throbber
v.
`
`Public Version Filed:
`September 13, 2022
`
`
`COURT SQUARE CAPITAL
`MANAGEMENT, L.P., COURT
`SQUARE CAPITAL GP, LLC, and
`COURT SQUARE CAPITAL GP III, LLC,
`
`
`IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
`
`KEVIN BROWN, STEVEN LAMB,
`:
`and CHRIS BERTRAND,
`:
`
`:
`:
`Plaintiffs and
`Counterclaim Defendants, :
`:
`: C.A. No. 2021-0262-KSJM
`:
`: Original Filed:
`September 6, 2022
`:
`:
`:
`:
`:
`Defendants and
`:
`Counterclaim Plaintiffs.
`PLAINTIFFS’ REPLY IN SUPPORT OF
`PLAINTIFFS’ MOTION TO COMPEL PRODUCTION
`OF COURT SQUARE’S INTERNAL WEEKLY DEAL SHEETS
`HEYMAN ENERIO
`GATTUSO & HIRZEL LLP
`Patricia L. Enerio (# 3728)
`Jamie L. Brown (# 5551)
`300 Delaware Avenue, Suite 200
`Wilmington, DE 19801
`(302) 472-7300
`Attorneys for Plaintiffs
`
`
`
`
`
`
`
`OF COUNSEL:
`
`SUSMAN GODFREY L.L.P.
`Jacob W. Buchdahl
`Shawn J. Rabin
`Raj Mathur
`1301 Avenue of the Americas, 32nd Floor
`New York, NY 10019-6023
`(212) 336-8330
`
`Dated: September 6, 2022
`
`
`
`EFiled: Sep 13 2022 06:06PM EDT
`Transaction ID 68098444
`Case No. 2021-0262-KSJM
`
`

`

`Though Court Square’s brief is heavy on invective, it does not dispute two
`
`facts that alone establish the relevancy of the 300 documents Plaintiffs seek:
`
`1.
`
`The non-compete provision at issue applies only to deals that
`
`“could reasonably be construed as being actively considered as a
`
`potential investment in a Portfolio Company.” See Ex. B,
`
`§ 5.14(a) (p. 38). During their employment and for a year after,
`
`Plaintiffs cannot acquire a company listed in their separation
`
`documents that Court Square is actively considering at the same
`
`time.1
`
`2.
`
`Every week, Court Square circulates a list of companies it is
`
`actively considering. Thomas McWilliams, Court Square’s
`
`long-time managing partner, testified that the internal weekly
`
`deal sheet is “supposed to” “contain all of the deals the firm is
`
`considering at any one time.” Exhibit AA at 118:16–21.
`
`
`
`Court Square wants to use its internal weekly deal sheets as a sword. That’s
`
`why it’s producing deal sheets listing companies Plaintiffs worked on at their new
`
`employer (Hayward, Zodiac, maybe others). But Plaintiffs can also use the internal
`
`deal sheets as a shield. If a company is not listed, Court Square was not actively
`
`
`A departing employee’s separation documents can include only companies “in
`1
`which the Fund is actively considering making an Investment” at the time of
`departure. Ex. B, § 4.2(c).
`
`1
`
`

`

`considering it, and Plaintiffs’ restrictive covenants do not apply. By refusing to
`
`produce the documents at issue, Court Square is depriving Plaintiffs of an important
`
`defense—Court’s Square’s own documents prove that its allegations lack merit.
`
`
`
`Court Square now
`
`trumpets various after-the-fact
`
`justifications for
`
`withholding Plaintiffs’ carry. It alleges that Brown and Lamb violated their non-
`
`compete obligations by merely advising MSD regarding five companies, none of
`
`which was mentioned in its pleadings. As its claims and defenses grow, Court
`
`Square says it will produce internal deal sheets piecemeal. But Plaintiffs are entitled
`
`to know the full scope of their restrictive covenants now.
`
`Court Square claims years-old deal sheets are irrelevant to Lamb. But it does
`
`not mention that Plaintiffs’ restrictive covenants applied during (not just after) their
`
`employment. Lamb was employed at Court Square from May 2016 to July 2020.
`
`Bertrand worked at Court Square for most of this period too.
`
`
`
`Plaintiffs are seeking reciprocity. Brown, for example, has agreed to produce
`
`“all documents and communications concerning [his] role or involvement in MSD’s
`
`investment or potential investment in any . . . company listed” in his separation
`
`documents “other than Hayward during the Restrictive Covenant Period.” Court
`
`Square obtained the benefit of that discovery but now excludes those same “other”
`
`companies from its production.
`
`2
`
`

`

`
`
`Court Square’s position boils down to: We will produce these documents if
`
`they are good for us, but if they are bad for us, we won’t turn them over. That’s not
`
`how discovery works in Delaware (or anywhere else). The Court should order Court
`
`Square to produce all internal deal sheets from May 2016 to July 2021.
`
`
`OF COUNSEL:
`
`SUSMAN GODFREY L.L.P.
`Jacob W. Buchdahl
`Shawn J. Rabin
`Raj Mathur
`1301 Avenue of the Americas
`32nd Floor
`New York, NY 10019-6023
`(212) 336-8330
`
`Dated: September 6, 2022
`
`
`
`
`HEYMAN ENERIO
`GATTUSO & HIRZEL LLP
`
`/s/ Jamie L. Brown
`
`Patricia L. Enerio (# 3728)
`Jamie L. Brown (# 5551)
`300 Delaware Avenue, Suite 200
`Wilmington, DE 19801
`(302) 472-7300
`WORDS: 490
`Attorneys for Plaintiffs
`
`
`
`
`
`3
`
`

`

`CERTIFICATE OF SERVICE
`
`
`
`Jamie L. Brown, Esquire, hereby certifies that on September 13, 2022, a copy
`
`of the foregoing Public Version of the Reply in Support of Motion to Compel was
`
`served electronically upon the following:
`
`P. Clarkson Collins, Jr., Esquire
`K. Tyler O’Connell, Esquire
`Samuel E. Bashman, Esquire
`MORRIS JAMES LLP
`500 Delaware Avenue, Suite 1500
`Wilmington, DE 19801
`
`
`/s/ Jamie L. Brown
`Jamie L. Brown (# 5551)
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

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