throbber
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
`
`Consolidated
`C.A. No. 2018-0342-AGB
`
`:::
`
`IN RE CBS CORPORATION LITIGATION
`
`THE NAI PARTIES’ MOTION TO COMPEL
`
`National Amusements, Inc., NAI Entertainment Holdings LLC (together,
`
`“NAI”), Sumner M. Redstone, and Shari Redstone (collectively, the “NAI Parties”),
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`through their undersigned counsel, move pursuant to Court of Chancery Rules 26,
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`34, and 37, to compel the production of materials that CBS Corporation (“CBS,” or
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`the “Company”) and the members of its board not affiliated with NAI (together with
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`CBS, the “CBS Parties”), intend to withhold improperly on privilege grounds.
`
`INTRODUCTION
`
`1.
`
`This motion is not about challenging a privilege assertion. Nor is it
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`about claiming some privilege has been waived. It is about allowing joint clients
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`access to their counsel’s communications. This Court has ruled repeatedly that this
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`EFiled: Jun 29 2018 09:05AM EDT
`Transaction ID 62187534
`Case No. 2018-0342-AGB
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`
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`
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`

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`specific issue can and should be resolved at the outset of litigation.1 That is the
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`purpose of this motion.2
`
`2.
`
`Ms. Redstone, David Andelman, and Robert Klieger (the “NAI
`
`Affiliated Directors”), as CBS directors and joint clients of in-house and outside
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`counsel to CBS and its board (“CBS Counsel”), have “unfettered access” to any legal
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`advice rendered to CBS or other members of its board of directors (the “Board”).
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`That access includes privileged communications involving CBS Counsel before
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`May 14, 2018, the date on which CBS and the CBS special committee first informed
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`the NAI Parties of the possibility of a dilutive dividend and commenced litigation
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`against the NAI Parties.
`
`3.
`
`This litigation involves the decision of certain CBS directors (the
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`“Director Defendants”) to invoke a nuclear option against CBS’s controlling
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`stockholder, NAI. The decision was made in secret, with the assistance of senior
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`management, and apparently based on advice of counsel (both special committee
`
`
`1 See PWP Xerion Holding III LLC v. Red Leaf Resources, Inc., C.A. No. 2017-
`0235-JTL, at 47-48 (Del. Ch. May 22, 2018) (Transcript) (“[T]his motion is better
`decided now” before the preparation of privilege logs) (Ex. A hereto); Kalisman v.
`Friedman, 2013 WL 1668205 (Del. Ch.) (deciding motion 16 days after litigation
`commenced).
`2 In this regard, this motion is unlike the motion the CBS Parties are expected to file
`concurrently with this one. That motion focuses on challenging non-party Viacom’s
`privilege assertions and in particular whether communications involving Viacom, its
`special committee, and NAI representatives on the Viacom board are privileged.
`
`2
`
`

`

`counsel and CBS Counsel). The result is a draconian dilutive dividend (the “Dilutive
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`Dividend”), which has a single unprecedented and impermissible objective – to
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`dilute the voting rights of NAI and other CBS Class A stockholders for all purposes
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`and for all time. The NAI Parties allege that by declaring the Dilutive Dividend, the
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`Director Defendants breached their fiduciary duties for numerous reasons, including
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`because they lacked the requisite compelling justification, took action that was not
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`proportionate to any supposed threat, improperly sought to preclude NAI from
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`exercising voting rights, took action without being fully informed, and wrongfully
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`acted to appease a CEO who had long desired unfettered control of CBS. The
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`Dilutive Dividend also violated CBS’s certificate of incorporation and bylaws.
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`4.
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`The documents at issue are central to NAI’s claims in this litigation and
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`to its defense against CBS’s and Westmoreland’s claims. They will make clear what
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`prompted the Dilutive Dividend, who orchestrated it, and the true motivations that
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`drove its implementation. These communications – involving CBS Counsel who
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`represented all directors – cannot be withheld on the grounds of privilege from
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`counsel’s joint clients, the NAI Affiliated Directors, unless that counsel took steps
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`in advance to make manifest that it no longer represented them. This, counsel never
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`did.
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`5.
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`Rather, the CBS Parties (with the assistance of counsel) apparently
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`schemed in secrecy. Under settled Delaware law, adversity perceived by counsel
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`3
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`

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`but not disclosed to a joint client does not terminate the joint client relationship.
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`Accordingly, once the Director Defendants, CBS management, or the special
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`committees (or committee counsel) involved CBS Counsel, they should have known
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`that under Delaware law, CBS Counsel could not, consistent with its obligations to
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`its joint clients, keep those communications from its other clients, the NAI Affiliated
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`Directors.
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`6.
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`Thus, the NAI Parties move to compel production of the following
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`categories of privileged materials involving communications with CBS Counsel
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`from before May 14, 2018:
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` communications with and between CBS Counsel (whether outside or
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`in-house counsel) and any officer or director of CBS; and
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` communications between the (i) members of the special committees of
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`the CBS board formed to consider a potential CBS/Viacom transaction
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`or committee counsel, on the one hand, and (ii) CBS Counsel, on the
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`other hand.
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`7.
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`As discussed below, the CBS committees were formed to consider a
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`potential CBS/Viacom
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`transaction, and
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`the NAI Parties
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`recognize
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`that
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`communications between the committee members and committee counsel for the
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`purpose of facilitating the rendition of legal advice and within the scope of the
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`4
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`

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`committees’ mandates remain privileged and can be shielded from disclosure to the
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`NAI Affiliated Directors who were not clients of committee counsel.
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`8.
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`But the NAI Affiliated Directors also reasonably expected that, until
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`they were told otherwise, CBS Counsel continued to represent all Board members
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`as joint clients. They had no reason to conclude that CBS Counsel had become
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`adverse to them.
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`9.
`
`It is well settled that communications between counsel and one or more
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`of its joint clients are not privileged against other joint clients, and this Court has
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`consistently enforced that rule in the context of board members who are joint clients
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`of company counsel.
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` Thus, communications between CBS Counsel and
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`management or other directors cannot be shielded from disclosure to the NAI
`
`Affiliated Directors, whether those communications took place before or after the
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`formation of the special committees. Likewise, communications between the special
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`committees or the committees’ counsel and CBS Counsel cannot be shielded from
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`disclosure to the NAI Affiliated Directors.
`
`10.
`
`The CBS Parties take the remarkable position that adversity between
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`CBS and NAI was obvious – all the way back to 2005 – because that is when CBS
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`split from Viacom, wanted to be run independently, yet had a controlling
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`stockholder. In other words, according to the CBS Parties, CBS Counsel was never
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`really counsel and was always adverse to NAI’s representatives on the Board. As
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`5
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`

`

`explained below, this is nothing more than a Hail-Mary argument designed to shield
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`secret communications around the origin of the Dilutive Dividend.
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`11.
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`For the reasons explained herein, the Court should order the CBS
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`Parties to produce responsive privileged materials to which the NAI Affiliated
`
`Directors are entitled as joint clients.3
`
`BACKGROUND
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`12. NAI has beneficially owned approximately 80% of CBS’s voting stock
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`since CBS split from Viacom Inc. (“Viacom”) in 2005. (CBS Compl. ¶ 25.)
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`Wachtell, Lipton, Rosen & Katz has served as outside legal counsel to CBS and the
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`Board since that time.
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`13. On September 29, 2016, NAI asked the boards of CBS and Viacom to
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`consider a potential combination of the two companies, and both boards formed
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`special committees to explore a possible merger. The CBS special committee (the
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`“2016 Committee”) retained White & Case LLP, and later, Weil, Gotshal & Manges
`
`
`3 The NAI Parties are not seeking production of privileged communications between
`members of the CBS special committees and committee counsel relating to matters
`within the scope of the committees’ mandates. In addition, although they reserve
`the right to do so, the NAI Parties are not at this time seeking production of otherwise
`privileged communications between members of the committees and their counsel
`that related to matters outside the committees’ mandates. When the NAI Parties
`receive the CBS Parties’ privilege logs, they will review any entries relating to
`communications between the special committees or committee counsel and
`members of CBS management on a case-by-case basis to determine if those
`communications were in furtherance of legal advice and thus privileged.
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`6
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`

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`LLP (“Weil”) as its legal counsel. The 2016 Committee process lasted less than two
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`and half months, and ended without a transaction. (Id. ¶ 47.)
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`14.
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`In 2018, CBS and Viacom formed special committees to again consider
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`a potential CBS/Viacom combination. The CBS special committee (the “2018
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`Committee”) again retained Weil. The 2018 Committee was authorized to act for
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`the purpose of “consider[ing], negotiat[ing], and oversee[ing]” a potential
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`CBS/Viacom combination, including, if appropriate, “to report its recommendation”
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`in favor of or against that potential transaction. (Id. ¶ 53.) Importantly, the
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`resolutions forming both the 2016 and 2018 Committees provided that the
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`transaction would not be approved by the Board or recommended to stockholders
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`without a favorable recommendation of the committee.
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`15. According to the CBS Complaint, the 2018 Committee worked “during
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`the week of May 7, 2018 and continuing over the weekend on May 11-13,” and at
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`some point during that time, “finally determined that a CBS/Viacom merger is not
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`in the best interests of the CBS stockholders.” (Id. ¶ 67.) But that rejection of the
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`deal was not communicated to the NAI Affiliated Directors. Instead, and despite
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`already deciding not to recommend the merger, the 2018 Committee continued work
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`on a covert plan to issue the Dilutive Dividend. (See id. ¶ 75.) From what the NAI
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`Parties can tell from the limited documents produced thus far in discovery, members
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`of the 2018 Committee or counsel to the 2018 Committee communicated with
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`7
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`

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`members of CBS management, other directors, and CBS Counsel regarding that
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`scheme. Indeed, according to documents produced thus far, it appears that the
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`concept of the dividend may have been in the works at least as early as March 29,
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`2018, with Mr. Moonves and CBS Counsel present during those discussions –
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`although the NAI Parties have no insight into who first raised the idea of a dividend,
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`when, or why.
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`16. NAI and its representatives on the Board were kept in the dark about
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`these machinations until the morning of May 14, when CBS filed suit and
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`simultaneously announced that it had scheduled a special Board meeting (the
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`“Special Meeting”) on less than 3 days’ notice to vote on the Dilutive Dividend. (Id.
`
`¶¶ 75, 76.)
`
`17. Before May 14, neither CBS, the Board, the 2018 Committee, nor any
`
`of their advisors informed NAI or its representatives on the Board that they were
`
`considering taking action to dilute or otherwise alter NAI’s voting power. (NAI
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`Compl. ¶ 106.) Nor had CBS counsel ever informed the NAI Affiliated Directors
`
`that counsel was no longer representing them or was representing clients adverse to
`
`them with respect to any issue. Indeed, to this day, CBS counsel continues to
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`represent one of the NAI Affiliated Directors, Mr. Andelman, in stockholder
`
`8
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`

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`litigation in this Court challenging conduct by the Board related to NAI, Mr.
`
`Redstone, and Ms. Redstone.4
`
`18. On June 11, after the parties’ respective suits were consolidated, the
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`NAI Parties, through their counsel, wrote to counsel for the CBS Parties to confirm
`
`their agreement that the NAI Affiliated Directors are joint clients of CBS Counsel
`
`and entitled to all communications involving such counsel before May 14, 2018. In
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`a June 15 response letter (the “June 15 Letter”), the CBS Parties stated that they
`
`intended to withhold such communications from production. The NAI Parties
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`responded in a June 18 letter, and the parties met and conferred regarding privilege
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`issues on June 21 and June 26. CBS continues to maintain its positions that the NAI
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`Parties are not entitled to the communications at issue.
`
`ARGUMENT
`
`I.
`
`CBS And Its Counsel Cannot Assert The Attorney-Client Privilege Or
`The Work Product Doctrine Against The NAI Affiliated Directors For
`Communications Before May 14, 2018.
`
`19. As a general rule, “a corporation cannot assert the privilege to deny a
`
`director access to legal advice furnished to the board during the director’s tenure.”5
`
`The rationale for this rule is that directors are joint clients with respect to “legal
`
`
`4 See Feuer v. Redstone, et al., C.A. No. 12575-CB.
`5 Kalisman, 2013 WL 1668205, at *4 (quoting Moore Bus. Forms, Inc. v. Cordant
`Holdings Corp., 1996 WL 307444, at *4 (Del. Ch.)).
`
`9
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`

`

`advice … rendered to the corporation through one of its officers and directors.”6
`
`“Because the attorney-client privilege belongs to the client, it would be perverse to
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`allow the privilege to be asserted against the client.”7 The same rule applies to work
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`product.8 As a result, a director’s right to information is “essentially unfettered.”9
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`20. Ms. Redstone has been a director of CBS since it split from Viacom in
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`2005. She is therefore a joint client legally entitled to receive legal advice rendered
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`by CBS Counsel to CBS or any of its directors. Neither CBS nor the Board can
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`assert privilege to withhold information from Ms. Redstone or the other NAI
`
`Affiliated Directors. One joint client “cannot assert the privilege against the other if
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`they subsequently become adversaries.”10 Moreover, because the NAI Affiliated
`
`Directors are NAI’s representatives on the Board, NAI is entitled to the same
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`privileged information in discovery to which the NAI Affiliated Directors are
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`entitled.11
`
`
`6 Kalisman, 2013 WL 1668205, at *4 (internal quotations and citations omitted); see
`Moore, 1996 WL 307444, at *7 & n.4; Kirby v. Kirby, 1987 WL 14862, at *7 (Del.
`Ch.).
`7 Moore, 1996 WL 307444, at *6.
`8 Kalisman, 2013 WL 1668205, at *7 (“A law firm cannot invoke the work product
`doctrine against its own client.”). References in this motion to privileged material
`also include work product.
`9 Schoon v. Troy Corp., 2006 WL 1851481, at *1 & n.8 (Del. Ch.).
`10 Kalisman, 2013 WL 1668205, at *4 (internal quotations and citations omitted).
`11 Kalisman, 2013 WL 1668205, at *6 (“[W]hen it is understood that the director
`acts as the stockholder’s representative, then the stockholder is generally entitled to
`
`10
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`

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`II.
`
`“Sufficient Adversity” Did Not Exist Before May 14, 2018.
`
`21.
`
`The CBS Parties can only invoke privilege against the NAI Affiliated
`
`Directors for periods after “sufficient adversity existed between them such that [the
`
`NAI Affiliated Directors] could no longer have a reasonable expectation that they
`
`were clients of [CBS’s] counsel.”12 “As the party seeking to assert privilege, [CBS]
`
`has the burden to establish when sufficient adversity existed.”13 As this Court has
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`repeatedly held, adversity perceived by counsel but undisclosed to a joint client is
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`not sufficient.14
`
`22. No adversity – at least none that was communicated to the NAI
`
`Affiliated Directors – existed with respect to the Dilutive Dividend or the purported
`
`reasons for such dividend until May 14, 2018, the day CBS and the 2018 Committee
`
`first informed the NAI Affiliated Directors of the proposed Dilutive Dividend.
`
`
`the same information as the director”); In re Oxbow Carbon LLC, Unitholder Litig.,
`2017 WL 898380, at *2 (Del. Ch.); AOC Ltd. P’ship v. Horsham Corp., 1992 WL
`97220, at *1 (Del. Ch.); PWP Xerion Holding III LLC v. Red Leaf Resources, Inc.,
`C.A. No. 2017-0235-JTL, at 47 (Del. Ch. May 22, 2018) (Transcript) (granting
`motion to compel production of company privileged communications because
`plaintiff stockholder had a representative on defendant’s board, even though the
`director was not a party to the litigation).
`12 Oxbow, 2017 WL 898380, at *1.
`13 Id.
`14 Kalisman, 2013 WL 1668205, at *5; see also Oxbow, 2017 WL 898380, at *2;
`Kalisman v. Friedman, C.A. No. 8447-VCL, at 27 (Del. Ch. May 8, 2013)
`(Transcript) (Ex. B hereto) (adversity did not exist before corporation “openly made
`clear to [the allegedly adverse director] that he was no longer part of the team”).
`
`11
`
`

`

`Before that time, the NAI Affiliated Directors had no knowledge of that secret plan,
`
`let alone knowledge that CBS Counsel was actively involved. Neither CBS nor its
`
`counsel ever informed the NAI Affiliated Directors that CBS Counsel no longer
`
`represented them along with the other CBS directors, nor did they evidence adversity
`
`sufficient to give rise to such an understanding. Until CBS and the 2018 Committee
`
`noticed the Special Meeting and sued the NAI Parties on May 14, the NAI Affiliated
`
`Directors had a reasonable expectation that they remained joint clients of CBS
`
`Counsel. Because CBS and the other directors “chose to respond in secret and to
`
`conceal their activities … it would be inequitable to give them the benefit of an
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`earlier date” to determine sufficient adversity.15
`
`23.
`
`In its June 15 Letter, CBS took the position that sufficient adversity
`
`existed since “at the very latest” September 2016 “as to all matters related to the
`
`potential CBS/Viacom transaction, including the [2018] Committee’s eventual
`
`decision to recommend the stock dividend.” (June 15 Letter at 2.) In an even more
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`sweeping contention, the June 15 Letter argues that the NAI Affiliated Directors
`
`should never have reasonably expected to be joint clients of CBS Counsel, based on
`
`an amorphous “specter of controller overreach” allegedly existing since 2005. (June
`
`15 Letter at 2.) Neither contention comes close to establishing sufficient adversity
`
`
`15 Kalisman, 2013 WL 1668205, at *5.
`
`12
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`

`

`to demonstrate that the NAI Affiliated Directors reasonably expected that CBS
`
`Counsel no longer represented them as joint clients.
`
`A.
`
`The Creation Of The Committees Did Not Establish Sufficient
`Adversity As To Either Category Of CBS Counsel
`Communications.
`
`24.
`
`For several reasons, CBS is incorrect that formation of the special
`
`committees to consider a potential transaction with Viacom established sufficient
`
`adversity between CBS Counsel and the NAI Affiliated Directors such that they no
`
`longer had a reasonable basis to believe CBS Counsel represented them. First, the
`
`NAI Affiliated Directors did not cease to be joint clients of the Company’s counsel
`
`upon the formation of either special committee to consider a potential Viacom/CBS
`
`combination. Those committees were formed specifically to consider a potential
`
`combination of CBS/Viacom, and had the authority to say no. The 2016 Committee
`
`process ended that year with no transaction (CBS Compl. ¶ 47). A new special
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`committee process was not formed until February 2018, again to consider a potential
`
`Viacom/CBS transaction and again having the power to say no. The formation of
`
`committees to consider a potential transaction—represented by separate committee
`
`counsel and with the power to say no—did not create adversity between NAI and CBS
`
`Counsel, and no one advised the NAI Affiliated Directors that because a special
`
`committee was formed, they could no longer rely on CBS Counsel.
`
`13
`
`

`

`25.
`
`Second, while the Committees may assert privilege to shield
`
`communications with committee counsel relating to the Committees’ consideration
`
`of a possible CBS/Viacom combination, CBS cannot use the formation of those
`
`Committees to cut the NAI Affiliated Directors off from communications involving
`
`CBS Counsel. This is true both for communications between CBS Counsel and
`
`management or other directors in which the Committees and committee counsel
`
`were not involved at all and for communications between the Committees or
`
`committee counsel, on the one hand, and CBS counsel, on the other. The
`
`Committees were formed for the purpose of evaluating and negotiating a potential
`
`CBS/Viacom combination, and to allow the CBS/Viacom merger discussions to be
`
`conducted outside the presence of the NAI Affiliated Directors and management due
`
`to NAI’s ownership interest in both CBS and Viacom and the inherent conflicts of
`
`management in any proposed business combination. The Committees thus retained
`
`separate counsel. The NAI Affiliated Directors had no expectation that they would
`
`be within the circle of privilege for communications between committee members
`
`and committee counsel.
`
`26. But the NAI Affiliated Directors remained joint clients of CBS Counsel.
`
`Indeed, one of the purposes of forming the Committees and having them retain their
`
`own, separate counsel was so counsel to CBS and the Board could continue to serve
`
`in that role, representing all Board members jointly.
`
`14
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`

`

`27.
`
`It is well settled that communications between counsel and one or more
`
`of its joint clients cannot be shielded from disclosure to other joint clients.16 Thus,
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`communications between CBS Counsel and management or other members of the
`
`CBS Board cannot be shielded from the NAI Affiliated Directors, who were joint
`
`clients. The fact that the Committees were formed with their own counsel means that
`
`the NAI Affiliated Directors were not joint clients of committee counsel, but it in no
`
`way changes the fact they remained joint clients of CBS Counsel.
`
`28.
`
`The rule is no different with respect to communications between the
`
`Committees or committee counsel, on the one hand, and CBS Counsel, on the other.
`
`The Committee members and committee counsel knew that CBS Counsel represented
`
`all directors and that the Committees had retained their own counsel for precisely that
`
`reason. In choosing to communicate with CBS Counsel, they knew or should have
`
`known that privileged communications could not be shielded from other joint clients
`
`of CBS Counsel.
`
`29.
`
`Third, and critically, even assuming for the sake of argument that CBS
`
`Counsel believed following the formation of the 2016 Committee that it had become
`
`adverse to the NAI Affiliated Directors, counsel was obligated to disclose any such
`
`perceived conflict and inform the NAI Affiliated Directors they were no longer
`
`
`16 See In re Teleglobe Commc’ns Corp., 493 F.3d 345, 366 (3d. Cir. 2007) (citing
`Del. R. Evid. 502(d)(6)); Kalisman, 2013 WL 1668205, at *4.
`
`15
`
`

`

`represented by CBS Counsel. No such disclosures were made. Thus, the NAI
`
`Affiliated Directors had no reason to believe they were no longer represented as joint
`
`clients of CBS Counsel.17
`
`B.
`
`No Adversity Existed By Virtue Of An Alleged “Specter of
`Controller Overreach.”
`
`30.
`
`The CBS Parties’ back-up argument – that there was always wholesale
`
`adversity between CBS and NAI due to an omnipresent “specter of controller
`
`overreach” (their words) – is a throw-away that finds no support in Delaware law.
`
`CBS Counsel has actively advised the full Board for years on matters relating to
`
`NAI’s control, including public disclosures and the annual election of directors. It
`
`is frankly shocking for CBS to claim now, for the first time, that CBS Counsel
`
`purportedly viewed the NAI Affiliated Directors as adverse and not as clients during
`
`that whole time but nonetheless conveyed legal advice they could rely upon.18
`
`31. Moreover, this Court has consistently rejected efforts to establish the
`
`requisite adversity by reference to such generalized allegations, even when there
`
`
`17 See Kalisman, 2013 WL 1668205, at *5; PWP Xerion Holding III LLC v. Red Leaf
`Resources, Inc., C.A. No. 2017-0235-JTL, at 48 (Del. Ch. May 22, 2018)
`(Transcript).
`18 The “specter of controller overreach” argument is also inconsistent with the
`allegations of the CBS Parties’ Verified Amended Complaint, which alleges in the
`estoppel claim that the CBS Parties reasonably relied since 2005 on a belief that NAI
`would never exercise its control and that NAI is therefore somehow estopped from
`challenging the Dilutive Dividend.
`
`16
`
`

`

`existed open hostility between the corporation and a stockholder or the stockholder’s
`
`board representative.19 Indeed, neither “burgeoning tension”20 nor explicit threats
`
`of litigation21 are enough to cut off the joint client relationship between directors and
`
`company counsel. Rather, this Court has held that sufficient adversity requires a
`
`direct manifestation that company counsel would no longer communicate freely with
`
`all members of the board.22
`
`32. A generalized allegation of a “specter of controller overreach” therefore
`
`cannot justify excluding the NAI Affiliated Directors from legal advice rendered to
`
`CBS or other CBS directors by counsel who represented them jointly.23
`
`* * *
`
`33.
`
`For the foregoing reasons, sufficient adversity did not exist before May
`
`14, 2018. The NAI Parties are entitled to access all privileged communications
`
`involving CBS Counsel before that date, whether between CBS Counsel and
`
`
`19 SBC Interactive, Inc. v. Corp. Media Partners, 1997 WL 770715, at *6 (Del. Ch.);
`Kalisman, 2013 WL 1668205, at *5; see also Oxbow, 2017 WL 898380, at *1.
`20 PWP Xerion Holding III LLC v. Red Leaf Resources, Inc., C.A. No. 2017-0235-
`JTL, at 48 (Del. Ch. May 22, 2018) (Transcript).
`21 Kalisman v. Friedman, C.A. No. 8447-VCL, at 26-28 (Del. Ch. May 8, 2013)
`(Transcript) (sufficient adversity did not exist even though stockholder affiliated
`with director had threatened litigation and commenced a proxy contest).
`22 Oxbow, 2017 WL 898380, at *1 (company triggered sufficient adversity only when
`its counsel wrote to the investors’ counsel informing them that the investors were
`not entitled to any information regarding company counsel’s advice to the company).
`23Kalisman, 2013 WL 1668205, at *5; Oxbow, 2017 WL 898380, at *1.
`
`17
`
`

`

`management or other directors or between CBS Counsel and the Committees or
`
`committee counsel.
`
`CONCLUSION
`
`34.
`
`The NAI Parties request that the Court grant the motion to compel and
`
`enter an order in the form submitted herewith.
`
`POTTER ANDERSON & CORROON LLP
`
`/s/ Matthew E. Fischer
`Myron T. Steele (Bar No. 000002)
`Donald J. Wolfe, Jr. (Bar No. 285)
`Matthew E. Fischer (Bar No. 3092)
`Michael A. Pittenger (Bar No. 3212)
`Jacqueline A. Rogers (Bar No. 5793)
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`P.O. Box 951
`Wilmington, Delaware 19899
`(302) 984-6000
`
`Counsel for the NAI Parties
`
`WORDS: 3,999
`Order Granted
`
`Of Counsel:
`
`Meredith Kotler
`Victor L. Hou
`Roger A. Cooper
`Rahul Mukhi
`Mark E. McDonald
`CLEARY GOTTLIEB STEEN
` & HAMILTON LLP
`One Liberty Plaza
`New York, New York 10006
`(212) 225-2000
`
`Dated: June 28, 2018
`
`18
`
`

`

`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 29th day of June, 2018, a copy of the foregoing
`
`document was served via File & ServeXpress upon the following attorneys of record:
`
`David E. Ross, Esq.
`Bradley R. Aronstam, Esq.
`Garrett B. Moritz, Esq.
`S. Michael Sirkin, Esq.
`Roger S. Stronach, Esq.
`ROSS, ARONSTAM, & MORITZ LLP
`100 S. West Street, Suite 400
`Wilmington, DE 19801
`
`Michael Hanrahan, Esq.
`Paul A. Fioravanti, Jr., Esq.
`Corinne Elise Amato, Esq.
`Eric J. Juray, Esq.
`PRICKETT, JONES & ELLIOTT, P.A.
`1310 N. King Street
`Wilmington, DE 19801
`
`/s/ Jacqueline A. Rogers
`Jacqueline A. Rogers (No. 5793)
`
`5845153
`
`19
`
`

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