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FILED: NEW YORK COUNTY CLERK 03/19/2024 02:35 PM INDEX NO. 152480/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/19/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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In the Matter of the Application of Index. No.:
PIPER SANDLER & CO., and
JAMES J. DUNNE III,
Petitioners,
-against-
THE LIVERPOOL LIMITED
PARTNERSHIP and ELLIOTT
INTERNATIONAL L.P.,
Respondents.
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VERIFIED PETITION
Petitioners Piper Sandler & Co. and James J. “Jimmy” Dunne III (collectively,
“Petitioners”) by their attorneys, Manatt, Phelps & Phillips, LLP, submits this Petition, pursuant
to CPLR §§ 402, 2304, 3103 and 3119, for a protective Order with respect to an unnecessarily
burdensome subpoena that demands the deposition of a second witness from a non-party when
less burdensome alternatives exist and have been offered to Respondents.
INTRODUCTION
1. This application involves a non-party subpoena ad testificandum served upon
Piper Sandler’s Vice-Chairman and Senior Managing Principal, Jimmy Dunne (the “New York
Subpoena”) by Respondents The Liverpool Limited Partnership and Elliott International L.P.
(collectively, “Respondents”). A true and correct copy of the New York Subpoena is annexed
hereto as Exhibit “A.” Respondents are plaintiffs in putative class action pending in the
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Delaware Court of Chancery, captioned as The Liverpool Limited Partnership and Elliott
International L.P. v. Santander Holdings USA, Inc., et al, C.A. No. 2022-0689-LWW (Del. Ch.
Ct.) (the “Delaware Action”). 1 Respondents commenced the Delaware Action in connection
with Santander Holdings USA, Inc.’s (“SHUSA”) acquisition of the publicly traded stock of
Santander Consumer USA Holdings Inc. (“SCUSA”), which amounted to 20% of SCUSA’s
outstanding shares (the “SCUSA Transaction”). SHUSA had already owned the other 80% of
SCUSA’s stock. Upon information and belief, Respondents owned some of the publicly traded
shares of SCUSA.
2. In the Delaware Action, Respondents, on behalf of the putative class of owners of
publicly traded shares of SCUSA, allege that SHUSA did not pay fair value for such shares.
3. Piper Sandler acted as the investment banker for the special committee of
SCUSA’s board of directors (the “Special Committee”) that was created to evaluate SHUSA’s
bid and negotiate the sale of SCUSA’s publicly traded shares to SHUSA. Piper Sandler is not a
party to the Delaware Action.
4. As set forth in greater detail below, Respondents served Piper Sandler with a non-
party subpoena duces tecum and Piper Sandler responded fully and in good faith, including
producing tens of thousands of pages of documents and a 30(b)(6) witness, who sat for an entire
day of examination.
5. The New York Subpoena at issue in this special proceeding is an attempt at a
second bite of the apple—in which Respondents seek the deposition testimony of another Piper
Sandler 30(b)(6) witness (specifically, Petitioner Jimmy Dunne). This attempt by Respondents
reflects complete overreach and an intent to harass a non-party.
1
Upon information and belief, the caption was changed subsequently to In re Santander Consumer USA Holdings
Inc. Stockholders Litigation C.A. No. 2022-0689-LWW (Del. Ch. Ct.)
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6. Respondents have rebuffed Piper Sandler’s good faith attempts to resolve this
discovery dispute, including Piper Sandler’s offer to allow a supplemental deposition of its initial
30(b)(6) witness and to provide verified written responses to interrogatories. Left with no
alternative, Petitioners have commenced this special proceeding to protect against discovery
abuse and harassment.
7. Accordingly, Piper Sandler seeks an order, pursuant to CPLR §§ 2304, 3103(a)
and 3119(e), to (i) prevent abuse, embarrassment, disadvantage and prejudice; and (ii) fix
conditions and enforce limits on discovery.
8. Specifically, Piper Sandler and Jimmy Dunne respectfully request that the Court
quash the subpoena served in New York, given the extensive discovery sought from and
provided by Piper Sandler pursuant to a prior Delaware subpoena and/or issue a protective order
to allow Piper Sandler to respond to alleged failures by educating its corporate witness, who has
already testified for nine hours, and re-producing him for a short second deposition strictly
focused on those discrete issues. In the alternative, Piper Sandler respectfully requests a
protective order that allows Piper Sandler and/or Jimmy Dunne to respond to written
interrogatories enquiring about the personal relationship between Jimmy Dunne and Ed Herlihy,
a partner at the law firm of Wachtell, Lipton, Rosen & Katz (hereinafter, “Wachtell”).
PARTIES
9. Petitioner Jimmy Dunne is an individual residing in the State of Florida, and is the
Vice-Chairman and Senior Managing Principal of Piper Sandler.
10. Petitioner Piper Sandler is a Delaware Corporation with its principal place of
business located at 1251 Avenue of the Americas, New York, New York.
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11. Upon information and belief, Respondent The Liverpool Limited Partnership is a
Bermuda limited partnership with its principal place of business located in West Palm Beach,
Florida.
12. Upon information and belief, Respondent Elliott International L.P. is a Cayman
Islands Limited Partnership with a principal place of business in Wilmington, Delaware.
13. Upon information and belief, Respondents together held 19,985,516 shares of
SCUSA’s publicly traded stock worth approximately $829.4 million at SHUSA’s acquisition
price.
14. Jurisdiction and venue are proper pursuant to CPLR §§ 506(a) and 3119(e)
because Respondents issued a subpoena from this Court under CPLR § 3119, because the instant
proceeding seeks a protective order or an order to modify such subpoena, and because the
subpoena compels the discovery that is the subject of this special proceeding to be conducted in
this County.
FACTS
The Delaware Action
15. Respondents commenced the underlying Delaware Court of Chancery action on
or about August 5, 2022. A true and accurate copy of the public version of the complaint (the
“Delaware Complaint”) is annexed hereto as Exhibit “B.” Piper Sandler is not named as a
defendant in the Delaware Complaint.
16. On or about October 19, 2022, Respondents served a non-party subpoena duces
tecum upon Piper Sandler (the “Delaware Subpoena”). A true and accurate copy of the Delaware
Subpoena is annexed hereto as Exhibit “C.” The Delaware Subpoena is thirty-five pages long
and contains fifty-six separate document requests.
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17. The Delaware Subpoena is for documents only. There is no request for testimony
and there is no separate schedule or exhibit that identifies deposition topics.
Piper Sandler Fully Complied With The Delaware Subpoena
18. On or about November 21, 2022, Piper Sandler served responses and objections to
the Delaware Subpoena.
19. Over the course of several months, counsel for Piper Sandler and counsel for
Respondents negotiated a protocol for Piper Sandler’s search and production of responsive, non-
privileged documents. A true and correct copy of the agreed upon protocol is annexed hereto as
Exhibit “D.” The bulk of the negotiations centered on the numerous search terms (over 130) that
Respondents insisted Piper Sandler run against the documents that it had collected. Respondents
refused to eliminate or modify many broad search terms even after Piper Sandler submitted hit
reports that demonstrated just how broad those search terms were. The protocol is twenty pages,
single spaced. It resulted in non-party Piper Sandler having to review over 40,000 documents.
20. Piper Sandler ultimately made its production pursuant to the Piper Sandler
Subpoena with primary productions on June 20 and July 27, 2023 and smaller supplemental
productions made on September 13 and October 6, 2023. Piper Sandler ultimately produced
5,372 documents totaling 26,089 pages.
21. On or about November 17, 2023, Respondents requested the deposition of a Piper
Sandler witness. Although no formal subpoena for a witness was ever served on Piper Sandler,
Respondents demanded that Piper Sandler produce a “30(b)(6) witness” for deposition.
22. Counsel for Piper Sandler agreed to provide a witness and requested Respondents
to provide a list of topics to enable Piper Sandler to identify an appropriate 30(b)(6) witness.
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23. On November 28, 2023, counsel for Respondents provided a document called
“Schedule B” which set forth the deposition topics. A copy of Schedule B is annexed hereto as
Exhibit “E.”
24. Schedule B included a list of twelve different deposition topics. Nowhere on this
list did Respondents include as a topic the personal relationship between Jimmy Dunne and Ed
Herlihy. Nor does it mention communications between Dunne and Herlihy. In fact, Schedule B
does not mention either the word Dunne or the word Herlihy.
25. Piper Sandler used the list of topics to identify Christopher Donohoe, a Piper
Sandler Managing Director and a senior banker who worked on the SCUSA transaction, as the
appropriate witness.
26. After Piper Sandler identified the appropriate witness based upon the list of
deposition topics provided by Respondents, counsel met and conferred on December 4, 2023 to
narrow the scope of some of the topics identified on Schedule B.
27. On December 11, 2023, in the context of selecting a date for Mr. Donohoe’s
deposition, Respondents’ counsel sent an email suggesting the week of February 19. The end of
the email provides “we expect the witness to be able to speak to Dunne’s relationship and
conversations with Ed Herlihy from Wachtell.”
28. After the meet and confer and after the December 11, 2023 email, Respondents
filed with the Delaware Court of Chancery a Notice of Rule 30(b)(6) Deposition of Piper Sandler
& Co., dated December 29, 2023 (the “Notice”). The list of deposition topics identified by
Schedule B in the Notice filed with the Court does not mention either Dunne or Herlihy. A true
and correct copy of the Notice filed with the Delaware Court of Chancery is annexed hereto as
Exhibit “F.”
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29. On February 13, 2024, Mr. Donohoe appeared for his deposition. Respondents
examined him from 9:12 am to 6:13 pm (nine hours). The deposition transcript is 357 pages. 2
30. During the nine hour deposition, counsel for Respondents painstakingly examined
Mr. Donohoe on a broad range of topics including, but not limited to, Piper Sandler’s analyses,
special committee presentations, and fairness opinion. Mr. Donohoe’s answers were
comprehensive and detailed. At the end of the nine hour deposition, Respondents’ counsel
declared “I think those are all the questions I have.” Nowhere in the transcript did Respondents’
counsel state on the record that they considered any of Mr. Donohoe’s answers to be lacking and
they did not reserve any rights or demand a second witness.
Respondents Demand A Second Piper Sandler Witness: Jimmy Dunne
31. On February 23, 2024, counsel for Respondents sent Piper Sandler’s counsel an
email accusing Piper Sandler’s witness of being unprepared and demanding Jimmy Dunne
appear for examination as a second Piper Sandler 30(b)(6) witness.
32. On February 28, 2024, Piper Sandler’s counsel responded to Respondents’
accusations and demand by demonstrating that, among other things:
(i) Mr. Donohoe testified comprehensively about the deposition topics identified
on Schedule B;
(ii) Schedule B (and notice of 30(b)(6) deposition filed with the Court of
Chancery) did not include a topic related to the personal relationship between
Jimmy Dunne and Ed Herlihy; and
(ii) Mr. Donohoe testified that Mr. Herlihy and Jimmy Dunne knew each other
very well and that Mr. Dunne disclosed this fact to SCUSA’s special committee.
2
Because the transcript was designated “Confidential” in accordance with a protective order filed in the Delaware
Action, it is not attached as part of this Petition. If required to, Petitioners will provide a copy to the Court for in
camera review or, alternatively, file same under seal.
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In addition, Piper Sandler’s counsel offered to bring Mr. Donohoe back for a short second
examination after being educated on the topics that Respondents believed were not fully
answered during the first examination.
33. On February 29, 2024, Respondents rejected that offer and, instead, served the
New York Subpoena upon Mr. Dunne.
Mr. Donohoe Was An Appropriate 30(b)(6) Witness
34. The Special Committee engaged Piper Sandler to act as its financial advisor with
respect to the SCUSA Transaction. Among other things, Piper Sandler met with the Special
Committee on numerous occasions to evaluate SHUSA’s offer for the publicly traded SCUSA
shares and strategize over how to negotiate a higher price for the shares. In addition, Piper
Sandler issued a fairness opinion whereby it concluded that the ultimate share price offered by
SHUSA and accepted by SCUSA for SCUSA’s publicly traded shares was fair from a financial
point of view.
35. The Piper Sandler team that handled the investment banking work for SCUSA’s
Special Committee consisted of Jimmy Dunne (Vice-Chairman, Senior Managing Principal), Bill
Burgess (Managing Director, Co-Head of Financial Services Investment Banking), Chris
Donohoe (Managing Director, Head of Specialty Finance Investment); and Garrett Flott
(Analyst).
36. Mr. Donohoe was primarily responsible for preparing the analysis presentations
made to the Special Committee, including the presentation underlying Piper Sandler’s fairness
opinion. Given that the detailed deposition topics identified in Schedule B concerned Piper
Sandler’s analyses and fairness opinion, Piper Sandler selected Mr. Donohoe as the appropriate
witness for the examination sought by Respondents.
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37. Mr. Dunne’s role on the Piper Sandler team was primarily to engage in
discussions with J.P. Morgan Securities LLC (“JP Morgan”), the investment banker for SHUSA
(the acquiror). Mr. Donohoe was prepared to and did testify to discussions between Mr. Dunne
and JPMorgan and had knowledge of those conversations because he prepared Mr. Dunne prior
to those conversations and received reports back from Mr. Dunne after such conversations
occurred. Respondents did not raise any issues with Mr. Donohoe’s answers to questions
regarding those conversations.
Respondents’ Manufactured Justification For A Second 30(b)(6) Witness
38. After Mr. Donohoe’s deposition, Respondents asserted two complaints to justify
their demand that Mr. Dunne also be deposed. First, they complained that Mr. Donohoe was not
able to answer specific questions regarding Jimmy Dunne’s personal relationship with Ed
Herlihy, an attorney at Wachtell who represented SHUSA in connection with the SCUSA
Transaction. Second, they complained that Mr. Donohoe was unable to answer questions
regarding the timing of Piper Sandler’s knowledge of a potential engagement involving the
SCUSA Transaction and whether such knowledge came from Ed Herlihy.
39. Neither issue raised by Respondents involves Piper Sandler’s substantive work
including its analyses, presentations to the Special Committee or fairness opinion.
40. The issue regarding Mr. Donohoe’s inability to answer questions about the
specifics of Mr. Dunne and Ed Herlihy’s relationship is entirely manufactured. Mr. Donohoe
testified that (i) Mr. Dunne knew Mr. Herlihy well (Donohoe Tr. at 76:19); (ii) the two were
members of outside organizations together (Donohoe Tr. at 72:21-73:14); (iii) the two worked on
prior deals together (Donohoe Tr. at 74:4-25); and (iv) that Mr. Dunne even disclosed to the
Special Committee that he and Mr. Herlihy knew each other well. (Donohoe Tr. at 76:16-77:2).
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41. In any event, their personal relationship is not disputed and has been widely
reported in the press. For example, a copy of an article detailing the roles played by Ed Herlihy
and Jimmy Dunne in connection with the PGA/LIV professional golf tour merger is annexed
hereto as Exhibit “G.”
42. With respect to the issue of the timing and source of Piper Sandler’s knowledge of
a potential engagement in connection with the SCUSA Transaction, Piper Sandler offered to
educate Mr. Donohoe on the issue and re-produce him for further examination. Respondents
rejected that offer and, instead, served the New York Subpoena to Jimmy Dunne.
Interrogatories Are An Acceptable and Less Burdensome Alternative
43. Respondents served the New York Subpoena and seek the additional deposition
of Mr. Dunne because Mr. Donohoe, a corporate witness, was unable to answer the following
specific questions regarding the personal relationship between Ed Herlihy and Jimmy Dunne:
• “When did Ed Herlihy and Jimmy Dunne first meet?”;
• “Do you know if they’re friends”;
• “Do you know if they play golf together at Augusta”;
• “Do you know whether they’d play golf together at Shinnecock”;
• “Do you know whether they text each other”;
• “Do you know how often they talk when they’re not working on a deal”
• “Do you have an understanding at that time whether they socialized together?”;
• “Do you understand that Mr. Herlihy asked Mr. Dunne to join the PGA Tour
Board?”;
• “Have you seen communications about the possibility of Mr. Dunne and Mr.
Herlihy running LIV together?”
• “Do you know whether Mr. Dunne and Mr. Herlihy’s families know each other?”;
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• “Do you know whether Mr. Dunne and Mr. Herlihy have any homes near each
other”;
• “Do you know whether Mr. Dunne and Mr. Herlihy socialized during the Project
Fusion sale process?”
44. Clearly, these questions can be put in the form of interrogatories propounded to
Jimmy Dunne c/o Piper Sandler, in order to obtain a verified response and obviate the need for
yet another deposition -- especially after nine hours of testimony from Piper Sandler’s 30(b)(6)
witness.
45. Piper Sandler took its 30(b)(6) obligations very seriously. To prepare for his
deposition, Mr. Donohoe met with both in-house and outside counsel four separate times (three
of them in person) for approximately ten hours. (Donohoe Tr. at 17:5-19) He reviewed the list of
deposition topics contained in Schedule B. (Donohoe Tr. at 14:8-16) He met with the junior
banker on Piper Sandler’s deal team for an hour to refresh his recollection regarding certain
documents. (Donohoe Tr. at 15:5-15) He testified that he did not speak with Jimmy Dunne with
regard to conversations he had with JPMorgan, SHUSA’s banker, because Mr. Donohoe would
prepare Mr. Dunne for such discussions and would receive reports back from Mr. Dunne after
such discussions. (Donohoe Tr. at 16:17-24) Mr. Donohoe testified that he worked very closely
with Mr. Dunne on the transaction and believed he was aware of Mr. Dunne’s participation in the
transaction without having to speak with him to prepare for his deposition (Donohoe Tr. at
14:23-15:4) Donohoe was prepared and testified that Mr. Dunne and Mr. Herlihy know each
other well and that Dunne disclosed this relationship to the Special Committee. (Donohoe Tr. at
76:16-77:2)
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46. As set forth above, Mr. Donohoe testified for an entire day primarily about the
work that Piper Sandler did with respect to the SCUSA Transaction and the fairness opinion
delivered by Piper Sandler.
PETITIONER’S RIGHT TO RELIEF
(CPLR §§ 2304, 3103, 3119)
47. Petitioners incorporate the allegations set forth above.
48. Through the New York Subpoena, Respondents seek a second bite at the apple
with respect to Piper Sandler’s 30(b)(6) witness and have manufactured an alleged justification
to harass non-party Piper Sandler by insisting upon the deposition of its Vice Chairman and
Senior Managing Principal, notwithstanding Piper Sandler’s good faith compliance with the
Document Subpoena, including providing a knowledgeable 30(b)(6) witness who testified for an
entire day.
49. The additional deposition of Jimmy Dunne will cause unreasonable annoyance,
expense, disadvantage, or other prejudice to Petitioners.
50. As a reasonable modification to or condition of the New York Subpoena, Piper
Sandler should be allowed to educate Mr. Donohoe on the topics that Respondents believe were
not adequately answered the first time and Mr. Donohoe should be allowed to testify as to those
issues. In the alternative, Petitioners should be allowed to answer specific questions regarding
Jimmy Dunne’s relationship with Ed Herlihy by way of sworn interrogatory responses.
51. Pursuant to CPLR § 2304, made applicable to the New York Subpoena by CPLR
§ 3119, Petitioners are entitled to an order modifying or fixing conditions to the New York
Subpoena, including the relief requested above.
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52. Pursuant to CPLR § 3103, made applicable to the New York Subpoena by CPLR
§ 3119, Petitioners are entitled to a protective order denying, limiting, conditioning or regulating
any deposition pursuant to the New York Subpoena, including the relief requested above.
NO PRIOR APPLICATION FOR RELIEF SOUGHT HEREIN
53. No prior application for the relief sought herein or for any similar relief has been
made by either of the Petitioners to this Court or to any other court.
//
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PRAYER FOR RELIEF
WHEREFORE, Petitioners demand an order and judgment in their favor, in the form of
an Order pursuant to CPLR §§ 2304, 3103 and 3119 with respect to the New York Subpoena, as
follows:
A. Petitioners should be allowed to educate Mr. Donohoe on the topics that Respondents
believe were not adequately answered the first time and Mr. Donohoe should be
allowed to testify as to those issues in lieu of the New York Subpoena.
B. In the alternative, Petitioners should be allowed to answer specific questions
regarding Jimmy Dunne’s relationship with Ed Herlihy by way of sworn
interrogatory responses in lieu of the New York Subpoena.
C. Such other and further relief as the Court deems necessary.
Dated: New York, New York Respectfully submitted,
March 19, 2024
MANATT, PHELPS & PHILLIPS, LLP
By: /s/ Andrew L. Morrison
Andrew L. Morrison
Matthew Bruno
7 Times Square
New York, NY 10036
(212) 790-4500
amorrison@manatt.com
mbruno@manatt.com
Attorneys for Petitioners Piper Sandler & Co.
and James J. “Jimmy” Dunne III
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VERIFICATION
BRITTEN COSGROVE, an attorney duly admitted to practice law in the State of New
York, affirms under penalty of perjury pursuant to CPLR § 2106 that:
I am a managing director and assistant general counsel of Piper Sandler & Co., a
Petitioner herein. I have read the foregoing Verified Petition and I know the contents thereof to
be true, except as to those matters stated upon information and belief or based on the documents
referenced therein, and as to those matters I believe them to be true.
I affirm this 19th day of March, 2024, under the penalties of perjury under the laws of
New York, which may include a fine or imprisonment, that the foregoing is true, and I
understand that this document may be filed in an action or proceeding in a court of law.
_____________________________
BRITTEN COSGROVE
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FILED: NEW YORK COUNTY CLERK 03/19/2024 02:35 PM INDEX NO. 152480/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/19/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------X In the Matter of the Application of Index. No.: PIPER SANDLER & CO., and JAMES J. DUNNE III, Petitioners, -against- THE LIVERPOOL LIMITED PARTNERSHIP and ELLIOTT INTERNATIONAL L.P., Respondents. ----------------------------------------------------------X VERIFIED PETITION Petitioners Piper Sandler & Co. and James J. “Jimmy” Dunne III (collectively, “Petitioners”) by their attorneys, Manatt, Phelps & Phillips, LLP, submits this Petition, pursuant to CPLR §§ 402, 2304, 3103 and 3119, for a protective Order with respect to an unnecessarily burdensome subpoena that demands the deposition of a second witness from a non-party when less burdensome alternatives exist and have been offered to Respondents. INTRODUCTION 1. This application involves a non-party subpoena ad testificandum served upon Piper Sandler’s Vice-Chairman and Senior Managing Principal, Jimmy Dunne (the “New York Subpoena”) by Respondents The Liverpool Limited Partnership and Elliott International L.P. (collectively, “Respondents”). A true and correct copy of the New York Subpoena is annexed hereto as Exhibit “A.” Respondents are plaintiffs in putative class action pending in the -1- 1 of 15 FILED: NEW YORK COUNTY CLERK 03/19/2024 02:35 PM INDEX NO. 152480/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/19/2024 Delaware Court of Chancery, captioned as The Liverpool Limited Partnership and Elliott International L.P. v. Santander Holdings USA, Inc., et al, C.A. No. 2022-0689-LWW (Del. Ch. Ct.) (the “Delaware Action”). 1 Respondents commenced the Delaware Action in connection with Santander Holdings USA, Inc.’s (“SHUSA”) acquisition of the publicly traded stock of Santander Consumer USA Holdings Inc. (“SCUSA”), which amounted to 20% of SCUSA’s outstanding shares (the “SCUSA Transaction”). SHUSA had already owned the other 80% of SCUSA’s stock. Upon information and belief, Respondents owned some of the publicly traded shares of SCUSA. 2. In the Delaware Action, Respondents, on behalf of the putative class of owners of publicly traded shares of SCUSA, allege that SHUSA did not pay fair value for such shares. 3. Piper Sandler acted as the investment banker for the special committee of SCUSA’s board of directors (the “Special Committee”) that was created to evaluate SHUSA’s bid and negotiate the sale of SCUSA’s publicly traded shares to SHUSA. Piper Sandler is not a party to the Delaware Action. 4. As set forth in greater detail below, Respondents served Piper Sandler with a non- party subpoena duces tecum and Piper Sandler responded fully and in good faith, including producing tens of thousands of pages of documents and a 30(b)(6) witness, who sat for an entire day of examination. 5. The New York Subpoena at issue in this special proceeding is an attempt at a second bite of the apple—in which Respondents seek the deposition testimony of another Piper Sandler 30(b)(6) witness (specifically, Petitioner Jimmy Dunne). This attempt by Respondents reflects complete overreach and an intent to harass a non-party. 1 Upon information and belief, the caption was changed subsequently to In re Santander Consumer USA Holdings Inc. Stockholders Litigation C.A. No. 2022-0689-LWW (Del. Ch. Ct.) -2- 2 of 15 FILED: NEW YORK COUNTY CLERK 03/19/2024 02:35 PM INDEX NO. 152480/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/19/2024 6. Respondents have rebuffed Piper Sandler’s good faith attempts to resolve this discovery dispute, including Piper Sandler’s offer to allow a supplemental deposition of its initial 30(b)(6) witness and to provide verified written responses to interrogatories. Left with no alternative, Petitioners have commenced this special proceeding to protect against discovery abuse and harassment. 7. Accordingly, Piper Sandler seeks an order, pursuant to CPLR §§ 2304, 3103(a) and 3119(e), to (i) prevent abuse, embarrassment, disadvantage and prejudice; and (ii) fix conditions and enforce limits on discovery. 8. Specifically, Piper Sandler and Jimmy Dunne respectfully request that the Court quash the subpoena served in New York, given the extensive discovery sought from and provided by Piper Sandler pursuant to a prior Delaware subpoena and/or issue a protective order to allow Piper Sandler to respond to alleged failures by educating its corporate witness, who has already testified for nine hours, and re-producing him for a short second deposition strictly focused on those discrete issues. In the alternative, Piper Sandler respectfully requests a protective order that allows Piper Sandler and/or Jimmy Dunne to respond to written interrogatories enquiring about the personal relationship between Jimmy Dunne and Ed Herlihy, a partner at the law firm of Wachtell, Lipton, Rosen & Katz (hereinafter, “Wachtell”). PARTIES 9. Petitioner Jimmy Dunne is an individual residing in the State of Florida, and is the Vice-Chairman and Senior Managing Principal of Piper Sandler. 10. Petitioner Piper Sandler is a Delaware Corporation with its principal place of business located at 1251 Avenue of the Americas, New York, New York. -3- 3 of 15 FILED: NEW YORK COUNTY CLERK 03/19/2024 02:35 PM INDEX NO. 152480/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/19/2024 11. Upon information and belief, Respondent The Liverpool Limited Partnership is a Bermuda limited partnership with its principal place of business located in West Palm Beach, Florida. 12. Upon information and belief, Respondent Elliott International L.P. is a Cayman Islands Limited Partnership with a principal place of business in Wilmington, Delaware. 13. Upon information and belief, Respondents together held 19,985,516 shares of SCUSA’s publicly traded stock worth approximately $829.4 million at SHUSA’s acquisition price. 14. Jurisdiction and venue are proper pursuant to CPLR §§ 506(a) and 3119(e) because Respondents issued a subpoena from this Court under CPLR § 3119, because the instant proceeding seeks a protective order or an order to modify such subpoena, and because the subpoena compels the discovery that is the subject of this special proceeding to be conducted in this County. FACTS The Delaware Action 15. Respondents commenced the underlying Delaware Court of Chancery action on or about August 5, 2022. A true and accurate copy of the public version of the complaint (the “Delaware Complaint”) is annexed hereto as Exhibit “B.” Piper Sandler is not named as a defendant in the Delaware Complaint. 16. On or about October 19, 2022, Respondents served a non-party subpoena duces tecum upon Piper Sandler (the “Delaware Subpoena”). A true and accurate copy of the Delaware Subpoena is annexed hereto as Exhibit “C.” The Delaware Subpoena is thirty-five pages long and contains fifty-six separate document requests. -4- 4 of 15 FILED: NEW YORK COUNTY CLERK 03/19/2024 02:35 PM INDEX NO. 152480/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/19/2024 17. The Delaware Subpoena is for documents only. There is no request for testimony and there is no separate schedule or exhibit that identifies deposition topics. Piper Sandler Fully Complied With The Delaware Subpoena 18. On or about November 21, 2022, Piper Sandler served responses and objections to the Delaware Subpoena. 19. Over the course of several months, counsel for Piper Sandler and counsel for Respondents negotiated a protocol for Piper Sandler’s search and production of responsive, non- privileged documents. A true and correct copy of the agreed upon protocol is annexed hereto as Exhibit “D.” The bulk of the negotiations centered on the numerous search terms (over 130) that Respondents insisted Piper Sandler run against the documents that it had collected. Respondents refused to eliminate or modify many broad search terms even after Piper Sandler submitted hit reports that demonstrated just how broad those search terms were. The protocol is twenty pages, single spaced. It resulted in non-party Piper Sandler having to review over 40,000 documents. 20. Piper Sandler ultimately made its production pursuant to the Piper Sandler Subpoena with primary productions on June 20 and July 27, 2023 and smaller supplemental productions made on September 13 and October 6, 2023. Piper Sandler ultimately produced 5,372 documents totaling 26,089 pages. 21. On or about November 17, 2023, Respondents requested the deposition of a Piper Sandler witness. Although no formal subpoena for a witness was ever served on Piper Sandler, Respondents demanded that Piper Sandler produce a “30(b)(6) witness” for deposition. 22. Counsel for Piper Sandler agreed to provide a witness and requested Respondents to provide a list of topics to enable Piper Sandler to identify an appropriate 30(b)(6) witness. -5- 5 of 15 FILED: NEW YORK COUNTY CLERK 03/19/2024 02:35 PM INDEX NO. 152480/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/19/2024 23. On November 28, 2023, counsel for Respondents provided a document called “Schedule B” which set forth the deposition topics. A copy of Schedule B is annexed hereto as Exhibit “E.” 24. Schedule B included a list of twelve different deposition topics. Nowhere on this list did Respondents include as a topic the personal relationship between Jimmy Dunne and Ed Herlihy. Nor does it mention communications between Dunne and Herlihy. In fact, Schedule B does not mention either the word Dunne or the word Herlihy. 25. Piper Sandler used the list of topics to identify Christopher Donohoe, a Piper Sandler Managing Director and a senior banker who worked on the SCUSA transaction, as the appropriate witness. 26. After Piper Sandler identified the appropriate witness based upon the list of deposition topics provided by Respondents, counsel met and conferred on December 4, 2023 to narrow the scope of some of the topics identified on Schedule B. 27. On December 11, 2023, in the context of selecting a date for Mr. Donohoe’s deposition, Respondents’ counsel sent an email suggesting the week of February 19. The end of the email provides “we expect the witness to be able to speak to Dunne’s relationship and conversations with Ed Herlihy from Wachtell.” 28. After the meet and confer and after the December 11, 2023 email, Respondents filed with the Delaware Court of Chancery a Notice of Rule 30(b)(6) Deposition of Piper Sandler & Co., dated December 29, 2023 (the “Notice”). The list of deposition topics identified by Schedule B in the Notice filed with the Court does not mention either Dunne or Herlihy. A true and correct copy of the Notice filed with the Delaware Court of Chancery is annexed hereto as Exhibit “F.” -6- 6 of 15 FILED: NEW YORK COUNTY CLERK 03/19/2024 02:35 PM INDEX NO. 152480/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/19/2024 29. On February 13, 2024, Mr. Donohoe appeared for his deposition. Respondents examined him from 9:12 am to 6:13 pm (nine hours). The deposition transcript is 357 pages. 2 30. During the nine hour deposition, counsel for Respondents painstakingly examined Mr. Donohoe on a broad range of topics including, but not limited to, Piper Sandler’s analyses, special committee presentations, and fairness opinion. Mr. Donohoe’s answers were comprehensive and detailed. At the end of the nine hour deposition, Respondents’ counsel declared “I think those are all the questions I have.” Nowhere in the transcript did Respondents’ counsel state on the record that they considered any of Mr. Donohoe’s answers to be lacking and they did not reserve any rights or demand a second witness. Respondents Demand A Second Piper Sandler Witness: Jimmy Dunne 31. On February 23, 2024, counsel for Respondents sent Piper Sandler’s counsel an email accusing Piper Sandler’s witness of being unprepared and demanding Jimmy Dunne appear for examination as a second Piper Sandler 30(b)(6) witness. 32. On February 28, 2024, Piper Sandler’s counsel responded to Respondents’ accusations and demand by demonstrating that, among other things: (i) Mr. Donohoe testified comprehensively about the deposition topics identified on Schedule B; (ii) Schedule B (and notice of 30(b)(6) deposition filed with the Court of Chancery) did not include a topic related to the personal relationship between Jimmy Dunne and Ed Herlihy; and (ii) Mr. Donohoe testified that Mr. Herlihy and Jimmy Dunne knew each other very well and that Mr. Dunne disclosed this fact to SCUSA’s special committee. 2 Because the transcript was designated “Confidential” in accordance with a protective order filed in the Delaware Action, it is not attached as part of this Petition. If required to, Petitioners will provide a copy to the Court for in camera review or, alternatively, file same under seal. -7- 7 of 15 FILED: NEW YORK COUNTY CLERK 03/19/2024 02:35 PM INDEX NO. 152480/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/19/2024 In addition, Piper Sandler’s counsel offered to bring Mr. Donohoe back for a short second examination after being educated on the topics that Respondents believed were not fully answered during the first examination. 33. On February 29, 2024, Respondents rejected that offer and, instead, served the New York Subpoena upon Mr. Dunne. Mr. Donohoe Was An Appropriate 30(b)(6) Witness 34. The Special Committee engaged Piper Sandler to act as its financial advisor with respect to the SCUSA Transaction. Among other things, Piper Sandler met with the Special Committee on numerous occasions to evaluate SHUSA’s offer for the publicly traded SCUSA shares and strategize over how to negotiate a higher price for the shares. In addition, Piper Sandler issued a fairness opinion whereby it concluded that the ultimate share price offered by SHUSA and accepted by SCUSA for SCUSA’s publicly traded shares was fair from a financial point of view. 35. The Piper Sandler team that handled the investment banking work for SCUSA’s Special Committee consisted of Jimmy Dunne (Vice-Chairman, Senior Managing Principal), Bill Burgess (Managing Director, Co-Head of Financial Services Investment Banking), Chris Donohoe (Managing Director, Head of Specialty Finance Investment); and Garrett Flott (Analyst). 36. Mr. Donohoe was primarily responsible for preparing the analysis presentations made to the Special Committee, including the presentation underlying Piper Sandler’s fairness opinion. Given that the detailed deposition topics identified in Schedule B concerned Piper Sandler’s analyses and fairness opinion, Piper Sandler selected Mr. Donohoe as the appropriate witness for the examination sought by Respondents. -8- 8 of 15 FILED: NEW YORK COUNTY CLERK 03/19/2024 02:35 PM INDEX NO. 152480/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/19/2024 37. Mr. Dunne’s role on the Piper Sandler team was primarily to engage in discussions with J.P. Morgan Securities LLC (“JP Morgan”), the investment banker for SHUSA (the acquiror). Mr. Donohoe was prepared to and did testify to discussions between Mr. Dunne and JPMorgan and had knowledge of those conversations because he prepared Mr. Dunne prior to those conversations and received reports back from Mr. Dunne after such conversations occurred. Respondents did not raise any issues with Mr. Donohoe’s answers to questions regarding those conversations. Respondents’ Manufactured Justification For A Second 30(b)(6) Witness 38. After Mr. Donohoe’s deposition, Respondents asserted two complaints to justify their demand that Mr. Dunne also be deposed. First, they complained that Mr. Donohoe was not able to answer specific questions regarding Jimmy Dunne’s personal relationship with Ed Herlihy, an attorney at Wachtell who represented SHUSA in connection with the SCUSA Transaction. Second, they complained that Mr. Donohoe was unable to answer questions regarding the timing of Piper Sandler’s knowledge of a potential engagement involving the SCUSA Transaction and whether such knowledge came from Ed Herlihy. 39. Neither issue raised by Respondents involves Piper Sandler’s substantive work including its analyses, presentations to the Special Committee or fairness opinion. 40. The issue regarding Mr. Donohoe’s inability to answer questions about the specifics of Mr. Dunne and Ed Herlihy’s relationship is entirely manufactured. Mr. Donohoe testified that (i) Mr. Dunne knew Mr. Herlihy well (Donohoe Tr. at 76:19); (ii) the two were members of outside organizations together (Donohoe Tr. at 72:21-73:14); (iii) the two worked on prior deals together (Donohoe Tr. at 74:4-25); and (iv) that Mr. Dunne even disclosed to the Special Committee that he and Mr. Herlihy knew each other well. (Donohoe Tr. at 76:16-77:2). -9- 9 of 15 FILED: NEW YORK COUNTY CLERK 03/19/2024 02:35 PM INDEX NO. 152480/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/19/2024 41. In any event, their personal relationship is not disputed and has been widely reported in the press. For example, a copy of an article detailing the roles played by Ed Herlihy and Jimmy Dunne in connection with the PGA/LIV professional golf tour merger is annexed hereto as Exhibit “G.” 42. With respect to the issue of the timing and source of Piper Sandler’s knowledge of a potential engagement in connection with the SCUSA Transaction, Piper Sandler offered to educate Mr. Donohoe on the issue and re-produce him for further examination. Respondents rejected that offer and, instead, served the New York Subpoena to Jimmy Dunne. Interrogatories Are An Acceptable and Less Burdensome Alternative 43. Respondents served the New York Subpoena and seek the additional deposition of Mr. Dunne because Mr. Donohoe, a corporate witness, was unable to answer the following specific questions regarding the personal relationship between Ed Herlihy and Jimmy Dunne: • “When did Ed Herlihy and Jimmy Dunne first meet?”; • “Do you know if they’re friends”; • “Do you know if they play golf together at Augusta”; • “Do you know whether they’d play golf together at Shinnecock”; • “Do you know whether they text each other”; • “Do you know how often they talk when they’re not working on a deal” • “Do you have an understanding at that time whether they socialized together?”; • “Do you understand that Mr. Herlihy asked Mr. Dunne to join the PGA Tour Board?”; • “Have you seen communications about the possibility of Mr. Dunne and Mr. Herlihy running LIV together?” • “Do you know whether Mr. Dunne and Mr. Herlihy’s families know each other?”; -10- 10 of 15 FILED: NEW YORK COUNTY CLERK 03/19/2024 02:35 PM INDEX NO. 152480/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/19/2024 • “Do you know whether Mr. Dunne and Mr. Herlihy have any homes near each other”; • “Do you know whether Mr. Dunne and Mr. Herlihy socialized during the Project Fusion sale process?” 44. Clearly, these questions can be put in the form of interrogatories propounded to Jimmy Dunne c/o Piper Sandler, in order to obtain a verified response and obviate the need for yet another deposition -- especially after nine hours of testimony from Piper Sandler’s 30(b)(6) witness. 45. Piper Sandler took its 30(b)(6) obligations very seriously. To prepare for his deposition, Mr. Donohoe met with both in-house and outside counsel four separate times (three of them in person) for approximately ten hours. (Donohoe Tr. at 17:5-19) He reviewed the list of deposition topics contained in Schedule B. (Donohoe Tr. at 14:8-16) He met with the junior banker on Piper Sandler’s deal team for an hour to refresh his recollection regarding certain documents. (Donohoe Tr. at 15:5-15) He testified that he did not speak with Jimmy Dunne with regard to conversations he had with JPMorgan, SHUSA’s banker, because Mr. Donohoe would prepare Mr. Dunne for such discussions and would receive reports back from Mr. Dunne after such discussions. (Donohoe Tr. at 16:17-24) Mr. Donohoe testified that he worked very closely with Mr. Dunne on the transaction and believed he was aware of Mr. Dunne’s participation in the transaction without having to speak with him to prepare for his deposition (Donohoe Tr. at 14:23-15:4) Donohoe was prepared and testified that Mr. Dunne and Mr. Herlihy know each other well and that Dunne disclosed this relationship to the Special Committee. (Donohoe Tr. at 76:16-77:2) -11- 11 of 15 FILED: NEW YORK COUNTY CLERK 03/19/2024 02:35 PM INDEX NO. 152480/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/19/2024 46. As set forth above, Mr. Donohoe testified for an entire day primarily about the work that Piper Sandler did with respect to the SCUSA Transaction and the fairness opinion delivered by Piper Sandler. PETITIONER’S RIGHT TO RELIEF (CPLR §§ 2304, 3103, 3119) 47. Petitioners incorporate the allegations set forth above. 48. Through the New York Subpoena, Respondents seek a second bite at the apple with respect to Piper Sandler’s 30(b)(6) witness and have manufactured an alleged justification to harass non-party Piper Sandler by insisting upon the deposition of its Vice Chairman and Senior Managing Principal, notwithstanding Piper Sandler’s good faith compliance with the Document Subpoena, including providing a knowledgeable 30(b)(6) witness who testified for an entire day. 49. The additional deposition of Jimmy Dunne will cause unreasonable annoyance, expense, disadvantage, or other prejudice to Petitioners. 50. As a reasonable modification to or condition of the New York Subpoena, Piper Sandler should be allowed to educate Mr. Donohoe on the topics that Respondents believe were not adequately answered the first time and Mr. Donohoe should be allowed to testify as to those issues. In the alternative, Petitioners should be allowed to answer specific questions regarding Jimmy Dunne’s relationship with Ed Herlihy by way of sworn interrogatory responses. 51. Pursuant to CPLR § 2304, made applicable to the New York Subpoena by CPLR § 3119, Petitioners are entitled to an order modifying or fixing conditions to the New York Subpoena, including the relief requested above. -12- 12 of 15 FILED: NEW YORK COUNTY CLERK 03/19/2024 02:35 PM INDEX NO. 152480/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/19/2024 52. Pursuant to CPLR § 3103, made applicable to the New York Subpoena by CPLR § 3119, Petitioners are entitled to a protective order denying, limiting, conditioning or regulating any deposition pursuant to the New York Subpoena, including the relief requested above. NO PRIOR APPLICATION FOR RELIEF SOUGHT HEREIN 53. No prior application for the relief sought herein or for any similar relief has been made by either of the Petitioners to this Court or to any other court. // // // // // -13- 13 of 15 FILED: NEW YORK COUNTY CLERK 03/19/2024 02:35 PM INDEX NO. 152480/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/19/2024 PRAYER FOR RELIEF WHEREFORE, Petitioners demand an order and judgment in their favor, in the form of an Order pursuant to CPLR §§ 2304, 3103 and 3119 with respect to the New York Subpoena, as follows: A. Petitioners should be allowed to educate Mr. Donohoe on the topics that Respondents believe were not adequately answered the first time and Mr. Donohoe should be allowed to testify as to those issues in lieu of the New York Subpoena. B. In the alternative, Petitioners should be allowed to answer specific questions regarding Jimmy Dunne’s relationship with Ed Herlihy by way of sworn interrogatory responses in lieu of the New York Subpoena. C. Such other and further relief as the Court deems necessary. Dated: New York, New York Respectfully submitted, March 19, 2024 MANATT, PHELPS & PHILLIPS, LLP By: /s/ Andrew L. Morrison Andrew L. Morrison Matthew Bruno 7 Times Square New York, NY 10036 (212) 790-4500 amorrison@manatt.com mbruno@manatt.com Attorneys for Petitioners Piper Sandler & Co. and James J. “Jimmy” Dunne III -14- 14 of 15 FILED: NEW YORK COUNTY CLERK 03/19/2024 02:35 PM INDEX NO. 152480/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/19/2024 VERIFICATION BRITTEN COSGROVE, an attorney duly admitted to practice law in the State of New York, affirms under penalty of perjury pursuant to CPLR § 2106 that: I am a managing director and assistant general counsel of Piper Sandler & Co., a Petitioner herein. I have read the foregoing Verified Petition and I know the contents thereof to be true, except as to those matters stated upon information and belief or based on the documents referenced therein, and as to those matters I believe them to be true. I affirm this 19th day of March, 2024, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law. _____________________________ BRITTEN COSGROVE -15- 15 of 15