IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

RICHARD J. TORNETTA, derivatively

on behalf of all other similarly situated
stockholders of TESLA, INC.,
Plaintiff,
v. C.A. No. 2018-0408-KSJM
ELON MUSK, ROBYN M. DENHOLM,
ANTONIO J. GRACIAS, JAMES
MURDOCH, LINDA JOHNSON RICE,
BRAD W. BUSS, and IRA
EHRENPREIS,
Defendants,
and
TESLA, INC, a Delaware corporation,
Nominal Defendant.

PLAINTIFF’S OPENING BRIEF IN SUPPORT OF APPLICATION FOR

AN AWARD OF FEES AND EXPENSES

Of Counsel: BERNSTEIN LITOWITZ BERGER

& GROSSMANN LLP
Jeroen van Kwawegen Gregory V. Varallo (Bar No. 2242)
Margaret Sanborn-Lowing Glenn R. McGillivray (Bar No. 6057)
BERNSTEIN LITOWITZ BERGER 500 Delaware Avenue, Suite 901
& GROSSMANN LLP Wilmington, DE 19801
1251 Avenue of the Americas
New York, NY 10020 ANDREWS & SPRINGER LLC
Peter B. Andrews (Bar No. 4623)
Jeremy S. Friedman Craig J. Springer (Bar No. 5529)
Spencer M. Oster David M. Sborz (Bar No. 6203)
David F.E. Tejtel Andrew J. Peach (Bar No. 5789)
FRIEDMAN OSTER Jackson E. Warren (Bar No. 6957)
& TEJTEL PLLC 4001 Kennett Pike, Suite 250
493 Bedford Center Road, Suite 2D Wilmington, DE 19807
Bedford Hills, NY 10507
Counsel for Plaintiff
 TABLE OF CONTENTS

Page

INTRODUCTION .....................................................................................................1

STATEMENT OF FACTS ........................................................................................4

I. THE GRANT ...................................................................................................4

II. THE ACTION .................................................................................................6

III. THE TRIAL ...................................................................................................10

ARGUMENT ...........................................................................................................11

I. THE FEE AND EXPENSE AWARD SHOULD BE GRANTED ...............11

A. The Action Conferred an Unprecedented Benefit...............................12

B. A Fee Award in Freely Tradeable Shares Is Appropriate ...................16

C. The Requested Fee Award Is Conservative Under Delaware Law

.............................................................................................................18

D. A Fee Award Based on the Retroactive GDFV Is Unsupportable

.............................................................................................................23

E. The Secondary Sugarland Factors Support the Requested Fee

and Expense Award .............................................................................27

1. Counsel Faced Massive Contingency Risk...............................27

2. The Action Was Complex .........................................................30

3. Plaintiff’s Counsel’s Efforts Were Substantial .........................32

4. Counsel’s Standing and Ability Support the Fee and

Expense Award .........................................................................39

CONCLUSION ........................................................................................................41

i
 TABLE OF AUTHORITIES

Page(s)
CASES

In re Activision Blizzard, Inc. S’holder Litig.,

124 A.3d 1025 (Del. Ch. 2015) ..............................................................27, 30, 35

Alpha Venture Capital Partners LP v. Pourhassan,

C.A. No. 2020-0307-PAF (Del. Ch. June 21, 2021) (TRANSCRIPT) .............. 24

In re AMC Ent. Holdings, Inc. S’holder Litig.,

2023 WL 5165606 (Del. Ch. Aug. 11, 2023) ...............................................32, 33

In re Am. Int’l Grp., Inc. Consol. Deriv. Litig.,

C.A. No. 769-VCS (Del. Ch. Jan. 25, 2011) (TRANSCRIPT) .......................... 34

Ams. Mining Corp. v. Theriault,

51 A.3d 1213 (Del. 2012) ............................................................................passim

In Re Baker Hughes, A GE Co., Deriv. Litig.,

No. 169,2023 (Del. Feb. 1, 2024) (ORDER) ........................................................ 3

Brookfield Asset Management, Inc. v. Rosson,

261 A.3d 1251 (Del. 2021) ................................................................................... 9

In re CBS Corp. S’holder Class Action & Deriv. Litig.,

Consol. C.A. No. 2020-0111-SG (Del. Ch. Sep. 6, 2023)
(TRANSCRIPT) ................................................................................................. 19

In re CVR Refining, LP Unitholder Litig.,

C.A. No. 2019-0062-KSJM Del. Ch. (Dec. 16, 2022) (TRANSCRIPT) ........... 13

De Felice v. Kidron,
C.A. No. 2021-0255-MTZ (Del. Ch. Apr. 27, 2022) (TRANSCRIPT) ............. 32

In re Del Monte Foods Co. S’holders Litig.,

2011 WL 2535256 (Del. Ch. June 27, 2011)..........................................11, 34, 35

In re Dell Techs. Inc. Class V S’holders Litig.,

300 A.3d 679 (Del. Ch. 2023) .....................................................................passim

ii
In re Dole Food Co.,
110 A.3d 1257 (Del. Ch. 2015) .......................................................................... 13

Dow Jones & Co. v. Shields,

1992 WL 44907 (Del. Ch. Jan. 10, 1992)........................................................... 27

In re El Paso Pipeline P’rs, L.P. Deriv. Litig.,

2016 WL 451320 (Del. Ch. Feb. 4, 2016) (ORDER)......................................... 13

Fox v. CDX Hldgs., Inc.,

2015 WL 5163790 (Del. Ch. Sept. 2, 2015) (ORDER) ..................................... 13

Franklin Balance Sheet Inv. Fund v. Crowley,

2007 WL 2495018 (Del. Ch. Aug. 30, 2007) ..................................................... 33

Garfield v. Boxed, Inc.,

2022 WL 17959766 (Del. Ch. Dec. 27, 2022) ................................................... 32

Gatz v. Ponsoldt,
2009 WL 1743760 (Del. Ch. June 12, 2009)...................................................... 13

Gentile v. Rossette,
906 A.2d 91 (Del. 2006) ....................................................................................... 9

Hawkes v. Bettino,
C.A. No. 2020-0360-PAF (Del. Ch. Apr. 12, 2021) (TRANSCRIPT) .............. 32

Hollywood Firefighters’ Pension Fund v. Malone,

2021 WL 5179219 (Del. Ch. Nov. 8, 2021) ....................................................... 41

Joseph v. Troy Grp., Inc.,

C.A. No. 4676-CS (Del. Ch. June 29, 2011) (TRANSCRIPT) .......................... 34

Krinsky v. Helfand,
156 A.2d 90 (Del. 1959) ..................................................................................... 24

Kurz v. Holbrook,
C.A. No. 5019-VCL (Del. Ch. July 19, 2010) (TRANSCRIPT) ....................... 29

Lewis v. Engle,
C.A. No. 497-VCS (Del. Ch. Dec. 29, 2004) (ORDER) .................................... 14

iii
In re Mindbody, Inc. S’holder Litig.,
C.A. No. 2019-0442-KSJM (Del. Ch. June 8, 2022) (TRANSCRIPT) ............. 13

Moses v. Pickens,
1982 WL 17825 (Del. Ch. Nov. 10, 1982) ......................................................... 24

In re Nat’l City Corp. S’holders Litig.,

2009 WL 2425389 (Del. Ch. July 31, 2009), aff’d,
998 A.2d 851 (Del. 2010) .......................................................................12, 33, 34

Olson v. EV3, Inc.,

2011 WL 704409 (Del. Ch. Feb. 21, 2011) ........................................................ 32

In re Orchard Enters., Inc. S’holder Litig.,

2014 WL 4181912 (Del. Ch. Aug. 22, 2014) ...............................................20, 30

In re Rural/Metro Corp. S’holders Litig.,

2015 WL 725425 (Del. Ch. Feb. 19, 2015) (ORDER), aff’d sub nom.
RBC Cap. Mkts., LLC v. Jervis, 129 A.3d 816 (Del. 2015) ............................... 13

In re Rural/Metro S’holders Litig.,

C.A. No. 6350-VCL (Del. Ch. Nov. 19, 2013) (TRANSCRIPT) ...................... 39

Ryan v. Gifford,
2008 WL 18143 (Del. Ch. Jan. 2, 2009)............................................................. 28

Sanders v. Wang,
2000 WL 34015564 (Del. Ch. June 22, 2000).................................................... 18

In re Sauer-Danfoss Inc. S’holders Litig.,

65 A.3d 1116 (Del. Ch. 2011) ............................................................................ 35

In re Sauer-Danfoss S’holders Litig.,

2011 WL 1632336 (Del. Ch. Apr. 29, 2011) ...................................................... 35

Sciabacucchi v. Salzberg,
2019 WL 2913272 (Del. Ch. July 8, 2019) ............................................29, 32, 38

Seinfeld v. Coker,
847 A.2d 330 (Del. Ch. 2000) ............................................................................ 12

In re Southern Peru Copper Corp. S’holder Deriv. Litig.,

52 A.3d 761 (Del. Ch. 2011) ..................................................................17, 20, 37

iv
Stroud v. Milliken Enters., Inc.,
1990 WL 113345 (Del. Ch. Aug. 2, 1990), aff’d,
583 A.2d 660 (Del. 1990) ................................................................................... 32

Sugarland Indus., Inc. v. Thomas,

420 A. 2d 142 (Del. 1980) .................................................................................. 11

Tandycrafts, Inc. v. Initio Partners,

562 A.2d 1162 (Del. 1989) ................................................................................. 12

In re Tesla Motors, Inc. S’holder Litig.,

2023 WL 3854008 (Del. 2023) ........................................................................... 29

Thorpe ex rel. Castleman v. CERBCO, Inc.,

1997 WL 67833 (Del. Ch. Feb. 6, 1997) ............................................................ 13

Tornetta v. Musk,
250 A.3d 793 (Del. Ch. 2019) .............................................................................. 6

Wietschner v. Rapid-American Corp.,

1977 WL 918 (Del. Ch. Feb. 10, 1977) .............................................................. 24

Wilcox v. Dolan,
C.A. No. 2019-0245-SG (Del. Ch. Sept. 8, 2020) (TRANSCRIPT) ................. 24

Wilderman v. Wilderman,
328 A.2d 456 (Del. Ch. 1974) ............................................................................ 16

STATUTES & OTHER AUTHORITIES

ALBA CONTE, 1 Attorney Fee Awards, 3d Ed., § 2.9 .....................................18, 19

v
 In its Post-Trial Opinion,1 the Court ordered full rescission of Elon Musk’s

2018 compensation package (the “Grant”). The Opinion indicates that all issues,

including fees, should be resolved prior to entry of the Court’s Order and Final

Judgment.2 This is Plaintiff’s Counsel’s petition for fees and reimbursement of

expenses.3

By this motion (the “Motion”), Plaintiff’s Counsel seek: (i) an award of

attorneys’ fees payable in shares of Tesla common stock (the “Share Award”), and

(ii) reimbursement of costs incurred in litigating the case (the “Expense

Reimbursement,” and together with the Share Award, the “Fee and Expense

Award”).

INTRODUCTION

After extensive motion practice, searching discovery and a full trial on the

merits, followed by briefing, oral argument and supplemental briefing, Plaintiff won

complete recission of the largest pay package ever issued. Our research

demonstrates that the Court’s decree of recission, conservatively valued, was the

largest compensatory award in the history of American jurisprudence by multiples.4

1
Capitalized terms not defined herein have the meaning ascribed in the Court’s Post-Trial
Opinion, dated January 30, 2024 (the “Post-Trial Opinion,” “Opinion,” or “Op.”).
2
Op. at 200.
3
This excludes costs reimbursed pursuant to Court of Chancery Rule 54(d). Plaintiff will
file a separate motion for such costs absent agreement between the parties.
4
There were, in fact, two larger jury verdicts in recorded U.S. legal history, but both were
 The Court’s well-grounded opinion mandates the rescission of more than 303

million vested options improperly awarded to Musk under the Grant. Every one of

those options had a share of common stock reserved for issuance by the Company

upon conversion. The trial record includes the January 2018 Board resolution which

“reserve[d] sufficient shares of the Company’s common stock for . . . issuance” and

authorized delivery of such stock upon option vesting and exercise. By rescinding

the vested options under the Grant, Plaintiff’s efforts have freed up 303,960,630

shares reserved for issuance of these options for any use for which equity can be

used by public companies and avoided billions of dollars in dilution to Tesla

stockholders.

Rather than debate the value conferred to Tesla by cancelling the options or

the value of the underlying stock returned to the Tesla treasury free of restriction,

Plaintiff’s Counsel instead seeks a fee award in kind—a percentage of the shares

returned for unrestricted use by Tesla (rather than cash). In other words, we are

prepared to “eat our cooking.” This structure has the benefit of linking the award

directly to the benefit created and avoids taking even one cent from the Tesla balance

sheet to pay fees. It is also tax-deductible by Tesla.

larger than this verdict solely by virtue of the addition of punitive damages. Ironically,
both verdicts were issued by Texas juries.

2
 Below we explain the requested percentage of returned shares, how that

request fits into the broader framework of the law (which supports granting a

percentage approximately 3x higher than Plaintiff’s Counsel’s request), and the

various adjustments that we propose the Court impose on this award. We recognize

that the requested fee is unprecedented in terms of absolute size. Of course, that is

because our law rewards counsel’s efforts undertaken on a fully contingent basis

that, through full adjudication, produce enormous benefits to the company and

subject the lawyers to significant risk. And here, the size of the requested award is

great because the value of the benefit to Tesla that Plaintiff’s Counsel achieved was

massive.

To assist the Court’s analysis in evaluating this Motion and the proper

framework for a fee award, Plaintiff submits herewith affidavits and a joint

declaration from four leading experts: Harvard Law School Professor Lucian A.

Bebchuk; former SEC Commissioner and current New York University School of

Law Professor Robert J. Jackson, Jr.; The Wharton School of the University of

Pennsylvania Professor Daniel J. Taylor; and University of Virginia School of Law

Professor Ethan Yale. If helpful to the Court, Plaintiff’s experts are prepared to

testify live and answer any questions from the Court in its evaluation of this Motion.5

5
Cf. In Re Baker Hughes, A GE Co., Deriv. Litig., No. 169,2023 (Del. Feb. 1, 2024)
(ORDER).

3
 STATEMENT OF FACTS

The Court’s 200-page Post-Trial Opinion painstakingly detailed the Court’s

relevant factual findings. Below is an abbreviated recitation of that record.

I. THE GRANT

On January 21, 2018, the Tesla Board held a special meeting to approve the

Grant.6 The Grant comprised 12 tranches, each of which would vest upon

satisfaction of one market capitalization milestone and achievement of one

operational milestone.7 Each completed tranche provided Musk options to purchase

1% of Tesla’s common stock outstanding as of January 19, 2018.8 If fully vested,

the Grant would provide Musk options to purchase 20,264,042 Tesla shares.9 The

strike price for each option was $350.02, representing the January 19, 2018 closing

price of Tesla common stock.10 Following a five-for-one stock split in 2020 and a

three-for-one stock split in 2022, the total options conferrable under the Grant

increased to 303,960,630, and the strike price for each of those options decreased to

$23.33.11

6
Op. at 80.
7
Id.
8
Id. at 81.
9
Id.
10
Id. at 81-82.
11
Id.; see also 2023 Tesla Proxy at 45 (available at
https://www.sec.gov/ixviewer/ix.html?doc=/Archives/edgar/data/0001318605/000119312

4
 In connection with approving the Grant, the Board approved resolutions that

(i) “authorize[d] and reserve[d] sufficient shares of the Company’s common stock

for the issuance” of shares under the Grant, and (ii) “authorize[d] the Company to

issue and deliver, without further authorization of the Board, such number of shares

of the Company’s common stock as may be required to be issued pursuant to any

vesting and exercise of any portion of the [Grant] in accordance with its terms, and

upon such issuance, such shares shall be considered and treated as being in all

respects validly issued, fully paid and nonassessable.”12

The February 8, 2018 Proxy regarding the Grant disclosed a $55.8 billion

maximum value—and $2,615,190,052 grant date fair value (“GDFV”)—for the

Grant.13 As of June 30, 2022, all of the Grant’s market capitalization and adjusted

EBITDA milestones had been achieved, and three revenue milestones had been

achieved with one more deemed probable of achievement.14 According to Note 13

to Tesla’s audited financial statements included in its Form 10-K dated January 29,

523094075/d451342ddef14a.htm). As a technical matter, the per-share exercise price is

$23.33466666 (resulting in a total exercise price of $7,092,819,980.84, as per the Grant
agreement), but for simplicity, Plaintiff and Plaintiff’s experts use the rounded number—
used by the Court in her Opinion (Op. at 82)—of $23.33 in this brief and the accompanying
expert affidavits.
12
JX0791 at JX0791.0006.
13
Op. at 189.
14
Id. at 92.

5
2024: “Each of the 12 vesting tranches . . . vested upon certification of the Board of

Directors.”15 Musk has not exercised any of the options underlying the Grant.

II. THE ACTION

After undertaking an initial investigation in January and February 2018,

sending a books-and-records demand under Section 220 of the Delaware General

Corporation Law on February 21, 2018, and receiving documents pursuant thereto,

Plaintiff filed the Action on June 5, 2018.16 Defendants moved to dismiss (the

“MTD”), and on May 9, 2019, after full briefing by the parties, the Court held oral

argument on the MTD over the course of more than three hours.17 The parties then

engaged in a series of post-argument written submissions regarding certain

substantive issues raised during the MTD argument.18

On September 20, 2019, the Court substantially denied Defendants’ MTD,

dismissing only Plaintiff’s waste claim.19 The Court held that Plaintiff had “cleared

the bar” to demonstrate it was “reasonably conceivable the [Grant] is unfair to Tesla”

but that Plaintiff’s underlying allegations were on the “very outer margins of

15
Tesla, Inc. Form 10-K, dated January 29, 2024 (available at
https://www.sec.gov/ixviewer/ix.html?doc=/Archives/edgar/data/0001318605/000162828
024002390/tsla-20231231.htm).
16
Op. at 97.
17
See Dkt. 28.
18
See Dkts. 29, 30, and 31.
19
Tornetta v. Musk, 250 A.3d 793, 814 (Del. Ch. 2019).

6
adequacy,” such that Defendants’ arguments “may well carry the day” in the context

of summary judgment or trial.20 Thus, in the emergent days of the Covid-19

pandemic, Plaintiff commenced discovery to substantiate the allegations underlying

the Action and prepare the case for trial.

In the midst of the pandemic, Plaintiff’s Counsel undertook significant

documentary discovery efforts, including: (i) serving on Defendants four sets of

document requests, five sets of interrogatories, and one set of requests for admission,

and securing numerous amended and/or supplemented interrogatory responses;

(ii) serving subpoenas on twelve non-parties;21 and (iii) obtaining a total of 429,644

pages of Defendant and third-party documents. To avoid burdening the Court with

motion practice, the parties also entered into—and the Court granted—a stipulation

pursuant to Delaware Rule of Evidence 510.22 On April 2, 2021, Plaintiff also filed

a motion to compel against Defendants, which was argued on May 3, 2021 following

full briefing, and granted in part.23

20
Id. at 812-13 (quotations omitted).
21
Plaintiff served subpoenas on (i) Glass Lewis & Co. LLC; (ii) Compensia, Inc.;
(iii) Institutional Shareholder Services, Inc.; (iv) Semler Brossy Consulting Group, LLC;
(v) Innisfree M&A Incorporated; (vi) Aon Radford Valuation Services;
(vii) Space Exploration Technologies Corp.; (viii) Sard Verbinnen & Co., LLC;
(ix) PJT Partners Inc.; (x) PricewaterhouseCoopers LLP; (xi) Goldman Sachs & Co. LLC;
and (xii) Morgan Stanley & Co. LLC.
22
Dkt. 86.
23
Dkt. 104.

7
 Plaintiff also took 17 fact depositions, several of which occurred over the

course of multiple days.24

On June 24, 2021, Plaintiff served an expert report on behalf of Brian D.

Dunn, and Defendants served expert reports on behalf of Kevin J. Murphy, Paul A.

Gompers, and Jonathan F. Foster. On August 16, 2021, Plaintiff served expert

rebuttal reports on behalf of Professor Dunn, Andrew Restaino, and Brent Goldfarb,

and Defendants served an expert rebuttal report on behalf of Professor Murphy.

Plaintiff’s Counsel subsequently deposed Professors Murphy and Gompers, and

defended the depositions of Professor Dunn, Mr. Restaino, and Professor Goldfarb.

On September 30, 2021, Plaintiff filed a motion for leave to file an amended

complaint, which attached the proposed amended complaint as an exhibit.25 On

October 1, 2021, Plaintiff, on the one hand, and Defendants Kimbal Musk and Steve

Jurvetson, on the other hand, filed cross-motions for summary judgment.26

On October 27, 2021, the parties filed a stipulation and proposed order

pursuant to which, among other things, (i) in light of the Delaware Supreme Court’s

24
Plaintiff took the following fact depositions: (i) Deepak Ahuja, (ii) Tom Brown,
(iii) Jon Burg, (iv) Brad Buss, (v) Jonathan Chang (two days), (vi) Robyn Denholm
(three days), (vii) Ira Ehrenpreis, (viii) Antonio Gracias, (ix) Linda Johnson-Rice, (x) Todd
Maron (two days), (xi) Kenneth Moore, (xii) James Murdoch, (xiii) Elon Musk, (xiv)
Kimbal Musk, (xv) Phuong Phillips, (xvi) Gabrielle Toledano, and (xvii) Martin Viecha.
25
Dkt. 161.
26
Dkts. 162, 163.

8
then-recent decision in Brookfield Asset Management, Inc. v. Rosson,27 which

overturned Gentile v. Rossette,28 the Class was decertified; (ii) Plaintiff’s direct

claims asserted under Gentile were voluntarily dismissed; and (iii) Plaintiff’s claims

against Kimbal Musk and Steve Jurvetson were voluntarily dismissed with

prejudice, and the summary judgment motion filed by those Defendants was denied

as moot.29

On November 18, 2021, Defendants filed a motion for partial summary

judgment.30

On February 24, 2022, following full briefing, the Court (i) granted Plaintiff’s

motion to amend the complaint and (ii) denied the pending cross-motions for

summary judgment.31 On March 2, 2022, Plaintiff filed the Verified Amended

Derivative Complaint.32

On May 6, 2022, Defendants served a sur-reply expert report on behalf of

Professor Gompers.33 On July 28, 2022, Plaintiff’s counsel deposed Professor

Gompers a second time.

27
261 A.3d 1251 (Del. 2021).
28
906 A.2d 91 (Del. 2006).
29
Dkt. 175.
30
Dkt. 184.
31
Dkt. 207.
32
Dkt. 209.
33
Dkt. 214.

9
 The parties then undertook pre-trial work, including submission of a proposed

pre-trial order and pre-trial briefs.34

III. THE TRIAL

Beginning on November 14, 2022, roughly four-and-a-half years after

commencing the Action, Plaintiff tried the Action. Trial occurred over five days,

and the record comprised 1,704 trial exhibits, live testimony from nine fact and four

expert witnesses, video testimony from three fact witnesses, deposition testimony

from 23 fact and five expert witnesses, and 255 stipulations of fact.35

Plaintiff and Defendants both subsequently submitted opening and answering

post-trial briefs, and the Court heard post-trial argument on February 21, 2023.36

Between March 14 and April 11, 2023, the parties engaged in supplemental briefing

regarding certain issues raised at the post-trial argument and documented by the

Court in a letter requesting such briefing.37 On April 25, 2023, the parties submitted

a Joint Schedule of Evidence.38

Plaintiff achieved total victory at trial. In its Post-Trial Opinion issued

January 30, 2024, the Court “order[ed] rescission of the Grant as a remedy for

34
Dkts. 226, 227, and 228.
35
Op. at 8; see also Dkts. 245-249.
36
Dkts. 263, 264, 274, and 275.
37
Dkts. 285, 288, and 289.
38
Dkt. 290.

10
Defendants’ fiduciary breaches,” “concluding that Plaintiff is entitled to rescission

of the Grant in its entirety.”39

ARGUMENT

I. THE FEE AND EXPENSE AWARD SHOULD BE GRANTED

“The determination of any attorney fee award is a matter within the sound

judicial discretion of the Court of Chancery.”40 “Delaware courts recognize the

value of representative litigation.”41 As such, “Delaware decisions have sought to

align the interests of entrepreneurial plaintiffs’ counsel with the classes they

represent by granting minimal fees for minimal benefits and major fees for major

results.”42 In determining the amount of a fee award in a given case, the Court

considers the factors detailed in Sugarland Industries, Inc. v. Thomas: (i) the results

achieved; (ii) the contingent nature of counsel’s fee; (iii) the litigation’s relative

complexities; (iv) counsel’s efforts, including time and expenses; and (v) counsel’s

standing and ability.43

As explained in detail below, the requested Fee and Expense Award consists

of (i) 29,402,900 shares of freely tradeable Tesla common stock (previously defined

39
Op. at 103, 192.
40
Ams. Mining Corp. v. Theriault, 51 A.3d 1213, 1255 (Del. 2012) (citation omitted).
41
In re Del Monte Foods Co. S’holders Litig., 2011 WL 2535256, at *14 (Del. Ch. June
27, 2011).
42
Id.
43
420 A. 2d 142, 149 (Del. 1980).

11
as the “Share Award”),44 and (ii) an expense reimbursement of $1,120,115.50

(previously defined as the “Expense Reimbursement”). Sugarland and subsequent

Delaware precedent support this request.

A. The Action Conferred an Unprecedented Benefit

The size of the benefit conferred “is the heart of the Sugarland analysis,”45

such that “Delaware courts have assigned the greatest weight to the benefit achieved

in litigation.”46 Indeed, in opposing the fee request submitted in connection with the

settlement of a challenge to Tesla director compensation from 2017 to 2020,47 Tesla

expressly agreed that “the most important factor in determining a fee award is the

first Sugarland factor—the size of the benefit achieved.”48 This benefit may be the

“creation of a common fund” or “the conferring of a corporate benefit.”49

44
In the event of a Tesla stock split, the requested Share Award would need to be adjusted
accordingly.
45
Seinfeld v. Coker, 847 A.2d 330, 336 (Del. Ch. 2000).
46
Ams. Mining, 51 A.3d at 1254; see also, e.g., In re Nat’l City Corp. S’holders Litig.,
2009 WL 2425389, at *5 (Del. Ch. July 31, 2009), aff’d, 998 A.2d 851 (Del. 2010)
(acknowledging that Delaware courts have “consistently noted that the most important
factor in determining a fee award is the size of the benefit achieved”).
47
Police & Fire Ret. Sys. of the City of Detroit v. Musk, C.A No. 2020-0477-KSJM (the
“Director Compensation Case”).
48
Nominal Defendant Tesla, Inc.’s Answering Brief in Opposition to Plaintiff’s Request
for Award of Attorneys’ Fees and Expenses, C.A. No. 2020-0477-KSJM (Dkt. 157)
(“Tesla Dir. Comp. Ans. Br.”) at 6 (quotations omitted).
49
Tandycrafts, Inc. v. Initio Partners, 562 A.2d 1162, 1164 (Del. 1989).

12
 “When the benefit is quantifiable . . . Sugarland calls for an award of

attorneys’ fees based upon a percentage of the benefit.”50 “Delaware case law

supports a wide range of reasonable percentages for attorneys’ fees[.]”51 Under well-

settled Delaware law, and as the Court has explained, “a full adjudication”—as

here—“warrant[s] an award of 33%.”52 Indeed, in litigation that concluded with a

pre-trial settlement, the Court has awarded fees exceeding 30% of the benefit

conferred by the litigation.53 As former Chief Justice Strine explained: “If some

50
Ams. Mining, 51 A.3d at 1259.
51
Id.
52
In re Dell Techs. Inc. Class V S’holders Litig., 300 A.3d 679, 695 (Del. Ch. 2023); see
also, e.g., In re CVR Refining, LP Unitholder Litig., Consol. C.A. No. 2019-0062-KSJM,
at 26 (Del. Ch. Dec. 16, 2022) (TRANSCRIPT) (approving all-in fee award in post-trial
settlement representing 33% of the settlement amount; observing, “when a case progresses
to post-trial adjudication, a 33 percent award is often appropriate”); In re El Paso Pipeline
P’rs, L.P. Deriv. Litig., 2016 WL 451320, at *2 (Del. Ch. Feb. 4, 2016) (ORDER)
(awarding fees representing one-third of damages); Fox v. CDX Hldgs., Inc., 2015 WL
5163790, at *7 (Del. Ch. Sept. 2, 2015) (ORDER) (awarding fees representing one-third
of damages less expenses); In re Rural/Metro Corp. S’holders Litig., 2015 WL 725425, at
*1 (Del. Ch. Feb. 19, 2015) (ORDER), aff’d sub nom. RBC Cap. Mkts., LLC v. Jervis, 129
A.3d 816 (Del. 2015) (awarding “fees and expenses in the amount of one-third of the full
amount of damages plus pre- and post-judgment interest, which the Court finds fair and
reasonable”); Gatz v. Ponsoldt, 2009 WL 1743760 (Del. Ch. June 12, 2009) (awarding
33% in case litigated extensively, including through an appeal in the Delaware Supreme
Court); Thorpe ex rel. Castleman v. CERBCO, Inc., 1997 WL 67833, at *6 (Del. Ch. Feb.
6, 1997) (awarding one-third of the common fund due to difficulty of issues, counsel’s
“very high quality work,” and because plaintiffs had “fought their position with vigor and
skill” over an extended period); In re Dole Food Co., 110 A.3d 1257, 1259 (Del. Ch. 2015)
(awarding $33,882,616.30, or 30% of the post-trial class recovery, after deducting
$2,530,422.96 in expenses).
53
See, e.g., In re Mindbody, Inc. S’holder Litig., C.A. No. 2019-0442-KSJM, at 23 (Del.
Ch. June 8, 2022) (TRANSCRIPT) (awarding “30 percent of the [settlement] fund . . . net
of the expenses” for a pre-trial settlement).

13
plaintiff’s lawyer goes to trial and wins a $10 billion recovery, I will say right now,

that’s when I am most likely to award 33 percent. I just am. Why? Because that’s

when the real risk has been taken.”54

This Action secured an unprecedented benefit—full rescission of the fully-

vested $51+ billion Grant. Following stock splits in 2020 and 2022, the total number

of options conferrable under the Grant increased to 303,960,630,55 and the strike

price for those options decreased to $23.33.56 Upon approving the Grant on January

21, 2018, the Board resolved as follows:

RESOLVED: . . . [the Board] hereby authorizes and reserves sufficient

shares of the Company’s common stock for the issuance of such shares
pursuant to any vesting and exercise of any portion of the [Grant] in
accordance with its terms, and the transfer agent of the Company is
hereby authorized and directed to act in accordance with this
resolution and any further instructions as may be furnished to it by any
proper officer of the Company.

RESOLVED FURTHER: . . . [the Board] hereby authorizes the

Company to issue and deliver, without further authorization by the
Board, such number of shares of the Company’s common stock as may
be required to be issued pursuant to any vesting and exercise of any
portion of the [Grant] in accordance with its terms, and upon such

54
Lewis v. Engle, C.A. No. 497-VCS, Strine, V.C. (Del. Ch. Dec. 29, 2004) (ORDER).
55
See 2023 Tesla Proxy at 45 (available at
https://www.sec.gov/ixviewer/ix.html?doc=/Archives/edgar/data/0001318605/000119312
523094075/d451342ddef14a.htm); see also Daniel J. Taylor Affidavit dated March 1, 2024
(“Taylor Aff.”) at ¶11.
56
Taylor Aff. at ¶11.

14
 issuance, such shares shall be considered and treated as being in all
respects validly issued, fully paid and nonassessable.57

Thus, for each option achievable under the Grant, the Board “authorize[d] and

reserve[d]” a share of Tesla stock for the sole and exclusive purpose of delivery to

Musk upon vesting and exercise of the share’s corresponding option.

Based on the $191.59 per share closing price of Tesla stock on the date of the

Post-Trial Opinion58 and the exercise price of $23.3359 (which equates to 37,013,422

shares), the 303,960,630 vested and now-cancelled options could have been

exercised on a cashless basis (i.e., net of exercise price) for a total of 266,947,208

shares.60 Thus, the benefit conferred by this Action is the cancellation of

303,960,630 options, which frees up at least 266,947,208 Tesla shares—based on

Tesla’s closing price on the date of the Post-Trial Opinion—that were expressly

reserved and set aside in Tesla’s corporate treasury and would have been issued to

Musk upon the cashless exercise of those 303,960,630 options.61 Thus, through this

57
JX0791 at JX0791.0006 (emphasis added).
58
For purposes of calculating and valuing the requested Share Award, Plaintiff uses the
most logical and appropriate date—i.e., the date of the Opinion. Plaintiff recognizes that
Tesla stock is volatile, and that the value of the requested fee will fluctuate based on
changes—whether positive or negative—to Tesla’s stock price.
59
2018 Tesla Grant Proxy at A-1, (available
at https://www.sec.gov/Archives/edgar/data/1318605/000119312518035345/d524719dde
f14a.htm).
60
Taylor Aff. at ¶13. The actual number is 266,947,208.12 shares, but Plaintiff has
rounded down to the nearest whole share for simplicity.
61
Without expressing an opinion on the benefit achieved by the Action, Professor Taylor

15
Action, Plaintiff freed up 266,947,208 Tesla shares that the Company may now

utilize for any purpose.62 And, as detailed in Joint Declaration of Professors

Bebchuk and Jackson, the result here is a reversal of the Grant’s dilution and

accretion to all Tesla stockholders.63

B. A Fee Award in Freely Tradeable Shares Is Appropriate

Tesla shares are the appropriate—and indeed, optimal—currency for payment

of attorneys’ fees in this Action.

First, this approach directly and most closely relates to the benefit achieved—

the cancellation of 303,960,630 vested Tesla options conferred via the Grant and the

resulting availability of 266,947,208 shares for Tesla to use for any corporate

purpose.64

has calculated the value of the options as if exercised on the date of the Court’s opinion at
over $51.1 billion. Taylor Aff. at ¶13. Professor Taylor’s affidavit also demonstrates that
a Black-Scholes-Merton value of the options at the point of the Court’s opinion was more
than $52.2 billion. Id. at ¶¶18-19.
62
Plaintiff’s Counsel are not requesting a percentage of the full 303,960,630 shares that
they freed up through this Action because we have assumed a cashless exercise by Musk.
We have done so to present a more conservative approach and to avoid unnecessary
disputes as to whether Musk would have paid the strike price to receive more shares or
used the cashless exercise feature.
63
Joint Declaration of Lucian Bebchuk & Robert J. Jackson, Jr. dated March 1, 2024
(“Bebchuk/Jackson Decl.”) at ¶46.
64
See Wilderman v. Wilderman, 328 A.2d 456, 458-59 (Del. Ch. 1974) (holding that
attorneys’ fees should be awarded based upon the actual benefit conferred upon the
corporation).

16
 Second, this approach frees Tesla from any obligation to make a large cash

payment out of its cash on hand65 in connection with Plaintiff’s fee request, instead

awarding the fee directly out of the share-based recovery in the Action. Further, as

detailed in the concurrently submitted affidavit of Professor Ethan Yale, the

requested attorneys’ fee provides Tesla a tax benefit that can be recognized either

now or at some future date.66 Specifically, Tesla receives a tax deduction up to 21%

of the value of any Tesla shares provided to Plaintiff’s Counsel as an attorneys’ fee.67

Third, this approach aligns with prior treatment of large attorneys’ fees. In

Americas Mining, for example, the trial Court directed that the controller “may

satisfy the judgment by agreeing to return to [the controlled company] such number

of its shares as are necessary to satisfy this remedy,” and, notably, that “[a]ny

attorneys’ fees shall be paid out of the award.”68 Likewise, in Sanders v. Wang,

where this Court granted the plaintiffs judgment on the pleadings as to the improper

issuance of 4.5 million shares, the Court approved a settlement and awarded

65
Tesla’s recently filed Form 10-K lists “sufficient cash flow” as a “Risk Related to []
Operations” in light of the Company’s $4.68 billion indebtedness. Tesla 10-K, filed with
the SEC on January 26, 2024, at 23-24.
66
Affidavit of Ethan Yale dated March 1, 2024 (“Yale Aff.”) at ¶¶13-15.
67
Id. at ¶¶13-14.
68
In re Southern Peru Copper Corp. S’holder Deriv. Litig., 52 A.3d 761, 819 (Del. Ch.
2011) (emphasis added); see also Ams. Mining, 51 A.3d at 1250 (“The Court of Chancery
also ruled that any attorneys’ fees would be paid out of the award.”).

17
plaintiffs a fee comprising 20% of the 4.5 million recovered shares, i.e., 900,000

freely tradeable shares.69

Fourth, awarding Plaintiff’s Counsel a percentage of the actual benefit

conferred in this Action—i.e., the 266,947,208 Tesla shares returned to Tesla’s

treasury—avoids a potential dispute as to whether the value of rescinding the Grant

and freeing up those shares for Tesla to use for any corporate purpose somehow

differs from the value of those shares.

Thus, Plaintiff’s Counsel hereby seek an attorneys’ fee comprising a

percentage of the benefit conferred as a direct result of this Action.

C. The Requested Fee Award Is Conservative Under Delaware Law

Well-established precedent establishes Plaintiff’s Counsel’s entitlement to

33% of the quantifiable conferred benefit—i.e., 88,092,578 whole Tesla shares—

given that Counsel litigated the Action on a fully contingent basis through trial, and

Defendants have already confirmed that they will appeal the Post-Trial Opinion.70

Under Delaware law, the unprecedented size of the benefit conferred does not

alter Plaintiff’s Counsel’s entitlement to 33% of that benefit.71 Directly confronted

69
2000 WL 34015564, at *3 (Del. Ch. June 22, 2000).
70
See, e.g., February 14, 2014 Joint Letter to the Court (Dkt. 295) at 2 (contemplating “a
stay pending appeal of the final judgment and an award of fees and expenses”).
71
Indeed, there is authority for increasing the percentage as the recovery grows larger.
See, e.g., ALBA CONTE, 1 Attorney Fee Awards, 3d Ed., § 2.9 (Database Updated October
2008) (“In contrast, to provide a sufficient financial fee-award incentive to maximize the

18
with the question of whether to replace the Sugarland analysis with a regime

requiring decreased fee percentages for megafund recoveries, the Delaware Supreme

Court “decline[d] to impose either a cap or the mandatory use of any particular range

of percentages for determining attorneys’ fees in megafund cases.”72

Decisions since Americas Mining—including recent ones—have likewise

uniformly rejected fee reductions for megafund recoveries.73 Rather, as Vice

Chancellor Laster explained in his 2023 Dell decision:

Americas Mining and its progeny neither call for nor commend a
practice of reducing the percentage of the benefit awarded as a fee in a
mega-fund case . . . . Under Americas Mining and Sugarland, a court
does not make a downward adjustment to the indicative percentage
based on the size of the fund.74

As further explained in Dell—and as Tesla acknowledged in the Director

Compensation Case—Delaware’s approach aligns the interests of counsel with the

interests of stockholders: “A percentage of a low or ordinary recovery will produce

recovery achieved, at least one court has adopted an intended fee schedule with an upward
scale as the recovery increases. In American Continental Corporation/Lincoln Savings &
Loan Securities Litigation, Judge Bilby, before any decision on the merits, set forth the
level of fees that would be awarded in the event that plaintiffs were ultimately successful.
Significantly, the court stated that it would award 25% of the first $150 million and 29%
of any class recovery in excess of $150 million.” (citation omitted)).
72
Ams. Mining, 51 A.3d at 1261.
73
See, e.g., Dell, 300 A.3d at 703-04 (Del. Ch. July 31, 2023); In re CBS Corp. S’holder
Class Action & Deriv. Litig., Consol. C.A. No. 2020-0111-SG, at 29 (Del. Ch. Sep. 6,
2023) (TRANSCRIPT) (awarding fees equal to 27.5% of the recovery net of expenses in
case that settled two months before trial).
74
Dell, 300 A.3d at 703-04.

19
a low or ordinary fee; the same percentage of an exceptional recovery will produce

an exceptional fee . . . . The wealth proposition for plaintiffs’ counsel is simple: If

you want more for yourself, get more for those whom you represent.”75

Nevertheless, in an effort to be conservative, Plaintiff’s Counsel does not seek

the 33% warranted under Sugarland and its progeny. Rather, Plaintiff’s Counsel

predicates their fee request on the fee awarded—and affirmed by the Delaware

Supreme Court—in Southern Peru/Americas Mining, which represented the largest

stockholder recovery in Delaware history before this Action.

In Southern Peru, the trial court “encouraged the plaintiffs to be conservative

in their [fee] application,”76 admonishing plaintiff’s counsel to “tak[e] into account

the reality [that] their own delays affected the remedy awarded and are a basis for

conservatism in any fee award.”77 The Southern Peru plaintiff had “moved too

slowly,” seeking summary judgment six years after filing the action,78 and even

“waiv[ing] the right to seek rescissory damages because of ‘his lethargic approach

to litigating the case.’”79 Following that admonition, the Southern Peru plaintiff

75
Id. at 693 (quoting In re Orchard Enters., Inc. S’holder Litig., 2014 WL 4181912, at *8)
(Del. Ch. Aug. 22, 2014); Tesla Dir. Comp. Ans. Br. at 2 (quoting same language from
Orchard).
76
Ams. Mining, 51 A.3d at 1262.
77
Southern Peru, 52 A.3d at 819, n.206.
78
Ams. Mining, 51 A.3d at 1234.
79
Id. at 1249; see also, e.g., id. at 1262 (“[O]ne of the things . . . defendants got credit for

20
requested a conservative fee representing 22.5% of the benefit conferred, to which

the trial court further “applied a[n] [even more] ‘conservative metric because of

Plaintiff’s delay,’” reducing the fee to 15%,80 which the Delaware Supreme Court

affirmed in Americas Mining.

By contrast, Plaintiff litigated this Action with alacrity, and therefore, the 15%

award in Southern Peru is inappropriate here. Nevertheless, in an effort to be

conservative, and to minimize the dispute between the parties and simplify the

Court’s decision, Plaintiff proposes to use the Americas Mining fee as a basis for the

fee request, and proposes an additional adjustment to it based on the nature of the

fee requested here.

Specifically, because the cancelled Grant options included a five-year post-

exercise holding period, but Plaintiff seeks freely tradeable Tesla shares

(i.e., no holding period), an additional adjustment to the fee request by the amount

of the illiquidity discount arising from the five-year holding period can be taken into

account.

in this case is that the plaintiffs were slow . . . . [I] also . . . have to take that into account
in the percentage I award for the plaintiffs[,] . . . [a]nd I took that into account.”).
80
Id. at 1257.

21
 As calculated by Professor Taylor using a Finnerty Model and using Tesla’s

most recently disclosed volatility of 63%, a five-year holding period applied to

otherwise freely tradeable Tesla shares equates to a 26.57% illiquidity discount.81

Notwithstanding that the five-year holding period applicable to Musk (only)

is irrelevant to the benefit conferred to Tesla through cancellation of the options,

Plaintiff proposes to use the 26.57% illiquidity discount as the basis for an additional

adjustment to the already conservative fee awarded in Americas Mining.82 Starting

with the 15% awarded in Americas Mining, utilizing the lower number of shares to

account for a cashless exercise, forgoing any upward adjustment to reflect Plaintiff’s

substantially greater alacrity in this Action, and applying a conservative liquidity-

related adjustment, Plaintiff seeks 11.0145% of the 266,947,208 shares that are now

available for other use by Tesla as a direct result of this Action—a total of

29,402,900 shares.83 The liquidity adjustment of 26.57% reduces Plaintiff’s request

by 10,639,181 shares.

81
Taylor Aff. at ¶13, n.3; see also TSLA-Tornetta-023942; Tesla 10-K filed January 29,
2024 at 81. We note that we have utilized this discount, rather than the smaller 10.88%
utilized by Aon at the time of the Grant, because it is more conservative and recognizes the
high degree of volatility present in the trading of Tesla securities.
82
26.57% of 15% = 3.9855%. 15% - 3.9855% = 11.0145%.
83
This amount has been rounded down to the nearest whole share.

22
 D. A Fee Award Based on the Retroactive GDFV Is Unsupportable

Plaintiff anticipates that Defendants might reprise their argument from the

Director Compensation Case that, according to the rules of the Financial Accounting

Standards Board (“FASB”), the value of the benefit conferred on Tesla by fully

rescinding the Grant should be based not on the value of the options cancelled and

the underlying shares freed up, but instead on the purported technical accounting

impact of cancelling those options and underlying shares, which Defendants

describe as a reverse accounting charge.84 As noted above, structuring the attorneys’

fee as a percentage of the actual benefit conferred rather than a cash payment

reflecting a percentage of a quantification of the value of the benefit conferred cuts

through any such gambit.

The value of the benefit conferred by rescinding the Grant should be based on

the options’ actual value at the time of rescission, as opposed to an historical cost

basis accounting valuation: Plaintiff freed up 266,947,208 Tesla shares—worth over

$51.4 billion—that Tesla may now utilize for any purpose. This approach is not

84
Put another way, Tesla’s view is that rescinding an option produces no economic value
to the Company because doing so does not expand the pool of shares that the Company is
“free [to] do whatever [it] want[s with] for corporate purposes.” Bebchuk/Jackson Decl.
at ¶56-57.

23
only logically sound, but also supported by decades of Delaware precedent

addressing the issue.85

Indeed, Plaintiff’s experts demonstrate that Defendants’ “reverse accounting

charge” argument is divorced from basic principles of financial economics.86

First, as Professors Bebchuk and Jackson explain more fully in their Joint

Declaration, it is widely accepted that accounting changes are not synonymous with

85
See Plaintiff’s Reply Brief in Further Support of Settlement Approval, Award of
Attorneys’ Fees and Expenses, and Incentive Award, C.A. No. 2020-0477-KSJM
(Transaction ID 71045492) (“Compensation Case Reply”) at 9-10 (“Delaware courts value
options cancelled in a settlement by looking to their intrinsic or fair value at the time of
settlement, just as provided for in the Stipulation. See, e.g., Wilcox v. Dolan, C.A. No.
2019-0245-SG, at 13, 31 (Del. Ch. Sep. 8, 2020) (TRANSCRIPT) (when weighing
settlement supported by underlying consideration of a ‘one-time signing grant with a grant
date fair value of $40 million’ and certain performance stock units, the Court looked to the
‘present value of around $31 million’ of that consideration); Moses v. Pickens, 1982 WL
17825, at *1 (Del. Ch. Nov. 10, 1982) (‘Under the terms of the settlement Mr. Pickens
agreed to surrender his option on 1,200,000 shares of Mesa common stock. The options
provided for the purchase of the stock at $11.50 per share but the stock is presently trading
for $15-$17 per share. Thus it is clear that the value to Mesa by the surrendering of the
options is approximately 4 million dollars.’); Wietschner v. Rapid-Am Corp., 1977 WL
918, at *4 (Del. Ch. Jan. 19, 1978) (‘[T]he options . . . have a [present] relinquishment
value to the corporation as well as a possessory value to Riklis and Becker of $1.00 each,
or, in total, a value to the corporation for the purpose of this settlement of $300,000.’);
Krinsky v. Helfand, 156 A.2d 90, 94-95 (Del. 1959) (crediting this Court’s ‘fair estimate
of value’ based on the ‘difference between the option and market prices’ notwithstanding
the ‘dispute between the parties as to the measure of value of the cancellation of [the] stock
options’); see also Alpha Venture Capital Partners LP v. Pourhassan, C.A. No. 2020-
0307-PAF, at 54-56 (Del. Ch. June 21, 2021) (TRANSCRIPT) (rejecting defendants’
argument that cancelled stock options and warrants were unquantifiable benefits to the
company and that plaintiff’s fair market valuation represented the benefit surrendered by
defendants and not the benefit obtained by the company).” (emphasis in original)).
86
See Bebchuk/Jackson Decl. at ¶¶55-67.

24
equivalent changes in economic value.87 Defendants themselves acknowledged this

fact in their pre-trial briefing.88 For example, using a historic accounting-related

GDFV estimate from 2018 makes no economic sense as a measure of the Grant’s

current value to Tesla.89 It ignores, among other things, Tesla’s projections at the

time of the Grant, which indicated that several tranches would vest soon after the

Grant’s issuance,90 as well as everything that has transpired—including the massive

increase in the Grant’s value—in the roughly six ensuing years.

87
Id. at ¶¶62-64.
88
Director Defendants’ Pretrial Brief, at 56-57 (“[T]he Proxy does disclose the ‘grant date
fair value’ (known as ASC 718)—an accounting term representing stock-based
compensation expense a company recognizes for an option award, not the value to Musk
or to Tesla’s stockholders.”); id. (describing ASC 718 disclosure as “flawed as a measure
of value”).
89
See Bebchuk/Jackson Decl. at ¶¶63-67.
90
Op. at 79 (“The [GDFV] did not . . . incorporate Tesla’s internal projections.”); 85 (“The
one-year [December 2017] projections underlying the operating plan . . . predicted
achievement of three milestones in 2018 alone. The longer three-year projections
underlying that plan reflected that by 2019 and 2020, Tesla would achieve seven and eleven
operational milestones, respectively.”); 86 (“The March 2018 Projections . . . predicted
achievement of one revenue and two adjusted EBITDA milestones by March 31, 2019, and
further two revenue and four adjusted EBITDA milestones by the end of 2020.”); 186
(“Tesla viewed its projections as reliable. They were developed in the ordinary course,
approved by Musk and the Board, regularly updated, shared with investment banks and
ratings agencies, and used by the Board to run Tesla. Several Tesla executives affirmed
their quality, accuracy, and reliability. Plus, Tesla hit the first three milestones, consistent
with its projections, by September 30, 2020.”); 72 (“[T]he operational and market
capitalization milestones ‘have to be somewhat aligned. It has to make sense to be able to
be achieved around the same time or what you think is the same time.’”).

25
 Second, the FASB rules do not instruct companies to incorporate changes over

time into an accounting charge.91 Nor do the FASB rules preclude companies from

incorporating current economic values into their accounting charges.92 As explained

by Professors Bebchuk and Jackson: “[T]he design of accounting rules is influenced

by various considerations that do not favor changing accounting figures to track

economic values as the latter change.”93

Third, Tesla’s contention that the reversal of a historical accounting charge

yields an economic benefit equal in magnitude to the accounting charge leads to

absurd consequences, as Professors Bebchuk and Jackson illustrate more fully in

their affidavit.94 For example, the simultaneous cancellation of two option packages

that differ merely in the historical accounting charge and the time granted would

have different valuations, according to Tesla, even though each cancellation would

have the exact same consequence on the company’s future cash flows.95 Similarly,

under Tesla’s view, cancellation of two option packages with the same historical

91
Bebchuk/Jackson Decl. at ¶65.
92
Id.
93
Id.
94
Id. at ¶¶65-66.
95
Id. at ¶65.

26
accounting charge would produce the same economic benefit to a company, even if

one option package were deep in the money and the other deep out of the money.96

Tellingly, Defendants’ stipulation to the value of the relevant options in the

Director Compensation Case based on the options’ fair value at the time of the

settlement reveals that, outside the context of the present fee dispute, Defendants

themselves recognize the fallacy of their “reverse accounting charge” argument.97

E. The Secondary Sugarland Factors Support the Requested Fee and

Expense Award

1. Counsel Faced Massive Contingency Risk

The contingent nature of the litigation is the “second most important factor

considered by this Court in awarding the counsel fee.”98 “It is the ‘public policy of

Delaware to reward risk-taking in the interests of shareholders.’”99 Thus, “[t]his

96
Id. at ¶66. The Joint Declaration of Professors Bebchuk and Jackson also explains why
the requested Share Award would not present risk of disruption to the marketplace for Tesla
stock. Bebchuk/Jackson Decl. at ¶¶93, 96. Indeed, were this Court to award a fee in shares,
Plaintiff’s Counsel, like all other Tesla stockholders, would share a common interest in
allowing the market to operate in an efficient manner and an incentive not to trade shares
in a value-destructive manner.
97
Compensation Case Reply at 2-3 (“Stipulation Section 2.1 states that the
Director Defendants shall ‘provide to Tesla the value of 3,130,406 options . . . using the
methods set forth in this Section, which shall have the total value set forth in Section 2.6
of this Stipulation.’ Section 2.6 further states that the ‘Director Defendants shall deliver
to Tesla the value of the Settlement Options, which is equal to $735,266,505,’ including
‘$458,649,785 in Returned Options.’” (emphasis in original)); see also Bebchuk/Jackson
Decl. at ¶¶58-67.
98
Dow Jones & Co. v. Shields, 1992 WL 44907, at *2 (Del. Ch. Jan. 10, 1992).
99
In re Activision Blizzard, Inc. S’holder Litig., 124 A.3d 1025, 1073 (Del. Ch. 2015)
(citation omitted).

27
Court has recognized that an attorney may be entitled to a much larger fee when the

compensation is contingent than when it is fixed on an hourly or contractual

basis.”100 “Accepting contingency risk is what enables counsel to receive an award

based on the results generated by the litigation that exceeds their lodestar.”101

Plaintiff’s Counsel litigated this Action on a fully contingent basis. “If they

lost, they would get nothing. They also were responsible for funding their expenses.

Plaintiff’s Counsel are therefore entitled to a results-based fee based on the

Sugarland factors.”102

Plaintiff’s Counsel have not been paid for their work, nor have any of their

costs or expenses been reimbursed, and litigating this Action required the allocation

of a substantial amount of Plaintiff’s Counsel’s time and resources over six years,

including considerable out-of-pocket expenses.

Moreover, this Action presented significant risk. “Plaintiff’s counsel did not

enter the case with a ready-made exit or obvious settlement opportunity. There was

a serious possibility that plaintiff’s counsel would lose and receive nothing.”103

Thus, Plaintiff’s Counsel “went all-in on a concentrated bet, where they invested a

100
Ryan v. Gifford, 2008 WL 18143, at *13 (Del. Ch. Jan. 2, 2009).
101
Dell, 300 A.3d at 726.
102
Id.
103
Id.

28
material amount of their firm’s resources to get an outcome.”104 Defendants’ and

their counsel’s track record of pushing their cases to trial and prevailing compounded

the contingency risk.105 Indeed, Plaintiff’s Counsel still face significant additional

work, and ongoing contingency risk: “It remains possible that on appeal . . . the

Delaware Supreme Court could disagree with the [Opinion],” in which case

“plaintiff’s counsel will receive zero.”106

Further, that contingency risk was clear—and reinforced—throughout the

litigation. Critically, not a single other plaintiff stepped forward to seek the

unprecedented recovery secured by Plaintiff and Plaintiff’s Counsel in this Action.

In short, especially against these Defendants, there was no obvious “exit ramp” short

of trial. Thus, this Action likely would have gone unprosecuted absent Plaintiff’s

Counsel’s willingness to incur substantial contingency risk. Additionally, during the

lengthy argument on Defendants’ MTD, the Court identified and probed various

challenges facing the Action both at the pleading stage and beyond.

Facing a steep uphill climb, Plaintiff’s Counsel shouldered significant risk in

marching forward against elite defense counsel, painstakingly developed a discovery

104
Kurz v. Holbrook, C.A. No. 5019-VCL, at 105 (Del. Ch. July 19, 2010)
(TRANSCRIPT).
105
See, e.g., In re Tesla, Inc. Sec. Litig., No. 3:18-cv-04865 (N.D. Cal.); Unsworth v. Musk,
No. 2:18-cv-08048 (C.D. Cal.); In re Tesla Motors, Inc. S’holder Litig., 2023 WL 3854008
(Del. 2023).
106
Sciabacucchi v. Salzberg, 2019 WL 2913272, at *8 (Del. Ch. July 8, 2019).

29
record supporting Plaintiff’s claims, and secured total—and unprecedented—victory

at trial. Plaintiff never engaged in the sort of “risk aversion [that] manifests itself as

a natural tendency to favor an earlier bird-in-the-hand settlement that will ensure a

fee, rather than pressing on for a potentially larger recovery for the class at a cost of

greater investment and with the risk of no recovery.”107

In sum, “[t]he true contingency risk in this case supports a results-based award

using the Americas Mining percentages.”108

2. The Action Was Complex

Another “secondary Sugarland factor[] is the complexity of the litigation. All

else equal, litigation that is challenging and complex supports a higher fee award.”109

Plaintiff achieved an unprecedented outcome: full rescission of the largest

compensation plan ever. Defendants—at all times represented by world-class law

firms—fiercely defended the $51+ billion Grant at every turn. In the MTD phase,

Wachtell Lipton advanced novel and complex arguments that forced Plaintiff—and

the Court—to grapple with difficult issues that could have doomed the Action at the

pleadings stage. After Plaintiff defeated the MTD, Defendants enlisted Cravath

Swaine & Moore, who secured the trial victory in the SolarCity matter tried in this

107
Orchard, 2014 WL 4181912, at *8.
108
Dell, 300 A.3d at 726.
109
Id. at 728 (quoting Activision, 124 A.3d at 1072).

30
Court (and affirmed on appeal), and of whom the Court stated: “If any set of

attorneys could have achieved victory in these unlikely circumstances, it was the

talented defense attorneys here.”110 Building a discovery record capable of securing

victory at trial—then prevailing at trial—against such capable counsel entailed

substantial difficulty and challenge.

Substantively, this Action also presented novel and difficult issues. For

example, Plaintiff had to piece together what transpired in a transaction process

spearheaded by a close-knit group of Musk loyalists, and in which Tesla General

Counsel Maron—whose involvement gave rise to privilege claims over relevant

documents—was “a primary go-between Musk and the committee[.]”111 Plaintiff

also faced significant complexity regarding technical accounting issues that required

the retention of an accounting expert. Moreover, Plaintiff had to formulate a

damages theory with respect to an unprecedented compensation plan regarding

which—as Plaintiff succeeded in proving at trial—nobody ever undertook any

benchmarking or negotiations that might illuminate what would constitute “fair

price.”

For these and other reasons, Plaintiff submits that the Action’s complexity

fully supports the requested Fee and Expense Award.

110
Op. at 3.
111
Id.

31
 3. Plaintiff’s Counsel’s Efforts Were Substantial

As the Delaware Supreme Court explained in Americas Mining, “Sugarland

does not require . . . 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.”112

Thus, at most, “[t]he time and effort expended by counsel is [a] secondary, or

even tertiary, consideration to the benefits achieved.”113 Indeed, the Court

sometimes “give[s] no weight to the hours expended.”114

112
Ams. Mining, 51 A.3d at 1257; see also Stroud v. Milliken Enters., Inc., 1990 WL
113345, at *4 (Del. Ch. Aug. 2, 1990), aff’d, 583 A.2d 660 (Del. 1990) (“Under Sugarland,
if there is a monetary or measurable economic benefit, the primary basis for ascertaining
the amount of attorney fees to be awarded is a percentage of the economic benefit and the
time spent is of little or no importance.”).
113
Garfield v. Boxed, Inc., 2022 WL 17959766, at *15 (Del. Ch. Dec. 27, 2022) (citation
omitted).
114
Id. (“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. Accordingly, Delaware courts should first look to
precedents on which to base a fee award, which I have done.”); De Felice v. Kidron, C.A.
No. 2021-0255-MTZ, at 24:3-9 (Del. Ch. Apr. 27, 2022) (TRANSCRIPT) (awarding
attorneys’ fees “without regard to hours worked.”); Hawkes v. Bettino, C.A. No. 2020-
0360-PAF, at 105:1-13 (Del. Ch. Apr. 12, 2021) (TRANSCRIPT) (awarding attorneys’
fees but giving no weight to the hours expended); Salzberg, 2019 WL 2913272, at *7
(holding that the time and effort factor did not warrant reducing “the precedent-based
award.”); see also Olson v. EV3, Inc., 2011 WL 704409, at *15 (Del. Ch. Feb. 21, 2011)
(“I give no weight to the hours expended . . . . Counsel should not be penalized for
achieving complete victory quickly.”); In re AMC Ent. Holdings, Inc. S’holder Litig., 2023
WL 5165606, at *38 (Del. Ch. Aug. 11, 2023) (“Plaintiffs’ counsel spent 3,425.9 hours on

32
 Eschewing the hourly crosscheck is particularly logical where, as here,

litigation through post-trial judgment confers a quantifiable benefit, such that the

relevant methodology and metric for calculating an attorneys’ fee is the appropriate

percentage of that benefit. That is especially true where, as is also the case here, the

quantified value of the benefit conferred by the judgment is massive. In such

circumstances, the greater the benefit achieved, the less probative the hourly

crosscheck becomes. A contrary rule would perversely incentivize future plaintiff’s

counsel to litigate inefficiently and generate maximum lodestar, notwithstanding the

additional burden that doing so could impose on the Court, other litigants and non-

parties.

Indeed, Plaintiff’s Counsel’s time is best used as a “cross check” in

determining the reasonableness of an attorneys’ fee request in the settlement context,

where counsel has chosen to compromise the claims. That is so because the

settlement context presents the possibility of “different incentive problems,

including the risk of cheap early settlements.”115 Where the interests of lawyer and

this case through May 1, but I give no weight to the hours expended.”).
115
See also Franklin Balance Sheet Inv. Fund v. Crowley, 2007 WL 2495018, at *13-14
(Del. Ch. Aug. 30, 2007) (utilizing “backstop check” where plaintiffs’ counsel expended
1,047 hours on the case, and stating: “[T]he fact that Plaintiffs’ underlying action never
progressed beyond the motion to dismiss stage warrant[ed] a reduction in the percentage
rate used in calculating fees, as this Court has a history of properly awarding lower
percentages of the benefit where cases have settled well before trial.”); In re Nat’l City
Corp., 2009 WL 2425389, at *5 (noting the “omnipresent threat that plaintiffs would trade

33
client might diverge, courts thus appropriately exercise vigilance as to fee requests.

But where, as here, counsel has not compromised and indeed has taken the case

through judgment, there is no risk of diverging interests.

Though large, the fee sought here would be neither unexpected nor unearned.

Plaintiff’s Counsel litigated this matter through trial with the understanding that

losing meant they would receive nothing, a risk that remains through appeal. If they

won, they expected their efforts would be rewarded with a significant fee measured

as a percentage of the benefit they created.116 Plaintiff’s Counsel made that

investment and took that risk on behalf of Plaintiff and Tesla. Thus, Plaintiff’s

Counsel submits the hourly crosscheck has little to no usefulness under these

circumstances.117

off settlement benefits for an agreement that the defendant will not contest a substantial fee
award.”) (internal citations and quotations omitted).
116
See, e.g., Joseph v. Troy Grp., Inc., C.A. No. 4676-CS, at 28 (Del. Ch. June 29, 2011)
(TRANSCRIPT) (“If there’s ever a case like this, and it’s clear that the sole reason a class
got $2 billion is because of the lawyers, I got no problem, and I will sleep better than I
usually do if the lawyers get 33 percent of $2 billion.” (emphasis added)); In re Am. Int’l
Grp., Inc. Consol. Deriv. Litig., C.A. No. 769-VCS, at 9-10 (Del. Ch. Jan. 25, 2011)
(TRANSCRIPT) (“[S]ometimes it’s forgotten when folks see things like this is that big
fees, when much is achieved, they’re deserved, particularly when much is at risk. The
plaintiffs as a collective put in thousands of hours which could have come to naught . . . .
And so it’s a big fee, but I think it’s important – and I’ve said this before and I will continue
to say it – that, you know, you don’t reduce people’s fees because they gain much. You
should, in fact, want to create an incentive for real litigation. That’s what benefits
diversified investors, when people will take, you know, good cases and actually prosecute
them and take risk. What doesn’t benefit investors is simply the filing of a case every time
there’s a valuable business opportunity and simply having a handout and getting a toll.”).
117
Del Monte, 2011 WL 2535256, at *12.

34
 Moreover, because the fee sought is not in cash but in shares of stock that

fluctuate in value every business day, the “cross check” is an even less useful tool

here. In the case of a security as volatile as Tesla stock, which experiences wide

swings in trading prices, the cross check’s usefulness is greatly reduced relative to

the ordinary cash fee context.118

To the extent this factor is considered at all, “[t]he time (i.e. hours) that

counsel claim to have worked is of secondary importance.”119 Delaware seeks to

incentivize, not punish, efficient litigation.120 Thus, “[m]ore important than hours is

‘effort, as in what plaintiffs’ counsel actually did.’ In this case, the answer is ‘quite

a bit.’”121

Plaintiff’s Counsel litigated the Action aggressively, diligently but efficiently,

unwaveringly optimizing their efforts with the sole goal of maximizing the recovery

for the Company. These efforts included: (i) undertaking a books-and-record

investigation pursuant to Section 220, then filing a meritorious complaint; (ii)

118
In 2023, Tesla was ranked “the most volatile stock” in the S&P 500. Patrick Foot,
“What Are the Most Volatile Stocks In 2023?”, Forex.com, Oct. 16, 2023,
https://www.forex.com/ie/news-and-analysis/most-volatile-stocks/.
119
In re Sauer-Danfoss Inc. S’holders Litig., 65 A.3d 1116, 1138 (Del. Ch. 2011).
120
See, e.g., Activision, 124 A.3d at 1074 (“Lead Counsel did not throw a horde of junior
timekeepers at the matter that would have inflated the overall number of hours. It created
efficiencies for the four senior lawyers who comprised the trial team to take all of the
depositions, work with the expert, and immerse themselves in all facets of the case.”).
121
Del Monte, 2011 WL 2535256, at *13 (quoting In re Sauer-Danfoss S’holders Litig.,
2011 WL 1632336, at *20 (Del. Ch. Apr. 29, 2011)).

35
substantially defeating Defendants’ MTD, which entailed novel and complex

arguments and substantive post-hearing written submissions; (iii) navigating the

Covid-19 pandemic to engage in substantial and highly effective discovery efforts,

including serving on Defendants four sets of document requests, five sets of

interrogatories, and one set of requests for admission, and securing numerous

amended and/or supplemented interrogatory responses; (iv) serving subpoenas on

twelve third parties; (v) securing important discovery materials, including through

near-countless pages of written correspondence and time spent on telephonic meet-

and-confers, entry into a stipulation pursuant to Delaware Rule of Evidence 510, and

a motion to compel; (vi) obtaining 429,644 pages of Defendant and third-party

documents; (vii) taking 17 fact depositions (several of which occurred over the

course of multiple days), and defending one; (viii) presenting expert reports on

behalf of three experts and grappling with expert reports presented by three Defense

experts; (ix) taking three expert depositions and defending three expert depositions;

(x) successfully moving to file and filing an amended, 140-page complaint;

(xi) litigating cross-motions for summary judgment; (xii) successfully trying the

case; and (xiii) engaging in post-trial briefing, post-trial oral argument, and post-trial

supplemental briefing.

Adjusted for inflation, the fee awarded in Southern Peru (and affirmed in

Americas Mining)—which, as noted above, was significantly reduced because

36
plaintiff’s counsel was so dilatory in litigating the case that they foreclosed the

remedy of rescission122—equates to approximately $55,600 per hour.123 But the over

$51.4 billion recovery124 achieved by Plaintiff’s Counsel in this Action exceeded the

$1.347 billion (pre-interest) recovery in Southern Peru125 by a factor of

approximately 38x.

From the Action’s inception through the date of the Post-Trial Opinion,

Plaintiff’s Counsel collectively logged 19,499.95 hours amounting to

$13,624,462.75 in lodestar and incurred $1,120,115.50 in out-of-pocket expenses:

122
See supra at 14, 30.
123
The inflation adjustment is calculated using the U.S. Bureau of Labor Statistics,
Producer Price Index by Industry: Office of Lawyers data, available at,
https://fred.stlouisfed.org/series/PCU541110541110.
124
Taylor Aff. at ¶13. $191.59 (closing price) – $23.33 (exercise price) = $168.26.
$168.26 x 303,960,630 (number of options cancelled) = $51,144,415,604 (options value).
Stated another way, 266,947,208.12 (total Grant shares less the total exercise price) x
$191.59 = $51,144,415,604. As further explained by Taylor, although it is unnecessary to
value the Grant using the Black-Scholes-Merton model, doing so using a conservative
volatility assumption of 50% produces an aggregate Black-Scholes-Merton value of
$52,463,604,738. Id. at ¶19.
125
52 A.3d at 819.

37
 Firm Hours Lodestar Expenses

Bernstein, Litowitz, Berger 5,001.00 $3,257,825.00 $284,620.84

& Grossmann LLP

Friedman Oster & Tejtel 7,137.5 $5,131,181.25 $392,393.72

PLLC

Andrews & Springer LLC 7,361.45 $5,235,456.50 $443,100.94

Totals 19,499.95 $13,624,462.75 $1,120,115.50

Further, the absence of a leadership contest or any other ancillary litigation activity

means that 100% of this time and expense was devoted to the singular goal of

securing the unprecedented result achieved by the Action. And it goes without

saying that significant additional hours and expense will accrue, including in

defending against Defendants’ upcoming appeal.126

Despite recognizing that the hourly cross check is of little value, we provide

the specific data here because we acknowledge that it is still part of the Sugarland

paradigm.127

126
Salzberg, 2019 WL 2913272, *6 (observing that the calculated implied hourly rate “only
tells part of the story. Because the defendants intend to appeal the Merits Decision,
plaintiff’s counsel can expect to expend approximately the same number of hours litigating
before the Delaware Supreme Court”).
127
Based upon the $191.59 closing price of Tesla stock as of January 30, 2024, the date of
the Post-Trial Opinion, the 29,402,900 freely tradeable shares requested by Plaintiff’s
Counsel—representing 11.0145% of the 266,947,208 now-available shares—are valued at
$5,633,301,611. The total requested attorneys fee excluding out-of-pocket expenses
reflects an implied hourly rate of $288,888.00, and a lodestar multiple of approximately
413.47x. Factoring in the $1,120,115.50 requested expense reimbursement increases the
implied hourly rate and lodestar multiple to $288,945.44 and 413.55x, respectively. These

38
 Finally, as set forth in more detail in the affidavits filed herewith, Plaintiff’s

Counsel incurred $1,120,115.50 in out-of-pocket-expenses in litigating this matter.

A substantial portion of those expenses were unavoidable transcript and filing fees,

and expert fees paid to Plaintiff’s experts. The remaining costs include necessary

and reasonable items such as duplication costs, computerized research costs,

electronic filing fees and travel expenses. Indeed, the total expenses incurred here

compares favorably to the expenses reported in litigation that resolved before trial.128

4. Counsel’s Standing and Ability Support the Fee and

Expense Award

Finally, under Sugarland, the Court considers the “standing and ability of

plaintiffs’ counsel.”129 Plaintiff’s Counsel respectfully submit that they are known

to the Court as experienced stockholder advocates who have secured some of the

largest recoveries in the Court’s history and who have successfully taken high-stakes

cases through trial and appeal. Plaintiff’s Counsel further submit that the

implied hourly rates and lodestar multiples are admittedly unprecedented. But that is a
function of the gargantuan size of the tort underlying this Action, and Plaintiff’s Counsel’s
achievement of an unprecedented, total victory in challenging that tort. Indeed, whereas
the post-trial judgment achieved in this Action exceeds the value of the post-trial judgment
in Southern Peru by approximately 38x, the implied hourly rate arising from Plaintiff’s fee
request is approximately 5.2x the inflation-adjusted approximately $55,600 implied hourly
rate awarded in Southern Peru (and affirmed by the Delaware Supreme Court in Americas
Mining).
128
See, e.g., In re Rural/Metro S’holders Litig., C.A. No. 6350-VCL, at 35-38 (Del. Ch.
Nov. 19, 2013) (TRANSCRIPT) (awarding $1,296,211.86 in expenses where “plaintiffs’
counsel settled deep in the case, after full discovery, on the eve of trial”).
129
Sauer-Danfoss, 65 A.3d at 1140.

39
unprecedented result achieved in this Action could not have been secured without

the skill and experience demonstrated here.

That is particularly so given the “talented defense attorneys”130 who were

supremely motivated to prevail in this astronomically high-stakes and high-profile

case. Plaintiff’s Counsel litigated against an all-star team from Cravath led by its

(now-retired) Chairman Emeritus and (former) longtime Presiding Partner Evan R.

Chesler, a fellow of the American College of Trial Lawyers, a perennial member of

the Lawdragon 500, recipient of, among other awards, the New York Law Journal’s

Lifetime Achievement Award, and one of the leading trial lawyers of his time.

Cravath’s team also included Daniel Slifkin, perennially ranked as one of the Top

100 Trial Lawyers in America and Best Lawyers in America for litigation, among

many other accolades, and Vanessa Lavely, a member of the Lawdragon

500 Leading Litigators in America, The Legal 500 US for General Commercial

Litigation, Crain’s New York Business Notable Women in the Law, Best Lawyers

in America for Commercial Litigation, and Benchmark Litigation Future Star and

40 & Under List. Defendants’ litigation (and trial) team also included distinguished

attorneys from Ross Aronstam & Moritz LLP, and Ashby & Geddes, two of

Delaware’s preeminent firms. Defense counsel’s standing and ability—including

130
Op. at 3.

40
their trial and post-trial appellate success in the SolarCity action involving many of

the same Defendants—further supports the requested Fee and Expense Award.131

CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court

approve the requested Fee and Expense Award.

Dated: March 1, 2024 BERNSTEIN LITOWITZ BERGER

& GROSSMANN LLP
OF COUNSEL:
/s/ Gregory V. Varallo
Jeroen van Kwawegen Gregory V. Varallo (Bar No. 2242)
Margaret Sanborn-Lowing Glenn R. McGillivray (Bar No. 6057)
BERNSTEIN LITOWITZ BERGER 500 Delaware Avenue, Suite 901
& GROSSMANN LLP Wilmington, DE 19801
1251 Avenue of the Americas (302) 364-3061
New York, NY 10020 ANDREWS & SPRINGER LLC
(212) 554-1400 Peter B. Andrews (Bar No. 4623)
Jeremy S. Friedman Craig J. Springer (Bar No. 5529)
Spencer M. Oster David M. Sborz (Bar No. 6203)
David F.E. Tejtel Andrew J. Peach (Bar No. 5789)
FRIEDMAN OSTER Jackson E. Warren (Bar No. 6957)
& TEJTEL PLLC 4001 Kennett Pike, Suite 250
493 Bedford Center Road, Suite 2D Wilmington, DE 19807
Bedford Hills, NY 10507 (302) 504-4957
(888) 529-1108 Counsel for Plaintiff

WORDS: 10,195 (of 14,000 Word

Limit)

131
Hollywood Firefighters’ Pension Fund v. Malone, 2021 WL 5179219, at *11 (Del. Ch.
Nov. 8, 2021) (noting, in evaluating the Sugarland factors, that the “standing and ability
of both the Plaintiffs’ and the Defendants’ counsel are well known to this Court to be
exemplary”).

41