Judge in Musk pay case is backed by law profs and plaintiffs’ lawyers in letter to bar group

Dozens of prominent law professors and plaintiffs’ lawyers have signed a letter calling on the Delaware bar association to defend the top Chancery Court judge from “deeply unfair attacks” made by Elon Musk, the Tesla CEO whose $56 billion pay package the judge refused earlier this month to reinstate.

The letter, which is expected to be sent on Tuesday evening to the Delaware State Bar Association committee tasked with issuing public statements, said that in the wake of Chancellor Kathaleen McCormick’s Dec. 2 decision denying Tesla’s bid to restore Musk’s pay package after shareholders voted anew to approve it, Musk has shared “vicious” criticism of the judge with his 206 million followers on X, the social media platform he owns.

Those attacks, the letter noted, called McCormick — who was appointed to the top Chancery Court job after a stint as a partner at the renowned corporate law firm Young Conaway Stargatt & Taylor — “corrupt” and “a radical far left activist cosplaying as a judge.”

Delaware’s judicial ethics rules preclude McCormick from speaking out against these “dangerous, defamatory and one-hundred-percent false” accusations by “one of the most powerful men in the world,” the letter said.

In such circumstances, the letter said, “We believe that the bar has an obligation to speak in her defense.”

The list of letter-signers is loaded with law professors. Among the scholars whose participation I was able to confirm are John Coffee, Eric Talley and Dorothy Lund of Columbia University; Michael Klausner of Stanford University; John Coates of Harvard University; and Charles Elson, a retired professor from the University of Delaware who submitted an amicus brief in the Tesla case that asserted views McCormick adopted in her ruling earlier this month.

“It was an easy decision,” Coffee said by email. “Defending a judge who has been unfairly attacked is really a duty that falls on all admitted lawyers.”

Coates said by email that he signed the letter to assure that Delaware “remains best for incorporation and resolution of corporate law disputes.”

Many partners from plaintiffs’ firms with busy Delaware dockets also signed the letter. The firms include Block & Leviton; Equity Litigation Group; Friedlander & Gorris; Grant & Eisenhofer; Kessler Topaz Meltzer & Check; Labaton Keller Sucharow; Robbins Geller Rudman & Dowd; Saxena White; and Scott + Scott.

“Elon Musk’s conduct here is appalling and we should all stand together as lawyers to call it out,” said Lee Rudy of Kessler, via email. “Without a strong and bi-partisan response, many of [Musk’s] fan boys will likely blindly agree with (and echo) him, which causes further erosion in our faith in a court system we all rely on.”

I sent a draft of the letter — which I obtained through a social media post by a law professor who did not end up signing the petition — to Tesla and several of the firms that represented various defendants in the Musk pay case: Quinn Emanuel Urquhart & Sullivan; Cravath, Swaine & Moore; and DLA Piper. Neither the company nor defense counsel responded.

I wasn’t able to ascertain who initially drafted the letter to the bar group, but it appears to have circulated widely among corporate law professors and plaintiffs’ lawyers. Some signers told me they did not necessarily agree with every sentence in the letter. Others said the letter should not be construed as support for all of McCormick’s rulings as chancellor.

But all of the eight signers I spoke with, either on the phone or by email, said they support the core message that the legal community should not countenance attempts to bully judges.

“It is unacceptably corrosive to democracy and our judicial system,” said Columbia’s Talley. “It’s really as simple as that.”

No lawyers who signed onto the letter disclosed an affiliation with a defense firm, as of mid-afternoon on Tuesday when I last reviewed the list of electronic signatures. (Aside from academics and plaintiffs’ lawyers, signers included a handful of Delaware officials and lawyer-journalists from The Chancery Daily.)

That could be because of conflicts: Many of Delaware’s big corporate firms were involved in the Musk compensation litigation, in which Tesla, its board of directors and the lone director who recommended a second shareholder vote on Musk’s pay all had their own Delaware counsel. (The plaintiffs’ firms in the Musk compensation case, led by Bernstein Litowitz Berger & Grossmann, also did not sign the letter.) It’s also possible, noted Harvard professor Coates, that defense lawyers were not aware of the letter.

But regardless of the reasons for the defense bar’s silence, said Coffee of Columbia, those lawyers may have missed an opportunity: “They have a strong personal interest in praising a judge that they may appear before in the future (and given the small size of the Chancery Court it is inevitable in Delaware).”

The Delaware bar previously issued a statement in January 2024, criticizing a dissatisfied litigant who has spent a nearly a decade attacking Chancery Court judges. In response to television ads by the litigant earlier this year, the bar’s Committee on Response to Public Comment posted a statement on the bar’s website that was headlined, “The Delaware Bar stands with Chancellor McCormick.”

The statement, which is still prominently displayed on the committee’s homepage, said McCormick “is guilty of nothing other than doing her job, and doing it well.”
Source: Reuters (Reporting By Alison Frankel)