Corporate Governance

Prolix v. Brobdingnagian: A suggestion for the Delaware courts

By J. Robert Brown

We have noted that the Delaware courts often use the word "prolix" (or some variation thereof) to describe submissions by plaintiffs but never defendants.  Indeed, the reference in Wood v. Baum earned the case the award for the most anti-shareholder decision of 2008.   While our preference would be to have the courts cease using pejorative characterizations, particularly when aimed only at one side of a legal conflict, we have an alternative suggestion.

In Stark Trading v. Falconbridge, a recent case written by Judge Posner, he described plaintiff's complaint not as prolix but as brobdingnagian (a references to the 289 paragraphs and 85 or so pages in the document).  The term is derived from the giants in Gulliver's Travels and means something of tremendous size.  It is not a term used often, appearing in only 57 cases (including Stark) in the Lexis-Nexis data base for all state and federal cases (with the first appearance coming in 1928).  The term has only been used once by a Delaware court and not to criticize plaintiffs.  See David B. Shaev Profit Sharing Account v. Armstrong, 2006 Del. Ch. LEXIS 33 (Del. Ch. Feb. 13, 2006)("These transactions were, in the words of plaintiff's counsel, proverbial 'elephants in the room,' frauds of such 'brobdingnagian' enormity that only reckless indifference to fiduciary duty could explain the defendants' now conceded lack of knowledge.").  

To the extent the Delaware courts are moved to label the complaints filed by shareholders as prolix, this Blog recommends the substitution of the word "brobdingnagian."  The change will perhaps eliminate some of the sting from the usually gratuitous criticism and will also contribute to the literary bona fides of the Delaware courts.

Full post as published by The Race to the Bottom on January 07, 2009 (boomark / email).