                                                     EFiled: Oct 29 2014 12:33PM EDT
                                                     Transaction ID 56261807
                                                     Case No. 7865-VCN
                            COURT OF CHANCERY
                                  OF THE
                            STATE OF DELAWARE

                                                            417 SOUTH STATE STREET
 JOHN W. NOBLE                                              DOVER, DELAWARE 19901
VICE CHANCELLOR                                            TELEPHONE: (302) 739-4397
                                                           FACSIMILE: (302) 739-6179


                                October 29, 2014




Christine S. Azar, Esquire            S. Mark Hurd, Esquire
Labaton Sucharow LLP                  Morris, Nichols, Arsht & Tunnell LLP
300 Delaware Ave., Suite 1225         1201 N. Market Street
Wilmington, DE 19801                  Wilmington, DE 19801

Ronald N. Brown, III, Esquire         Raymond J. DiCamillo, Esquire
Skadden, Arps, Slate,                 Richards, Layton & Finger, P.A.
 Meagher & Flom LLP                   One Rodney Square
One Rodney Square                     Wilmington, DE 19801
Wilmington, DE 19801

      Re:   In re TPC Group Inc. Shareholders Litigation
            Consolidated C.A. No. 7865-VCN
            Date Submitted: June 11, 2014

Dear Counsel:

      This is a dispute about whether shareholders’ efforts to challenge a merger

caused a price increase and, if so, the amount of the fees to which their attorneys

are entitled. Lead Plaintiffs Greater Pennsylvania Carpenters’ Pension Fund and

West Palm Beach Police Pension Fund (collectively, with other members of the
In re TPC Group Inc. Shareholders Litigation
Consolidated C.A. No. 7865-VCN
October 29, 2014
Page 2



class, the “Plaintiffs”) were shareholders of TPC Group Inc. (“TPC”). After TPC

announced its acquisition by First Reserve Corporation, SK Capital Partners, and

their affiliates (collectively, the “PE Group”), Plaintiffs brought a class action

against TPC, the members of TPC’s board of directors, and the PE Group

(collectively, the “Defendants”).

      The early complaints, filed in September 2012, alleged a number of

problems with the announced deal, such as inadequate price, breaches of fiduciary

duty through an unfair process, and inadequate disclosures in the preliminary

proxy. For example, one complaint alleged that “[n]umerous analysts also agree

that the Proposed Transaction Price is inadequate” and cited an analyst’s opinion

that “the offer should have been $45 to $46 a share.”1 The process claims included

conflicts arising from a management incentive plan, an agreement to forego a go-

shop period, and a contingent fee arrangement with a key financial advisor, Perella

Weinberg Partners LP (“Perella”).2 Disclosure claims involved concerns about the

value of an alternative transaction, Perella’s valuation analysis, and the

1
  Verified Class Action Compl. ¶ 60, Sept. 14, 2012 (original complaint of Greater
Pennsylvania Carpenters’ Pension Fund).
2
  See, e.g., id. ¶¶ 64, 69, 73.
In re TPC Group Inc. Shareholders Litigation
Consolidated C.A. No. 7865-VCN
October 29, 2014
Page 3



effectiveness of the special committee’s work, to name a few.3 Subsequent bidding

and a supplemental proxy statement issued on November 21, 2012, have mooted

Plaintiffs’ claims,4 and the Court has awarded attorneys’ fees for the disclosures

resulting from Plaintiffs’ efforts.5

      Remaining for the Court is whether (and, if so, to what extent) Plaintiffs are

entitled to attorneys’ fees for the $5 per share ($79 million aggregate) increase in

the merger price achieved between the commencement of this litigation and the

acquisition’s closing under an amended merger agreement. Plaintiffs argue that

their legal challenge caused the PE Group to raise its bid from $40 to $45 per

share6 and that $3,150,000 would be a reasonable award.7 Defendants contend that

a competing proposal, not the litigation, caused the price bump.8


3
  See, e.g., id. ¶¶ 84, 93, 101.
4
  See In re TPC Gp. Inc. S’holders Litig., C.A. No. 7865-VCN (Del. Ch. Feb. 6,
2013) (Stipulated Order Dismissing Action as Moot).
5
  In re TPC Gp. Inc. S’holders Litig., C.A. No. 7865-VCN, at 71 (Del. Ch. July 11,
2014) (TRANSCRIPT).
6
   The Court assumes general familiarity with the facts, as presented in prior
proceedings. See In re TPC Gp. Inc. S’holders Litig., C.A. No. 7865-VCN (Del.
Ch. July 11, 2014) (TRANSCRIPT); In re TPC Gp. Inc. S’holders Litig., 2014
WL 1394369 (Del. Ch. Apr. 10, 2014). Briefly stated, TPC announced its
acquisition by the PE Group on August 27, 2012. Shortly thereafter, a major
In re TPC Group Inc. Shareholders Litigation
Consolidated C.A. No. 7865-VCN
October 29, 2014
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      When plaintiffs seek attorneys’ fees for legal action that was subsequently

mooted or settled by actions of defendants, plaintiffs must show that “(1) the suit

shareholder issued the first of several public criticisms of the merger. Aff. of
Rachel E. Horn, Esq. in Supp. of Defs.’ Sur-Reply in Further Opp’n to Pls.’ Appl.
for Award of Att’ys’ Fees and Expenses (“Horn Aff.”) Ex. E, at 1. The first
complaint in this action was filed on September 4. On October 5, TPC received an
unsolicited proposal from a competing bidder expressing interest in acquiring TPC
for a price ranging from $44 to $46 per share. TPC subsequently issued a press
release acknowledging the proposal and reiterating its support for the PE Group
transaction. The PE Group responded, on October 11, with a letter to the Board
explaining the advantages, including certainty, of its offer over the competing
proposal. An internal memorandum from October 22, however, indicated that the
PE Group considered the competing proposal a meaningful development
warranting an increase in price. Horn Aff. Ex. E, at 1-2. Plaintiffs served
Defendants with an expert’s criticism of Perella’s fairness opinion on October 29
and the opening brief for Plaintiffs’ motion for a preliminary injunction on
November 3. Two days later, TPC filed its definitive proxy statement with the
SEC, and the PE Group raised its bid to $44 per share. Ensuing negotiations with
Perella resulted in an increase to $45 per share. When the competing bidder raised
its proposal to $47.50 per share, the PE Group responded with a press release
emphasizing the “highly conditional” nature of that proposal. The PE Group’s
offer contemplated consummation before the end of the year, and the competing
bidder withdrew in December. The PE Group deal closed on December 20, 2012.
7
  In their briefs, Plaintiffs asked for a total of $3.9 million, which was to include
$750,000 for the benefit conferred by supplemental disclosures. See Pls.’ Opening
Br. for Appl. for Award of Att’ys’ Fees and Expenses (“Pls.’ Opening Br.”) 38-39.
The Court awarded $400,000 in fees and expenses for the disclosures. In re TPC
Gp. Inc. S’holders Litig., C.A. No. 7865-VCN, at 71 (Del. Ch. July 11, 2014)
(TRANSCRIPT).
8
   Defs.’ Br. in Opp’n to Pls.’ Appl. for Award of Att’ys’ Fees and Expenses
(“Defs.’ Opp’n Br.”) 36-37.
In re TPC Group Inc. Shareholders Litigation
Consolidated C.A. No. 7865-VCN
October 29, 2014
Page 5



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.”9        There is,

however, a rebuttable presumption that the defendants bear the “burden of

persuasion to show that no causal connection existed between the initiation of the

suit and any later benefit to the shareholders” because the defendants are “in a

position to know the reasons, events and decisions leading up to the defendant[s’]

action.”10 If attorneys’ fees are warranted, the Court determines an appropriate

amount by weighing, under the Sugarland standard, “1) the results achieved; 2) the

time and effort of counsel; 3) the relative complexities of the litigation; 4) any

contingency factor; and 5) the standing and ability of counsel involved.”11

      The critical issue here is causation, and Delaware law presumes that

plaintiffs are a cause.      Defendants bear the burden of proving, by the

preponderance of the evidence, that no causal connection (whether direct or

9
  United Vanguard Fund, Inc. v. TakeCare, Inc., 693 A.2d 1076, 1079 (Del. 1997)
(citing Allied Artists Pictures Corp. v. Baron, 413 A.2d 876, 878 (Del. 1980)).
10
   Id. at 1080 (internal quotation marks omitted).
11
   Americas Mining Corp. v. Theriault, 51 A.3d 1213, 1254 (Del. 2012) (discussing
Sugarland Indus., Inc. v. Thomas, 420 A.2d 142, 149-50 (Del. 1980)).
In re TPC Group Inc. Shareholders Litigation
Consolidated C.A. No. 7865-VCN
October 29, 2014
Page 6



indirect) existed between the price increase and the plaintiffs’ litigation efforts.12

The burden falls on defendants because they are in a better position to explain their

own actions. While the burden is heavy,13 the presumption is rebuttable. To

overcome the presumption, defendants must prove “‘that the nonexistence of the

presumed fact is more probable than its existence.’”14

      Here, the primary negotiators for the PE Group state that they were

concerned about the October 5 competing proposal, negative publicity, public

opposition by a significant stockholder, and the potential for an unfavorable

evaluation by Institutional Shareholder Services (“ISS”) when deciding whether

the PE Group should raise its bid.15 They explain that the PE Group decided to

raise its price in mid-October but waited to contact TPC until the definitive proxy

was filed in order to avoid delaying the transaction.16 The PE Group’s affidavits


12
   Alaska Elec. Pension Fund v. Brown, 988 A.2d 412, 417-18 (Del. 2010).
13
   United Vanguard Fund, Inc. v. TakeCare, Inc., 727 A.2d 844, 852 (Del. Ch.
1998) (“This is a heavy burden and it is to be expected that a defendant will not
often be able to satisfy it.”).
14
   Alaska Elec. Pension Fund, 988 A.2d at 418 (quoting D.R.E. 301(a)).
15
   Aff. of Jack Norris in Supp. of Defs.’ Opp’n Br. (“Norris Aff.”) ¶ 4; Aff. of
Neil A. Wizel in Supp. of Defs.’ Opp’n Br. (“Wizel Aff.”) ¶ 4.
16
   Norris Aff. ¶¶ 6, 8; Wizel Aff. ¶¶ 6, 8.
In re TPC Group Inc. Shareholders Litigation
Consolidated C.A. No. 7865-VCN
October 29, 2014
Page 7



may be, as characterized by Plaintiffs, self-serving, but that is almost inevitable in

matters of this nature. Given the current record, the Court finds no reason to

discredit the statements that “the decision to increase the offer price had no

relationship whatsoever to the litigation brought by Plaintiffs.”17 It is necessary to

consider the factual context, both that generally exists during a transaction like this

and, more importantly, that served as the specific background for the TPC

acquisition.   The Court has tried to analyze different scenarios in which the

litigation may have been an indirect cause of the price increase, but Defendants’

account is the most credible and is consistent with the record.18


17
   Norris Aff. ¶ 13; Wizel Aff. ¶ 13. There may have been some inconsistencies in
certain statements, but they do not suggest disingenuousness about the PE Group’s
lack of reaction to the litigation. Nor does the Court take issue with the lead
negotiators speaking on behalf of the entire deal team.
18
   See, e.g., Horn Aff. Ex. B (“Wizel Dep.”), at 31 (“[B]ased on our discussions,
I didn’t view the litigation as a risk to our ability to close the transaction; therefore,
[I] chose not to spend time on it.”); Ex. D (“Norris Dep.”), at 62 (“I can say with
absolute certainty what drove our decision, and that was that there was a
competing bidder at a higher share price.”); Ex. E, at 2 (“Subject to IC approval,
FRC/SK will publicly announce our offer price increase to $44/share in advance of
the ISS meeting noted above[.]”). That Defendants have redacted portions of
documents because of attorney-client privilege does not change the Court’s view.
This is a common practice in our adversarial system. Plaintiffs have not provided
any basis for piercing the attorney-client privilege.
In re TPC Group Inc. Shareholders Litigation
Consolidated C.A. No. 7865-VCN
October 29, 2014
Page 8



      It is tempting to assume that litigation challenging a transaction will

influence the conduct of buyers, perhaps in ways even they do not understand.

Moreover, it is reasonable to hold the view that a price increase will reduce

shareholder litigants’ likelihood of success or fervor for pursuing the litigation.

Yet in this era, almost every merger of a public company is greeted with litigation,

and relatively few price increases result. When a buyer knows that litigation is

inevitable,19 ensuing litigation does not necessarily have any effect on its



   Although the PE Group admitted that “negative publicity,” such as from articles
mentioning the shareholder litigation, was a concern, the preponderance of the
evidence shows that it acted upon its concern that a higher, competing proposal
would prevent it from closing the transaction. Plaintiffs also contend that a white
paper issued by a major shareholder raised issues “very similar” to those raised in
the earlier complaints and that the PE Group was concerned about that public
criticism. Pls.’ Reply Br. in Supp. of Appl. for Award of Att’ys’ Fees and
Expenses 3. Yet this is not evidence of causation. The major shareholder first
criticized the deal in late August. Its first white paper was issued on September 9,
shortly after the first complaint, but there is no reason to conclude that the
Plaintiffs were somehow responsible for that major shareholder’s actions.
19
   See Jill E. Fisch, Sean J. Griffith & Steven Davidoff Solomon, Confronting the
Peppercorn Settlement in Merger Litigation: An Empirical Analysis and a
Proposal for Reform, 93 Tex. L. Rev. (forthcoming Feb. 2015). One study
concluded that 93 percent of public-target-company deals valued over $100
million—and 96 percent of those valued over $500 million—were challenged by
shareholders in 2012. Robert M. Daines & Olga Koumrian, Shareholder Litigation
Involving Mergers and Acquisitions, Cornerstone Research, 1 (Feb. 2013),
In re TPC Group Inc. Shareholders Litigation
Consolidated C.A. No. 7865-VCN
October 29, 2014
Page 9



conduct.20 If litigation necessarily motivates a buyer to raise its price, then the

presumption as to causation would not be rebuttable; the question of causation

would be simplified from was the litigation a cause to how much of a cause was

the litigation. Finally, it would be unreasonable to conclude that allegations in

Plaintiffs’ complaint motivated the competing bidder.21 Thus, the Court finds that

it is more likely than not that Plaintiffs’ litigation did not, directly or indirectly,

cause the PE Group, to any extent, to increase its bid.22




http://www.cornerstone.com/getattachment/9d8fd78f-7807-485a-a8fc-4ec4182ded
d6/Shareholder-Litigation-Involving-Mergers-and-Acqui.aspx. Although the data
may not be complete, a majority of those actions settled, and, of the settlements,
roughly four-fifths resulted only in additional disclosures. Id. at 5-6.
20
    See Donald J. Wolfe, Jr. & Michael A. Pittenger, Corporate and Commercial
Practice in the Delaware Court of Chancery § 9.05[d][2], at 9-255 (2014) (“Thus,
it is clear that the mere pendency of litigation does not, in and of itself, establish a
causal connection between the plaintiffs’ efforts and any beneficial changes that
may ensue.”).
21
   It seems unlikely that a serious bidder would rely on a shareholder complaint to
form its bid, and the record does not suggest that this occurred here. The same
logic applies to the PE Group’s decision to raise its bid—and ISS’s evaluation of
that bid. Furthermore, the additional disclosures of November 21, 2012, could not
have informed the competing proposal of October 5, 2012.
22
    With that conclusion, it is not necessary to decide whether Plaintiffs’ claims
(excluding those related to disclosure) were meritorious when filed.
In re TPC Group Inc. Shareholders Litigation
Consolidated C.A. No. 7865-VCN
October 29, 2014
Page 10



      The difficult aspect of this case is not whether to award Plaintiffs roughly

$3 million or to award nothing. No matter how the evidence is weighed, Plaintiffs’

contributions (or that to which they are entitled to credit for having caused) were

minimal. The litigation achieved no defined benefit that might have facilitated a

price increase.   For example, deal protection measures were not modified.23

Closing was not delayed; a delay would have extended the time available for a

competing proposal. Plaintiffs’ arguments condense to something akin to: (1) the

litigation must have influenced what the PE Group did, and (2) Defendants simply

cannot exclude every conceivable indirect cause.24

      Ultimately, Plaintiffs did not cause the price increase in any way, and the

Court need not proceed to a Sugarland analysis. Plaintiffs’ application for an


23
   Cf. In re Compellent Techs., Inc. S’holder Litig., 2011 WL 6382523 (Del. Ch.
Dec. 9, 2011) (awarding attorneys’ fees where mooted litigation caused a removal
of deal protection devices and rescission of a rights plan).
24
   Assuming arguendo that the Court were to find that Defendants have not
excluded every indirect cause attributable to Plaintiffs, the fee would fall under
$200,000. A fee in that range would be difficult to justify, but it could be based on
perhaps a 1 percent increase in the possibility of a topping bid. With that as the
benefit, assuming the full $5 per share increase, a 20 percent award would yield a
fee of approximately $158,000.
In re TPC Group Inc. Shareholders Litigation
Consolidated C.A. No. 7865-VCN
October 29, 2014
Page 11



award of attorneys’ fees and expenses for the increase in the merger price is

denied.

      IT IS SO ORDERED.

                                           Very truly yours,

                                           /s/ John W. Noble

JWN/cap
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