Tyco International v. Walsh

Filing 112

OPINION AND ORDER #99523 The September 17, 2010 motions in limine to preclude evidence of damages associated with the Boies Schiller investigation and the Franklin litigation are denied. SO ORDERED. (Signed by Judge Denise L. Cote on 10/4/2010) (jmi) Modified on 10/4/2010 (ajc).

Tyco International v. Walsh

Doc. 112

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------X : TYCO INTERNATIONAL LTD., : Plaintiff, : : : -v: : : FRANK E. WALSH, JR., : Defendant. : : ----------------------------------------X Appearances: For Plaintiff: Mark Levine Bartlit Beck Herman Palenchar & Scott LLP 54 W. Hubbard Street, Suite 300 Chicago, IL 60654 Bryan Leach Bartlit Beck Herman Palenchar & Scott LLP 1899 Wynkoop Street, 8th Floor Denver, CO 80202 For Defendant: Michele L. Pahmer Jeremy Rosof Elizabeth Cronise Rodger Pichardo Stroock & Stroock & Lavan LLP 180 Maiden Lane New York, NY 10038 DENISE COTE, District Judge:

02 Civ. 4633 (DLC) OPINION & ORDER

On September 17, 2010, defendant Frank E. Walsh, Jr. ("Walsh") moved in two separate motions in limine to preclude evidence at trial of certain damages that plaintiff Tyco

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International Ltd. ("Tyco") asserts that it sustained from Walsh's breach of his fiduciary duty to Tyco when he accepted a payment of $20 million from Tyco while he was a Tyco director. The motions are denied. Tyco claims that Walsh's misconduct as a Tyco director resulted in the initiation of an internal investigation by the law firm Boies, Schiller & Flexner LLP ("Boies Schiller") and the filing of a securities fraud lawsuit by Franklin Mutual Advisers, LLC ("Franklin") against it. It seeks recovery of the In addition to

attorney's fees associated with both events.

various legal defenses, Walsh moves in limine to preclude certain evidence of these alleged damages.

1.

Boies Schiller Investigation Tyco retained Boies Schiller to conduct an investigation of

Tyco's payment of $20 million to Walsh.

The investigation began

in May 2002, and through this motion Walsh seeks to exclude evidence of only those legal fees incurred by Tyco for this investigation in June 2002 in the amount of almost $53,000. This amount represents 5% of the June time that Boies Schiller billed for its work on the Tyco matter; during June its investigation expanded to include issues beyond the payment to Walsh. Tyco produced time entries for seven attorneys to

support the June calculation and Walsh deposed David Boies, the

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lead attorney in the investigation, regarding the work done by his firm to investigate the Walsh payment. The motion to exclude evidence of the attorneys fees underlying the request for the damages associated with the Boies Schiller investigation in June 2002 is denied. Tyco has shown The accuracy

that the evidence is properly admitted at trial.

of the allocation of 5% for the June work will be resolved at trial.

2.

Franklin Litigation Walsh asserts that a chart demonstrating the attorneys fees

incurred in the Franklin "opt-out" securities litigation should be excluded. The Franklin case was the first of several opt-out

cases to be filed against Tyco after the settlement of the securities class action litigation filed against the company. The Franklin litigation included three rounds of briefing over an 18-month period from September 2007 through March 2009. The chart was produced to Walsh in mid-July 2010, and shows the amount of time purportedly spent by each timekeeper defending Tyco against the Franklin litigation, separated into columns of information such as date, hours, description of task, the percentage of the hours allocated to the Franklin litigation, and the total fee sought in damages. In total, the

chart indicates that Tyco is seeking over $340,000 in attorneys'

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fees for the work of 29 timekeepers in the Franklin litigation. The allocation of the work to the Franklin litigation was apparently done by Brian Pumphrey, an associate at the McGuireWoods law firm who was familiar with the work done by that firm for Tyco. In order to test the reliability of the

allocation of time to the Franklin litigation, Walsh was given the opportunity to depose timekeepers. Walsh also sought but

did not receive time records reflecting the other work in which the timekeepers were involved during the periods reflected on the chart. The only column of information in the chart that is not taken directly from the McGuireWoods electronic billing system is the allocation column. Walsh's various objections to the

receipt at trial of the other columns on the chart are overruled. The extent to which the allocation shown in the

chart is reliable will be shown at trial. As for Walsh's argument that he was denied access to surrounding time entries, that is not a basis for excluding the chart. The parties raised several discovery disputes with the Walsh did not,

Court, but Walsh chose not to raise this one.

therefore, preserve his right to receipt of such additional discovery.

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