Are Plaintiff Attorneys' Fee Awards in the Delaware Chancery Court Excessive? Part III

Joel Fleming's Response to Grundfest and Dor: A Polemical but Valuable Critique

In the first post of this series (which is likely to run to at least six posts), I discussed a controversial paper by Stanford law professor Joseph Grundfest and research associate Gal Dor, which presented data on the basis of which they asserted that jumbo plaintiff attorney fee awards—lodestar multipliers exceeding seven or ten—”are far more frequent and extreme in Delaware court than in federal court.”¹

Are Plaintiff Attorneys' Fee Awards in the Delaware Chancery Court Excessive? Part I

In a second post, I discussed a critique of Grundfest and Dor’s article by Delaware trial lawyer Michael Hanrahan.

Are Plaintiff Attorneys' Fee Awards in the Delaware Chancery Court Excessive? Part II

In this post, I discuss another response to Grundfest and Dor. This one comes from a pair of Linkedin posts by Delaware trial lawyer Joel Fleming.²

Joel Fleming’s posts offer a pointed critique in which he asserts that Grundfest and Dor’s analysis is deeply flawed, particularly in their treatment of Delaware cases. He argues that many of the cited Delaware “awards” are either misrepresented or fundamentally misunderstood—for example, including mootness fees (not court-awarded), miscalculating multipliers, or overlooking appeals and litigation context, noting that:

• 1/3 are not legitimate fee awards or are below 7X

• 6 involve expedited or statutory cases with low lodestars, skewing multiplier calculations

• Only 8 cases over 15 years qualify as relevant, with several driven by negotiated settlements—not judicial activism

He also criticizes Grundfest and Dor’s federal court dataset as incomplete and biased due to reliance on second-hand citations, omission of key high-multiplier cases, and failure to account for structural issues in circuits where lodestar cross-checks aren’t required. Fleming positions the paper as not just flawed but weaponized in a campaign against Delaware judges, amplified by tech elites like Elon Musk and commentators like David Sacks.

In a published response, Grundfest and Dor commend Fleming’s scrutiny but argue that his suggested exclusions—such as mootness fees, non-monetary relief cases, and fees reversed on appeal—do not undermine the central findings of their analysis. In addition, Andrew Sorkin reports in the NY Times Dealbook column that:

Grundfest, in response to Fleming’s criticism, told me that “Even if we made all the adjustments that Fleming suggests — adjustments that are objectively unwarranted — Delaware would still remain an outlier on an empirical basis.”

Who’s right?