# In Re Quintiles Transnational Corp. S'holders Litig.

> North Carolina Business Court · December 19, 2003 · 2003 NCBC 11

URL: https://www.frixlaw.com/law-library/cases/11057425

## Case

- **Court:** North Carolina Business Court
- **Decided:** December 19, 2003
- **Citations:** 2003 NCBC 11
- **Precedential status:** Published
- **Opinion:** Opinion by Ben F. Tennille
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

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## Opinion text

In re Quintiles Transnational Corp. S’holders Litig., 2003 NCBC 11

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF
JUSTICE
COUNTY OF DURHAM SUPERIOR COURT DIVISION

Consolidated Civil Action
No. 02 CVS 5348

IN RE QUINTILES TRANSNATIONAL )
CORP. SHAREHOLDERS )
LITIGATION )

ORDER AND OPINION

{1} This matter comes before the Court on the fee application of plaintiffs’ counsel in this matter. The
Court has previously authorized payment of the funds. This opinion contains the reasoning behind the
Court’s approval of the attorney fees in this case. Together with the Court’s opinion in In Re Wachovia
Shareholders Litigation, 2003 NCBC 10 entered today, it sets a framework for the approval of fee
applications in shareholder litigation in North Carolina. This opinion should be read in conjunction with
the Wachovia fee opinion. The Court concluded in that case, and holds here, that fee awards may be made
in class action shareholder litigation even though no specific or ascertainable fund is created for the benefit
of shareholders out of which the attorney fees are paid.
Donaldson & Black, P.A. by Arthur J. Donaldson and John T. O’Neal for Plaintiff Breakwater
Partners, L.P.

Abrams & Abrams, P.A. by Douglas B. Abrams and Margaret S. Abrams for Plaintiffs Joseph
Swetye, Lois Anderson, Gamillel Shab, and William Steiner.

Maxwell, Freeman & Bowman, P.A. by James B. Maxwell for Plaintiffs Mary Lewis and Gregory
Tatoian.

James, McElroy & Diehl, P.A by Bruce M. Simpson for Plaintiff Charles Miller.

Brooks, Pierce, McLendon, Humphrey & Leonard, PLLC, by Jim W. Phillips, Jr. and Jennifer K.
Van Zant for Defendant Dennis B. Gillings and Pharma Services.

Kilpatrick Stockton LLP by Hayden J. Silver, III for Defendant Dennis B. Gillings.

Smith Moore, LLP, by Donald Cowan, Jr., Lisa Kaminski Shortt, and Dixie T. Wells, fo Defendants
Robert C. Bishop, Vaughn D. Bryson and Virginia V. Weldon.

Smith, Anderson, Blount, Dorsett Mitchell & Jernigan, LLP, by Carl N. Patterson, Jr., Donald H.
Tucker, Jr., and Gerald F. Roach, for Defendants Arthur M. Pappas and Quintiles Transnational
Corporation.

Hunton & Williams by L. Neal Ellis, Jr. for Defendants Eric J. Topol, Jim D. Kever, Chester W.
Douglass, Pamela J. Kirby, E.G.F. Brown, and William L. Roper.
{2} On October 13, 2002, an investor group led by Dennis Gillings made a preliminary tender offer to
the Board of Directors of Quintiles Transnational Corporation (“Quintiles”) to acquire all of the
outstanding shares of the common stock of Quintiles in a cash tender offer of $11.25 per share. Within two
days and prior to any Board response, shareholder lawsuits were begun. From the time stamps on the
complaints it appears that counsel were lined up at the office of the Clerk of Court of Durham County in a
race to the courthouse to see who could file first. The race was won by the Brualdi law firm, which also
succeeded in getting a temporary restraining order issued even though the Board of Quintiles had not had
the opportunity to act on the proposal. The restraining order subsequently was withdrawn, as it should
have been. The motion generating it was meritless. Subsequently, seven lawsuits were filed in Durham
County. They were assigned to the Business Court and consolidated by court order.
{3} Less than a month later, the Quintiles Board rejected the offer and hired Morgan Stanley to
evaluate alternatives to a sale of the company. The Board ultimately decided to pursue a sale and
undertook steps to commence a broad based auction process. The auction process was clearly in the best
interest of the shareholders as the business of Quintiles was particularly difficult to value. Between
December 2002 and April 2003, six different bidders participated in the auction process and conducted
extensive due diligence and negotiations in two rounds of bidding. On April 10, 2003 Quintiles announced
that it had signed a merger agreement with an investor group led by Gillings. The merger agreement
provided for the purchase of outstanding shares of Quintiles common stock and options at $14.50 per
share in cash, a 28% premium over Gillings initial offer and a 75% increase over the trading price on
October 13, 2002. Plaintiffs do not contend that this lawsuit was the sole or even the principal factor that
led to the increased offer. The Court has reviewed the actions of the Board and found that the directors
fulfilled their fiduciary duty to the shareholders in the manner in which the auction was conducted. It
appears to the Court that the auction process resulted in the shareholders receiving the highest price
available on the market.
{4} The fight for lead counsel during the course of the litigation was hotly contested. The Court
appointed Beatie and Osborn LLP and Maxwell, Freeman & Brown P.A. lead counsel on February 13,
2003. Those firms negotiated the settlement approved by the Court.
I.
{5} When the Court is asked to approve a fee to be paid by the surviving company with no cost to the
shareholders it is essentially being asked to insure that the settlement is not collusive between the
company and class counsel and that the fee awarded is fair in light of the benefit provided by class
counsel. The court must exercise its discretion to see that there are proper incentives for class counsel to
bring shareholder lawsuits and insure that the litigation agency costs of such litigation do not outweigh the
reduction in management costs attributable to the threat of litigation.
{6} The Court is fully aware of the pressures on both the company and class counsel to resolve
disputes in merger and acquisition cases. Procedures for reviewing those settlements and fee applications
should not make settlement impossible or more difficult. The company and class counsel have four
options in resolving their disagreement over fees to be awarded in connection with the settlement of
shareholder litigation. They may agree to let the court set the fee with input from both sides. They may
agree on a set fee which both support. They may agree that the court can set the fee with a cap or
maximum (or within a range), and the company agrees not to object to the fee request. They may agree
that the court can set the fee with a cap or maximum (or within a range), and the company retains freedom
to assert its position with respect to the fee award and the amount. In this instance, the parties chose the
third option. The company agreed to a maximum fee of $450,000 and agreed not to object to the fee
request. By contrast, the Wachovia case, which did not involve a settlement, required the Court to set the
fee in a hotly contested debate. There, unlike this case, defendants argued the issues of causation and value
as well as the standard to be applied by the court.
{7} As a general rule, the trial court should determine three things before deciding the amount of the
fee. Where no agreement has been reached, the company is free to contest all three. First, the court looks
to see if the action was meritorious at the time it was filed. That issue will be addressed below. Second, it
must determine that there was an ascertainable benefit received by the class. Third, it must determine if
there existed a causal connection between the action and the benefit. See In re Dunkin Donuts S’holder
Litig., C.A. Nos. 10825, 10907, 1990 Del. Ch. LEXIS 197 (Del. Ch. Nov. 27, 1990); In re MacMillan, Inc.
S’holder Litig., C.A. Nos. 9909, 9953, 1989 Del. Ch. LEXIS 154 (Del. Ch. Nov. 16, 1989); Chrysler Corp
.v. Dann, 223 A.2d 384, 386-87 (Del. Ch. 1965).
{8} Once there is a showing of a meritorious claim, chronologically followed by the benefit sought,
the burden shifts to the company to show that the lawsuit did not “in any way cause their action.” The
company can show that that the benefit was attributable to other causes. Tandyscraft, Inc. v. Initio
Partners, 562 A.2d 1162, 1165 (Del. 1989); Allied Artist Pictures Corp. v. Baron , 413 A.2d 876, 880
(Del. 1980); Louisiana State Employee’s Retirement System v. Citrix Systems, Inc , C.A. 18298, 2001 Del
Ch. LEXIS 115, (Del. Ch. Sept. 17, 2001); Grimes v. Donald, 791 A.2d 818, 823-25 (Del. Ch. 2000).
{9} In cases where the action was taken without court order, the court may still find a causal
connection. It is not necessary that substantive relief be obtained in the lawsuit. Boards often proceed on
their own to take actions independent of the litigation process. See Tandyscraft, 562 A.2d. at 1164 ; Citrix,
2001 LEXIS at *17. This is just such a case. The Special Committee acted independently to fulfill its
fiduciary duties, and class counsel candidly admit that they performed more of a monitoring role than any
other function. In this matter, there is no clear monetary benefit created by the actions of class counsel,
although they argue that the litigation resulted in part in a $380 million dollar increase in the offering
price. The increase in the offering price resulted for the most part from the auction process.
{10} Where, as in the instant case, the company chooses to agree to a fee to be set by the court with a
cap and agrees not to object to a fee request in that amount, the company has created a prima facie case
that the complaint was meritorious when filed and that there was an ascertainable benefit received by the
shareholders and some causal connection between the action and the benefit was present. In this instance,
the company has acknowledged that the litigation was a factor in its deliberative process. See Affidavit of
Daniel A, Osborn, Ex. C at Recital I and Ex F. Given the prima facie case and the additional
acknowledgement, there is no basis on this record for the Court to find differently. Had the Board
believed that a lower fee was justified, it should have put itself in a position to present that information to
the Court.
{11} Nor has Quintiles provided the Court with any assistance with respect to the amount of the fee.
The Board is in the best position to provide information to the Court concerning the contribution or causal
connection between the litigation and its actions. Where it chooses not to provide that information, the
Court will not engage in independent discovery, but will assume that the Board considered the amount it

agreed to pay to be reasonable.[i] Generally no other party has a vested interest in the fee request, as it is
not coming out of the pockets of shareholders.
{12} However, the Court must make an independent determination of the fairness of the fee. It is free to
decide that the fee agreed upon is unreasonable, unnecessary, or inflated. It must maintain public
confidence in the litigation process. See Citrix, 2001 LEXIS at *11.
{13} In the case before the Court, the fee requested falls at the outer edge of, but not beyond, the realm
of reasonableness. For that reason and because it was unopposed, the Court elected not to reduce it. The
fee request was certainly a small percentage (one- twelfth of one percent) of the total increase in the share
price. Class counsel directed the court to several Delaware cases in which much higher fees were
approved and where Special Committees had acted on their own. See In re Telerate, Inc. S’holders Litig.,
1992 WL 44907 (Del. Ch. Apr. 26, 1991) ; Steiner v. Sithe-Energies, L.P., 1989 WL 50290 (Del. Ch. May
10, 1989); Robert M. Bass Group v. Evans , 1989 WL 137936 (Del. Ch. Nov. 16, 1989); North Am.
Phillips Stockholder Litig., 1987 WL 28434 (Del. Ch. Dec. 16, 1987). The fee certainly was not in the
range of the fees set aside by Chancellor Chandler. See Citrix, 2001 LEXIS at *37 (reducing fee award to
$140,000 from $2,000,000); In re Dunkin Donuts, 1990 Del. Ch. LEXIS at *31 (reducing fee from $2.5
million to $922,000). Had it been contested and some record created that addressed the value of the
benefit, reduced the contribution or eliminated causation, the Court might have reached a different result.
See In Re Wachovia Shareholders Litigation, 2003 NCBC 10 (No. 01 CVS 4486, Mecklenburg County
Super. Ct)(Tennille, J.). Certainly, the fee was higher than the average fee in cases where the Delaware
courts have applied their quantum meruit analysis in setting fees. See Citrix, 2001 LEXIS at *35 (stating
Chancellor Chandler’s determination that the average fee in quantum meruit analysis cases to be
approximately $273,000 over a three-year period).
{14} The Court has independently looked at the fee request in light of the factors commonly examined
in shareholder class action fee applications. See Wachovia, 2003 NCBC 10 at 71-88. A review of those
factors, including causation and contribution, did not cause the Court to reduce the requested fee although
there were clearly close questions involved. There was no advocate for a different position. For the
reasons set forth above, the Court approved the fee application.

II.
{15} The Court takes this opportunity to address one other issue that has been mooted for the most part
by the agreement of plaintiffs’ counsel to settle their fee dispute. It is an issue which may find more
prevalence in the future. The issue of whether or not the claim was meritorious when filed was mooted by
the prima facie case created by the settlement structure. The Brualdi firm had filed a separate request
asking to be awarded part of the fee agreed upon, based upon work performed by it prior to the court’s
selection of lead counsel. That dispute would also have raised the question of whether the original and
first suit filed by Breakwater Partners within two days of the announcement and the obtaining of the
temporary restraining order by Breakwater were meritorious.
{16} The Court does not adopt a hard and fast rule that no work performed by non-lead counsel will
ever be compensated. However, the Court will not compensate counsel who are not selected as lead
counsel just because they filed a complaint or filed motions prior to class counsel being appointed. To do
so would unnecessarily increase the litigation transaction costs. Class counsel who routinely practice in
this area understand that there are some cases in which they will be appointed and some in which they will
have no role. If they have no agreement with their clients to be compensated for the work they do, they
assume a risk in rushing to the courthouse. The contingent risk factor is one of the reasons they are
awarded a premium in many cases.
{17} The selection of lead counsel is seldom based upon the first to file rule. Increasingly courts are
looking for class representatives who have a substantial interest in the litigation and who will fulfill their
role as class representatives. The courts are also looking for counsel who have given some thought and
research to their complaints and have not just pulled a form out of the file and rushed to the courthouse.
The Delaware Chancery Court has put an increasing emphasis on counsels’ use of the right to inspect the
books and records of the company before filing suit.
{18} Delaware courts have “repeatedly urged derivative plaintiffs to seek books and records before
filing a complaint.” In Re The Walt Disney Company Derivative Litig., CA No. 15452, 2003 Del. Ch.
LEXIS 52 at n.5 (Del. Ch. May 28, 2003) (citing Guttman v. Jen-Hsun Huang, C.A. No. 19571-NC, 2003
Del. Ch. LEXIS 48, at *1-2 (Del. Ch. May 5, 2003)). Delaware’s Inspection of Books and Records statute
states in relevant part that “[a]ny stockholder . . . shall . . . have the right . . . to inspect for any proper
purpose the corporation’s stock ledger, a list of its stockholders, and its other books and records, and to
make copies or extracts therefrom.” 8 Del. C. § 220(b). The statute defines a proper purpose as “a
purpose reasonably related to such person’s interest as a stockholder.” Id.
{19} I n Rales v. Blasband, 634 A.2d 927 (1993), the Delaware Supreme Court was called on to
determine whether “Blasband . . . alleged facts to show that demand is excused on the board of directors
of Danaher Corporation, a Delaware Corporation[.]” Blasband was a shareholder in Easco Hand Tools,
Inc. (“Easco”) prior to 1990. In 1990, Easco became a wholly-owned subsidiary of Danaher Corporation
(“Danaher”). The underlying derivative litigation was based on alleged “misuse by the Easco board of the
proceeds of a sale of that company’s 12.87% Senior Subordinated Notes.” Id. at 930. Blasband alleged
that “the defendants did not invest in government and other marketable securities” as promised in the
prospectus. Instead, the board used the proceeds to buy “highly speculative junk bonds offered through
Drexel Burnham Lambert Inc. . . . [and that] [t]hese junk bonds were bought by Easco . . . to help Drexel
at a time when it was under investigation and having trouble selling such bonds.” Id. at 931 (internal
quotations omitted).
{20} Although Blasband complained “that the . . . boards of directors refused to comply with his
request for information regarding the investments[,] [there was] no indication that Blasband availed
himself of 8 Del. C. § 220[.]” Id. at 931, n.4. The Court of Chancery speculated about the non-use of the
books and records statute by plaintiffs in general. The Court of Chancery’s speculation is worth quoting at
length as it reflects similar thoughts held by this Court.
Although derivative plaintiffs may believe it is difficult to meet the
particularization requirement of Aronson because they are not entitled to discovery
to assist their compliance with Rule 23.1, . . . they have many avenues available to
obtain information bearing on the subject of their claims. . . . In addition, a
stockholder who has met the procedural requirements and has shown a specific
proper purpose may use the summary procedure embodied in 8 Del. C. § 220 to
investigate the possibility of corporate wrongdoing. Surprisingly, little use has
been made of section 220 as an information-gathering tool in the derivative
context. Perhaps the problem arises in some cases out of an unseemly race to the
court house, chiefly generated by the “first to file” custom seemingly permitting
the winner of the race to be named lead counsel. The result has been a plethora of
superficial complaints that could not be sustained. Nothing requires the Court of
Chancery, or any other court having appropriate jurisdiction, to countenance this
process by penalizing diligent counsel who has employed these methods, including
section 220, in a deliberate and thorough manner in preparing a complaint that
meets the demand excused test of Aronson.
Id. at 935 n. 10 (citing Compaq Computer Corp. v. Horton, 631 A.2d 1 (Del. 1993)).
{21} The Court of Chancery repeated the Delaware Supreme Court’s approval of using the books and
records statute to gather sufficient facts to plead with particularity. Ash v. McCall, C.A. No. 17132, 2000
Del. Ch. LEXIS 144 n. 56 (Del. Ch. Sept. 15, 2000) (“I leave it to plaintiffs to adduce such facts through
various pre-discovery fact-gathering methods they have at their disposal.”) As the Delaware Supreme
Court has repeatedly exhorted, shareholders plaintiffs should use the “tools at hand,” most prominently §
220 books and records actions, to obtain information necessary to sue derivatively.” (internal citations
omitted)).
{22} By May 5, 2003, the Court of Chancery had become increasingly vocal in chiding plaintiffs for
failure to utilize the books and records statute. In dismissing a complaint for failure to make a demand
under Delaware’s derivative statutes, Vice Chancellor Strine stated: “Having failed to heed the numerous
admonitions by our judiciary for derivative plaintiffs to obtain books and records before filing a
complaint, the plaintiffs have unsurprisingly submitted an amended complaint that lacks particularized
facts compromising the impartiality of the NVIDIA board that would have acted on a demand.” Guttman
v. Jen-Hsun Huang, C.A. No. 19571-NC , 2003 Del. Ch. LEXIS 48, at *2 (Del. Ch. May 5, 2003). The
Court further stated:
These books and records could have provided the basis for the pleading of particularized
facts . . . Rather than pursue that option, the plaintiffs, after confronting a motion to dismiss
their original complaint, were content to simply amend their complaint in reliance upon the
(now dismissed) federal complaints . . . They have thus ignored the repeated admonitions of
the Delaware Supreme Court and this court for derivative plaintiffs to proceed deliberately
and to use the books and records device to gather the materials necessary to prepare a solid
complaint.
Id. at *34-35.
{23} The Delaware cases of Brehm v. Eisner, 746 A.2d 244 (Del., 2000) and In re The Walt Disney
Company Derivative Litigation, C.A. No. 15452, 2003 Del. Ch. LEXIS 52 (Del. Ch. May 28, 2003) clearly
demonstrate the significant value of utilizing the Delaware books and records statute.
{24} The Court of Chancery originally held “that the stockholder derivative complaint was subject to
dismissal for failure to set forth particularized facts creating a reasonable doubt that the director
defendants were disinterested and independent or that their conduct was protected by the business
judgment rule.” Brehm, 746 A.2d at 248. The Delaware Supreme Court remanded the case to the Court
of Chancery “to provide plaintiffs a reasonable opportunity to file a further amended complaint consistent
with this opinion.” Id. In its opinion, the Supreme Court twice pointed out plaintiff’s failure to use the
books and records statute. First, in footnote 57 Chief Justice Veasey reminded plaintiffs that:
It is no excuse for plaintiffs to argue that they are unable to allege these particularized facts
because they are cut off from access to discovery at the pre-suit demand stage of a
derivative suit. Plaintiffs have the opportunity to use the “tools at hand” to learn facts
relating to [the issues at hand] or by seeking appropriate and precisely identified corporate
records in a Section 220 proceeding.
Id. at 262 n. 57. Finally, the Chief Justice pointed out that a proceeding under Section 220 is a “summary
one that should be managed expeditiously.” Id. at 267. He also noted that “it is well established that
investigation of mismanagement is a proper purpose for a Section 220 books and records inspection.” Id.
at n. 75 (quoting Security First Corp. v. U.S. Die Casting & Dev. Corp., 687 A.2d 563, 567-69 (Del.
1997)).
{25} In re The Walt Disney Company is the Court of Chancery’s decision on remand. At this point,
plaintiffs “had used a request for books and records as authorized under 8 Del. C. § 220, to obtain
information about the nature of the Disney Board’s involvement in the decision to hire and, eventually, to
terminate Ovitz.” In re The Walt Disney Company, 2003 Del. Ch. LEXIS at *5. The Court noted that
“[t]he facts, as alleged in the new complaint, portray a markedly different picture of the corporate
processes . . . than that portrayed in the first amended complaint.” Id. at *5-6. The Court also pointed out
that “[t]his case is yet another example where a books and records request in the first instance might have
prevented expensive and time-consuming procedural machinations that too often occur in derivative
litigation.” Id. at *6 n. 5 (citing Guttman, 2003 Del. Ch. LEXIS 48).
{26} Although North Carolina’s records statute is more detailed than Delaware’s, it gives shareholders
very similar rights. It provides that a qualified shareholder of a corporation is entitled to inspect and copy
any of the following corporate records:
(1) Its articles or restated articles of incorporation and all amendments to them
currently in effect;
(2) Its bylaws or restated bylaws and all amendments to them currently in effect;
(3) Resolutions adopted by its board of directors creating one or more classes or series
of shares, and fixing their relative rights, preferences, and limitations, if shares issued
pursuant to those resolutions are outstanding;
(4) Minutes of all shareholders’ meetings, and records of all action taken by
shareholders without a meeting, for the past three years;
(5) All written communications to shareholders generally within the past three years
and the financial statements required to be made available to the shareholders for the past
three years under G.S. 55-16-20;
(6) A list of the names and business addresses of its current directors and officers; and
(7) Its most recent annual report delivered as required by G.S. 55-16-22.
N.C.G.S. § 55-16-01(e) (2002); N.C.G.S. § 55-16-02(a) (2002). Upon following the proper procedures
outlined in the statute, a qualified shareholder may also inspect and copy:
(1) Records of any final action taken with or without meeting by the board of directors,
or by a committee of the board of directors while acting in place of the board of directors
on behalf of the corporation, minutes of any meeting of the shareholders and records of
action taken by the shareholders without a meeting . . . ;
(2) Accounting records of the corporation; and
(3) The record of shareholders.

N.C.G.S. § 55-16-02(b). The right to inspect is limited if the corporation “determines in good faith [that
the disclosure will] adversely affect the corporation in the conduct of its business or may constitute
material nonpublic information[.]” Id. The check on this limitation would be an action under this statute
asking a court “to compel the production of corporate records for examination.” N.C.G.S. § 55-16-02(e)
(2).
{27} Our Supreme Court has indicated that a proper purpose could include “determining any possible
mismanagement of the Company or any possible misappropriation, misapplication or improper use of any
property or asset of the Company[.]” Parsons v. Jefferson-Pilot Corp., 333 N.C. 420, 429, 426 S.E.2d
685, 691 (1993) (holding that the quoted language met the particularity requirements under the
circumstances of the case.).
{28} Failure to use inspection of books and records may result in a finding that the suit was not
meritorious when filed. The plaintiff who waits to see what action the board takes and then files a
complaint based upon actual activity rather than speculation about what the board might do may be the
better selection as class representative. Certainly courts will look more closely at the quality of the
complaint than the time of its filing and will look to see what investigation supports the filing of the
complaint.

III.
{29} Finally, the court addresses one issue raised by an objection to the fee. The public is suspicious of
large legal fees. In this case as in many others where the board has fulfilled its duties and the shareholders
have voted on a proposed merger, the settlement provides for the payment of legal fees and includes a
release of any shareholder claims. To the public it appears that the shareholders are the only ones giving
up anything and that the lawyers are walking away with the money. It is an understandable reaction based
upon the language of the settlements and the notices which go out. The payment to counsel is not a quid
pro quo for the release, although it may appear so. The payment is for some service of value performed,
and the release serves to end the litigation and insure consummation of the transaction where the court has
determined that the shareholders have no further claim. Here, the auction insured that the shareholders got
the best possible price. The board fulfilled its fiduciary duties. The lawyers who represented the class
performed some services of value for which the company agreed to provide compensation, and the
shareholders’ price was not diminished in any way. By providing fees to counsel where some service of
value to the shareholders has been performed, the Court insures that there is a check on management
which encourages good sound corporate governance. In order to approve the settlement, the Court had to
be convinced that the shareholders received both the fulfillment of the directors’ fiduciary duties and the
best price a free market would offer for their stock. The release served to conclude the litigation once and
for all, giving both the Company and the Court assurance that the litigation agency costs were capped. In
approving the settlement, the Court is fulfilling its obligation to balance the need for incentives for
shareholders to protect their interest with the need to keep litigation costs at a level which does not inhibit
merger activity. That merger activity often creates the most realizable value for shareholders.

SO ORDERED this the 19th day of December 2003.

[i] In In Re Delhaize America, Inc. Shareholders Litigation, 00 CVS 13706, the Board agreed to pay class counsel monitoring the
actions of the Special Committee a fee that was almost five times the amount paid to the members of the Special Committee who
actually did the work resulting in the increased share price. In that case, as in this case, the company provided the Court with no
reason to reduce or disapprove the fee.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11057425. Public record. Not legal advice.