`
`COURT OF CHANCERY
`OF THE
`STATE OF DELAWARE
`
`MORGAN T. ZURN
`VICE CHANCELLOR
`
`
`
`LEONARD L. WILLIAMS JUSTICE CENTER
`500 N. KING STREET, SUITE 11400
`WILMINGTON, DELAWARE 19801-3734
`
`May 10, 2023
`
`Via Electronic Mail:
`Alex Mathew
`Alfromdc202@gmail.com
`
`RE: In re AMC Entertainment Holdings, Inc. Stockholder Litigation,
` Consol. Civil Action No. 2023-0215-MTZ
`
`Dear Mr. Mathew:
`
`I write to address your two motions to recuse Special Master Amato.1 The
`first is denied, and I reserve judgment on the second pending Special Master
`Amato’s submission of an affidavit concerning her alleged conflict.
`
`The first motion begins with the premise that Special Master Amato has a
`brother who edits movies and films “in the entertainment industry, specifically in
`Hollywood.”2 It argues the nature of Hollywood is such that Special Master
`Amato’s brother might face reprisal if her “rulings fall out with the industry.”3 I
`interpret this motion to seek disqualification under Rule 2.11(A)(2)(c) of the
`Delaware Judges’ Code of Judicial Conduct (the “Code of Judicial Conduct”).4
`
`The Code of Judicial Conduct has codified the standard for disqualification
`based on an apparent or actual conflict or bias.5 And while Special Master Amato
`is not a judicial officer, she is performing the duties of one subject to exception and
`de novo review, and so I apply the same standards to her. Rule 2.11 governs
`disqualification, and provides in relevant part:
`
`
`1 Docket Item (“D.I.”) 230; D.I. 241.
`
`2 D.I. 230 ¶ 3.
`
`3 Id. ¶ 5.
`
`4 Del. Judges’ Code of Judicial Conduct (2008) [hereinafter “Code Jud. Con.”].
`
`5 See Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, 247 A.3d 229, 242 (Del.
`2021).
`
`
`
`
`
`EFiled: May 10 2023 10:23AM EDT
`Transaction ID 69986488
`Case No. 2023-0215-MTZ
`
`

`

`In re AMC Entertainment Holdings, Inc. Stockholder Litigation,
`Consol. Civil Action No. 2023-0215-MTZ
`May 10, 2023
`Page 2 of 4
`
`
`(A) A judge should disqualify himself or herself in a proceeding in
`which the judge’s impartiality might reasonably be questioned,
`including but not limited to instances where:
`
`(1) The judge has a personal bias or prejudice concerning a party[;]
`
`(2) The judge, . . . or a person within the third degree of relationship,
`calculated according to the civil law system,
`
`. . .
`
`(c) is known by the judge to have an interest that could be
`substantially affected by the outcome of the proceeding[.]6
`
`The Code of Judicial Conduct defines “third degree of relationship calculated
`according to the civil law system” to include a judicial officer’s brother.7 Where
`disqualification is sought under Rule 2.11(A)(2)(c), the standard is objective, any
`subjective belief of impartiality “is irrelevant,” and the Court will undertake only
`an objective inquiry.8
`
`For purposes of this motion, I will assume the motion is correct that Special
`
`Master Amato has a brother who works in the entertainment industry in
`Hollywood, California. (The motion does no more than point out that the two
`share a surname.) It is difficult to imagine how Special Master Amato’s report and
`recommendation on an AMC stockholder’s objection, letter of support, or motion
`could “substantially affect[]” any interest her brother may have as an editor.9 I can
`envision no set of circumstances in which any of Special Master Amato’s reports
`or recommendations could so anger Hollywood’s entertainment industry that it
`would blacklist or otherwise retaliate against her brother. Disqualification is not
`warranted under Rule 2.11(A)(2)(c).
`
`The second motion alleges Special Master Amato may not be impartial with
`regard to Mark Lebovitch, Esq., of Bernstein Litowitz Berger & Grossmann LLP,
`who has entered his appearance on behalf of plaintiffs in this case. The motion
`asserts Special Master Amato and Mr. Lebovitch worked together on In re Globe
`
`6 Code Jud. Con. R. 2.11.
`
`
`
`7 Id. at 8.
`
`8 See Los v. Los, 595 A.2d 381, 384 (Del. 1991).
`
`9 Code Jud. Con. R. 2.11.
`
`

`

`In re AMC Entertainment Holdings, Inc. Stockholder Litigation,
`Consol. Civil Action No. 2023-0215-MTZ
`May 10, 2023
`Page 3 of 4
`
`Specialty Metals, Inc. Stockholders Litigation, C.A. No. 10865-VCG (Del. Ch.). A
`review of that docket indicates that indeed, Special Master Amato’s firm and Mr.
`Lebovitch’s firm served as co-lead counsel for the plaintiffs in that case, and both
`Special Master Amato and Mr. Lebovitch entered appearances. The case
`concluded when Vice Chancellor Glasscock approved a final settlement in
`February 2016. The motion states that Special Master Amato’s co-representation
`of lead plaintiffs with Mr. Lebovitch in that matter, which concluded nearly seven
`years ago, “raises reasonable questions regarding her impartiality.”10 I interpret the
`motion as seeking disqualification under Rule 2.11(A)(1).
`
`the standard where one seeks
`Our Supreme Court has set forth
`disqualification of a judicial officer under Rule 2.11(A)(1):
`
`[T]he judge must engage in a two-part analysis to determine if recusal
`is warranted. First, the judge must determine whether she is
`subjectively satisfied that she can hear the case free of bias or
`prejudice concerning the party seeking recusal. Second, “even if the
`judge believes that he or she is free of bias or prejudice, the judge
`must objectively examine whether the circumstances require recusal
`because ‘there is an appearance of bias sufficient to cause doubt as to
`the judge’s impartiality.’”11
`
`Special Master Amato’s past representation in In re Globe Specialty Metals
`does not give rise to an objective appearance of bias in favor of Mr. Lebovitch or
`his clients. Serving as co-lead counsel in a case nearly seven years ago creates no
`logical concern that Special Master Amato would favor Mr. Lebovitch or his
`clients in her recommendations in this matter. The fact that the movant “has no
`way of knowing if both parties have been communicating outside this court”12 does
`not change that result. One could say this of any judicial officer and any other
`person, but absent any reason to think such communications exist and that such
`communications are of such a nature that would create or reflect a bias, this
`unknown does not contribute to the objective appearance of bias.
`
`10 D.I. 241 ¶ 4.
`
`
`
`11 Meso Scale Diagnostics, 247 A.3d at 242 (quoting Stevenson v. State, 782 A.2d 249,
`255 (Del. 2001)).
`
`12 D.I. 241 ¶ 4.
`
`

`

`In re AMC Entertainment Holdings, Inc. Stockholder Litigation,
`Consol. Civil Action No. 2023-0215-MTZ
`May 10, 2023
`Page 4 of 4
`
`
`While it is clear this second motion does not point to an objective
`appearance of bias, I cannot conduct the subjective analysis required by our case
`law interpreting Rule 2.11(A)(1), namely whether Special Master Amato believes
`she can “hear the case free of bias or prejudice.”13 I ask that Special Master Amato
`submit an affidavit regarding her subjective belief as to whether she may resolve
`motions in this case free of bias in light of her service alongside Mr. Lebovitch in
`the In re Globe Specialty Metals matter. If, upon reviewing that affidavit, I am
`satisfied that Special Master Amato undertook the subjective analysis required by
`our law, I will deny the second motion.14
`
`No further briefing is required on these motions. I appreciate your interest
`in this matter and your desire for an impartial Special Master. I believe the
`concerns raised in the first motion are unfounded, and so that motion is denied. IT
`IS SO ORDERED. I believe the second motion fails to raise any objective
`concern as to Special Master Amato’s impartiality. But because I cannot
`determine whether disqualification is appropriate under Rule 2.11(A)(1) absent a
`subjective analysis of bias or prejudice, I reserve judgment on that motion until
`Special Master Amato submits an affidavit to the Court.
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`Sincerely,
`
`/s/ Morgan T. Zurn
`
`Vice Chancellor
`
`
`
`MTZ/ms
`
`cc: All Counsel of Record, via File & ServeXpress
`
`
`
`13 Meso Scale, 247 A.3d at 242.
`
`14 See Los, 595 A.2d at 385 (“On appeal of the judge’s recusal decision, the reviewing
`court must be satisfied that the trial judge engaged in the subjective test and will review
`the merits of the objective test.”).
`
`