Judge in Oracle case clarifies 'odor of denigrating' women comment, praises lawyers

A view of the judge's chair in court room 422 of the New York Supreme Court at 60 Centre Street
A view of the judge's chair in court room 422 of the New York Supreme Court at 60 Centre Street February 3, 2012. Picture taken February 3, 2012. REUTERS/Chip East (UNITED STATES- Tags: CRIME LAW)

May 24 (Reuters) - (The opinions expressed here are those of the author, a columnist for Reuters.)In an extraordinary letter docketed on Tuesday, a Delaware judge said he did not intend to accuse plaintiffs lawyers of sexism when he said that one of their theories in long-running litigation against Oracle Corp (ORCL.N) founder Larry Ellison and CEO Safra Catz “had some odor of denigrating the abilities of women executives to succeed based on their merits.”

“I have, I fear, done plaintiffs’ counsel a disservice,” wrote Vice Chancellor Sam Glasscock of Delaware Chancery Court in Tuesday’s letter. “Nothing in plaintiffs’ litigation of the case implied sexism. I have great respect for the Robbins Geller and Friedlander & Gorris firms, and for the individual counsel who have tried the Oracle matter ably over several years.”

Glasscock’s letter addressed a footnote in his May 12 decision clearing Ellison and Catz of breaching their duties to shareholders. I highlighted the footnote in a May 15 column about the ruling.

Plaintiffs, as you may recall, had alleged that Ellison and Catz pushed the company to overpay in Oracle's $9.3 billion acquisition of NetSuite Inc in 2016 to score big profits for Ellison, who held a nearly 40% stake in NetSuite. Glasscock concluded that Ellison did not control the Oracle board and that Catz was a tough negotiator who acted in Oracle's best interests.

Glasscock’s fateful footnote criticized an additional claim that plaintiffs had brought — and later dismissed — against former Oracle board member Renee James, who chaired the special committee that negotiated the NetSuite deal.

Plaintiffs’ theory was that at the time of the NetSuite negotiations, James was exploring the next step of her career, after stepping down as president of Intel Corp (INTC.O), and could not independently evaluate the NetSuite deal because she needed Ellison’s support to advance in the tech industry.

Glasscock had allowed shareholder lawyers to pursue that claim at the 2022 trial but at a posttrial hearing, he said the theory had been disproved. The plaintiffs then voluntarily tossed the case against James before Glasscock ruled on their claims against Ellison and Catz.

The judge nevertheless included the footnote criticizing plaintiffs' theory in the May 12 decision.

In the new letter, Glasscock explained why. “I was concerned that, in addressing this argument (as I did when considering and denying James’ motion for summary judgment), I could be seen as furthering a pernicious generalization: that women, uniquely, use relationships in an invidious manner, to compensate for barriers to advancement that are themselves invidious,” the judge wrote. “Obviously, I do not endorse this view.”

Glasscock acknowledged that his language in the footnote was “imprecise,” and could have led to an impression that he was leveling sexism accusations against plaintiffs lawyers from Robbins Geller Rudman & Dowd and Friedlander & Gorris.

That was the implication I detected in my column about the footnote.

But Glasscock said in the new letter he did not intend to suggest plaintiffs had advanced arguments or theories that denigrated women. “The plaintiffs’ briefing and argument was within all ethical bounds,” he said. “I should have made that clear in the context of the footnote regarding Ms. James. I have placed this letter on the docket in an attempt to correct any misperceptions I have caused.”

It's not clear what prompted Glasscock to clarify the record. A clerk in his chambers said on Wednesday morning that the judge was in court and unavailable to comment on the letter. Sidley Austin, which represents former Oracle director James, did not immediately respond to a query about the new letter. James did not immediately respond to a query sent to her company, Ampere Computing.

Joel Friedlander of Friedlander & Gorris and Randall Baron of Robbins Geller said in email statements that they were gratified by Glasscock’s action. “I very much appreciate the vice chancellor’s letter,” Friedlander said.

Baron called the judge “a genuinely good and honorable person,” adding, “I really respect the fact that he clarified a footnote that we truly believed did not reflect our litigation position.”

Peter Wald and Blair Connelly of Latham & Watkins, who led the defense for Ellison and Catz, did not immediately respond to a request for comment.

Plaintiffs lawyers this week moved for a fee award of $5 million from Oracle, arguing that their early efforts prodded the company's board to elect two additional, independent directors in 2018. The addition of independent board members, they said, was a benefit to the corporation.

Read more:

Lawyers suing Oracle draw judge's reproach for arguments with 'odor of denigrating' women

Oracle directors: Shareholders can go ahead with billion-dollar derivative suit

Reporting By Alison Frankel

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.