RCS Creditor Trust v. Nicholas S. Schorsch ( 2020 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
RCS CREDITOR TRUST, )
)
Plaintiff, )
)
v. ) C.A. No. 2017-0178-SG
)
NICHOLAS S. SCHORSCH, EDWARD )
M. WEIL, JR., WILLIAM KAHANE, )
PETER M. BUDKO, BRIAN S. )
BLOCK, LOUISA QUARTO, RCAP )
HOLDINGS LLC, AR CAPITAL, LLC, )
AR GLOBAL INVESTMENTS, LLC, )
AMERICAN REALTY CAPITAL )
RETAIL ADVISOR, LLC, AMERICAN )
FINANCE ADVISORS, LLC, )
AMERICAN REALTY CAPITAL )
HEALTHCARE III ADVISORS, LLC, )
AMERICAN REALTY CAPITAL )
HOSPITALITY ADVISORS, LLC, )
NEW YORK CITY ADVISORS, LLC, )
GLOBAL NET LEASE ADVISORS, )
LLC, AMERICAN REALTY CAPITAL )
HEALTHCARE II ADVISORS, LLC, )
NEW YORK RECOVERY ADVISORS, )
LLC, and BDCA ADVISER, LLC, )
)
Defendants. )
MEMORANDUM OPINION
Date Submitted: December 17, 2019
Date Decided: March 20, 2020
Philip Trainer, Jr. and Marie M. Degnan, of ASHBY & GEDDES, Wilmington,
Delaware; OF COUNSEL: John P. Coffey, Gregory A. Horowitz, and Anna K.
Ostrom, of KRAMER LEVIN NAFTALIS & FRANKEL, New York, New York,
Attorneys for Plaintiff RCS Creditor Trust.
Daniel A. Mason, of PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP,
Wilmington, Delaware; OF COUNSEL: Allan J. Arffa, Gregory F. Laufer, and
Jeremy A. Benjamin, of PAUL, WEISS, RIFKIND, WHARTON & GARRISON
LLP, New York, New York, Attorneys for Defendants Nicholas S. Schorsch, Edward
M. Weil, Jr., William Kahane, Peter M. Budko, Louisa Quarto, RCAP Holdings LLC,
AR Capital, LLC, AR Global Investments, LLC, American Realty Capital Retail
Advisor, LLC, American Finance Advisors, LLC, American Realty Capital
Healthcare III Advisors, LLC, American Realty Capital Hospitality Advisors, LLC,
New York City Advisors, LLC, Global Net Lease Advisors, LLC, American Realty
Capital Healthcare II Advisors, LLC, New York Recovery Advisors, LLC, and BDCA
Adviser, LLC.
Elizabeth A. Sloan and Brittany M. Giusini, of BALLARD SPAHR LLP,
Wilmington, Delaware; OF COUNSEL: Michael C. Miller, Evan Glassman, and
Michael G. Scavelli, of STEPTOE & JOHNSON LLP, New York, New York; Mark
Murphy, of STEPTOE & JOHNSON LLP, Washington, DC, Attorneys for Defendant
Brian S. Block.
GLASSCOCK, Vice Chancellor
This litigation concerns the Plaintiff’s contention that the Defendants
breached fiduciary duties in regard to a controlled entity, the stakeholders of which
Plaintiff represents via proceedings in bankruptcy. The issue before me in this
Memorandum Opinion concerns whether communication between the Plaintiff’s
counsel and a third-party stakeholder are protected by the Plaintiff’s attorney-client
privilege, notwithstanding the dissemination to the third party just mentioned. For
reasons described below, I conclude that the communications are privileged. My
reasoning follows.
This matter is currently before me on the Defendant ARC Parties’1 Motion to
Compel production of communications from the Plaintiff, RCS Creditor Trust (the
“Trust”). The Trust was established under the plan of reorganization of RCS Capital
Corporation (“RCAP”) and certain of its affiliates as confirmed by the United States
Bankruptcy Court for the District of Delaware on May 19, 2016 (the “Plan”).2 The
Trust was assigned certain claims and causes of action pursuant to the Plan.3 Non-
party Luxor Capital Partners, LP (“Luxor”) was RCAP’s largest unsecured creditor
and is the largest stakeholder in the Trust.4 The ARC Parties seek, among other
1
“ARC Parties” is the term the parties to this Action have used to refer to all Defendants other
than Brian Block.
2
Pl.’s Verified Compl., D.I. 1 (“Compl.”), ¶ 14.
3
Id.
4
The ARC Parties Mot. to Compel, D.I. 336 (“ARC Parties Mot.”), ¶ 8; Non-Parties Luxor Capital
Partners, LP and Michael Conboy’s Joinder to Pl.’s Opp’n to ARC Mot. to Compel, D.I. 358
(“Joinder to Trust Opp’n”), ¶ 3.
1
communications, emails between the Trust’s counsel, Kramer Levin Naftalis &
Frankel LLP (“Kramer Levin”) and Luxor (and/or its counsel, Skadden, Arps, Slate,
Meagher & Flom LLP (“Skadden”))—the Trust has withheld such emails on
attorney-client privilege and common interest grounds. The Trust has also—
ostensibly under the same theories—instructed a Luxor witness not to testify at his
deposition about his discussions with Kramer Levin in preparation for his deposition
or otherwise.5
The ARC Parties have moved to compel, arguing that privilege does not attach
to communications between Kramer Levin and Luxor/Skadden and that such
communications are not shielded by the common interest doctrine. The ARC Parties
urge that because Kramer Levin is not Luxor’s counsel in this litigation, their
communications cannot be privileged. Furthermore, the ARC Parties contend that
the common interest doctrine does not protect such communications because that
doctrine requires a common legal interest whereas, in the ARC Parties’ view, the
Trust and Luxor have, at most, a common financial interest in the outcome of this
litigation.
5
The deponent, Michael Conboy, is a partner at Luxor, was directly involved in Luxor’s
investment in RCAP, and was designated as the Trust’s Rule 30(b)(6) witness in this litigation.
Joinder to Trust Opp’n, ¶¶ 3–4.
2
The attorney-client privilege is a creature of common law and has been
codified in Delaware Rule of Evidence 502.6 The attorney-client privilege protects
“communications made for the purpose of facilitating the rendition of professional
legal services to the client,” where “communications are intended to be confidential,
and the confidentiality is not waived.”7 The attorney-client privilege represents a
recognition that free lawyer-to-client communication—beyond the reach of
discovery—is a higher good than the general search for truth in litigation. Since the
ability to preserve the confidentiality of the attorney-client communication is the
overriding interest protected, the privilege generally ceases to apply where the
communication is shared with a third party.8 Thus, ordinarily, disclosure of
privileged information by a client or an attorney with the client’s permission operates
as a waiver of privilege.9 However, the general principle of waiver-by-disclosure
does not obtain where the communication is shared only with a third party to
facilitate the client’s interest in advancing her legal case, and where the third party
shares that same legal interest. In such an instance, the utility of the privilege and
its supremacy to the search for truth remain intact. Therefore, among exceptions to
6
D.R.E. 502.
7
D.R.E. 502(b); Riggs Nat’l Bank of Washington, D.C. v. Zimmer, 355 A.2d 709, 713 (Del. Ch.
1976).
8
See D.R.E. 510.
9
Texaco, Inc. v. Phoenix Steel Corp., 264 A.2d 523, 525 (Del. Ch. Mar. 24, 1970).
3
waiver-by-disclosure is the common interest doctrine, upon which the current
dispute turns.10
The common interest doctrine “allows separately represented clients sharing
a common legal interest to communicate directly with one another regarding that
shared interest.”11 Because the application of the common interest doctrine impedes
the search for truth, it must apply narrowly to retain its social utility; the shared
interest must be both strategic and legal, and mere common financial or partisan
shared interest is insufficient to invoke the doctrine. Here, the communications were
between legal representatives of the Trust (who possesses the privilege) and a third
party, Luxor (and/or their legal represenatives), and thus the privilege enjoyed by
the Trust is waived absent an exception to the general waiver rule; the Trust and
Luxor concede that the communications are discoverable unless those
communications are shielded from disclosure based on the common interest
doctrine.12
In order to discern whether, under the common interest doctrine,
communication with a third party is privileged, the court must ask “whether the
common interest invoked by the party asserting the privilege is sufficiently legal
10
See D.R.E. 502(b).
11
Glassman v. Crossfit, Inc., 2012 WL 4859125, at *3 (Del. Ch. Oct. 12, 2012).
12
The Trust and Luxor do not dispute the ARC Parties’ contention that Kramer Levin does not
represent Luxor and that communications between Kramer Levin and Luxor are not privileged as
such.
4
rather than commercial.”13 Furthermore, as a general rule, application of the
common interest doctrine is appropriate “where it is clear that the parties were
collaborating and sharing information in furtherance of a joint legal strategy or
objective, rather than simply seeking legal advice with regard to a commercial
transaction.”14 The communicating parties’ interests must be “substantially similar,
not adverse.”15 Communications between Kramer Levin and Luxor, in the Trust’s
view, fall under D.R.E. 502 because they are confidential communications made by
Kramer Levin for the purpose of facilitating the rendition of professional legal
services to the Trust.16 The Trust maintains that it and Luxor have a sufficiently
common legal (rather than commercial) interest to shield such communications from
disclosure.
13
Titan Inv. Fund II, LP v. Freedom Mortg. Corp., 2011 WL 532011, at *4 (Del. Super. Ct. Feb.
2, 2011). The dispute here as regards common interest is solely whether the Trust and Luxor have
a sufficient common legal, rather than commercial, interest; accordingly, I do not discuss the
remainder of the elements of the common interest doctrine. Common interest protection is
embodied in the Delaware Rules of Evidence: “[a] client has a privilege to refuse to disclose and
to prevent any other person from disclosing confidential communications made for the purpose of
facilitating the rendition of professional legal services to the client . . . (3) by the client or the
client’s representative or the client’s lawyer or a representative of the lawyer to a lawyer or a
representative of a lawyer representing another in a matter of common interest.” D.R.E. 502(b).
The ARC Parties do argue that the common interest doctrine cannot apply because “the underlying
material is not privileged to begin with,” however, I find that the Trust has met its burden to show
that the communications concerned legal advice—keeping in mind that a privilege log must
describe documents without revealing the privileged or protected information itself.
14
Titan, 2011 WL 532011, at *4.
15
Glassman, 2012 WL 4859125, at *3 (citing D.R.E. 502(b)) (internal quotation marks omitted).
16
See D.R.E. 502(b).
5
The parties have presented dueling case-law applying the common interest
doctrine. The ARC Parties contend that under the reasoning of In re Simplexity LLC,
the common interest doctrine fails to preserve the privilege with respect to
communications between Kramer Levin and Luxor/Skadden.17 In Simplexity, a
trustee in bankruptcy18 (the “Trustee”) brought an adversary proceeding against the
manager of two investment funds that indirectly owned the debtors—the defendants
served a document request on the Trustee and a subpoena on its attorneys, Hunton
& Williams (“H&W”) seeking communications between them and debtor’s largest
creditor, Fifth Third Bank (“FTB”).19 FTB had previously been the subject of claims
by the creditors’ committee of the bankruptcy estate (represented by H&W) based
on FTB’s having “swept”—seized—the funds in the debtors’ bank accounts,
allegedly destroying the debtors’ $40–$100 million in going concern value and
subjecting the debtors to more than $5 million in WARN Act liability.20 The claims
against FTB were subsequently settled and the settlement provided that future
distributions from any recoveries were to be split 65% to FTB and 35% to the
bankruptcy estate.21 In Simplexity, the Trustee’s claims against the defendants
asserted that the defendants knew or should have known that FTB was going to
17
584 B.R. 495 (Bankr. D. Del. 2018).
18
In the Bankruptcy Court of the District of Delaware.
19
Simplexity, 584 B.R. at 497–498.
20
Id. at 497.
21
Id.
6
sweep the debtors’ accounts.22 The defendants sought post-settlement
communications between the Trustee (and H&W) and FTB; the Trustee asserted a
right to withhold the communications on common interest grounds.23
The defendants in Simplexity argued that after the settlement with the Trustee,
FTB’s interest in the adversary proceeding was “financial or commercial, not legal”
and the court noted that FTB would “receive a percentage of the proceeds from this
litigation” and was a “secured creditor of the bankruptcy estate which the Trustee is
administering.”24 The court held that “FTB has no legal exposure to the Trustee or
Defendants” and instead “sits on the sidelines and hopes that the Trustee, with
H&W’s help, will achieve success, collect on a judgment, and pay FTB its share of
the proceeds. Surely, that is a financial interest, not a legal one.”25 The ARC Parties
note that Luxor, like FTB, was the subject of potential claims by the Trust that it
appears, per the ARC Parties, were subsequently settled, and Luxor is not a party to
this litigation nor does it assert legal claims against the Defendants here.26 The ARC
Parties urge me to conclude that Luxor, as the largest beneficiary of any recovery
the Trust could obtain, has “only a commercial, rooting interest in the outcome of
22
Id.
23
Id. at 497–98.
24
Id. at 499.
25
Id. at 501.
26
Affidavit of Gregory F. Laufer in Support of the ARC Parties’ Mot. to Compel, D.I. 337 (“Laufer
Aff.”), ¶ 16 (“The Trust and Luxor Capital Group, LP appear to have entered into a settlement
agreement on April 4, 2017.”); see Laufer Aff., Ex. L.
7
this litigation.”27 The Trust, for its part, argues that Simplexity presented a factually
distinguishable situation where there had been direct adversity between the
communicating parties that the court found relevant because FTB “was at one time
‘the bad guy’ the target of [the debtors’] lawsuit, and the communications sought
were potentially relevant for understanding what happened to flip the case from
[FTB] to Defendants as being responsible for Debtors’ misfortune.”28
Rejecting the application of Simplexity to this matter, the Trust argues that I
should find a common interest exists here under the rationale of In re Leslie Controls,
Inc.29 That case, also in the Bankruptcy Court for the District of Delaware, involved
a discovery dispute between insurers and the debtor over whether a legal
memorandum shared by the debtor pre-petition with an ad hoc committee of asbestos
plaintiffs (the “Ad Hoc Committee”) and the debtor’s proposed future claimants’
representative (the “Pre-Petition FCR”) was protected from discovery by the insurers
under the common interest doctrine.30 The legal memorandum was prepared by
insurance coverage counsel for the debtor providing advice with respect to the effect
of the insurers’ likely position on insurance recoveries in bankruptcy.31 The debtor
ultimately determined that a bankruptcy filing was necessary to deal with mounting
27
ARC Parties Mot., ¶ 31 (citing Simplexity, 584 B.R. at 499) (internal quotation marks omitted).
28
Pl.’s Opp’n to ARC Parties’ Mot. to Compel, D.I. 355 (“Trust Opp’n”), ¶ 12 (citing Simplexity,
584 B.R. at 495, 497, 501) (internal quotation marks omitted).
29
437 B.R. 493 (Bankr. D. Del. 2010).
30
Id. at 495.
31
Id.8
liabilities from asbestos personal injury lawsuits and, pre-filing, began negotiations
with the Ad Hoc Committee and the Pre-Petition FCR to develop a consensual plan
of reorganization—those negotiations were successful and the plan of
reorganization, which the insurers objected to, was then pending before the court.32
The insurers sought to discover the memorandum and a number of email exchanges
regarding the memorandum—all of the exchanges occurred pre-petition and some
occurred prior to an agreement on the plan of reorganization.33
Upon a survey of relevant cases, the court noted that “[b]roadly speaking,
these cases stand for the proposition that the party invoking the common interest
doctrine must present evidence that a legal interest is implicated. If such a legal
interest is established then the common interest doctrine will apply (assuming the
other elements of the test are met) even if there are separate or overlapping
commercial interests.”34 The insurers had argued that the debtor, the Ad Hoc
Committee, and the Pre-Petition FCR were adversaries on the issue of insurance
proceeds since the information was shared pre-petition and prior to those parties
reaching an agreement on the terms of a plan of reorganization. But the court noted
32
Id.33
Id. at 496.
34
Id. at 500. The test the court refers to is that the party invoking the protection of the common
interest doctrine must establish “(1) the communication was made by separate parties in the course
of a matter of common interest, (2) the communication was designed to further that effort, and (3)
the privilege has not otherwise been waived.” Id. at 497 (citing In re Mortgage & Realty Trust,
212 B.R. 649, 653 (Bankr. C.D. Cal.1997)).
9
that “the common interest privilege does not require a complete unity of interests
among the participants, but it is limited by the scope of the parties’ common
interest.”35 Regardless of the ongoing negotiations at the time of the
communications, the court found the operative question was “whether the Debtor
shared information with the Ad Hoc Committee and the Pre-Petition FCR that was
related to the parties[sic] common legal interest against their ‘common enemy,’ the
Insurers.”36 The court held that while the debtor, the Ad Hoc Committee, and the
Pre-Petition FCR had conflicting interests in the sense that each desired to obtain the
largest share of the debtor’s assets possible, the parties “shared a common interest
in maximizing the asset pool, which would include insurance proceeds . . . the size
of the pie and the size of the pieces are two separate questions. The parties are in
accord as to the former and adversaries as to the latter.”37 Thus, because the
information contained in the documents went to the size of the asset pool—a matter
of common interest—a common legal interest existed and the communications were
shielded by the common interest doctrine.38
The Trust argues that the facts here are on all fours with Leslie Controls. The
Trust equates Luxor to the Ad Hoc Committee because both hold an indirect interest
35
Id. at 500–501.
36
Id. at 502.
37
Id.
38
Id.
10
in a financial recovery—Luxor as a stakeholder in the Trust and the asbestos
creditors as estate creditors. The Trust contends that the legal interest there, based
on “an analysis of the insurance documents, as well as contract, insurance and
bankruptcy law” is analogous to the interest expressed in the communications
between Kramer Levin and Luxor/Skadden which are logged in the RCS Creditor
Trust Privilege Log of Kramer Levin/Third Party Communications (the “Kramer
Levin Log”).39 The ARC Parties contend that Leslie Controls is distinguishable
because the legal memorandum there was “clearly privileged, unlike the
communications at issue here”40 and because the debtor and the Ad Hoc Committee
there had a joint legal interest regarding insurance coverage of the plaintiffs’ claims
against the debtor, while Luxor has not asserted any claims against the Defendants
here.41
While Simplexity and Leslie Controls by no means represent the full field of
cases applicable to this Motion they are instructive. Also instructive is this Court’s
holding in Glassman v. Crossfit, Inc. that certain communications were not protected
by the common interest doctrine because the party claiming privilege there “failed
39
Trust Opp’n, ¶ 11 (citing Leslie Controls, 437 B.R at 500). The Kramer Levin Log is attached
as an exhibit to an affidavit submitted by the ARC Parties’ counsel. Laufer Aff., Ex. A.
40
The ARC Parties contend that the “Kramer Levin-Luxor communications . . . do not
communicate legal advice from a lawyer to a client, but rather concern non-privileged matters such
as ‘scheduling,’ ‘conference calls,’ and other litigation-related issues between two parties not in
an attorney-client relationship with respect to this action.” The ARC Parties’ Reply in Support of
their Mot. to Compel, D.I. 359, ¶ 9.
41
ARC Parties Mot., ¶ 32 n.3.
11
to show that the contents of these documents were created in furtherance of
developing a joint legal defense or strategy.”42 At issue here are communications
between the Trust, formed to pursue claims on behalf of its stakeholders, and Luxor,
its largest stakeholder (and/or their legal representatives).43 Decisions where this
Court has denied the existence of a legally cognizable common interest because
communications center on commercial (rather than legal) objectives44 are of limited
utility here: the Trust conducts no business, other than the maximization of value of
the legal claims assigned to it in the Plan.45 Thus, in their nature practically all of
the Trust’s communications have a legal nexus.
In this Action, Luxor is by no means Simplexity’s sideline observer rooting
for an outcome. Luxor, according to an affidavit submitted by the Trust’s counsel,
“worked diligently before and during the bankruptcy proceedings to identify
litigation claims that could maximize the value of the estate” and “took a major role
during the bankruptcy to ensure, over Defendants opposition, that such litigation
claims were preserved and could be pursued effectively by the Trust.”46 Luxor’s
42
2012 WL 4859125, at *3 (Del. Ch. Oct. 12, 2012).
43
Luxor also has the right to appoint two of the three members of the Trust’s board. Aff. of
Gregory A. Horowitz in Opp’n to ARC Parties Mot. to Compel, D.I. 355 (“Horowitz Aff.”), ¶ 5.
44
E.g. Titan Inv. Fund II, LP v. Freedom Mortg. Corp., 2011 WL 532011 (Del. Super. Ct. Feb. 2,
2011).
45
The Trust is “a litigation trust, established for the sole and express purpose of investigating and
pursuing litigation claims.” Horowitz Aff., ¶ 10.
46
Id., ¶ 4.
12
active role continues pursuant to its right to appoint a majority of the Trust’s board.47
Communications between the Trust and Luxor (and/or their respective counsel) have
been logged in the Kramer Levin Log and the description of every log item mentions
“RCS litigation.”48 As the largest beneficiary and controller of the Trust, Luxor has
a sufficient legal interest for communications with the Trust concerning litigation to
be cognizable under our State’s common interest doctrine. Like in Leslie Controls,
the Trust and Luxor “share[] a common interest in maximizing the asset pool” (or
defending against potential claims) and their communications appear to be in
furtherance of that goal.49 The Trust and Luxor, with counsel, were collaborating
and sharing information in furtherance of a joint legal strategy or objective. Such
communications invoke the central rationale of the attorney-client privilege. Thus,
the common interest doctrine applies to communications between the Trust and
Luxor.
The parties’ briefing raised other issues besides the common interest under
which the Trust sought to withhold production. First, the Trust noted that it logged
purportedly privileged communications that occurred after the filing of the
complaint in this Action pursuant to its generous reading of my June 13, 2019 bench
ruling, but that the operative scheduling order does not require such communications
47
Id., ¶ 5.
48
Laufer Aff., Ex A.
49
In re Leslie Controls, Inc., 437 B.R. 493, 502 (Bankr. D. Del. 2010).
13
to be logged.50 It was not my intent in the bench ruling to order production of post-
complaint communications, and the parties may exclude such post-complaint
communications on their privilege logs. Finally, the ARC Parties have also
contested the withholding of communications by the Trust between itself and third
parties other than Luxor. I ask that the Trust update its privilege log pursuant to this
Memorandum Opinion, and the ARC Parties may file a new motion to compel such
communications, as they find appropriate. The updated privilege log should
“provide sufficient information to enable [the ARC Parties] to assess [its] privilege
claim.”51
To the extent the foregoing requires an Order to take effect, IT IS SO
ORDERED.
50
See Third Amended Scheduling Order, D.I. 373, ¶ 6.
51
Klig v. Deloitte LLP, 2010 WL 3489735, at *6 (Del. Ch. Sept. 7, 2010).
14