November 3, 2010
The Airgas appeal before the Delaware Supreme Court gets underway in about 30 minutes (care of Courtroom View Network). In the meantime, Lucien Bebchuk and his co-authors put a post on the Harvard Corporate Governance Network blog describing their work on staggered boards that figured so prominently in Ted Mirvis argument before the Chancery Court. They highlight what they concluded, and, importantly, what they didn't conclude.
Back in 30 minutes when the fun starts.
The Supremes...sitting en banc.
Ted Mirvis is now making the argument for Airgas
"For over 100 years everyone has believed that the terms of a staggered board are three years."
Ridgley: Are you arguing that a year term must be exactly 365 days?
Mirvis: No, not exactly 12 months, but if there are situations where it is inadvisable to have a meeting exactly 12 months apart that's okay, but not without limits.
Redgley: But, what is the limit?
Mirvis: Should be worked out on a case by case basis.
Berger: Could directors move the annual meeting date by 6 months for business reasons?
Mirvis: If the directors wanted to do it, there would be no one to complain. Stockholders can't do it if it deprives a director of his/her term because the term is a creature of statute.
Mirvis is arguing that this is a question of statutory interpretation and not necessarily one of interpretation of the charter.
Holland, helping out Mirvis with friendly questions:
Essential Enterprises makes another appearance. You might as well read it.
Bebchuk et al's post gets a shout-out. You should read that, too.
Mirvis is done.
Air Products' counsel making his case:
Per 211, the time and place of the annual meeting should be set per the manner established in the bylaws. Now making a textual argument interpreting the charter in support of his position. If Airgas is right, then none of the words in the charter (contract) don't matter.
Chief Justice Steele:
Discussing the Seitz opinion in Essential Enterprises, again.
Berger asking questions that sound sympathetic to Airgas' position:
Discussions of the meaning of the ABA form book for public company charter docs.
Through all the back and forth, it's not exactly clear where the Supremes are in their thinking - whether they have latched onto Airgas' "it's all about the statute and common understanding" or with Air Products' "we're only doing a plain reading of the charter" argument. Then again ... they let Air Products' counsel make his argument almost unheeded for the last five minutes.
Mirvis is back now for a minute making the same common understanding argument. I think his argument that because Air Products has the same charter language as Airgas that it somehow disqualifies Air Products' interpretation of Airgas' charter isn't all that useful.
... and that's it!
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