COURT OF CHANCERY OF THE STATE OF DELAWARE L ORI W. W ILL V ICE C HANCELLOR L EONARD L. W ILLIAMS J USTICE C ENTER 500 N. K ING S TREET , S UITE 11400 W ILMINGTON , D ELAWARE 19801

- 3734 September 4, 2024
Bradley R. Aronstam, Esquire Roger S. Stronach, Esquire Dylan T. Mockenstrum, Esquire Ross Aronstam & Moritz LLP 1313 North Market Street, Suite 1001 Wilmington, Delaware 19801 William M. Lafferty, Esquire Susan W. Waesco, Esquire Elizabeth A. Mullin Stoffer, Esquire Kirk C. Andersen, Esquire Morris
, Nichols
, Arsht & Tunnell LLP 1201 North Market Street W ilmington, Delaware 19801

RE: Fortis Advisors LLC v. Johnson & Johnson et al.
, C.A. No. 2020

- 0881

- LWW

Dear Counsel:
Today , I issued a post

- trial memorandum opinion resolving Fortis Advisors
LLC’s claims. I also resolved pending motions for sanctions due to spoliation. One

matter is left be addressed: the amount of fees Fortis is entitled to due to Johnson &

Johnson’s tardy cancel l ation of depositions.
Last year, J&J was set to depose t wo members of Auris Health, Inc.’s
leadership team : Josh DeFonzo and David Mintz. These are key players in the

relevant events and featured prominently at trial. On the eve of the i r depositions,

after Fortis’s and the witnesses’ counsel had traveled to California to prepare the

witnesses , J&J abruptly cance led. J&J subsequently asked to reschedule theC.A. No. 2020

- 0881

- LWW

September 4, 2024 Page 2 of 3
depositions after Fortis listed Mintz and DeFonzo as trial witnesses. A motion for
protective order followed. 1
Because J&J’s actions were not plainly inconsistent with the scheduling order,
I permitted these crucial depositions to go forward. 2 But to balance the prejudice to
Fortis, I granted relief including shifting fees for reasonable time Fortis spent
preparing for the canceled depositions. I asked that Fortis’s counsel submit a Rule

88 affidavit outlining the associated fees

. The Rule 88 affidavit requested that I shift $312,577 in fees for 233.4 hours

of attorne y time. 3 The total reflects a blended rate for two partners and three

associates at $1,541 per hour. The hours listed span six weeks before to eight days
after the canceled depositions.
I decline to grant this a mount. The hourly rate is high and unsubstantiated

. 4

T he time period for which fees are sought exceeds that reasonably linked to the

cancellation

. And t he Rule 88 affidavit is deficient. It lacks specific s including the

1 Dkt. 413.

2 Dkts. 438, 447.

3 Dkt. 500.

4 See In re Diamond Shamrock Corp ., 1989 WL 17424, at *3 n.2 (Del. Ch. Feb. 23, 1989) (rejecting fees where rates for claimed hours were not disclosed) ; see also Deane v. Maginn , 2022 WL 16825351, at *4 (Del. Ch. Nov. 7, 2022)

.C.A. No. 2020

- 0881

- LWW

September 4, 2024 Page 3 of 3
travel dates, whether travel time was used to actively prepare for the depositions,

who met with the witnesses and when, and the time spent by counsel on specific
tasks. Fortis has not met its burden of supporting the reasonableness of the requested

fees. 5

I therefore adopt the approach suggested by J&J. 6 Fortis is entitled to fees
totaling $36,000. This amount corresponds to two lawyers each spending ten hours
preparing each witness at a blended rate of $900 per hour. The parties will otherwise

bear their own fees and costs.
Sincerely yours ,
/s/ Lori W. Will

Lori W. Will Vice Chancellor

5 See Mahani v. Edix Media Grp., Inc ., 935 A.2d 242, 246

- 48 (Del. 2007)

. 6 Dkt. 516.