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August 22, 2016 at 1:06:20 PM Eastern Daylight Time


Re: tomorrow morning

Monday, August 22, 2016 at 1:06:10 PM Eastern Daylight Time
Amanda Fung
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From: Juda Engelmayer [mailto:jengelmayer@5wpr.com]

Sent: Monday, August 22, 2016 10:06 AM
To: Aaron Elstein <aelstein@crainsnewyork.com>
Subject: RE: tomorrow morning

From MarNn Russo
Phils lawyer

In my opinion the sancNons decision itself is indicia of an extreme court bias against Mr. Shawe. Although
Mr. Shawe was given noNce on parNcular grounds, the court permiVed ElNngs team to change its theory at
trial without proper noNce because ElNng had insucient evidence of the issue they had sought to
sancNon Mr. Shawe for: alleged spoliaNon. The "evidence" against Mr. Shawe on spoliaNon was almost
exclusively based on lawyers arguments (not evidence by deniNon in any court) and a cherry-picked paid
"expert" witness who had never tesNed before in a U.S. Court. The truth of the maVer is that Mr. Shawe
provided more discovery than ElNng produced, and her legal team could not idenNfy a single document
that allegedly had been destroyed or withheld and caused her "prejudice." In fact, she claimed victory on
the merits. Indeed, a_er the merits trial, ElNngs expert admiVed that his ndings used as a basis for
ling the sancNons moNon were untrue because he had not invesNgated the issue well enough before
ElNngs team made the allegaNon. Faced with this decit of evidence, ElNngs lawyers appeared at the
sancNons trial with a new theory of lying which had never been raised before. Shawe was tried and
sancNoned for allegedly lying without due process.
As a consequence, it is neither surprising (i) that the court did not nd the deleNon of relevant evidence
nor (ii) that Mr. Shawes aVorneys were not adequately prepared to defend him against the variance in trial
theory. Such unfairness is not consistent with due process. Had they been given noNce of the new lying
theory (including what issues he allegedly lied about and when), it is likely that Mr. Shawes lawyers could
have prepared and presented evidence demonstraNng that the dierences in recollecNon were nothing
more than just that with other disclosures in the record that make them immaterial.
The recent ruling on the amount of sancNons to be paid is more of the same from the Chancellor.
Although the court did reduce the fees in some instances, it uVerly failed to provide due process with
respect to the reasonableness of many of the fees claimed. The most extreme example of this failure is
the acceptance of more than $1.4 million in merits fees from the PoVer rm based on the adavit of Mr.
Shannon without any actual billing descripNons to back up the claim. It begs the quesNon: How can the
reasonableness of fees be assessed if the court doesnt even know what work was performed? Such
curious decision making is unfortunate because it also lends some weight to the speculaNon by others that
there is a reported personal and professional relaNonship between Mr. Shannon and the court which may
be aecNng this case. I know of no such relaNonship and am not asserNng that there has been any
impropriety, but accepNng more than $1.4 million in fee claims without requiring backup is contrary to
tradiNonal noNons of fairness. Mr. Shawe is considering his appellate opNons.
There also have been other indicia of court bias against Mr. Shawe. During the merits trial, the Court had to
address ElNngs allegaNons of wrongdoing leveled against Mr. Shawe relaNng to his review of her emails on
the public company server. Mr. Shawe asserted that the emails proved that ElNng commiVed fraud and
requested that Chancellor Bouchard examine the emails in camera (in private) because they proved fraud.
The court was well aware that if fraud was found, it would remove the emails from any supposed claim of
privilege (under the crime-fraud excepNon), but Chancellor Bouchard inexplicably refused to review
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them yielding to ElNngs posiNon with no basis in law. Chancellor Bouchard abandoned his sworn duty to
equity and jusNce in this regard. Instead, without consideraNon of the content, for the purpose of the
merits case he suppressed the very emails which may prove Mr. Shawes asserNon that ElNng and her
aVorneys engaged in a scheme to provoke Mr. Shawe and create acNonable discord in the company.
These and other indicia of bias (such as the remarkable success rate of ElNngs team on all moNons which
her aVorneys bragged about in a Law360 arNcle) are parNcularly concerning given the recent unsolicited
and inappropriate negaNve public statement by Vice Chancellor J. Travis Laster which was directed at the
free speech acNviNes of Transperfect employess who have been appealing to the media and the public. It
is the duty of judges and lawyers to avoid the appearance of impropriety and this unprecedented instance
of one sikng judge commenNng on the acNve case of another may not be consistent with that mandate
especially when it may be interpreted as an aVempt to quell rst amendment rights.
At this point, the case has been cerNed for interlocutory appeal, and I am condent that the Delaware
Supreme Court (or, if necessary, the U.S. Supreme Court) will reverse both the sale order and sancNons
order based on the law. With respect to the sale order, ponder this: the facts reported in the decision by
Chancellor Bouchard clearly support a nding that ElNng breached her duciary duty by refusing to
consider real estate and merger/acquisiNon opportuniNes without regard to their merit, so how is it
possible that a person with unclean hands (ElNng) can come to Chancery Court and obtain relief? When
similar claims were brought by ElNng in New York State court, it was tossed out with the sense that the
whole liNgaNon was absurd and the parNes needed to come to a soluNon on their own. JusNce Schweitzer
specically found that it was unclear who drew rst blood.
Mr. Shawe is resolute that the company is an industry leader that never faced irreparable harm regardless
of any alleged acrimony between the shareholders. TransPerfect's performance in 2015 was more
successful than 2014, and it is on pace to perform even beVer in 2016 despite the liNgaNon. He is
condent that the company will conNnue to prosper and conNnues to oer $300 million cash to Ms. ElNng
for her shares.
MarNn Russo

Juda Engelmayer
Senior Vice President

5W Public RelaJons
T 212-584-4272
F 646-649-9088
C 917-733-3561
twiDer @judae
Top 20 Independent U.S. PR Agency
Be sure to follow us: Facebook.com/5WPublicRelaNons | TwiVer.com/5W_PR

P please consider the environment before prinJng this e-mail

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From: Aaron Elstein [mailto:aelstein@crainsnewyork.com]

Sent: Monday, August 22, 2016 10:04 AM
To: Juda Engelmayer <jengelmayer@5wpr.com>
Subject: RE: tomorrow morning

Any comment from Phil on the $7.2m judgment?

From: Juda Engelmayer [mailto:jengelmayer@5wpr.com]
Sent: Thursday, May 26, 2016 6:34 PM
To: Ashley DeVincenzo <ADeVincenzo@5wpr.com>
Cc: Aaron Elstein <aelstein@crainsnewyork.com>
Subject: tomorrow morning

Please place Aaron Elstein, Philip Shawe and MarNn Russo on for 9AM tomorrow
Thank you

Juda Engelmayer
Senior Vice President

5W Public RelaJons
T 212-584-4272
F 646-649-9088
C 917-733-3561
twiDer @judae
Top 20 Independent U.S. PR Agency
Be sure to follow us: Facebook.com/5WPublicRelaNons | TwiVer.com/5W_PR

P please consider the environment before prinJng this e-mail

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