergen Corporation, StevenCollis, Charles Cotros, Richard Gochnauer, Richard Gozon, Edward Hagenlocker, Jane Henney, Kathleen Hyle,Michael Long, Henry McGee. (Attachments: # 1 Exhibit 1)(Grivner, Geoffrey) Modified on 7/23/2013 (nms).(Entered: 07/22/2013)

Free 23 07/26/2013 Letter to The Honorable Christopher J. Burke from Brian E. Farnan regarding Settlement. (Farnan, Brian) (Entered:07/26/2013)

Runner 07/29/2013ORAL ORDER: Briefing on 20 MOTION to Intervene, filed by KBC Asset Management N.V. is STAYED. "KBC" maysubmit a letter no later than August 5, 2013, stating its position. Ordered by Judge Richard G. Andrews on7/29/2013. (nms) (Entered: 07/29/2013)

Free 24 08/05/2013 Letter to The Honorable Richard G. Andrews from Brian D. Long regarding Stating of Position Regarding Stay reOral Order. (Long, Brian) (Entered: 08/05/2013)

Free 25 08/06/2013 Letter to The Honorable Richard G. Andrews from Brian E. Farnan regarding Response to KBC's August 5, 2013Letter. (Farnan, Brian) (Entered: 08/06/2013)

Free 26 08/15/2013 STIPULATION of Settlement by Eli Mor. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, #5 Letter to The Honorable Richard G. Andrews)(Farnan, Brian) (Entered: 08/15/2013)

Free 27 08/16/2013ORDER Staying the Stipulation of Settlement; and Dismissing without prejudice the Motion to Dismiss (D.I. 11 )and the Motion to Intervene (D.I. 20 ) (see Order for further details). Signed by Judge Richard G. Andrews on8/16/2013. (nms) (Entered: 08/16/2013)

Free 28 09/10/2013 MOTION to Lift Stay of Settlement filed by Eli Mor. (Farnan, Brian) Modified on 9/11/2013 (nms). (Entered:09/10/2013)

Free 29 09/10/2013 OPENING BRIEF in Support re 28 MOTION to Lift Stay of Settlement, filed by Eli Mor.Answering Brief/Response duedate per Local Rules is 9/27/2013. (Farnan, Brian) Modified on 9/11/2013 (nms). (Entered: 09/10/2013)

Free 30 09/10/2013

DECLARATION of Brian E. Farnan re 28 MOTION to Lift Stay of Settlement, by Eli Mor. (Attachments: # 1 ExhibitA, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Farnan, Brian) Modified on 9/11/2013 (nms). (Entered:09/10/2013)

Free 31 09/16/2013 Letter from Brian D. Long regarding Status Update regarding Books and Records Action. (Attachments: # 1 Exhibit1)(Long, Brian) Modified on 9/17/2013 (nms). (Entered: 09/16/2013)

Online 32 09/27/2013[SEALED] ANSWERING BRIEF in Opposition re 28 MOTION to Lift Stay of Settlement, filed by KBC AssetManagement N.V..Reply Brief due date per Local Rules is 10/7/2013. (Attachments: # 1 Exhibit A, # 2 Exhibit B,# 3 Exhibit C)(Long, Brian) Modified on 9/30/2013 (nms). (Entered: 09/27/2013)

Free 33 10/01/2013

STATEMENT re 28 MOTION to Lift Stay, by AmerisourceBergen Corporation, Steven Collis, Charles Cotros, RichardGochnauer, Richard Gozon, Edward Hagenlocker, Jane Henney, Kathleen Hyle, Michael Long, Henry McGee.(Attachments: # 1 Exhibit 1, # 2Exhibit 2)(Grivner, Geoffrey) Modified on 10/2/2013 (nms). (Entered:10/01/2013)

Free 34 10/02/2013Letter to The Honorable Richard G. Andrews from Brian D. Long regarding Response to Defendants' Statement inSupport of the Relief Requested in Plaintiff's Motion to Lift Stay re 33 Statement,. (Long, Brian) (Entered:10/02/2013)

Free 35 10/04/2013 REDACTED Version of 32 Answer Brief, filed by KBC Asset Management N.V. (Long, Brian) Modified on 10/8/2013(nms). (Entered: 10/04/2013)

021


Free 36 10/07/2013 REPLY BRIEF re 28 MOTION to Lift Stay of Settlement filed by Eli Mor. (Farnan, Brian) (Entered: 10/07/2013)

Runner 10/08/2013CORRECTING ENTRY: D.I. 35 has been recoded to show the filing is a REDACTED Version of D.I. 32 and NOT a newAnswering Brief. Counsel is reminded to use the proper event code in the future when filing redacted documents.(nms) (Entered: 10/08/2013)

Free 37 10/08/2013 REQUEST for Oral Argument by Eli Mor re 28 MOTION to Lift Stay of Settlement. (Farnan, Brian) (Entered:10/08/2013)

Free 38 10/08/2013 Letter to The Honorable Richard G. Andrews from Brian D. Long responding to Plaintiff's Request for Oral ArgumentD.I. 37 . (Long, Brian) Modified on 10/9/2013 (nms). (Entered: 10/08/2013)

Free 39 10/16/2013 Letter to The Honorable Richard G. Andrews from Brian D. Long regarding Status Update Regarding Books andRecords Action re 31 Letter. (Long, Brian) (Entered: 10/16/2013)

Runner 10/21/2013ORAL ORDER: The Motion to Lift Stay (D.I. 28 ) is DENIED. The Court will hold an inperson status conference on12/20/2013, at 11:00 AM in Courtroom 6A before Judge Richard G. Andrews. Ordered by Judge Richard G.Andrews on 10/21/2013. (nms) (Entered: 10/21/2013)

Free 40 11/20/2013 Letter to The Honorable Richard G. Andrews from Brian D. Long regarding Status Update Regarding Books andRecords Action re 39 Letter. (Long, Brian) (Entered: 11/20/2013)

Online 41 11/21/2013 MOTION for Pro Hac Vice Appearance of Attorney Douglas E. Julie filed by Eli Mor. (Farnan, Brian) (Entered:11/21/2013)

Runner 11/21/2013 SO ORDERED, re 41 MOTION for Pro Hac Vice Appearance of Attorney Douglas E. Julie filed by Eli Mor. Signed byJudge Richard G. Andrews on 11/21/2013. (nms) (Entered: 11/21/2013)

Runner 11/22/2013 Pro Hac Vice Attorney Douglas E. Julie for Eli Mor added for electronic noticing. (dmp, ) (Entered: 11/22/2013)

Free 42 12/16/2013 Letter to The Honorable Richard G. Andrews from Brian D. Long regarding Status Update Regarding Books andRecords Action. (Long, Brian) Modified on 12/17/2013 (nms). (Entered: 12/16/2013)

Free 43 12/31/2013

Official Transcript of Status Conference held on 122013 before Judge Richard G. Andrews. CourtReporter/Transcriber Leonard A. Dibbs. Transcript may be viewed at the court public terminal or purchased throughthe Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may beobtained through PACER. Redaction Request due 1/21/2014. Redacted Transcript Deadline set for 1/31/2014.Release of Transcript Restriction set for 3/31/2014. (lad) (Entered: 12/31/2013)

Free 44 01/06/2014 Letter to The Honorable Richard G. Andrews from Geoffrey G. Grivner regarding status of related shareholderderivative litigation in other courts re 43 Transcript,. (Grivner, Geoffrey) (Entered: 01/06/2014)

Free 45 01/09/2014Letter to The Honorable Richard G. Andrews from Geoffrey G. Grivner regarding updating the Court on the statusof the related shareholder derivative litigation re 44 Letter, 43 Transcript,. (Grivner, Geoffrey) (Entered:01/09/2014)

Free 46 02/14/2014 Letter to The Honorable Richard G. Andrews from Brian D. Long regarding Status Update Regarding Books andRecords Action re 42 Letter. (Attachments: # 1 Exhibit Exhibit A)(Long, Brian) (Entered: 02/14/2014)

Free 47 02/18/2014 Letter from Geoffrey G. Grivner regarding regarding case status re 26 Stipulation, 27 Order. (Grivner, Geoffrey)(Entered: 02/18/2014)

Runner 02/19/2014 ORAL ORDER: KBC should reply to Defendants' letter (D.I. 47 ) by close of business 2/21/2014. Ordered by JudgeRichard G. Andrews on 2/19/2014. (nms) (Entered: 02/19/2014)

Free 48 02/21/2014 Letter to The Honorable Richard G. Andrews from Brian D. Long regarding Response to Letter from Geoffrey G.Grivner regarding case status re 47 Letter, Oral Order. (Long, Brian) (Entered: 02/21/2014)

Free 49 02/24/2014 Letter from Geoffrey G. Grivner regarding Response to February 21, 2014 Letter from Brian D. Long re 48 Letter.(Grivner, Geoffrey) (Entered: 02/24/2014)

Runner 04/10/2014 ORAL ORDER: The Court will hold an "In Person" Status Conference on 5/5/2014, at 2:00 PM in Chambers beforeJudge Richard G. Andrews. Ordered by Judge Richard G. Andrews on 4/10/2014. (nms) (Entered: 04/10/2014)

Online 50 05/02/2014[SEALED] Letter from Brian D. Long, Esquire, regarding Status Update of Books and Records Action. (Attachments:# 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Certificate of Service)(Long, Brian) Modified on 5/2/2014 (nms).(Entered: 05/02/2014)

Runner 05/05/2014 Minute Entry for proceedings held before Judge Richard G. Andrews Status Conference held on 5/5/2014. TheParties will submit a Status Report by 7/8/2014. (Court Reporter Leonard Dibbs.) (ksr, ) (Entered: 05/05/2014)

Free 51 05/06/2014

Official Transcript of Status Conference held on 050514 before Judge Richard G. Andrews. CourtReporter/Transcriber Leonard A. Dibbs. Transcript may be viewed at the court public terminal or purchased throughthe Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may beobtained through PACER. Redaction Request due 5/27/2014. Redacted Transcript Deadline set for 6/6/2014.Release of Transcript Restriction set for 8/4/2014. (lad) (Entered: 05/06/2014)

Free 52 05/09/2014 REDACTED VERSION of 50 Letter, by KBC Asset Management N.V.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, #3 Exhibit 3)(Long, Brian) Modified on 5/12/2014 (nms). (Entered: 05/09/2014)

Free 53 07/07/2014 Letter to The Honorable Richard G. Andrews from Brian E. Farnan regarding Status Report. (Farnan, Brian)(Entered: 07/07/2014)

Free 54 07/23/2014 Letter to The Honorable Richard G. Andrews from Brian D. Long, Esquire regarding KBC Asset Management, NV'sMotion to Intervene (D.I. 20 ). (Long, Brian) Modified on 7/23/2014 (nms). (Entered: 07/23/2014)

Free 55 08/06/2014ORDER Preliminarily Approving Settlement and Notice. A Settlement Conference is set for 10/28/2014, at 11:00AM in Courtroom 6A before Judge Richard G. Andrews (see Order for further details). Signed by Judge Richard G.Andrews on 8/6/2014. (nms) (Entered: 08/06/2014)

Free 56 08/28/2014NOTICE of Defendants' Notice of Compliance, by AmerisourceBergen Corporation, Steven Collis, Charles Cotros,Richard Gochnauer, Richard Gozon, Edward Hagenlocker, Jane Henney, Kathleen Hyle (Attachments: # 1 ExhibitsAC)(Grivner, Geoffrey) Modified on 8/28/2014 (nms). (Entered: 08/28/2014)

Free 57 09/30/2014MEMORANDUM in Support of Final Approval of Settlement and for an Award of Attorneys' Fees and Expenses, filedby Eli Mor.Answering Brief/Response due date per Local Rules is 10/17/2014. (Farnan, Brian) Modified on10/1/2014 (nms). (Entered: 09/30/2014)

Free 58 09/30/2014DECLARATION of Brian E. Farnan re 57 MEMORANDUM in Support, by Eli Mor. (Attachments: # 1 Exhibit A, # 2Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Farnan, Brian) Modified on 10/1/2014 (nms). (Entered:09/30/2014)

Free 59 09/30/2014 DECLARATION of Eduard Korsinsky re 57 MEMORANDUM in Support, by Eli Mor. (Attachments: # 1 Exhibit A)(Farnan, Brian) Modified on 10/1/2014 (nms). (Entered: 09/30/2014)

Free 60 10/01/2014 Letter to the Court, dated September 29, 2014, from Burton L. Raimi, regarding proposed settlement. (nms)(Entered: 10/01/2014)

Free 61 10/14/2014OBJECTIONS to Proposed Derivative Settlement and Notice of Intent to Appear, by Iclub Investment Partnership.(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Fioravanti, Paul) Modified on 10/15/2014 (nms).(Entered: 10/14/2014)

Free 62 10/14/2014MOTION for Attorney Fees and Reimbursement of Expenses Made by AmerisourceBergen Corp. Stockholder ICLUBInvestment Partnership filed by Iclub Investment Partnership. (Attachments: # 1 Proposed Order)(Fioravanti,Paul) Modified on 10/15/2014 (nms). (Entered: 10/14/2014)

Free 63 10/14/2014

OPENING BRIEF in Support re 62 MOTION for Attorney Fees and Reimbursement of Expenses Made byAmerisourceBergen Corp. Stockholder ICLUB Investment Partnership, filed by Iclub Investment

022


Partnership.Answering Brief/Response due date per Local Rules is 10/31/2014. (Fioravanti, Paul) Modified on10/15/2014 (nms). (Entered: 10/14/2014)

Free 64 10/14/2014

DECLARATION of Eric L. Zagar re 62 Motion for Attorneys' Fees and Reimbursement of Expenses Made ByAmerisourceBergen Corp. Stockhlder ICLUB Investment Partnership, by Iclub Investment Partnership.(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 ExhibitG, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, #15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA)(Fioravanti, Paul)Modified on 10/15/2014 (nms). (Entered: 10/14/2014)

Free 65 10/14/2014

DECLARATION of Paul A. Fioravanti, Jr. re 62 MOTION for Attorney Fees and Reimbursement of Expenses Made byAmerisourceBergen Corp. Stockholder ICLUB Investment Partnership, for Attorneys' Fees and Reimbursement ofExpenses by Iclub Investment Partnership. (Fioravanti, Paul) Modified on 10/15/2014 (nms). (Entered:10/14/2014)

Free 66 10/14/2014DECLARATION of Travis M. Keath, CFA, CPA/ABV re 62 MOTION for Attorney Fees and Reimbursement of ExpensesMade by AmerisourceBergen Corp. Stockholder ICLUB Investment Partnership, by Iclub Investment Partnership.(Fioravanti, Paul) Modified on 10/15/2014 (nms). (Entered: 10/14/2014)

Runner 67 10/17/2014

ORAL ORDER: Plaintiff is directed to submit, under oath, detailed time records related to this case for each of itsattorneys, with their usual hourly billing rates. The Iclub Investment Partnership is also directed to submit, underoath, detailed time records related to this case (including litigation in other locations) for each of its attorneys, withtheir usual hourly billing rates. The submissions are due no later on October 23, 2014. Plaintiff and Iclub are alsorequested to submit by onepage letter each what the total attorneys fees were as of August 9, 2013, and anyother dates which Plaintiff or Iclub think are relevant. Ordered by Judge Richard G. Andrews on 10/17/2014. (nms)(Entered: 10/17/2014)

Free 68 10/21/2014 STIPULATION regarding Page Limits for Response to Objections (D.I. 61 ), by Eli Mor. (Farnan, Brian) Modified on10/21/2014 (nms). (Entered: 10/21/2014)

Runner 10/21/2014 SO ORDERED, re 68 Stipulation regarding response to Objections, filed by Eli Mor. Signed by Judge Richard G.Andrews on 10/21/2014. (nms) (Entered: 10/21/2014)

Online 69 10/23/2014[SEALED] Letter to The Honorable Richard G. Andrews from Paul A. Fioravanti, Jr. responding to the Court'sOctober 17, 2014 Oral Order (D.I. 67 ). (Attachments: # 1 Exhibits AB)(Fioravanti, Paul) Modified on 10/23/2014(nms). (Entered: 10/23/2014)

Free 70 10/23/2014 STIPULATION Concerning Amended Final Order and Judgment and Withdrawal of ICLUB Investment Partnership'sObjection to Settlement by Eli Mor. (Attachments: # 1 Exhibit A)(Farnan, Brian) (Entered: 10/23/2014)

Online 71 10/23/2014[SEALED] Letter to The Honorable Richard G. Andrews from Brian E. Farnan regarding Your Honor's October 17,2014 Oral Order re 67 Oral Order,,. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Farnan, Brian) (Entered:10/23/2014)

Free 72 10/23/2014Memorandum of Law In Further Support of Final Approval of Settlement and for an Award of Attorneys' Fees andExpenses and in Opposition to Petition for Attorneys' Fees and Reimbursement by ICLUB Investment Partnership,filed by Eli Mor. (Farnan, Brian) Modified on 10/24/2014 (nms). (Entered: 10/23/2014)

Free 73 10/23/2014 DECLARATION of Eduard Korsinsky re 72 Reply Brief, by Eli Mor. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Farnan, Brian) Modified on 10/24/2014 (nms). (Entered: 10/23/2014)

Runner 10/28/2014SO ORDERED, re 70 Stipulation Concerning Amended Final Order and Judgment and Withdrawal of IclubInvestment Partnership's Objection to Settlement, filed by Eli Mor. Signed by Judge Richard G. Andrews on10/28/2014. (nms) (Entered: 10/28/2014)

Free 74 10/28/2014FINAL ORDER AND JUDGMENT. Counsel for Plaintiff are hereby awarded attorneys' fees, and reimbursements ofcost and expenses, in the total amount of TBA (CASE CLOSED). Signed by Judge Richard G. Andrews on10/28/2014. (nms) (Entered: 10/28/2014)

Runner 10/28/2014 Minute Entry for proceedings held before Judge Richard G. Andrews Settlement Conference held on 10/28/2014.(Court Reporter Valerie Gunning.) (ksr, ) (Entered: 03/27/2015)

Free 75 10/30/2014 REDACTED VERSION of 69 Letter, by Iclub Investment Partnership. (Attachments: # 1 Exhibits AB)(Fioravanti,Paul) Modified on 10/30/2014 (nms). (Entered: 10/30/2014)

Free 76 10/30/2014 REDACTED VERSION of 71 Letter by Eli Mor. (Attachments: # 1 Exhibits AB)(Farnan, Brian) (Entered:10/30/2014)

Free 77 03/25/2015

Official Transcript of hearing held on October 28, 2014 before Judge Andrews. Court Reporter/Transcriber ValerieGunning,Telephone number (302) 5736194. Transcript may be viewed at the court public terminal or purchasedthrough the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date itmay be obtained through PACER. Redaction Request due 4/15/2015. Redacted Transcript Deadline set for4/27/2015. Release of Transcript Restriction set for 6/23/2015. (vjg) (Entered: 03/25/2015)

Free 78 07/01/2015 MEMORANDUM OPINION regarding MOTION for Attorney Fees and Reimbursement of Expenses (D.I. 62 ). Signedby Judge Richard G. Andrews on 6/30/2015. (nms) (Entered: 07/01/2015)

Free 79 07/01/2015ORDER Granting Plaintiff's request for attorney's fees (D.I. 26 5). ICLUB's Petition for Attorney's Fees (D.I. 62 ) isDENIED. Plaintiff is awarded $550,000.00 in attorney's fees and expenses. Signed by Judge Richard G. Andrews on6/30/2015. (nms) (Entered: 07/01/2015)

Free 80 07/30/2015 NOTICE OF APPEAL of 78 Memorandum Opinion, and 79 Order. Appeal filed by Eli Mor. (Farnan, Brian) Modified on7/31/2015 (nms). (Entered: 07/30/2015)

Runner 07/30/2015 APPEAL Credit Card Payment of $505.00 received re 80 Notice of Appeal (Third Circuit) filed by Eli Mor. ( Filing fee$505, receipt number 03111762741.) (Farnan, Brian) (Entered: 07/30/2015)

Online 81 08/06/2015NOTICE of Docketing Record on Appeal from USCA for the Third Circuit re 80 Notice of Appeal (Third Circuit) filed byEli Mor. USCA Case Number 153831. USCA Case Manager: Tonya (DOCUMENT IS RESTRICTED AND CAN ONLY BEVIEWED BY COURT STAFF) (bs, ) (Entered: 08/06/2015)

Free 82 08/13/2015 TRANSCRIPT REQUEST by Eli Mor TRANSCRIPT NOT NEEDED; On File Already (Piergiovanni, Rosemary) (Entered:08/13/2015)

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023


CERTIFICATE OF SERVICE

I, Rosemary J. Piergiovanni, hereby certify that on November 2, 2015, the

foregoing Appellant’s Brief And Appendix Volume I, PP. 1-23 was electronically

filed with the Clerk of the United States Court of Appeals for the Third Circuit

using CM-ECF which will send notification to the registered participants that the

document has been filed and is available for viewing and downloading from CM-

ECF.

/s/ Rosemary J. Piergiovanni


Del. Bar No. 3655

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