{ "id": 8468462, "name": "IN RE WACHOVIA SHAREHOLDERS LITIGATION", "name_abbreviation": "In re Wachovia Shareholders Litigation", "decision_date": "2005-01-18", "docket_number": "No. COA04-402", "first_page": "135", "last_page": "143", "citations": [ { "type": "official", "cite": "168 N.C. App. 135" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "456 F.2d 943", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 738325 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "948", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/f2d/456/0943-01" ] }, { "cite": "421 U.S. 240", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 541055 ], "weight": 5, "year": 1975, "pin_cites": [ { "page": "265" }, { "page": "158, n.39", "parenthetical": "summarizing that in common benefit cases the classes of beneficiaries are small in number and easily ascertainable; the benefits can be traced with some accuracy, and there is reason for confidence that the costs can be shifted with some exactitude to those benefitting" } ], "opinion_index": 0, "case_paths": [ "/us/421/0240-01" ] }, { "cite": "396 U.S. 375", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11334767 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/396/0375-01" ] }, { "cite": "358 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731491, 4728710, 4728394, 4729806, 4724119 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0169-04", "/nc/320/0169-05", "/nc/320/0169-03", "/nc/320/0169-02", "/nc/320/0169-01" ] }, { "cite": "352 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "84 N.C. App. 289", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168352 ], "year": 1987, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0289-01" ] }, { "cite": "78 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1953, "pin_cites": [ { "page": "747" } ], "opinion_index": 0 }, { "cite": "238 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615050 ], "weight": 2, "year": 1953, "pin_cites": [ { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0632-01" ] }, { "cite": "525 S.E.2d 441", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "443", "parenthetical": "\"the Chancery Court of Delaware[] [is] generally recognized as an authority in the interpretation of business law[.]\"" } ], "opinion_index": 0 }, { "cite": "351 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155610 ], "year": 2000, "pin_cites": [ { "page": "334", "parenthetical": "\"the Chancery Court of Delaware[] [is] generally recognized as an authority in the interpretation of business law[.]\"" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0331-01" ] }, { "cite": "693 A.2d 1076", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 12004669 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "1079" }, { "page": "1079", "parenthetical": "emphasis added" }, { "page": "1079" } ], "opinion_index": 0, "case_paths": [ "/a2d/693/1076-01" ] }, { "cite": "858 A.2d 927", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 9161755 ], "year": 2004, "pin_cites": [ { "page": "927", "parenthetical": "quoting United Vanguard Fund v. Takecare, Inc., 693 A.2d 1076, 1079 (Del. 1997)" } ], "opinion_index": 0, "case_paths": [ "/a2d/858/0927-01" ] }, { "cite": "564 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220032, 219940, 219910, 220175, 219996 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0500-05", "/nc/355/0500-01", "/nc/355/0500-02", "/nc/355/0500-04", "/nc/355/0500-03" ] }, { "cite": "558 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "247-49" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9365434 ], "year": 2002, "pin_cites": [ { "page": "275-79" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0269-01" ] }, { "cite": "540 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135912 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0142-01" ] }, { "cite": "500 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "71" } ], "opinion_index": 0 }, { "cite": "348 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659878 ], "year": 1998, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0130-01" ] }, { "cite": "72 S.E.2d 21", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1952, "pin_cites": [ { "page": "22" }, { "page": "97-98" }, { "page": "22" } ], "opinion_index": 0 }, { "cite": "236 N.C. 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622485 ], "year": 1952, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0096-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 55-8-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 } ], "analysis": { "cardinality": 882, "char_count": 19405, "ocr_confidence": 0.753, "pagerank": { "raw": 5.342994965900899e-08, "percentile": 0.3360275058507272 }, "sha256": "2d598369561b3606488c42088109cf7407ea913fcfd2758e41c5e579acfb1c14", "simhash": "1:a53f76b32e0e8edc", "word_count": 3041 }, "last_updated": "2023-07-14T17:36:09.557360+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge HUDSON concur." ], "parties": [ "IN RE WACHOVIA SHAREHOLDERS LITIGATION" ], "opinions": [ { "text": "McCullough, Judge.\nArising from a complex business merger between Wachovia Corporation (\u201cWachovia\u201d) and First Union Corporation (\u201cFirst Union\u201d), this appeal raises a single question of law for our consideration. Did the special business court (\u201cbusiness court\u201d) have legal authority to award attorney\u2019s fees to shareholders of Wachovia Corporation (\u201cplaintiffs\u201d) for their lawsuit brought against Wachovia, where the successful product of the lawsuit provided some alleged corporate benefit to fellow shareholders? Our following recitation of the facts is narrowed in scope to address this single issue of law.\nOn 15 April 2001, Wachovia and First Union announced their planned merger. Both were North Carolina corporations prior to their merger, as is the merged entity. Their merger agreement included two contested provisions, known in merger jargon as \u201cdeal protection devices\u201d: a cross option provision, and a non-termination provision. Under the cross-option provision, if the Wachovia/First Union merger failed to close, and one partner merged with a third entity within eighteen (18) months, the remaining partner was potentially entitled to what the business court referred to as a \u201c$780 million break-up fee.\u201d Under the non-termination provision, Wachovia and First Union agreed their merger agreement would not terminate until January of 2002 even if either of their shareholders failed to approve the merger in the initial vote.\nA number of suits were filed by shareholders of Wachovia seeking to block the merger by challenging the cross-option provision and the non-termination provision of the merger agreement (\u201cthe shareholder suits\u201d). These suits alleged that the Board of Directors of Wachovia had breached its statutory \u201cfiduciary\u201d duties under N.C. Gen. Stat. \u00a7 55-8-30 (2003) by approving these provisions. Also stemming from the merger, Suntrust Banks, Inc. (\u201cSuntrust\u201d) made a hostile bid on Wachovia. First Union filed suit against Suntrust (\u201cthe Suntrust suit\u201d). Both the Suntrust suit and the shareholder suits were assigned to the business court, and the cases were consolidated for discovery and other purposes.\nOn 20 July 2001, the business court issued an order holding that the cross-option was a valid provision, but that the non-termination provision impermissibly restricted the ability of Wachovia\u2019s Board to consider merger partners other than First Union and was thus invalid and unenforceable. The business court determined that the non-termination provision cornered Wachovia\u2019s Board of Directors into the position of either breaching their fiduciary duty or breaching the merger agreement if a better merger offer came along during the agreement\u2019s dormancy. Additionally, the business court found the non-termination provision to be coercive upon the shareholders, stating: \u201c[t]he longer the option is effective, the more likely shareholders are to vote for the bird in the hand.\u201d\nPursuant to this order, plaintiffs petitioned the business court for attorney\u2019s fees. The business court postured plaintiffs\u2019 petition upon the following facts and legal considerations:\n(53) The Court next turns to the fee issues in the class action litigation. In those cases, because the parties agreed to a consent dismissal of the cases as moot the Court is required to determine only the fee request which is strenuously opposed by defendants.\n(54) In this class action no common fund was created. There is no pool of money from which to pay attorney fees and no money to be distributed to shareholders. In this instance there was not even an increase in the stock price attributable to any action by plaintiffs\u2019 counsel, nor did any subsequent bidder appear after the Wachovia sleeping pill [the non-termination provision] was invalidated.\n(55) Under those circumstances, the fee request raises four issues for consideration by the Court.\n(56) First, will North Carolina recognize a \u201ccorporate benefit\u201d theory analogous to the common fund theory and award attorney fees where a common benefit is provided in merger and acquisition litigation?\n(57) Second, was there a common benefit provided by the litigation in this case?\n(58) Third, what standard should the Court apply in determining any fee award?\n(59) Fourth, applying that standard, what would an appropriate fee award be in this case?\nThe business court answered the first question affirmatively, stating:\nNorth Carolina would be well served by following the majority rule and adopting the Delaware decision framework.\nPublic policy, the legislative intent of N.C.G.S. \u00a7 57-7-46, and judicial economy and efficiency all dictate that the common law recognize that shareholders who file class actions in merger and acquisition cases and produce a real corporate demonstrable benefit for shareholders should be permitted to apply for attorney fees and expenses.\nUpon this determination, plaintiffs were awarded $325,000 in attorney\u2019s fees and $36,000 for expenses.\nWe now address whether the business court, in making this determination, had authority to extend upon the equitable doctrines established in this state on non-statutory grounds for an award of attorney\u2019s fees.\nGenerally, attorney\u2019s fees are taxable as costs only as provided by statute. Horner v. Chamber of Commerce, 236 N.C. 96, 97, 72 S.E.2d 21, 22 (1952). However, our Supreme Court has recognized at least one equitable exception to the general rule known as the \u201ccommon fund\u201d doctrine:\nThe rule is well established that a court of equity, or a court in the exercise of equitable jurisdiction, may in its discretion, and without statutory authorization, order an allowance for attorney fees to a litigant who at his own expense has maintained a successful suit for the preservation, protection, or increase of a common fund or of common property, or who has created at his own expense or brought into court a fund which others may share with him.\nId. at 97-98, 72 S.E.2d at 22; see also, Bailey v. State of North Carolina, 348 N.C. 130, 160, 500 S.E.2d 54, 71 (1998), appeal dismissed, 353 N.C. 142, 540 S.E.2d 313 (2000); Taylor v. City of Lenoir, 148 N.C. App. 269, 275-79, 558 S.E.2d 242, 247-49, disc. review denied, 355 N.C. 500, 564 S.E.2d 235 (2002). A separate and distinct equitable doctrine of awarding attorney\u2019s fees, where no such common fund is created, is known in other jurisdictions as the common \u201ccorporate benefit.\u201d This doctrine is most clearly expressed in Delaware common law, providing the following elements:\n[A] litigant who confers a common monetary benefit upon an ascertainable stockholder class is entitled to an award of counsel fees and expenses for its efforts in creating the benefit.... To be entitled to an award of fees under the corporate benefit doctrine, an applicant must show . . . that:\n(1) the suit was meritorious when filed;\n(2) the action producing benefit to the corporation was taken by the defendants before a judicial resolution was achieved; and\n(3) the resulting corporate benefit was causally related to the lawsuit.\nCal-Maine Foods, Inc. v. Pyles, 858 A.2d 927, 927 (Del. 2004) (quoting United Vanguard Fund v. Takecare, Inc., 693 A.2d 1076, 1079 (Del. 1997)).\nIn the case at bar, the business court \u201cadopt[ed] the Delaware decisional framework\u201d for the \u201ccorporate benefit\u201d doctrine and awarded attorney\u2019s fee thereunder. See Energy Investors Fund, L.P. v. Metric Constructors, Inc., 351 N.C. 331, 334, 525 S.E.2d 441, 443 (2000) (\u201cthe Chancery Court of Delaware[] [is] generally recognized as an authority in the interpretation of business law[.]\u201d). Plaintiffs contend the business court had authority to do so based on jurisprudence of this State\u2019s recognition that equity requires \u201callowance [of attorney\u2019s fees] [be] made in certain equity cases prosecuted in behalf of a class, when the successful prosecution of the cause inures to the benefit of the members of the class.\u201d Rider v. Lenoir County, 238 N.C. 632, 635, 78 S.E.2d 745, 747 (1953). Plaintiffs would have our Court decide this case as a matter of first impression, and adopt the common \u201ccorporate benefit\u201d doctrine of attorney\u2019s fees based upon the above stated principles of equity, the application of the doctrine in numerous state and federal jurisdictions, and a number of policy concerns as specified in the business court\u2019s order.\nDefendant, in seeking to reverse the business court\u2019s award, alleges that, upon similar facts to those at bar, we have already chosen not to adopt the common \u201ccorporate benefit\u201d doctrine, and we are therefore bound by a prior panel of our Court.\nIn Madden v. Chase, 84 N.C. App. 289, 292, 352 S.E.2d 456, 458 disc. review denied, 320 N.C. 169, 358 S.E.2d 53 (1987), we denied an award of attorney\u2019s fees sought by a group of plaintiffs filing suit to enjoin a \u201cgoing private\u201d merger. The plaintiffs in that case believed the price per share being offered to the two private purchasers was undervalued. After the case had been pending for approximately five months, the investment banking firm which had initially appraised the shares for the directors re-evaluated its opinion and withdrew it. Thereafter, the \u201cgoing private\u201d merger was abandoned and the public shareholders maintained their shares, mooting the plaintiffs\u2019 claims. Pursuant to the plaintiffs\u2019 petition for attorney\u2019s fees, we found that North Carolina had not recognized an applicable equitable exception raised by these facts for overriding the general rule requiring statutory authority to award attorney\u2019s fees. Id. In doing so, we reviewed the very same cases plaintiff now requests we consider for awarding attorney\u2019s fees pursuant to common \u201ccorporate benefit.\u201d See Rider, 238 N.C. 632, 78 S.E.2d 745; and Mills v. Electric Auto-Lite Co., 396 U.S. 375, 24 L. Ed. 2d 593 (1970).\nIn the case at bar, the business court found Madden was distin-. guishable, and the facts not appropriate for application of the \u201ccommon benefit\u201d doctrine of attorney\u2019s fees. The business court stated:\nMadden involved a going private transaction which was abandoned after suit was filed. It was never certified as a class action and did not deal with the invalidation of deal protection devices in merger agreements between publicly held companies. It is apparent from the short opinion and the cases cited as precedent by the court that the plaintiff\u2019s claims were treated as individual claims related to the plaintiff\u2019s stock.\nTherefore, the business court found our holding in Madden did not preclude its adoption of the common \u201ccorporate benefit\u201d theory, asserting that \u201c[t]he appellate courts of North Carolina have never been called upon to rule on th[is] question[.]\u201d\nWe believe the common \u201ccorporate benefit\u201d doctrine was applicable in Madden, despite the nuances focused on by the business court. Therefore, we conclude that Madden did call upon our Court to rule on the question of the common \u201ccorporate benefit\u201d doctrine, and we refrained from its incorporation into North Carolina common law.\nUnder Delaware law, as applied by the business court in this case, the common benefit doctrine awards \u201ca litigant who confers a common monetary benefit upon an ascertainable stockholder class.\u201d United Vanguard Fund, 693 A.2d at 1079 (emphasis added). It does not require more than one litigant or that there be a certified class of litigants, nor does it limit itself to how the benefit is conferred, whether by invalidating deal protection devices or otherwise. Furthermore, the doctrine in no way considers the intent of the litigant bringing the suit, be it to protect their own investment, create a common benefit, or both. The doctrine focuses on who receives the benefit, and whether the benefit is causally related to a meritorious action filed before the issue had been resolved. Id.; see also, Alyeska Pipeline Serv. Co. v. Wilderness Soc\u2019y, 421 U.S. 240, 265, 44 L. Ed. 2d 141, 158, n.39 (1975) (summarizing that in common benefit cases the classes of beneficiaries are small in number and easily ascertainable; the benefits can be traced with some accuracy, and there is reason for confidence that the costs can be shifted with some exactitude to those benefitting).\nShedding relevant light on the applicability of the common \u201ccorporate benefit\u201d doctrine to the facts of Madden is a recent opinion by the Delaware Supreme Court. In Cal-Maine Foods, Inc. v. Pyles, Cal-Maine Foods, Inc., the largest producer and distributor of shell eggs in the United States, announced a going-private transaction at $7.35 per share. Id. However, on its last trading day before the announcement, Cal-Maine\u2019s common stock closed at $7.56 per share. Stockholders filed a complaint alleging breach of fiduciary duty and seeking injunctive relief. Id. Among its claims, the complaint alleged that the proposed price was unfair because it failed to reflect rising egg prices and Cal-Maine\u2019s improved performance. Id. While the case was pending, the going private transaction was abandoned. The Chancery Court, finding the stockholders\u2019 claims causally related to the transaction\u2019s abandonment, awarded the stockholders\u2019 attorney\u2019s fees under the \u201ccommon benefit\u201d theory. And, upon these facts, none of which we find materially distinct from Madden, the Delaware Supreme Court affirmed.\nWhile noting the reasoned policy argument offered by the business court in its opinion and with due respect the breadth of support the petitioner found in other jurisdictions which have applied the common benefit theory, our Court does not possess the power to extend equitable exceptions in this state\u2019s jurisprudence where a prior panel of this Court has chosen not to do so. In light of the elements of the common \u201ccorporate benefit\u201d theory as provided in Delaware\u2019s respected corporate jurisprudence, and application of those elements in Cal-Maine Foods, Inc., by the Delaware Court of Chancery, we believe the plaintiff\u2019s petition for attorney\u2019s fees is governed by Madden and precludes any award. Lastly, assuming arguendo that the common benefit doctrine is a recognized equitable extension of awarding attorney\u2019s fees in North Carolina, we are not convinced the facts of this case fall within the purview of the doctrine. Plaintiffs rely on Brewer v. School Board of City of Norfolk, 456 F.2d 943 (4th Cir. 1972) for the proposition that the 4th Circuit has adopted the common benefit theory of awarding attorney\u2019s fees where no monetary benefit has been conferred. However, the Brewer court awarded attorney\u2019s fees based on the following:\nThere is ... a unique feature of this case, involving at least a quasi-application of the \u201ccommon fund\u201d doctrine .... The plaintiffs have by this appeal secured for the students of this school system an additional right, a right of direct 'pecuniary benefit.... It is true the right is not represented by a \u201ccommon fund\u201d and has not resulted in a monetary recovery, against which attorney\u2019s fees may be charged but, so far as the students affected are concerned, \u201cthe effect * * * is the same as though a fund were created.\u201d The students have secured a right worth approximately $60 per year to each of them. This pecuniary benefit to the students involved would, under normal circumstances, warrant the imposition of a charge against them for their proportionate share of a' reasonable attorney\u2019s fee incurred in securing such pecuniary benefit for them. It is not practical, however, to do this in this case and, too, to do so would defeat the basic purpose of the relief provided by the amendment in the decree, which was to secure for the student concerned transportation without cost or deduction. The only feasible solution in this peculiar situation would seem to lie in requiring the school district itself to supplement its provision of free transportation with payment of an appropriate attorney\u2019s fee to plaintiffs\u2019 attorneys for securing the addition of such a provision to the plan of desegregation. There are thus \u201cdominating reasons\u201d under the \u201cexceptional circumstances\u201d of this case to award attorney\u2019s fees for the services of plaintiffs\u2019 attorneys in securing for these students this pecuniary benefit.\nBrewer, 456 F.2d at 948 (citations omitted). In the case at bar, plaintiffs have demonstrated no similar \u201cdominating reason\u201d or \u201cexceptional circumstances,\u201d nor did they show any specific pecuniary benefit to the Wachovia shareholders stemming from the business court\u2019s order invalidating the non-termination provision of the merger agreement. Thus, no \u201ceffect of the suit is the same as though a [common] fund were created.\u201d Id. Moreover, Delaware\u2019s application of the doctrine seems to require some indicia of \u201cmonetary benefit.\u201d United Vanguard Fund, Inc., 693 A.2d at 1079. The business court expressly found \u201cthere was not even an increase in the stock price attributable to any action by plaintiffs\u2019 counsel, nor did any subsequent bidder appear\u201d after the non-termination provision was deemed invalid.\nBased upon a close review of the records, briefs, and exhibits in this case, we reverse the business court\u2019s grant of attorney\u2019s fees.\nReversed and remanded.\nChief Judge MARTIN and Judge HUDSON concur.", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "Wilson & Iseman, L.L.P., by G. Gray Wilson; Abbey Gardy, L.L.P, by Stephen T. Rodd, for Wachovia Shareholder plaintiff appellees.", "Wilson & Iseman, L.L.P., by Linda L. Helms, for Wachovia Shareholder plaintiff appellees.", "Robinson, Bradshaw & Hinson, RA., by Robert W. Fuller; Bell, Davis & Pitt, P.A., by William K. Davis; Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by James T. Williams, Jr.; and Deputy General Counsel for Wachovia Corporation Francis C. Clark, for Wachovia Corporation defendant appellant." ], "corrections": "", "head_matter": "IN RE WACHOVIA SHAREHOLDERS LITIGATION\nNo. COA04-402\n(Filed 18 January 2005)\nCosts\u2014 attorney fees \u2014 equitable exception \u2014 corporate benefit doctrine \u2014 common benefit doctrine\nThe special business court did not have legal authority to award attorney fees to shareholders of Wachovia Corporation for their lawsuit brought against Wachovia where the successful product of the lawsuit provided some alleged corporate benefit to fellow shareholders by obtaining the invalidation of a non-termination provision in Wachovia\u2019s agreement to merge with First Union, because: (1) in r\u00e9gard to the corporate benefit doctrine, the Court of Appeals cannot extend equitable exceptions in this state\u2019s jurisprudence where a prior panel of this Court has chosen not to do so; (2) assuming arguendo that the common benefit doctrine is a recognized equitable extension of awarding attorney fees in North Carolina, the facts of this case do not fall within the purview of the doctrine when plaintiffs have not demonstrated a dominating reason or exceptional circumstance, nor did they show any specific pecuniary benefit to the shareholders stemming from the business court\u2019s order invalidating the non-termination provision of the merger agreement; and (3) Delaware\u2019s application of the doctrine seems to require some indicia of monetary benefit, and the business court found that there was not even an increase in the stock price attributable to any action by plaintiffs\u2019 counsel, nor did any subsequent bidder appear after the non-termination provision was deemed invalid.\nAppeal by defendant Wachovia Corporation from judgment entered 23 December 2003 by Judge Ben F. Tennille in Special Superior Court for Complex Business Cases. Heard in the Court of Appeals 22 October 2004.\nWilson & Iseman, L.L.P., by G. Gray Wilson; Abbey Gardy, L.L.P, by Stephen T. Rodd, for Wachovia Shareholder plaintiff appellees.\nWilson & Iseman, L.L.P., by Linda L. Helms, for Wachovia Shareholder plaintiff appellees.\nRobinson, Bradshaw & Hinson, RA., by Robert W. Fuller; Bell, Davis & Pitt, P.A., by William K. Davis; Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by James T. Williams, Jr.; and Deputy General Counsel for Wachovia Corporation Francis C. Clark, for Wachovia Corporation defendant appellant." }, "file_name": "0135-01", "first_page_order": 165, "last_page_order": 173 }