In re Appraisal of Endeavor Group Holdings, Inc.

COURT OF CHANCERY
OF THE
STATE OF DELAWARE

LORI W. WILL LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734

July 22, 2025

A. Thompson Bayliss, Esquire Samuel T. Hirzel, II, Esquire
April M. Ferraro, Esquire Brendan Patrick McDonnell, Esquire
E. Wade Houston, Esquire Heyman Enerio Gattuso & Hirzel LLP
Michael T. Manuel, Esquire 300 Delaware Avenue, Suite 200
Daniel J. McBride, Esquire Wilmington, Delaware 19801
Ben Lucy, Esquire
Clara Hubbard, Esquire
Abrams & Bayliss LLP
20 Montchanin Road
Wilmington, Delaware 19807

Jonathan M. Kass, Esquire
Alexander J. Rigby, Esquire
Reid Collins & Tsai LLP
300 Delaware Avenue, Suite 700
Wilmington, Delaware 19801

RE: In re Appraisal of Endeavor Group Holdings, Inc.,
C.A. No. 2025-0317-LWW

Dear Counsel:

On March 24, 2025, private equity firm Silver Lake acquired Endeavor Group

Holdings, Inc., taking the company private at $27.50 per share. Numerous Endeavor

stockholders dissented from the merger to demand appraisal.
C.A. No. 2025-0317-LWW
July 22, 2025
Page 2 of 17

A flurry of appraisal petitions in this court followed—each asserting that the

fair value of Endeavor’s stock exceeded the deal price. Because the appraisal statute

contemplates a single proceeding, the petitions were consolidated. The designation

of petitioners’ counsel to lead this suit remained unresolved.

Two sets of lead counsel contenders emerged. The first set, who originally

represented most of the petitioners, touted their clients’ large interests and the

incentive alignment fostered by their contingency fee structure. The second set, with

a smaller yet sizeable client group, criticized the client acquisition tactics and

financial motives of the competing lawyers.

The leadership dispute grew heated. Tensions boiled over. And the tides

shifted.

Several dissenting stockholders ended their engagements with the first set of

lawyers and hired the second set, who now represents most dissenting stockholders.

That fact alone is not determinative. Both sets of lawyers are highly skilled and

qualified. On balance, though, the overwhelming economic stake represented by the

second set of lawyers and potential conflicts sparked by the first set’s fee structure

tip the scales. I appoint the second set lead counsel.
C.A. No. 2025-0317-LWW
July 22, 2025
Page 3 of 17

I. RELEVANT FACTS

On March 24, 2025, Silver Lake completed its acquisition of the Endeavor

shares it did not already own for $27.50 per share—a roughly $13 billion equity

value.1 The price represented a 55% premium to the unaffected stock price.2

Endeavor’s largest asset was a controlling stake in another public company—TKO

Group Holdings, Inc.—whose stock soared between the deal’s signing and closing.

Endeavor stockholders holding about 150 million shares worth a combined $4.1

billion at the deal price dissented from the merger, invoking their statutory appraisal

rights.3

On March 25, the first appraisal petition was filed in this court.4 Two dozen

more followed. On April 29, I consolidated the appraisal petitions.5 A dispute over

leadership emerged among petitioners’ counsel, prompting motions practice.

1
Silver Lake, Silver Lake to Take Endeavor Private (April 2, 2024),
https://www.silverlake.com/silver-lake-to-take-endeavor-private.
2
This is based on the $17.72 per share price at market close on October 25, 2023—the last
full trading day before Endeavor announced a review of strategic alternatives. See id.
3
See 8 Del. C. § 262. To be precise, there are 149,250,809 dissenting shares worth
$4,104,397,247.50 at the deal price. See A&B Group’s Revised Br. in Opp’n to RKS
Group’s Mot. for Designation as Sole Lead Counsel and in Supp. of Cross-Mot. for
Alternative Leadership Structure (Dkt. 71) (“A&B Group Opening Br.”).
4
See 8 Del. C. § 262.
5
Dkt. 12.
C.A. No. 2025-0317-LWW
July 22, 2025
Page 4 of 17

First, Rolnick Kramer Sadighi LLP (“RKS”) and Heyman Enerio Gattuso &

Hirzel LLP (with RKS, the “RKS Group”) moved to be appointed sole lead counsel.6

At the time of their motion, the RKS Group represented stockholders holding more

than 90 million of the 150 million shares that dissented from the merger.7 The RKS

Group argued that since an appraisal action is singularly focused on the fair value of

stock at closing, “[t]he petitioners with the greatest financial interest in the outcome

of that determination are in the best position to litigate the petition.”8 It rebuffed the

notion of a shared leadership role.9

A few weeks later, Abrams & Bayliss LLP (“A&B”) and Reid Collins & Tsai

LLP (“RCT”; with A&B, the “A&B Group”) opposed the RKS Group’s motion.10

6
Mot. for Designation as Sole Lead Counsel (Dkt. 13) (“RKS Group Opening Br.”).
7
Id. at 5.
8
Id. at 4.
9
See infra notes 37-39 and accompanying text (detailing the RKS Group’s arguments
against appointing co-lead counsel).
10
See A&B Group’s Brief in Opp’n to RKS Group’s Mot. for Designation as Sole Lead
Counsel and in Supp. of Cross-Mot. for an Alternative Leadership Structure (Dkt 16); RCT
Br. in Opp’n to RKS Motion for Designation as Sole Lead Counsel and Alternative Form
of Order (Dkt. 14) (“RCT Opening Br.”). A&B’s original brief inappropriately
characterized the RKS Group’s actions as verging on criminal, which prompted the RKS
Group to move to strike it. Dkt. 26. At oral argument, I held in abeyance a ruling on the
motion to strike and asked A&B to refile a brief that comported with the civility obligations
of lawyers practicing in this court. Tr. of July 15, 2025 Oral Arg. (Dkt. 73) (“Hr’g Tr.”)
10-11. A&B did so on July 16, mooting the motion to strike.
C.A. No. 2025-0317-LWW
July 22, 2025
Page 5 of 17

The A&B Group cross-moved for A&B to be lead counsel, with RCT as additional

counsel.11 At that point, the A&B Group represented dissenting stockholders with

over 56 million shares.12

Several large dissenters then terminated their engagements with RKS to hire

A&B. The RKS Group’s client base shrunk to a still substantial 30 million shares—

about a third of what it previously represented.13 The A&B Group’s representation

rose to over 110 million shares.14

Oral argument on the leadership motions took place on July 15.15 The RKS

Group pivoted to seeking a co-leadership role with A&B.16 The A&B Group

11
A&B Group Opening Br. 54; RCT Opening Br. 8.
12
A&B Group Opening Br. 4-5. With the additional dissenters who hired RCT, the A&B
Group collectively represented about 40% of total dissenters at the time the motions were
filed. See RCT Opening Br. 9.
Compare Ltr. Regarding Pre-Arg. Status Update (Dkt. 63) (“RKS Group July 14 Status
13

Update”), with supra note 7 and accompanying text.
14
Compare Ltr. Regarding Hr’g Scheduled for July 15, 2025 (Dkt. 64) (“A&B July 14
Ltr.”), with supra note 12 and accompanying text. Two other large stockholders
represented by other Delaware counsel expressed support for A&B’s appointment. See
Dkt. 62.
15
See Dkt. 74.
16
See RKS Group July 14 Status Update 1; Hr’g Tr. 14.
C.A. No. 2025-0317-LWW
July 22, 2025
Page 6 of 17

rejected that arrangement.17 Afterward, several more dissenters terminated

engagements with the RKS Group to retain A&B.18

II. ANALYSIS

Appraisal actions are “in the nature of a class [action] suit” and share some

similarities.19 In either context, the court has the discretion to appoint lead counsel

to represent a diverse body of stockholders.20 But appraisal suits are not class

actions; there is no class for the court to certify.21 Dissenting stockholders must

comply “with the statutory formalities required to perfect their appraisal rights.”22

Court of Chancery Rule 23, which governs class actions, does not apply to

appraisal proceedings.23 Still, Rule 23 and caselaw in the class action context

17
See Hr’g Tr. 61-64; A&B July 14 Ltr. 2.
18
Corrected Ltr. Regarding Update Following July 15, 2025 Oral Arg. (Dkt. 73) (“A&B
July 19 Ltr.”).
19
Alabama By-Prods. Corp. v. Cede & Co., 657 A.2d 254, 260 (Del. 1995) (citing S. Prod.
Co., Inc. v. Sabath, 87 A.2d 128, 134 (Del. 1952)); see also Sunrise P’rs Ltd. P’ship v.
Rouse Props., Inc., 2016 WL 7188104, at *4-5 (Del. Ch. Dec. 8, 2016) (listing three
examples of similarities between appraisal and class actions).
20
Rouse, 2016 WL 7188104, at *8.
21
See id. at *4 (explaining that “as a matter of substantive law that this Court will not
certify a class of dissenting stockholders who seek statutory appraisal”).
22
Alabama By-Prods., 657 A.2d at 260 n.10; see 8 Del. C. § 262(d).
23
Ct. Ch. R. 23 (outlining the procedures and requirements for bringing and maintaining
class action lawsuit).
C.A. No. 2025-0317-LWW
July 22, 2025
Page 7 of 17

provide guidance on resolving lead counsel applications in an appraisal.24 I begin

by summarizing the relevant law and go on to apply it to the present facts by analogy.

A. The Hirt Factors and Rule 23(a)

Delaware courts traditionally considered the Hirt factors when appointing

lead counsel in a representative action.25 In May 2024, the Court of Chancery

amended Rule 23 to codify eight factors the court may consider in resolving class

leadership disputes:

(i) counsel’s competence and experience; (ii) counsel’s access to
the resources necessary to represent the class; (iii) the quality of
the pleading; (iv) counsel’s performance in the litigation to date;
(v) the proposed leadership structure; (vi) the relative economic
stakes of the representative parties; (vii) any conflicts between
counsel or the representative parties and members of the class;
and (viii) any other matter pertinent to the ability of counsel or
the representative party to fairly and adequately represent the
interests of the class.26
24
See Rouse, 2016 WL 7188104, at *6 (“[I]t is appropriate to look for guidance to this
Court’s practices regarding the management of class action litigation.”).
25
Hirt v. U.S. Timberlands Serv. Co., 2002 WL 1558342 (Del. Ch. July 3, 2002); see Rouse,
2016 WL 7188104, at *6 (applying the Hirt factors before appointing lead counsel in an
appraisal action). The Hirt factors are: (1) “the quality of the pleading[s]”; (2) “the relative
economic stakes of the competing litigants”; (3) “the willingness and ability” of counsel to
“litigate vigorously on behalf of” those represented; (4) “the absence of any conflict
between larger” and “smaller stockholders”; (5) counsel’s “enthusiasm or vigor” in
litigating the case; and (6) counsel’s “competence” and “access to the resources necessary
to prosecute the claims at issue.” Hirt, 2002 WL 1558342, at *2.
26
Ct. Ch. R. 23(d)(4)(A). Rule 23(d)(4)(A) largely tracks Hirt but add as factors “the
proposed leadership structure” and a catch-all letting the court consider “any other matter
pertinent to the ability of counsel or the representative party to fairly and adequately
C.A. No. 2025-0317-LWW
July 22, 2025
Page 8 of 17

Like the Hirt factors, Rule 23(d) is not a “scorecard” for the court to “check[]

the boxes” and “crown a ‘winner’” with “the most ‘points.’”27 It merely supplies

“guideposts” toward the court’s “overriding goal” of “establish[ing] a leadership

structure that will provide effective representation . . . .”28 “[E]ach factor is given

weight only to the extent that it bears on the ultimate question of what is in the best

interests of the plaintiff class.”29

B. Application of the Rule 23 Factors

The first four Rule 23(d) factors are either inapplicable or neutral in the

present case. Counsel in the RKS Group and A&B Group are all highly competent

represent the interests of the class.” Ct. Ch. R. 23(d)(4)(A)(v), (viii). Rule 23 also
reformulated certain Hirt factors. Rather than “the absence of any conflict between larger,
often institutional, stockholders and smaller stockholders,” Rule 23 directs the court to note
“any conflicts between counsel or the representative parties and members of the class.”
Compare Ct. Ch. R. 23(d)(4)(A)(vii), with Hirt, 2002 WL 1558342, at *2. And instead of
“the willingness and ability of all the contestants to litigate vigorously on behalf of an entire
class of shareholders” and “the enthusiasm or vigor with which the various contestants
have prosecuted the lawsuit,” Rule 23 contemplates an assessment of “counsel’s
performance in the litigation to date.” Compare Ct. Ch. R. 23(d)(4)(A)(iv), with Hirt, 2002
WL 1558342, at *2.
27
In re Delphi Fin. Grp. S’holder Litig., 2012 WL 424886, at *1 (Del. Ch. Feb. 7, 2012).
28
Id. (quoting In re Del Monte Foods Co. S’holders Litig., 2010 WL 5550677, at *6 (Del.
Ch. Dec. 31, 2010)).
29
Id.
C.A. No. 2025-0317-LWW
July 22, 2025
Page 9 of 17

and experienced in appraisal proceedings.30 Both groups have access to resources.31

The quality of the pleadings is irrelevant since appraisal petitions are formulaic and

the court independently determines fair value.32 And counsel has performed with

similar skill and vigor (even overzealousness) at this early stage.33

The fifth through eighth factors warrant closer consideration. One—the

proposed leadership structures—supplies no clear answer. The other three, however,

favor the A&B Group.

1. Proposed Leadership Structure

Comparable leadership structures were initially proposed by each faction.

The RKS Group asked that I appoint a New-York-based firm and a Delaware firm

as “sole lead” counsel.34 The A&B Group asked that I appoint a Delaware firm as

lead counsel and give a New-York based firm with a Delaware office a supporting

role.35

30
See Ct. Ch. R. 23(d)(4)(A)(i).
31
See Ct. Ch. R. 23(d)(4)(A)(ii).
32
See Ct. Ch. R. 23(d)(4)(A)(iii); see also Rouse, 2016 WL 7188104, at *7 (“[T]he quality
of the pleadings is not a factor that weighs in favor of either counsel. Given that this is an
appraisal action, the pleadings are relatively simple and fairly standardized.”).
33
See Ct. Ch. R. 23(d)(4)(A)(iv); see also supra note 10.
34
RKS Group Opening Br. 1.
35
A&B Group Opening Br. 22.
C.A. No. 2025-0317-LWW
July 22, 2025
Page 10 of 17

Now, the RKS Group insists that a co-lead role by which it and the A&B

Group share responsibilities is warranted.36 In ideal circumstances, I would agree.

Both groups—even as they currently stand—represent investors with significant

stakes in this lawsuit’s outcome. Those investors chose to engage specific counsel.

But the facts here suggest that compelled cooperation risks dysfunction. As

the RKS Group repeatedly emphasized in its filings, sharing leadership with the

A&B Group would prompt “deadlock, disorganization, inefficiency, and

disagreement.”37 The heated—even ad hominem—attacks between counsel suggest

36
Hr’g Tr. 14; July 14 RKS Group Status Update 1 (providing that it would be “willing to
enter into a co-counsel leadership structure”).
37
RKS Group Opening Br. 4; see also id. at 6 (contending that co-leadership is “likely to
be outright counterproductive”); id. (“Imposing unnecessary co-lead petitioners and their
co-lead counsel will only cause inefficiency, unnecessary duplication of effort, needless
disputation and potential delays in the speedy and efficient prosecution of this single-issue
action.”); id. at 22 (asserting that “there is no benefit to adding additional lead petitioners
or counsel” and that to do so would “needlessly complicate the effective and efficient
prosecution of the proceedings”); id. at 24 (“This court should seek to promote the just,
speedy and efficient resolution of this proceeding, and ‘it is not in the best interests of
[Endeavor] or its stockholders to appoint all of the law firms competing for leadership as
co-lead counsel.’ There is no need to ‘forc[e] cooperation [where doing so] risks impairing
team dynamics’ and ‘potential dysfunction.’” (citation omitted)).
C.A. No. 2025-0317-LWW
July 22, 2025
Page 11 of 17

that these are valid fears.38 As the RKS Group put it, “[t]here should only be one

captain to steer this ship.”39 On that advice, I decline to appoint co-lead counsel.

2. Relative Economic Stakes

Hirt counsels that “the relative economic stakes of the competing litigants in

the outcome of the lawsuit” are “to be accorded ‘great weight.’”40 But this factor is

not determinative. It is prioritized if there is a “substantial relative difference”

between the factions’ financial interests.41

Both the RKS Group and the A&B Group represent investors with “large

economic stakes that would incentivize them to participate actively in the

litigation.”42 Yet there are meaningful differences in scale. At first, the RKS Group

had a much larger interest, representing 90 million of the 150 million shares eligible

for appraisal.43 The tables have turned. The A&B Group now represents former

38
See supra note 10; see also Hr’g Tr. 10 (the court observing that both sides’ behavior
“crosse[d] the line”).
39
RKS Group Opening Br. 4.
40
Hirt, 2002 WL 158342, at *2.
41
Wiehl v. Eon Labs, 2005 WL 696764, at *3 (Del. Ch. Mar. 22, 2005); see Delphi, 2012
WL 424886, at *3 (finding this factor “immaterial” where the investor groups “each
own[ed] a relatively small stake”).
42
Rouse, 2016 WL 7188104, at *7. Rouse afforded this factor “great weight” because one
group beneficially owned “over 75% of the shares entitled to appraisal.” Id.
43
RKS Group Opening Br. 9; see supra note 7 and accompanying text.
C.A. No. 2025-0317-LWW
July 22, 2025
Page 12 of 17

stockholders with over 115 million shares versus the RKS Group’s approximately

25 million shares.44

3. Potential Conflicts and Other Matters

The final factors concern conflicts between counsel and the represented

parties, and “other matters” the court finds “pertinent” to counsel’s ability “to fairly

and adequately represent” the litigants’ interests.45 Here, those factors are linked.

The competing groups’ fee structures are an important consideration in assessing

counsels’ incentives, and the RKS Group’s structure invites discord.

A suitable fee structure bears on whether counsel can provide fair

representation. Thus, Delaware courts scrutinize fee arrangements between

potential lead counsel and their clients in stockholder class actions.46 One purpose

44
A&B July 19 Ltr. 1.
45
Ct. Ch. R. 23(d)(4)(A)(vii)-(viii).
46
See Ct. Ch. R. 23(d)(4)(B)(i) (permitting the court to order that a lead counsel applicant
“provide information on any subject pertinent to the application and to propose terms for
attorneys fees and expenses”). The advisory committee notes to analogous Federal Rule
of Civil Procedure 23 explain that “the court may direct applicants to inform the court
concerning any agreements about a prospective award of attorney fees or nontaxable costs,
as such agreements may sometimes be significant in the selection of class counsel.” Fed.
R. Civ. P. 23; see also 1 Newberg and Rubenstein on Class Actions § 3:86 (6th ed.) (“In
recognition of the substantial effect attorney’s fees may have on the motivations and
actions of class counsel, the rule specifically authorizes courts to order applicants to
disclose information about fee agreements they have negotiated . . . .”).
C.A. No. 2025-0317-LWW
July 22, 2025
Page 13 of 17

of that inquiry is to avoid conflicts among the lawyers’ clients and other members

of the putative class.47 Because lead counsel in an appraisal suit similarly take on

fiduciary responsibilities to all stockholders who perfected appraisal rights,48 an

examination of the applicants’ fees is called for.

Here, the two contenders have dissimilar fee arrangements. The RKS Group

offers a contingent fee structure.49 The A&B Group is paid hourly—though

investors have the option to hire RCT on a contingency basis.50

There are often strong arguments in favor of a contingent fee structure, which

can appropriately shift financial risks of litigation onto counsel and align their

interest in a maximum recovery with the stockholders they represent.51 But the RKS

Group’s arrangement merits a deviation from this general wisdom. It invites

47
Cf. Ct. Ch. R. 23(aa)(2) (requiring class representatives to affirm that they have not
received or been promised compensation directly or indirectly, with specific exceptions).
48
See Rouse, 2016 WL 7188104, at *5 (citing Ala. By-Prods., 657 A.2d at 260).
49
Reply Br. in Further Supp. of Majority Pet’rs’ Mot. to Designate their Counsel as Sole
Lead Counsel and in Opp’n to A&B Group’s Cross-Mot. for Lead (Dkt. 31) (“RKS Group
Reply Br.”) 28-29.
50
A&B Group Opening Br. 6.
51
E.g., In re Plains Res. Inc., 2005 WL 332811, at *6 (Del. Ch. Feb. 4, 2005) (explaining
that contingent fee arrangements are “consistent with the public policy of Delaware”
because they “reward . . . risk-taking in the interests of shareholders”); In re Dell Techs.
Inc. Class V S’holders Litig., 300 A.3d 679, 726 (Del. Ch. 2023) (discussing the fairness
intrinsic to contingency fee structures), aff’d, 326 A.3d 686 (Del. 2024).
C.A. No. 2025-0317-LWW
July 22, 2025
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misaligned interests not only between counsel and stockholders, but also among the

stockholders themselves.

At a high level, the RKS Group’s fees are 20% to 25% percent of any recovery

above the merger consideration—including statutory interest.52 Silver Lake has

declined to prepay dissenting stockholders’ merger consideration “until there is a

full resolution with respect to [these] appraisal claims.”53 So if I were to find that

the $27.50 deal price reflected fair value, interest could exceed $800 million and the

RKS Group’s fees from the entire appraisal pool could exceed $200 million.54 In

that scenario, the RKS Group’s fees would be many multiples higher than what A&B

52
RKS Group Reply Br. 33; see 8 Del. C. § 262(h) (providing for statutory interest
compounded quarterly and accruing “at 5% over the Federal Reserve discount rate” for the
period between the merger’s effective date and payment of a judgment); see also
Transmittal Aff. of April M. Ferraro, Esq. in Supp. of A&B Grp.’s Br. in Opp’n to RKS
Grp.’s Mot. for Designation as Sole Lead Counsel and in Supp. of Cross-Mot. for an
Alternative Leadership Structure (“Ferraro Aff.”) Ex. 5 ¶ 6; Ferraro Aff. Ex. 6 ¶ 6(c);
Ferraro Aff. Ex. 7 ¶ 8; Ferraro Aff. Ex. 8 ¶ 6.
53
Silver Lake to Close Endeavor Transaction on March 24th at $27.50, Business Wire
(Mar. 3, 2025), https://www.businesswire.com/news/home/20250303663576/en/Silver-
Lake-To-Close-Endeavor-Transaction-On-March-24th-At-%2427.50; see also A&B
Group Opening Br. 14; RKS Group Opening Br. 9; 8 Del. C. § 262(h) (permitting a
respondent to prepay some or all merger consideration to cut off the accrual of interest).
54
Assuming no premium to the current merger consideration and that the litigation ends in
two years, A&B calculates total interest of $847,831,602.00, leading to fees for the RKS
Group of $169,566,320.40 million (20%) to $211,957,900.50 million (25%). A&B Group
Opening Br. 39; see 8 Del. C. § 262(h). These figures do not reflect any reduction for
RKS’s waiver of fees for clients with shares over 10 million.
C.A. No. 2025-0317-LWW
July 22, 2025
Page 15 of 17

would receive under an hourly model.55 Equity will not countenance windfalls to

counsel from Pyrrhic victories.56

Bespoke features of the RKS Group’s fee structure provide further cause for

concern. RKS effectively divided stockholders into tiers. First, it offered an “early

mover” discount—lowering its 25% contingency fee to 20%—for clients who

committed to engage it by a fixed date.57 Second, it agreed to cap fees for clients

with large stakes, waiving fees on shares over 10 million to give these clients an

effective rate of less than 20%.58 Everyone else must pay 25% on all shares.

55
See A&B Group Opening Br. 40 (calculating fees as high as $50 million). Of course, if
the court sets fair value below the deal price, the RKS Group would receive no fees while
the A&B Group would recover its hourly fees. Two of A&B’s clients have offered to
reimburse those who engaged A&B after May 23 for their pro rata portion of A&B’s fees
in excess of the dissenters’ upside to mitigate the downside scenario associated with an
hourly model. Id. at 51-52.
56
See Dell, 326 A.3d at 702 (noting the “policy concern of preventing windfalls to
counsel”).
57
RKS Group Reply Br. 32-33 & n.11; see also A&B Group Opening Br. 29 n.19.
58
See RKS Group Reply Br. 6. To explain how RKS’s waiver of fees on shares over 10
million results in a lower total effective rate, a stylized example is helpful. Imagine a
hypothetical stockholder with 15 million shares and who negotiated a 20% contingency
rate with RKS. Assume that the court determined a fair value of $30 per share (compared
to the $27.50 merger price)—a $2.50 per share recovery. (For simplicity, this hypothetical
excludes the effect of interest.) The stockholder would recover $37.5 million ($2.50 x 15
million shares). But rather than pay counsel 20% of this amount ($7.5 million), it would
only pay 20% of the amount recovered on its first 10 million shares ($5 million; $2.50 x
10 million shares x 20%). An effective contingency rate of 13.33% ($5,000,000 /
$37,500,000) would result. The discount increases with more shares. Holding all else
constant under this example, if the hypothetical stockholder had 25 million shares instead
C.A. No. 2025-0317-LWW
July 22, 2025
Page 16 of 17

This structure hazards inequitable treatment of dissenting stockholders.59 It

shifts a disproportionate amount of fees (on a per-share basis) from large holders to

smaller ones, and from “early” movers to those who hired RKS later—or not at all.

The waiver on fees above 10 million shares might also contravene “most favored

nation” clauses that RKS negotiated with several clients in the 20% tier.60 A&B’s

structure, by contrast, allocates its hourly fees pro rata according to ownership,

ensuring equal treatment among dissenters.61

III. CONCLUSION

The relevant Rule 23 factors favor denying the RKS Group’s motion and

granting the A&B Group’s cross-motion. The A&B Group represents clients with a

relatively larger stake and has a more equitable fee structure that avoids conflicts

of 15 million, the effective rate would be just 8% ($5,000,000 payment / $62,500,000
recovery).
59
Cf. In the Matter of the Appraisal of Shell Oil Co., 1986 WL 2635, at *1 (Del. Ch. Feb.
21, 1986) (“[T]he named plaintiffs have a fiduciary duty under the appraisal statute to those
dissenting stockholders who are entitled to an appraisal but have not filed a civil action.”).
60
See A&B Group Opening Br. 13; see, e.g., Ferraro Aff. Ex. 8 ¶¶ 7-8; id. at Ex. A § 2.1.e;
Ferraro Aff. Ex. 10 at Ex. A § 2.1.e.
61
Cf. 8 Del. C. § 262(j); Rouse, 2016 WL 7188104, at *5 (“Section 262(j) incorporates
basic common-fund principles with respect to the allocation of counsel fees among the
appraisal class at the conclusion of the litigation.”).
C.A. No. 2025-0317-LWW
July 22, 2025
Page 17 of 17

among dissenting stockholders. A&B is appointed as sole lead counsel, with RCT

as additional counsel.

Sincerely yours,

/s/ Lori W. Will

Lori W. Will
Vice Chancellor

cc: Raymond DiCamillo, Esquire
John Hendershot, Esquire
Robert Burns, Esquire
John O’Toole, Esquire
Marcus E. Montejo, Esquire
Kevin H. Davenport, Esquire
John G. Day, Esquire
Seth T. Ford, Esquire