IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

ROBERT GARFIELD,

Plaintiff,

v.

BOXED, INC.,

Defendant.

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C.A. No. 2022-0132-MTZ

MEMORANDUM OPINION

Date Submitted: October 19, 2022

Date Decided: December 27, 2022

David A. Jenkins, Neal C. Belgam, Jason Z. Miller, SMITH KATZENSTEIN & 

JENKINS LLP, Wilmington, Delaware; Steven J. Purcell, Robert H. Lefkowitz, 

Anisha Mirchandani, PURCELL & LEFKOWITZ LLP, New York, New York,

Attorneys for Plaintiff Robert Garfield.

Paul J. Loughman, Joseph M. Turk, YOUNG CONAWAY STARGATT & 

TAYLOR, LLP, Wilmington, Delaware; Mark T. Stancil, WILKIE FARR & 

GALLAGHER LLP, Washington, D.C.; Betsy L. Feldman, WILKIE FARR & 

GALLAGHER LLP, New York, New York, Attorneys for Defendant Boxed, Inc.

ZURN, Vice Chancellor.
1

This opinion considers the corporate benefit created by, and commensurate 

attorneys’ fees payable to, a stockholder who advised the company’s board that two 

stockholder votes in anticipation of a merger did not comply with Delaware law. 

The plaintiff is a class A common stockholder in a publicly traded special purpose 

acquisition company. The SPAC had class A common stockholders and class B 

common stockholders. The SPAC was set to acquire a company in a merger, with 

the SPAC as the surviving post-transaction entity. The post-transaction entity would 

have only one class of common stock.

The SPAC’s stockholders had to approve the transaction, as well as several

ancillary proposals that included updating the SPAC’s charter. One of the proposed 

charter amendments increased the number of authorized shares of class A common 

stock. Another proposed amendment altered the vote required for the board to 

change the number of authorized shares in the future.

Before the votes, the plaintiff wrote a letter to the SPAC’s board asserting the 

proposed voting structure for those amendments violated the class A common 

stockholders’ voting rights under Section 242(b) of the Delaware General 

Corporation Law. He demanded the SPAC provide the class A common 

stockholders a right to vote on those two amendments as a standalone class, instead 

of with the class B common stockholders. The SPAC amended the merger 

agreement and supplemented the proxy to make the changes the plaintiff demanded. 
2

The SPAC’s stockholders voted to approve the merger and the proposed charter 

amendments, the merger was consummated, and the amended charter went into 

effect.

The plaintiff then filed an action in this Court seeking attorneys’ fees and 

expenses for the benefits he conferred on the company and its stockholders by 

facilitating statutorily compliant votes. The plaintiff argues his inspiration of a 

class A vote on the charter amendments preserved the stockholder franchise, the 

post-transaction entity’s capital structure, and the transaction itself. The defendant 

company asserts the changes were unnecessary because the proposed charter and 

voting structure were already statutorily compliant. The defendant interprets the 

SPAC’s original charter to provide one class of common stock with two series, 

“Class A” and “Class B,” that under Section 242 could vote together on the 

amendments affecting the common class. Under that interpretation, no standalone 

class A vote was necessary, and so the plaintiff did not confer a substantial benefit 

warranting a fee award.

On the parties’ cross-motions for summary judgment, I agree with the 

plaintiff’s interpretation of the original charter as providing for two classes, rather 

than series, of common stock. Under that interpretation, the class A stockholders 

had a statutory right to vote as a class on the two charter amendments, so the 

plaintiff’s demand was meritorious when made.
3

If those amendments were invalidly approved, they would call the new stock 

issuances and the merger into question. Accordingly, I conclude the plaintiff 

conferred a substantial benefit on the defendant and its stockholders. The plaintiff’s 

counsel is entitled to fees and expenses commensurate with that benefit. The 

plaintiff has asked for a premium award in this matter, asserting among other reasons 

that it was the first of several identical but unrelated actions filed by plaintiff’s 

counsel to be taken under advisement. I award a fee based solely on corporate 

benefit, and decline to award such a premium.

I. BACKGROUND1

The defendant, a SPAC then known as Seven Oaks Acquisition Corp. (the 

“Company” or “Defendant”), is a Delaware corporation headquartered in New 

York.

2 The Company’s Amended and Restated Certificate of Incorporation (the 

“Original Charter”) authorized the issuance of 401 million shares: 380 million 

shares of Class A common stock, 20 million shares of Class B common stock, and 

1 For purposes of the pending motions, I draw the following facts from the Verified 

Complaint, available at Docket Item (“D.I.”) 1 [hereinafter “Compl.”], as well as the 

documents attached to, and integral to it, admissions on file, together with any affidavits

and public filings. Ct. Ch. R. 56(c); In re Rural Metro Corp. S’holders Litig., 2013 WL 

6634009, at *7 (Del. Ch. Dec. 17, 2013) (“Applying [Delaware] Rule [of Evidence] 201, 

Delaware courts have taken judicial notice of publicly available documents that ‘are 

required by law to be filed, and are actually filed, with federal or state officials.’” (quoting 

In re Tyson Foods, Inc. Consol. S’holder Litig., 919 A.2d 563, 584 (Del. Ch. 2007))).

2 Compl. ¶ 14.
4

1 million shares of preferred stock.3 The Original Charter also provided that except 

as otherwise required by law (i.e., Section 242(b) of the DGCL) or the provisions of 

the Original Charter, the Class A and Class B common stockholders would vote 

together as a single class on all matters submitted to stockholders for approval.4

On December 22, 2020, the Company conducted an IPO.5 On March 1, 2021, 

plaintiff Robert Garfield (“Plaintiff”) purchased publicly traded units in the 

Company, which he has held at all relevant times.6

On June 14, 2021, the Company announced it had entered into an Agreement 

and Plan of Merger (the “Merger Agreement”) to acquire Giddy Inc. d/b/a Boxed 

Inc., an e-commerce grocery shopping platform selling bulk consumable goods to 

households and businesses (the “Combination”).7

On October 22, the Company filed a Form S-4/A Registration Statement with 

the Securities and Exchange Commission (the “Proxy”) in connection with a special 

3 D.I. 23, Transmittal Affidavit of Anisha Mirchandani, at Ex. A, Amended and Restated 

Certificate of Incorporation of Seven Oaks Acquisition Corp. § 4.1 [hereinafter “Original 

Charter”].

4 Original Charter § 4.3(a)(iii).

5 Compl. ¶ 18.

6

Id. ¶ 13; D.I. 21, Transmittal Affidavit of Joseph M. Turk in Support of Defendant Boxed, 

Inc.’s Combined Answering Brief in Opposition to Plaintiff Robert Garfield’s Motion for 

Summary Judgment and Opening Brief in Support of its Cross-Motion for Summary 

Judgment [hereinafter “Turk DOB Aff.”], at Ex. A, Plaintiff’s Responses and Objections 

to Defendant’s First Set of Interrogatories at Response No. 2.

7 Compl. ¶ 2.
5

meeting scheduled for December 7. 8 The Proxy set forth seven proposals for 

Class A and Class B common stockholders to consider; five specific proposals out 

of the seven had to be accepted to consummate the Combination.

9 One of those five

proposals was an amended charter, attached to the Proxy at Annex B (the “Proposed 

Charter”).

10 The Proxy singled out several proposed amendments to the Original 

Charter.11

One, the “Share Increase Amendment,” would increase the authorized shares 

of the Company’s Class A common stock by 220 million shares—from 380 million 

to 600 million.12 The Share Increase Amendment would provide for

8

Id. ¶ 6; Seven Oaks Acquisition Corp., Registration Statement (Form S-4/A) 

(Oct. 22, 2021) [hereinafter “Proxy”]. “The Company filed an original registration 

statement on July 20, 2021, and amended proxies on September 9, 2021 and 

September 29, 2021, but those registration statements did not disclose that the Board had 

adopted the Share Increase Amendment increasing the number of authorized shares of 

Class A Common Stock by 220 million shares. This was first disclosed in the 

October 22, 2021 Proxy.” Compl. at 4 n.2.

9 E.g., Proxy at Notice of Special Meeting of Stockholders; Compl. ¶ 2. As of the date of 

the Proxy, the Company had not issued any preferred stock. Proxy at 136.

10 Proxy at Notice of Special Meeting of Stockholders, 2, 4, 87–88; see also id. at v 

(defining “Proposed Charter . . . a copy of which is attached as Annex B to this proxy 

statement/prospectus”).

11 Id. at 134–35; see also id. at 7.

12 Compl. ¶¶ 2–3, 34; see also Proxy at 10 (“If the Business Combination is completed, (i) 

each share of Seven Oaks’ Class A common stock will remain outstanding and 

automatically become a share of New Boxed common stock, and (ii) each share of Seven 

Oaks’ Class B common stock will be converted into one share of New Boxed common 

stock.”); id. at iv (defining “Founding Shares” as “the Seven Oaks Class B common stock 

initially purchased by the Sponsor in a private placement prior to the Initial Public Offering 

and the Seven Oaks Class A common stock that will be issued upon the conversion of such

of such Seven Oaks Class B common stock in accordance with the [Original] Charter and 
6

(ii) the increase of the total number of authorized shares of all classes 

of capital stock, par value of $ 0.0001 per share, from 401,000,000 

shares to 660,000,000 shares, consisting of 600,000,000 shares of 

common stock, par value $ 0.0001 per share and 60,000,000 shares of 

preferred stock, par value $0.0001 per share[.]13

The other proposed amendment at issue in this matter, the “Opt-Out Provision 

Amendment,” was not specifically identified in the Proxy, apart from its inclusion 

in the attached Proposed Charter. It changed the voting structure for increasing or 

decreasing the number of authorized shares in the future, opting out of Section 

242(b)(2). The Proposed Charter read: 

Subject to the rights of any holders of any outstanding series of 

Preferred Stock, the number of authorized shares of Common Stock 

may be increased or decreased (but not below the number of shares 

thereof then outstanding) by the affirmative vote of the holders of a 

majority of the stock of the Corporation entitled to vote, irrespective 

of the provisions of Section 242(b)(2) of the DGCL.14

The Proxy disclosed that approval of the Proposed Charter “require[d] the 

affirmative vote of the holders of at least a majority of the outstanding [Company]

Shares entitled to vote thereon, voting as a single class.”

15

in connection with the consummation of the Business Combination”); id. at 7, 134

(describing the proposed increase in authorized shares of New Boxed common stock).

13 Proxy at 7; accord id. at 134; id. at B-1 (amending the Original Charter at Article IV).

14 Id. at B-1 (amending the Original Charter at Article V).

15 Id. at 3, 88; Compl. ¶ 44.
7

By letter dated October 29, 2021, Plaintiff sent a presuit demand to the 

Company’s board of directors (the “Demand” and the “Board”) insisting the Board 

afford the Class A common stockholders a separate class vote on the Share Increase 

Amendment and the Opt-Out Provision Amendment (together, the “Challenged 

Amendments”).

16 He contended under the Original Charter and Section 242(b)(2), 

both Challenged Amendments required approval of the Class A common 

stockholders voting as a separate class.17 Plaintiff asked the Board to take immediate 

action to amend the Proxy and provide the Class A common stockholders with a 

separate class vote on the Challenged Amendments.18

On November 26, the Company filed a Form 8-K disclosing a summary of 

amendments to the Merger Agreement and the Proposed Charter.

19

 A “Supplement 

to [the] Proxy Statement” also summarized the amendments to the Proxy.

20

According to these disclosures, the amended Merger Agreement would require

approval of the Proposed Charter by the affirmative vote of the majority of the Class 

A common stockholders, voting separately as a single class.

21

 The Class A common 

16 Compl. ¶¶ 8, 50; Compl. Ex. A [hereinafter “Demand”].

17 Demand at 8, 10.

18 Compl. ¶ 8; Demand at 10.

19 Compl. ¶ 9; Compl. Ex. B [hereinafter “Form 8-K”].

20 Form 8-K at Supplement to Proxy Statement.

21 Id. at Item 1.01; id. at Ex. 2.1, Amendment to Agreement and Plan of Merger, dated 

November 26, 2021.
8

stockholders would also have a separate class vote on the Share Increase 

Amendment and the Opt-Out Provision Amendment.22

On December 7, the Company held the special meeting and the Company’s 

Class A common stockholders, voting as a separate class, approved the Challenged

Amendments.

23

 The Combination was completed the next day, and the Proposed 

Charter became effective.24

On February 8, 2022, Plaintiff filed a Verified Complaint (the “Complaint”) 

seeking an award of attorneys’ fees and expenses for benefit conferred on the 

Company.

25

 On May 2, Defendant answered the Complaint.

26

 On July 22, Plaintiff 

moved for summary judgment. 27 On September 8, Defendant cross-moved for 

summary judgment.28 The parties briefed the motions, and I heard argument on 

October 19.29

22 Id. at Supplement to Proxy Statement.

23 Compl. ¶ 9.

24 Id.

25 Compl.

26 D.I. 5.

27 D.I. 17 [hereinafter “POB”].

28 D.I. 19; D.I. 20 [hereinafter “DOB”].

29 D.I. 23 [hereinafter “PAB”]; D.I. 26 [hereinafter “DAB”]; D.I. 33; D.I. 34 [hereinafter 

“Hr’g Tr.”].
9

II. ANALYSIS

This Court will grant a motion for summary judgment where there are no 

genuine issues of material fact and the moving party is entitled to judgment as a 

matter of law.30 In deciding a motion for summary judgment, the facts must be 

viewed in the light most favorable to the nonmoving party, and the moving party has 

the burden of demonstrating that no material question of fact exists.31 Where “the 

parties have filed cross motions for summary judgment and have not presented 

argument to the Court that there is an issue of fact material to the disposition of either 

motion, the Court shall deem the motions to be the equivalent of a stipulation for 

decision on the merits based on the record submitted with the motions.”32

A. Plaintiff Conferred A Corporate Benefit Worthy Of Fees And 

Expenses.

The corporate benefit doctrine allows a party to recover fees and expenses 

from a corporation where that party conferred a substantial benefit upon the 

corporate enterprise or its stockholders.33 Delaware courts award fees to plaintiffs’ 

counsel for the beneficial results they produced for the defendant corporation “even 

30 Ct. Ch. R. 56(c).

31 Weil v. VEREIT Operating P’ship, L.P., 2018 WL 834428, at *3 (Del. Ch. 

Feb. 13, 2018).

32 Ct. Ch. R. 56(h).

33 Dover Hist. Soc., Inc. v. City of Dover Planning Comm’n, 902 A.2d 1084, 1090 (Del. 

2006).
10

without a favorable adjudication.”

34 A court has discretion to award attorneys’ fees 

if the plaintiff demonstrates “(a) the claim was meritorious when filed; (b) the action 

was benefitting the corporation; . . . and (c) the benefit was causally related to the 

lawsuit.”35 With respect to the third factor, “there is a rebuttable presumption the 

suit and the benefit were causally related because the defendant is in the best position 

to know the events, reasons, and decisions behind its action.”36

Here, Defendant does not attempt to rebut the causal presumption.37 Rather, 

it opposes the first two factors. For the reasons that follow, I conclude Plaintiff’s 

Demand was meritorious when made and it conferred a substantial benefit on the 

Company and its stockholders. The benefit justifies an award comparable to similar 

statutory fixes.

1. The Demand Was Meritorious When Made.

A claim is meritorious when made if it is capable of surviving a motion to 

dismiss and the plaintiff has knowledge of “provable facts” that provide a 

“reasonable likelihood of ultimate success.”38“It is not necessary that factually there 

be absolute assurance of ultimate success, but only that there be some reasonable 

34 Allied Artists Pictures Corp. v. Baron, 413 A.2d 876, 878 (Del. 1980) (collecting cases).

35 Tandycrafts, Inc. v. Initio P’rs, 562 A.2d 1162, 1167 (Del. 1989).

36 EMAK Worldwide, Inc. v. Kurz, 50 A.3d 429, 433 (Del. 2012) (citations omitted).

37 See DOB at 18.

38 Chrysler Corp. v. Dann, 223 A.2d 384, 387 (Del. 1966).
11

hope.”

39

 Here, Plaintiff must demonstrate that a combined vote of both Class A and 

Class B common stock on each of the Opt-Out Provision Amendment and the Share 

Increase Amendment would have violated Section 242(b)(2).

Section 242(b)(2) follows. I have numbered and broken out each sentence in 

the subsection for clarity. The first sentence requires a class vote on five types of 

charter amendments affecting that class.

[1] The holders of the outstanding shares of a class shall be entitled to 

vote as a class upon a proposed amendment, whether or not entitled to 

vote thereon by the certificate of incorporation, if the amendment would 

increase or decrease the aggregate number of authorized shares of such 

class, increase or decrease the par value of the shares of such class, or 

alter or change the powers, preferences, or special rights of the shares 

of such class so as to affect them adversely.40

The second sentence requires a series vote if any three of those charter amendments 

uniquely affects a series. 41 Its plain text does not require a series vote on an 

39 Id.

40 8 Del. C. § 242(b)(2).

41 Contemporaneous legal commentary on Section 242’s language, which was first added 

in the 1969 amendments to the Delaware General Corporation Law, clarifies that should 

one or more series be affected, all the affected stockholders vote together as an affected 

collective. Ernest L. Folk, III, Amendments to the Delaware Corporation Law 14 (1969)

(“Section 242 now specifically provides that if any proposed charter amendment would 

adversely affect the interest of one or more, but less than all, of the series within a class of 

stock, then the class vote required by section 242 to approve such adverse action applies 

only to the affected series rather than to the class as a whole. It is obviously fair to the 

affected series to give it a special class vote rather than lump it with other series which 

have no interest in the proposed change.”); S. Samuel Arsht & Walter K. Stapleton, 

Analysis of the 1969 Amendments to the Delaware Corporation Law, at 353–54 (Prentice 

Hall 1969) (“The prior statute, at least when read literally, required a class vote of the entire 

class on amendments which would adversely affect the powers, preferences and special 
12

amendment increasing or decreasing the aggregate number of shares, or the par 

value, of such series.

[2] If any proposed amendment would alter or change the powers, 

preferences, or special rights of 1 or more series of any class so as to 

affect them adversely, but shall not so affect the entire class, then only 

the shares of the series so affected by the amendment shall be 

considered a separate class for the purposes of this paragraph.42

The third sentence permits a company to opt out of Section 242(b)(2)’s class voting 

requirement for class share increases or decreases. If shares of that class have 

already been issued and a charter amendment is required, a class vote is required. 

[3] The number of authorized shares of any such class or classes of 

stock may be increased or decreased (but not below the number of 

shares thereof then outstanding) by the affirmative vote of the holders 

of a majority of the stock of the corporation entitled to vote irrespective 

of this subsection, if so provided in the original certificate of 

incorporation, in any amendment thereto which created such class or 

classes of stock or which was adopted prior to the issuance of any shares 

of such class or classes of stock, or in any amendment thereto which 

was authorized by a resolution or resolutions adopted by the affirmative 

vote of the holders of a majority of such class or classes of stock.43

rights of less than all series of the class. As amended, Section 242 provides that in such 

circumstances only the shares of the series adversely affected by the amendment shall be 

considered a class for the purpose of applying the class vote provision.”). The 1969 

amendments “chang[ed] the designation of [242] subsection (d) to subsection (c).” Ernest 

L. Folk, III, Amendments to the Delaware Corporation Law 23 (1969). “The 1983 

revisions deleted 242(b) in its entirety and re-designated former section 242(c) as section 

242(b).” 2 Robert S. Saunders et al., Folk on the Delaware General Corporation Law, 

§ 242.08 at 8-39 (7th ed. 2022-2 Supp.). Accordingly, the commentary on the 1969 

amendments discusses the current version of Section 242(b).

42 8 Del. C. § 242(b)(2).

43 Id.
13

i. The Demand Was Meritorious As To The Share 

Increase Amendment.

The parties’ dispute over the Demand’s merit centers on whether the Share 

Increase Amendment would have violated Section 242(b)(2) if voted on by the Class 

A and Class B stockholders together. The answer hinges on whether the Original 

Charter authorized Class A and Class B as two classes of common stock, or as series 

within a single class. The Share Increase Amendment vote as originally structured 

would have violated Section 242 only if Class A and Class B are separate classes of 

stock, rather than series. If Class A and Class B are separate classes, a vote by all 

common stockholders would have violated Section 242(b)(2)’s first sentence. If 

they are series, the Share Increase Amendment vote is governed by Section 

242(b)(2)’s second sentence, which does not call for a series vote on an increase or 

decrease of the number of shares in that series.

Resolving these issues requires interpreting the Original Charter. Corporate 

charters are treated as contracts among the stockholders.

44

“Courts must give effect 

to the intent of the parties as revealed by the language of the certificate and the 

44 See BlackRock Credit Allocation Income Tr. v. Saba Cap. Master Fund, Ltd., 224 A.3d 

964, 977 (Del. 2020) (quoting Hill Int’l, Inc. v. Opportunity P’rs L.P., 119 A.3d 30, 38 

(Del. 2015), and citing Centaur P’rs, IV v. Nat’l Intergroup, Inc., 582 A.2d 923, 928 (Del. 

1990)).
14

circumstances surrounding its creation and adoption.”

45

 Delaware courts apply the 

general rules of contract interpretation to disputes over the meaning of charter 

provisions.

46

 Accordingly, Delaware courts interpret contract terms according to 

their plain, ordinary meaning,

47 and “attempt to give meaning and effect to each 

word in a contract, assuming that the parties would not include superfluous verbiage 

in their agreement.”48 “When a contract’s plain meaning, in the context of the 

overall structure of the contract, is susceptible to more than one reasonable 

interpretation, courts may consider extrinsic evidence to resolve the ambiguity.”49 

Stock voting rights must “be specified expressly and with clarity.” 50 If charter 

provisions are unclear, Delaware courts “resolve any doubt in favor of the [common]

stockholders’ electoral rights.”51

45 Waggoner v. Laster, 581 A.2d 1127, 1134 (Del. 1990) (citing Judah v. Del. Tr. Co., 378 

A.2d 624, 628 (Del. 1977), and Ellingwood v. Wolf’s Head Oil Ref. Co., 38 A.2d 743, 747 

(Del. 1944)).

46 Airgas, Inc. v. Air Prods. & Chems., Inc., 8 A.3d 1182, 1188 (Del. 2010).

47 Alta Berkeley VI C.V. v. Omneon, Inc., 41 A.3d 381, 385 (Del. 2012).

48 Zimmerman v. Crothall, 62 A.3d 676, 691 (Del. Ch. 2013) (citing NAMA Hldgs., LLC v. 

World Mkt. Ctr. Venture, LLC, 948 A.2d 411, 419 (Del. Ch. 2007)).

49 In re Shorenstein Hays-Nederlander Theatres LLC Appeals, 213 A.3d 39, 57 (Del. 2019) 

(internal quotation marks omitted) (quoting Salamone v. Gorman, 106 A.3d 354, 374 (Del. 

2014)).

50 Sullivan Money Mgmt., Inc. v. FLS Hldgs. Inc., 1992 WL 345453, at *3 n.7 (Del. Ch. 

Nov. 20, 1992) (citing 8 Del. C. § 151(a)), aff’d, 628 A.2d 84 (Del. 1993).

51 Airgas, 8 A.3d at 1188 (citing Centaur P’rs, 582 A.2d at 927); In re Trados Inc. S’holder

Litig., 73 A.3d 17, 38 (Del. Ch. 2013) (“By default, all stock is created equal. Unless a 

corporation’s certificate of incorporation provides otherwise, each share of stock is 

common stock.”); Sullivan, 1992 WL 345453, at *3 (“Because rights or preferences over 
15

Two sections of the Original Charter authorize the issuance of Company 

stock. 

Section 4.1 Authorized Capital Stock. The total number of shares of all 

classes of capital stock, each with a par value of $0.0001 per share, 

which the Corporation is authorized to issue is 401,000,000 shares, 

consisting of (a) 400,000,000 shares of common stock (the “Common 

Stock”), including (i) 380,000,000 shares of Class A common stock 

(the “Class A Common Stock”), and (ii) 20,000,000 shares of Class B 

common stock (the “Class B Common Stock”), and (b) 1,000,000 

shares of preferred stock (the “Preferred Stock”). . . .

52

Section 4.2 Preferred Stock. Subject to Article IX of this Amended and 

Restated Certificate, the Board of Directors of the Corporation (the 

“Board”) is hereby expressly authorized to provide out of the unissued 

shares of the Preferred Stock for one or more series of Preferred Stock 

and to establish from time to time the number of shares to be included 

in each such series and to fix the voting rights, if any, designations, 

powers, preferences and relative, participating, optional, special and 

other rights, if any, of each such series and any qualifications, 

limitations and restrictions thereof, as shall be stated in the resolution 

or resolutions adopted by the Board providing for the issuance of such 

series and included in a certificate of designation (a “Preferred Stock 

Designation”) filed pursuant to the DGCL, and the Board is hereby

expressly vested with the authority to the full extent provided by law, 

now or hereafter, to adopt any such resolution or resolutions.53

common stock are in derogation of the common law, they ‘should be clearly expressed and 

not presumed.’” (quoting Warner Commc’ns Inc. v. Chris-Craft Indus., 583 A.2d 962, 967 

(Del. Ch. 1989), aff’d, 567 A.2d 419 (Del. 1989), and citing Waggoner, 581 A.2d at 1134–

35, and Rothschild Int’l Corp. v. Liggett Grp. Inc., 474 A.2d 133, 136 (Del. 1984))); id. at 

*3 n.6 (“At common law, and in the absence of any statute or agreement to the contrary, 

all stock enjoys equal rights and privileges.” (citing Penington v. Commonwealth Hotel 

Constr. Corp., 155 A. 514, 520 (Del. 1931), and Gaskill v. Gladys Belle Oil Co., 146 A. 

337, 338 (Del. Ch. 1929))).

52 Original Charter § 4.1 (bolding and italics omitted).

53 Id. § 4.2 (bolding and italics omitted).
16

Section 4.3 governs “Common Stock” and its rights, but not its issuance.54

The parties comb through the Original Charter for references to “classes” and 

“series,” and argue that the placement, presence, and absence of each supports their 

interpretation.

55

 But none of these sections call the authorized Class A or Class B

common stock a “series,” nor do they refer to authorized “Common Stock” in

“series.”56 Rather, Section 4.1 uses only the word “class,” not the word “series,” to 

describe the authorized common shares. 

54 Id. § 4.3.

55 Defendant relies on the organization of Original Charter Section 4.1, which lists the 

Company’s “classes of capital stock” as “(a) . . . common stock . . . including (i) . . . Class A 

common stock, . . . and (ii) . . . Class B common stock,. . . . and (b) preferred stock.” DAB 

at 8–9 (citing Original Charter § 4.1). Defendant also points to two mentions of “series” 

of common stock in Section 4.3(a)(iii) as evidence that Class A is a “series,” not a “class.” 

Defendant broadly points to references in the Original Charter and Bylaws to “any vote of 

the holders of any class or series of capital stock.” DOB at 18–19 (citing Original Charter 

at Article VII and the Company’s original Bylaws at Sections 2.3, 2.6, 2.7(a)(ii), 3.2(d), 

and 9.15). Defendant miscited Original Charter Article VII but quoted Article VI. See 

PAB at 10–11. The parties did not file the Company’s original Bylaws in this action, but 

they are attached to the Company’s December 11, 2020 Form-1/A Registration Statement. 

Turk DOB Aff. at Ex. I, Seven Oaks Acquisition Corp., Registration Statement (Form S1/A) (Dec. 11, 2020), at Ex. 3.3.

Plaintiff counters that the language in Original Charter Sections 4.3(a)(iii), 

4.3(b)(ii), and 4.3(b)(iii) indicating that Class B holders alone can vote separately as “a 

single class” is evidence that Class A and Class B are “classes,” not “series.” PAB at 10. 

Defendant cited to the incorrect version of the Company Charter in its combined answering 

brief. Turk DOB Aff. at Ex. I, Seven Oaks Acquisition Corp., Registration Statement 

(Form S-1/A) (Dec. 11, 2020), at Ex. 3.1; PAB at 10 (pointing out that Defendant attached 

the incorrect Charter to its brief); DAB at n.2 (acknowledging that it attached the incorrect 

Charter to its combined answering brief).

56 Section 4.3(a)(iii) describes the voting rights of “holders of shares of any series of 

Common Stock.” Original Charter § 4.3(a)(iii). But Section 4.1 does not authorize the 

issuance of a series of common stock or grant the board the present power to fix series of 
17

From there, I look to Sections 102 and 151 of the DGCL to illuminate the 

structure and significance of Sections 4.1 and 4.2. The DGCL is part of the charter 

or certificate of incorporation of every Delaware corporation.

57

 The DGCL “regards 

‘classes’ of stock as separate and distinct from ‘series’ within a class.”58 DGCL 

Section 102(a)(4) prescribes what the charter must include for the corporation to 

issue classes or series of stock. It provides, in pertinent part:

common stock by resolution. See 8 Del. C. § 102(a)(4). I, therefore, interpret Section 

4.3(a)(iii) to be referring to a hypothetical series authorized in the future.

57 8 Del. C. § 394.

58 Siegman v. Palomar Med. Techs., Inc., 1998 WL 118201, at *4 (Del. Ch. Mar. 9, 1998); 

see also e.g., 8 Del. C. § 151 (“Every corporation may issue 1 or more classes of stock 

or 1 or more series of stock within any class thereof . . . .”); id. § 102(a)(4) (“The certificate 

of incorporation shall also set forth a statement of the designations and the powers, 

preferences and rights, and the qualifications, limitations or restrictions thereof, which are 

permitted by § 151 of this title in respect of any class or classes of stock or any series of 

any class of stock of the corporation . . . .” (emphasis added)); id. § 102(b)(3) (“any class 

or series of a class thereof”); id. § 102(b)(4) (“any class or series thereof”); 1 R. Franklin 

Balotti & Jesse A. Finkelstein, Balotti and Finkelstein’s Delaware Law of Corporations 

and Business Organizations § 5.3 at 5-8–5-9 (3rd ed. Supp. 2021-2) [hereinafter “Balotti 

& Finkelstein”] (“The certificate of incorporation may authorize the corporation to issue 

one or more classes of stock and one or more series within each class.” (citing 8 Del. C.

§§ 102(b)(4), 151)).

The common law has been less precise, and “[t]he jurisprudence of class votes in 

Delaware is not highly developed.” Orban v. Field, 1993 WL 547187, at *8 (Del. Ch. 

Dec. 30, 1993) (citing Drexler, Black & Sparks, Delaware Corporation Law and Practice, 

§ 32.04 (1993)); see also, e.g., id. at *2 (describing “three classes of equity” in Series A 

preferred, Series B preferred, and common); Sullivan, 1992 WL 345453, at *3 (“Section 

B.1(H)(iii), like the disputed certificate provisions in Warner, entitles the Series A 

Preferred Stock to a class vote . . . .”); Matulich v. Aegis Commc’ns Grp, Inc., 2007 WL 

1662667, at *1 (Del. Ch. May 31, 2007) (“By 2003, Aegis had issued several classes of 

stock: Common Stock, Series B Preferred Stock, Series D Preferred Stock, Series E 

Preferred Stock, and Series F Preferred Stock.”).
18

If the corporation is to be authorized to issue more than 1 class of stock, 

the certificate of incorporation shall set forth the total number of shares 

of all classes of stock which the corporation shall have authority to issue 

and the number of shares of each class and shall specify each class the 

shares of which are to be without par value and each class the shares of 

which are to have par value and the par value of the shares of each such 

class. The certificate of incorporation shall also set forth a statement of 

the designations and the powers, preferences and rights, and the 

qualifications, limitations or restrictions thereof, which are permitted 

by § 151 of this title in respect of any class or classes of stock or any 

series of any class of stock of the corporation and the fixing of which 

by the certificate of incorporation is desired, and an express grant of 

such authority as it may then be desired to grant to the board of directors

to fix by resolution or resolutions any thereof that may be desired but 

which shall not be fixed by the certificate of incorporation.59

In other words, “[i]f the corporation will have authority to issue more than one class 

of shares, then the certificate must set forth the number of shares of all classes and 

of each class and whether the shares are par or no-par.”

60 No such preemptive 

recitation is required if only one class is authorized, or for series.61 “[P]ar value must 

be the same for all series within a class.”62 The power to issue series of stock is 

59 8 Del. C. § 102(a)(4).

60 1 Robert S. Saunders et al., Folk on the Delaware General Corporation Law, § 102.05 

at 1-21 (7th ed. 2022-2 Supp.).

61 Section 102(a)(4)’s more specific charter directives for the number and par value of 

shares in a class, which are not required for a series, are consistent with Section 242(b)’s 

more specific vote directives to change the number or par value of shares in a class, which 

are not required for a series.

62 Balotti & Finkelstein § 5.3 at 5-9.
19

different and apart from the power to issue a class of stock, and the power to issue 

stock in classes does not grant the power to issue stock in series.

63

All stock, including founding stock, must also be issued in accordance with 

DGCL Section 151.64 Section 151(a) provides in pertinent part:

Every corporation may issue 1 or more classes of stock or 1 or more 

series of stock within any class thereof, any or all of which classes may 

be of stock with par value or stock without par value and which classes 

or series may have such voting powers, full or limited, or no voting 

powers, and such designations, preferences and relative, participating, 

optional or other special rights, and qualifications, limitations or 

restrictions thereof, as shall be stated and expressed in the certificate 

of incorporation . . . .

65

Against these prescriptive requirements, I turn to the Original Charter. 

Section 4.1 lists the number of shares of Class A common stock, the number of 

shares of Class B common stock, and the number of shares of preferred stock, and 

describes the shares in each as having “a par value of $0.0001 per share.”66 Read 

with Section 102(a)(4)’s requirements for authorizing capital stock, Section 4.1’s 

plain language is designed to authorize three statutorily compliant “classes,” with a 

63 Siegman, 1998 WL 118201, at *4.

64 See, e.g., STAAR Surgical Co. v. Waggoner, 588 A.2d 1130, 1137 (Del. 1991) (“Stock 

issued in violation of 8 Del. C. § 151 is void and not merely voidable.” (citing Triplex Shoe 

Co. v. Rice & Hutchins, 152 A. 342, 347 (Del. 1930), and Drexler, Black & Sparks, 

Delaware Corporation Law and Practice, § 17.02 at 17–23 n.89 (1990))).

65 8 Del. C. § 151(a) (emphasis added).

66 Original Charter § 4.1; 8 Del. C. § 102(a)(4).
20

share count and par value that Section 102(a)(4) prescribes for classes but not for 

series. It does not fix or authorize the board to fix any series of common stock.

By contrast, Section 4.2, titled “Preferred Stock,” vests the Board with 

authority to provide for “one or more series of Preferred Stock” and establish “the 

number of shares to be included in each such series” by resolution.67 Section 4.2 

complies with DGCL Section 102(a)(4)’s prescription for granting board authority 

to fix series by resolution. Neither Section 4.1 nor Section 4.3, titled “Common 

Stock,” includes a similar provision: neither fixes or grants the Board authority to 

fix series of common stock.68 “While that omission may have been accidental, given 

the requirements of Delaware law this Court cannot presume so and thereafter supply 

the missing provisions.”

69

Read as a whole and together with the DGCL, Sections 4.1 and 4.2 of the 

Original Charter granted the Company authority to issue classes of preferred stock 

and series of preferred stock, but only classes of common stock—not series. The 

Original Charter followed the DGCL’s instructions for implementing that 

authorization. I conclude that Class A and Class B are each a class of common stock, 

not series.

67 Original Charter § 4.2.

68 Id. § 4.3; see supra note 56.

69 Waggoner, 581 A.2d at 1135.
21

So concluding, I turn to what that means for Class A’s statutory voting rights 

on the Share Increase Amendment. The Original Charter directed compliance with 

Section 242.70 The first sentence of Section 242(b)(2) requires “[t]he holders of the 

outstanding shares of a class shall be entitled to vote as a class upon a proposed 

amendment, . . . if the amendment would increase or decrease the aggregate number 

of authorized shares of such class.”71 The Share Increase Amendment proposed 

increasing the authorized shares of Class A common stock.72 Accordingly, Section 

242(b)(2) required a separate Class A vote on the Share Increase Amendment. The 

Demand was meritorious as to the Share Increase Amendment.

ii. The Demand Was Meritorious As To The Opt-Out 

Provision Amendment.

I now turn to the Opt-Out Provision Amendment. Readers may recall it was 

designed to take advantage of Section 242(b)(2)’s third sentence and eliminate the 

Class A stockholders’ right to a separate vote for future share increases in that class, 

in favor of a vote by the majority of all voting stock.

73

 Readers may also recall the 

third sentence of Section 242(b)(2) requires such an amendment to be “authorized 

70 Original Charter § 4.3(a)(iii).

71 8 Del. C. § 242(b)(2). Because Section 242’s second sentence does not bestow this 

voting right on series being increased or decreased, any lack of clarity in the Original 

Charter should be resolved in favor of the additional electoral rights afforded by concluding 

Class A and Class B are classes. Supra note 51 and accompanying text.

72 See supra note 12.

73 See Compl. ¶¶ 7, 25–26, 35–36.
22

by a resolution or resolutions adopted by the affirmative vote of the holders of a 

majority of such class or classes of stock.”74

The Demand asserted the Company’s attempt to obtain approval of the OptOut Provision Amendment through a combined vote of both Class A and Class B 

did not comply with Section 242(b)(2)’s requirement for a Class A vote.75 Because 

Class A is a class rather than a series, Section 242(b)(2)’s third sentence required the 

majority of Class A common stockholders to approve the Opt-Out Provision 

Amendment.76 The Class A common stockholders were not initially afforded this 

opportunity. The Demand was meritorious as to the Opt-Out Provision Amendment.

2. The Demand Conferred A Substantial Benefit.

Once a plaintiff brings a meritorious suit—or demand—the action must 

“specifically and substantially” benefit the corporation and its stockholders to 

warrant fees.

77

 While the benefit “need not involve the recovery of property or 

74 8 Del. C. § 242 (b)(2). Section 242(b)(2)’s other avenues to a simple majority vote were 

not available to the Company: the Original Charter did not provide for it, and the Company 

had already issued Class A common shares. Id.

75 Demand at 10.

76 8 Del. C. § 242(b)(2) (“The number of authorized shares of any such class or classes of 

stock may be increased . . . by the affirmative vote of the holders of a majority of the stock 

of the corporation entitled to vote irrespective of this subsection, if so provided in . . . any

amendment thereto which was authorized by a resolution or resolutions adopted by the 

affirmative vote of the holders of a majority of such class or classes of stock.”); see id.

requiring a class vote “if the amendment would . . . alter or change the powers, preferences, 

or special rights of the shares of such class so as to affect them adversely”).

77 Chrysler, 223 A.2d at 386 (collecting authorities).
23

prevention of a dissipation of assets,” its value must be “immediately discernible 

rather than speculative in character.”78 Plaintiff bears the burden of establishing the 

value of any benefit conferred.79 Plaintiff has done so.

The Demand conferred a meaningful benefit on the Company and its 

stockholders by addressing the statutory problems with the proposed voting structure 

for the Challenged Amendments. 80 “Delaware law recognizes that corporate 

benefits to achieve statutory compliance and to vindicate the stockholder franchise 

are some of the most important benefits that can be achieved through stockholder 

litigation.” 81 Delaware law also requires “scrupulous adherence to statutory 

formalities when a board takes actions change a corporation’s capital structure,”

82

78 Richman v. DeVal Aerodynamics, Inc., 185 A.2d 884, 885–86 (Del. Ch. 1962).

79 See In re Am. Real Estate P’rs, L.P., 1997 WL 770718, at *6 (Del. Ch. Dec. 3, 1997)

(citing In re Diamond Shamrock Corp., 1988 WL 94752, at *4 (Del. Ch. Sept. 14, 1988)).

80 E.g., Olson v. ev3, Inc., 2011 WL 704409, at *11 (Del. Ch. Feb. 21, 2011); Hawkes v. 

Bettino, C.A. No. 2020-0360-PAF, at 103 (Del. Ch. Apr. 1, 2021) (TRANSCRIPT) 

(finding “no difficulty in recognizing the material benefit achieved” by curing statutory 

defects to stockholder votes).

Readers steeped in this Court’s jurisprudence may stop short at this opinion’s 

citation of transcript rulings as binding authority. Day v. Diligence, Inc., 2020 WL 

2214377, at *1 (Del. Ch. May 7, 2020). But by pattern, practice, and the demands on this 

Court, most decisions on fee awards are transcript rulings. In this specific fee award 

dispute, in which both litigants are represented by counsel with access to a library of 

transcript rulings, I view transcript rulings as authority akin to an opinion. See Olson, 2011 

WL 704409, at *8.

81 Hawkes, C.A. No. 2020-0360-PAF, at 103.

82 Blades v. Wisehart, 2010 WL 4638603, at *8 (Del. Ch. Nov. 17, 2010), superseded by 

statute on other grounds, 8 Del. C. §§ 204, 205; STAAR Surgical, 588 A.2d at 1136 (“The 

Waggoners’ attempt to trivialize the unassailable facts of this case as mere ‘technicalities’
24

so it recognizes the material benefit of “allowing the company to easily and 

effectively cure a potentially serious defect in its capital structure.”83 The Court has 

also recognized that correcting a “class voting issue” may confer a greater benefit 

than correcting a voting error in a situation where all stockholders vote together, 

particularly where the majority’s vote may be more or less a foregone conclusion.84 

The Demand conferred such a benefit on the Class A stockholders.

The separate vote on the Opt-Out Provision Amendment and Share Increase 

Amendment achieved statutory compliance and vindicated the stockholder 

franchise. The separate vote on the Share Increase Amendment also prevented a 

cloud from hanging over the Company’s capital structure by ensuring “scrupulous 

adherence to statutory formalities,” in connection with all future common stock 

issuances. 85 “Shareholder voting rights are sacrosanct” and “[p]reserving 

shareholder voting rights produces a fundamental corporate benefit.”

86

is wholly unpersuasive. The issuance of corporate stock is an act of fundamental legal 

significance having a direct bearing upon questions of corporate governance, control and 

the capital structure of the enterprise. The law properly requires certainty in such 

matters.”).

83 De Felice v. Kidron (“Oramed”), C.A. No. 2021-0255-MTZ, at 16 (Del. Ch. 

Apr. 27, 2022) (TRANSCRIPT); see also In re Cheniere Energy, Inc., C.A. No. 9710-

VCL, at 104 (Del. Ch. Mar. 16, 2015) (TRANSCRIPT) (awarding $1 million for 

“correcting the capital structure”).

84 See Berge v. Sequa, C.A. No. 17101-VCL, at 27, 34–35, 54 (Del. Ch. Oct. 5, 1999) 

(TRANSCRIPT).

85 Blades, 2010 WL 4638603, at *8.

86 EMAK, 50 A.3d at 433.
25

And, had the Share Increase Amendment voting structure gone uncorrected, 

the new shares would have been invalidly issued.87 Further, the Combination was 

conditioned on approval of the Proposed Charter; the merger itself would have been 

on shaky ground if those votes were not properly administered.

88

 To the extent the 

Combination closed in reliance on the Challenged Amendments, “the validity of the 

Merger could be attacked. The invalidity of that transaction in turn could have called 

into question subsequent acts by the surviving corporation.”

89

 These are all material 

benefits. And preventive action is as beneficial as corrective action, if not more:

diffusing a ticking time bomb can be more valuable than cleaning up shrapnel.

Defendant argues the Challenged Amendments did not create a conflict 

between Class A and Class B common stockholders, and so no benefit was achieved 

by separate votes. This qualitative argument disregards Section 242’s plain statutory 

requirements; the statute leaves no room for noncompliance just because the separate 

votes might produce the same result as a majority vote. By taking the Company off 

a path that violated the DGCL and the stockholder franchise, Plaintiff conferred a 

substantial benefit. 

87 Oramed, C.A. No. 2021-0255-MTZ, at 17.

88 Proxy at Notice of Special Meeting of Stockholders; Compl. ¶ 2.

89 Olson, 2011 WL 704409, at *11.
26

B. Plaintiff Is Entitled To $850,000 In Attorneys’ Fees And Expenses.

Under Delaware law, Plaintiff’s counsel is entitled to fees and expenses under 

the corporate benefit doctrine for the benefits it conferred on the nominal 

defendant. 90 In setting fee awards, the Court of Chancery “must make an 

independent determination of reasonableness.”91

When setting a fee award, the Court will generally follow the factors identified 

in the Delaware Supreme Court’s Sugarland decision and relied on by subsequent 

decisions.

92

 The relevant factors here are: (1) the benefit achieved; (2) the time and 

effort of counsel; (3) the standing and ability of counsel; (4) the relative complexities 

of the litigation; (5) the stage at which the litigation ended; and (6) any contingency 

factor;.93 Defendant does not dispute the seventh Sugarland factor: whether the 

plaintiff can be credited for the benefit.

The factors are not weighted equally. This Court has consistently noted that 

the most important factors in determining a fee award are the size of the benefit 

90 Id. at *8.

91 Goodrich v. E.P. Hutton Grp., Inc., 681 A.2d 1039, 1045–46 (Del. 1996).

92 See, e.g., Sciabacucchi v. Salzberg, 2019 WL 2913272, at *1 (Del. Ch. July 8, 2019) 

(quoting Ams. Mining Corp. v. Theriault, 51 A.3d 1213, 1254 (Del. 2012)), judgment 

entered, 2019 WL 3502495 (Del. Ch. Aug. 1, 2019), vacated on other grounds, 2020 WL 

1985048 (Del. Ch. Apr. 24, 2020).

93 Sugarland Indus., Inc. v. Thomas, 420 A.2d 142 (Del. 1980).
27

achieved, and whether the plaintiff can be credited for the benefit.94 Secondary 

factors include the complexity of the litigation, the standing and skill of counsel, the 

contingent nature of the fee arrangement and the level of contingency risk actually 

involved in the case.95“Precedent awards from similar cases may be considered for 

the obvious reason that like cases should be treated alike.”

96

 Applying the Sugarland 

factors here, I find that they weigh in support of an award between what the parties 

suggest. I address each factor in turn.

1. The Benefits Achieved

When considering the fee award, the Court looks at the size of benefit 

conferred on the company and its stockholders.97 As explained, Plaintiff’s Demand 

preserved the Class A common stockholders’ statutory right to a separate vote on 

94 E.g., In re Plains Res. Inc., 2005 WL 332811, at *3 (Del. Ch. Feb. 4, 2005) (“The factors 

are: . . . (vi) whether the plaintiff can rightly receive all the credit for the benefit conferred 

or only a portion thereof; and (vii) the size of the benefit conferred. The last two elements 

are often considered the most important.” (citing Sugarland, 420 A.2d at 149–50)); Gatz

v. Ponsoldt, 2009 WL 1743760, at *3 (Del. Ch. June 12, 2009) (“This Court has 

consistently noted that the most important factor in determining a fee award is the size of 

the benefit achieved.”); Franklin Balance Sheet Inv. Fund v. Crowley, 2007 WL 2495018, 

at *8 (Del. Ch. Aug. 30, 2007) (“In determining the size of an award of attorney’s fees, 

courts assign the greatest weight to the benefit achieved by the litigation.” (citing 

Sugarland, 420 A.2d at 150)).

95 Olson, 2011 WL 704409, at *8 (citing Gatz, 2009 WL 1743760, at *3).

96 Id.

97 E.g., Gatz, 2009 WL 1743760, at *3.
28

the Challenged Amendments. That preservation also enhanced the certainty of the 

Company’s capital structure and the Business Transaction.

Precedent supports awarding such benefits with a substantial fee.

98

 In Olson 

v. ev3, Inc., the Court awarded the plaintiff’s counsel $1.1 million in fees and 

expenses for remedying statutory problems with the company’s top-up option.

99 The 

Court emphasized a seven-figure award was “fair and reasonable compensation for 

a settlement that cured serious statutory flaws.”100 In In re Psychiatric Solutions, 

Inc. Shareholder Litigation, the Court awarded the plaintiff’s counsel a “modest” 

$800,000 in fees and $200,000 in expenses for challenging stock option awards to 

the company’s executives, which secured a revote on the stock options and 

additional disclosures to support them.101 In In re Cheniere Energy, Inc., the Court 

awarded the plaintiff’s counsel $1,000,000 for “correcting the capital structure,” and 

$2.5 million for securing a stockholder revote based on the correct voting standard

after challenging the issuance of incentive compensation awards, alleging the 

98 If the Original Charter were ambiguous on whether Class A was a class deserving of a 

separate vote, that ambiguity would have favored an interpretation anointing Class A as a 

class. See supra, note 51 and accompanying text. And this Court has not discounted 

awards in response to possibly ambiguous benefits, instead rewarding certainty. See 

Oramed, C.A. No. 2021-0255-MTZ, at 23.

99 2011 WL 704409, at *1, *14–16.

100 Id. at *15.

101 In re Psychiatric Sols., Inc. S’holder Litig., C.A. No. 5514-VCG, at 24–28 (Del. Ch. 

Sept. 6, 2011) (TRANSCRIPT).
29

stockholder vote that approved them was inconsistent with the voting standards 

outlined in the company’s bylaws.

102 Earlier this year, in De Felice v. Kidron 

(“Oramed”), I awarded the plaintiff’s counsel $850,000 for providing stockholders 

an opportunity to reject or ratify two years’ worth of incentive plans and a director 

election that were built on “allegedly flawed votes”; requiring the company to amend 

its bylaws to conform with its public statements; and requiring the company to adopt 

corporate governance enhancements to protect the shareholder franchise.

103 These 

cases support an award in the range of $850,000 to $3.5 million where the plaintiff 

finds and disables a corporate landmine, particularly one that deals with the 

shareholder franchise or the company’s capitalization, without regard to hours 

worked.

Defendant primarily relies on Berge v. Sequa Corporation to argue the 

benefits Plaintiff conferred merit only a nominal award.

104

 The Court awarded the 

Sequa plaintiff $100,000.105 Sequa is distinguishable for at least two reasons. The 

plaintiff in Sequa brought litigation to correct a violation of Section 242(b) in 

connection with a proposed charter amendment that was not in conjunction with a 

102 Cheniere, C.A. No. 9710-VCL, at 91–95, 102, 104.

103 Oramed, C.A. No. 2021-0255-MTZ, at 12, 15–16.

104 DOB at 35–37, 44–45, 53, 56; DAB at 15–19; e.g., Hr’g Tr. 47–52.

105 Sequa, C.A. No. 17101-VCL, at 62.
30

stock issuance or pending transaction.106 Here, the Section 242(b) violation was in 

connection with a pending merger conditioned on stockholder approval of the 

Challenged Amendments.107 If the statutory violation went uncorrected, it would 

have been more difficult to unwind the Combination than the vote at issue in Sequa.

Relatedly, the Section 242 violation in Sequa was more akin to a disclosure 

violation. The proxy misstated the number of votes required to amend the charter: 

“the vote required was a majority vote of all the shares entitled to vote on the matter, 

not simply a majority of those voting.”108 In considering the size of the benefit 

conferred, Vice Chancellor Lamb described the problem as a mistaken disclosure, 

and not “a case of any intentional deprivation of voting rights.”109 The Court focused 

on whether the corrected problem “was just a mistake or not because it . . . [bore] on 

the nature of the benefit obtained.”110 Defendant presses this Court to follow Sequa 

and treat the benefit here as a disclosure settlement. But as explained, Plaintiff 

contributed a statutory fix with broader implications.111

106 Id. at 25–26.

107 Proxy at Notice of Special Meeting of Stockholders; Compl. ¶ 2.

108 Sequa, C.A. No. 17101-VCL, at 56.

109 Id. at 53; see also id. at 27 (“The 242(b) issue simply was missed. . . . It was simply 

overlooked. As soon as it was brought to our attention by the filing of the complaint and 

the injunctive papers, we promptly corrected it.”).

110 Id. at 55–56.

111 See Olson, 2011 WL 704409, at *8, *16 (“The defendants’ figure [$525,000] underprices what the plaintiffs achieved. It would be appropriate for a routine disclosure-only 
31

Defendant also argues that as in Sequa, “[t]here is zero evidence that failing 

to provide separate class voting for Class A shares was anything but an oversight.”112 

If the Challenged Amendments were oversights, they are of much greater magnitude 

and consequence. The Challenged Amendments were intentionally drafted to take 

advantage of the third sentence of Section 242(b) and permit the Company to issue 

Class A stock without a separate Class A vote.113 The Company then structured the 

votes so that Class A was not afforded a separate vote on the Challenged

Amendments. This was not a misstatement of disclosing what vote totals were

required, but rather a structural omission. Plaintiff here conferred a more significant 

benefit than the plaintiff in Sequa.

Plaintiff seeks $2,000,000 in attorneys’ fees.114 Plaintiff’s counsel has filed 

several similar cases against other SPACs with the same charter language and 

proposed votes, in which he sent the same demand and procured the same benefit—

but seeks a far lower fee award.

115

 At argument, Plaintiff’s counsel conceded the

settlement, not a case where the plaintiff obtained full relief and remedied potential 

statutory violations.”).

112 DAB at 17.

113 Supra note 12.

114 POB at 4, 21, 24, 36, 47.

115 Umbright v. Khosla Ventures Acq. Co. II (“Nextdoor”), C.A. No. 2021-0762-LWW

(Del. Ch. Mar. 14, 2022), D.I. 18 (seeking $1.25 million in fees); Franchi v. dMY Tech. 

Grp., Inc. IV, 2021-0841-KSJM (Del. Ch. Oct. 20, 2022), D.I. 7 (seeking $950,000 in fees 

and expenses); Franchi v. CM Life Scis. III Inc., 2021-0842-KSJM (Del. Ch.

Oct. 20, 2022), D.I. 10 (same). Several other identical but unrelated actions are now
32

additional fees sought from Defendant are not tied to the corporate benefit it 

received.

116

 While I appreciate counsel’s candor and believe these types of matters 

dismissed or mooted. Hr’g Tr. 24, 63; Bass v. Mudrick Cap. Acq. Co., No. 2021-0690-

LWW (Del. Ch.); Delman v. Fusion Acq. Corp., No. 2021-0752-JRS (Del. Ch.); Solak v. 

Redbox Ent., Inc., No. 2022-0099-LWW (Del. Ch.); Elstein v. Hagerty, Inc., C.A. No. 

2022-0214-LWW (Del. Ch.); Drulias v. Pardes Biosciences, Inc., No. 2022-0432-LWW 

(Del. Ch.).

116 Counsel pursued a premium fee award in this case specifically because, in counsel’s 

view, my decision in Oramed created a “change in circumstances.” Hr’g Tr. 27–29. 

Counsel explained the machinations that went into presenting and maintaining this action 

as the first to set a fee award. Nextdoor, which seeks $1.25 million, “was initially the first 

case that was scheduled to be argued.” Id. 27–28; Nextdoor, C.A. No. 2021-0762-LWW 

(Del. Ch. June 10, 2022), D.I. 25 (scheduling a hearing for September 7, 2022). “The order 

was going to be [Nextdoor]; this case, Boxed; and [Elstein v.] Hagerty.” Hr’g Tr. 28. But

between the time [Nextdoor] and Boxed were filed, “the Oramed case came down.” Id.

Counsel explained, “And given that change in circumstances . . . . I can say, from our 

perspective, it increased the value of this case. . . . We thought, based on Oramed, the 

value was increased, and we brought it up to [$]2 million.” Id. “The [Nextdoor] argument 

date got pushed . . . [to] January of next year.” Id. With that change, when Boxed was 

argued, “Hagerty [was] the next one in line. It [was] due to be argued Friday. We did not 

demand [$]2 million there because Boxed went first.” Id. The day after I took this matter 

under advisement, and the day before argument in Hagerty, Plaintiff’s counsel filed, and 

the Court granted, a stipulated dismissal of that case with prejudice. Hagerty, C.A. No. 

2022-0214-LWW (Del. Ch. Oct. 20, 2022), D.I. 22 and D.I. 23. That same day, Plaintiff’s 

counsel also filed its fee petitions for $950,000 in both Franchi v. dMY Tech. Group, Inc. 

IV, and Franchi v. CM Life Sciences III Inc. Supra note 115. I have used Oramed as a 

yardstick for a comparable statutory fix and see nothing in it that supports a premium in 

Boxed over other comparable cases.

Plaintiff’s counsel also offered that this action carried the weight of more

“underlying work” that benefitted the similar but unrelated actions where either less work 

was necessary or where counsel did not get paid. Hr’g Tr. 28–29. This metric does little 

work for a fee award based on the corporate benefit doctrine. In re Duke Energy Corp. 

Deriv. Litig., 2017 WL 5256305, at *2 (Del. Ch. Nov. 13, 2017) (“It is not the extent of 

that effort, of course, that must be compensated, but rather the effect of that effort on the 

creation of the common benefit here.” (emphasis added) (citing Ams. Mining, 51 A.3d at

1255)). The award in this action surely compensates counsel for the 42.75 hours of work

performed. D.I. 17, Affidavit of Steven J. Purcell in Support of Plaintiff’s Motion for 
33

warrant full and incentivizing compensation, the most important factor in awarding 

a fee is the benefit conferred to the defendant company.

117 The corporate benefit 

doctrine arises from the principle that a plaintiff is entitled to reimbursement through 

contribution from all of those who benefitted.118 The Court’s job is to determine 

reasonableness “on behalf of the beneficiaries of the common benefit.” 119 The 

sequence in which fee petitions are heard has no relation to the benefit each 

defendant obtained. With corporate benefit as my north star, and cognizant of 

pattern and practice before this Court, I see no principled reason to saddle the 

unlucky first company to have its fee award set by the Court with fees that exceed 

the benefit that company received.

120

 It is yet to be determined whether Plaintiff’s 

counsel’s other actions conferred the same or similar benefits on their respective 

companies for allegedly correcting the same statutory violation will garner the same 

award.

121 Published precedent counsels against awarding a lower award in 

Summary Judgment and Application for an Award of Attorneys’ Fees and Expenses ¶ 4

[hereinafter “Purcell Aff.”].

117 Supra note 94.

118 2 Donald J. Wolfe, Jr. & Michael A. Pittenger, Corporate and Commercial Practice in 

the Delaware Court of Chancery § 17.03[f][1], at 17-22 (2021).

119 Id. § 17.03[f][3], at 17-28.

120 Cf. Sequa, C.A. No. 17101-VCL, at 58 (“I think it would be wrong not to give it some 

consideration, because I mean after all, we are talking about the corporation’s money, and 

making an award that adequately and fully compensates counsel, but at the same time not 

an award that is a penalty of some sort to the corporation.”).

121 Supra note 115.
34

subsequent, presumably more efficient actions built on the arguments in this first 

case.122 In my view, if the corporate benefit doctrine is faithfully followed, and if 

Plaintiff’s counsel’s other actions conferred the same benefit for the same statutory 

fix and the rest of the Sugarland factors are the same, counsel should receive the 

same award regardless of the order the fee awards are filed, briefed, or taken under 

advisement.

123

 Those plaintiffs did not confer a benefit on this Company or its 

stockholders, and so the existence of other actions for which a fee has not yet been 

awarded does not warrant a premium in the first-heard matter.

2. The Secondary Sugarland Factors

“Secondary factors include the complexity of the litigation, the standing and 

skill of counsel, and the contingent nature of the fee arrangement together with the 

122 Duke Energy, 2017 WL 5256305, at *2 (“It is not the extent of that effort, of course, 

that must be compensated, but rather the effect of that effort on the creation of the common 

benefit here.” (emphasis added)); Sciabacucchi, 2019 WL 2913272, at *7 (“The relatively 

low number of hours that plaintiff’s counsel incurred in this case also fails to reflect the 

overall value of counsel’s investment, because they first developed the arguments that 

prevailed in this case during the course of other litigation.”); Seinfeld v. Coker, 847 A.2d 

330, 333 (Del. Ch. 2000) (emphasizing the importance of incentivizing efficient litigation 

and settlement, and litigation that induces monitoring behavior, while avoiding windfalls); 

Goodrich, 681 A.2d at 1044 (seeking to avoid unjustly enriched beneficiaries who obtain 

the benefit of a lawsuit without contributing (citing Boeing Co. v. Van Gemert, 444 U.S. 

472, 478 (1980), and Tandycrafts, 562 A.2d at 1166)). Indeed, in this matter where counsel 

spent only 42.75 hours to accomplish the benefits conferred, it is difficult to imagine a 

meaningfully smaller number of hours would be needed in successive actions. Purcell Aff.

¶ 4.

123 See supra note 96 and accompanying text.
35

level of contingency risk actually involved in the case.”

124

 “All else equal, litigation 

that is challenging and complex supports a higher fee award.”125 Plaintiff asserts his 

fee award should be augmented by the novel fact that the Company was a SPAC. 

But the issues were born from the interpretation of a charter, something every 

Delaware corporation has. Plaintiff’s flight of suits is distinguishable from a 

situation in which counsel seeks a favorable ruling on a novel question before 

bringing a multiplicity of suits. In my view, the fact that Plaintiff’s counsel has 

identified a recurring fact pattern does not support the arbitrary anointment of the 

first case to be decided as “novel” and therefore worth a premium, particularly when 

all the cases were brought around the same time. Nevertheless, while this litigation 

was not very challenging or complex, it was not as “straightforward” as the Sequa

litigation given the need to construe the Original Charter. 126 The degree of 

complexity posed by the litigation supports the reasonableness of the award, but does 

not call for a premium.

124 Judy v. Preferred Commc’n Sys., Inc., 2016 WL 4992687, at *15 (Del. Ch. 

Sept. 19, 2016) (citing Gatz, 2009 WL 1743760, at *3).

125 In re Activision Blizzard, Inc. S’holder Litig., 124 A.3d 1025, 1072 (Del. Ch. 2015).

126 See Sequa, C.A. No. 17101-VCL, at 56.
36

“Law firms establish a track record over time, and they ‘build (and sometimes 

burn) reputational capital.’”127 Plaintiff’s counsel is well known to the Court. Their 

skill and experience support the award. This factor does not warrant either an 

upward or downward departure.128

Counsel may be “entitled to a much larger fee when the compensation is 

contingent than when it is fixed on an hourly or contractual basis.”129 “Fee awards 

should encourage future meritorious lawsuits by compensating the plaintiffs’ 

attorneys for their lost opportunity cost (typically their hourly rate), the risks 

associated with the litigation, and a premium.”130 “But just because a lawyer works

on contingency does not automatically warrant a significant award. ‘Not all 

contingent cases involve the same level of contingency risk.’”131 While Plaintiff’s 

127 In re Del Monte Foods Co. S’holders Litig., 2010 WL 5550677, at *9 (Del. Ch. 

Dec. 31, 2010) (quoting In re Revlon, Inc. S’holders Litig., 990 A.2d 940, 956 (Del. Ch. 

2010)).

128 Sciabacucchi, 2019 WL 2913272, at *8.

129 Ryan v. Gifford, 2009 WL 18143, at *13 (Del. Ch. Jan. 2, 2009).

130 Franklin Balance Sheet, 2007 WL 2495018, at *12 (citing Seinfeld, 847 A.2d at 333–

34).

131 Sciabacucchi, 2019 WL 2913272, at *7 (quoting Activision, 124 A.3d at 1073); accord

Berger v. Pubco Corp., 2008 WL 4173860, at *2 (Del. Ch. Sept. 8, 2008) (“Seeing the 

claim through to judgment lends weight to a higher award, both because of the greater risk 

inherent in litigation compared to settlement and because of the greater legal work required 

to obtain the judgment.”); but see Olson, 2011 WL 704409, at *15 (“Counsel achieved via 

settlement all of the relief that they could have obtained by litigating through a merits 

hearing. Counsel should not be penalized for achieving complete victory quickly.”);

Hawkes, C.A. No. 2020-0360-PAF, at 105 (“Nevertheless, as this Court has observed, 

plaintiff’s counsel should not be punished for achieving early and complete victory. I 
37

counsel took this case on a contingent basis, they did not undertake much risk. 

Plaintiff’s counsel sent a single Demand letter pointing out statutory violations that 

were promptly addressed. Plaintiff did not initiate litigation until after the benefit 

was conferred. Cases that are “relatively safe in terms of forcing a settlement” do 

not face significant contingency risk.132 Consequently, no premium is warranted 

based on the contingency risk or stage at which the litigation ended.

3. Counsel’s Time And Effort

The time and effort expended by counsel is another secondary, or even 

tertiary, consideration to the benefits achieved. 133 Delaware courts regard this 

consideration as a crosscheck to guard against windfall awards,134 “because the real 

measure of a fee award lies in the results achieved.”135 “This factor has two separate 

but related components: (i) time and (ii) effort.”136

therefore do not take into account the stage at which the plaintiff’s Section 203 claim was 

mooted.”); Sciabacucchi, 2019 WL 2913272, at *7 (“Although the plaintiff prevailed at a 

relatively early stage of the case, and accordingly incurred a relatively small number of 

hours to date, I do not believe that this factor warrants reducing the precedent-based 

award.”).

132 In re Sauer-Danfoss Inc. S’holders Litig., 65 A.3d 1116, 1140 (Del. Ch. 2011).

133 E.g., Pontiac Gen. Empls. Ret. Sys. v. Ballantine, C.A. No. 9789-VCL, at 40 (Del. Ch. 

May 8, 2015) (TRANSCRIPT); Sciabacucchi, 2019 WL 2913272, at *6.

134 Olson, 2011 WL 704409, at *8 (citing Brinckerhoff v. Tex. E. Prods. Pipeline Co., LLC, 

986 A.2d 370, 396 (Del. Ch. 2010)).

135 Sciabacucchi, 2019 WL 2913272, at *6.

136 Id. (internal quotation marks omitted) (quoting Sauer-Danfoss, 65 A.3d at 1138).
38

Defendant argues the Court should adopt the lodestar method to measure 

counsel’s time and effort and cut the requested fee accordingly. Courts have 

repeatedly acknowledged the shortcomings of the lodestar method, which include

incentives to inflate attorney hours or billing rates.137 Accordingly, Delaware courts 

should first look to precedents on which to base a fee award, which I have done.138 

I give no weight to the hours expended.

139

III. CONCLUSION

For the foregoing reasons, Plaintiff’s counsel is awarded fees and expenses of 

$850,000. Defendant’s Motion for Summary Judgment is DENIED. Plaintiff’s 

Motion for Summary Judgment is GRANTED IN PART, and DENIED IN PART

as to the amount of fees.

137 E.g., id. (quoting Sauer-Danfoss, 65 A.3d at 1138).

138 Id.

139 E.g., Olson, 2011 WL 704409, at *15; see also Ams. Mining, 51 A.3d at 1257 

(“Sugarland does not require, as the Defendants argue, courts to use the hourly rate implied 

by a percentage fee award, rather than the benefit conferred, as the benchmark for 

determining a reasonable fee award. To the contrary, in Sugarland, this Court refused to 

adopt the Third Circuit’s lodestar approach, which primarily focuses on the time spent.”).