Saturday, March 26, 2011
David Marcus over at The Deal has a really good piece on how Vice Chancellor Travis Laster is pushing everyone's buttons these days -- in a good way! His ruling in Del Monte got a lot of attention, but what looks the case that will define his early days his is ruling in In re Revlon from last Spring. There he ordered a change in lead plaintiff's counsel in a ruling that got a lot of attention. From Marcus' piece:
Actual litigation, Laster emphasized, is what he wants. Shareholder suits "serve as a valuable check on managerial conflicts of interest," he wrote in Revlon, and therefore should be treated seriously by both lawyers and courts.
"Traditional plaintiffs' law firms who bring lawsuits on behalf of stockholders without meaningful economic stakes can best be viewed as entrepreneurial litigators who manage a portfolio of cases to maximize their returns through attorneys' fees," he wrote. "A systemic problem emerges when entrepreneurial litigators pursue a strategy of filing a large number of actions, investing relatively little time or energy in any single case, and settling the cases early to minimize case-specific investment and maximize net profit." Replacing counsel who engage in such practices should encourage other lawyers to bring more meritorious cases.
Laster admitted that such an approach risks driving plaintiffs' lawyers to other jurisdictions. But, he wrote in response, "While in the short run policing frequent filers may cost some members of the bar financially, in the long run it enhances the legitimacy of our state and its law." In this view, stingy fee awards to lawyers who are generally looking to turn a quick profit for opportunistic strike suits will drive that less desirable work to other courts, while generous fee awards for good work will only make Delaware a more appealing venue for meritorious suits.
Laster shifted his focus to company-side lawyers in a case that immediately got their attention. In a piece of shareholder litigation last fall, Laster focused his ire on David Berger, a litigation partner at Wilson Sonsini Goodrich & Rosati PC in Palo Alto, Calif. Laster threatened to bar Berger from litigating in Delaware by removing his pro hac vice status because of how Berger represented NightHawk Radiology Holdings Inc. in settling shareholder litigation arising from the company's merger with Virtual Radiologic Corp. (Pro hac vice allows lawyers not admitted in a jurisdiction to appear before its courts.) Shareholders initially sued NightHawk in Chancery, and in oral argument Laster found "there were meaningful, litigable" issues in the deal that the plaintiffs opted not to pursue. Instead, they focused on weak disclosure claims.
"So imagine my surprise," Laster told lawyers at a Dec. 17 hearing in the case, upon learning that NightHawk and its shareholders had agreed to a disclosure-based settlement approved by an Arizona state court that probably didn't know about Laster's view of the case. The parties settled the claims that Laster rejected and passed over those he'd told them might have merit.
In the judge's view, the settlement raised the specter of "collusive forum shopping." Once a public company announces a sale, different shareholders often sue for alleged breaches of fiduciary duty in different jurisdictions. Defense lawyers complain about the resulting inefficiency and expense, but the multiple forums may allow defendants "to force plaintiffs to reverse-bid for the lowest possible settlement," Laster said at the hearing. In other words, the company settles with the plaintiffs' lawyer who often accepts the smallest settlement -- and, possibly, the smallest fee, but one that on an hourly basis may be quite lucrative. "Defense lawyers benefit from this game, too," Laster said. "They get to bill hours without any meaningful reputational risk from a loss. They then get a cheap settlement for their client. Disclosures are cheap."
It's worth reading the whole piece here.
Thursday, March 24, 2011
Bloomberg is reporting no sale for Barnes & Noble.
Riggio, the largest shareholder, and the rest of the board began examining a possible sale under pressure from Ron Burkle, who began building a stake in the company in late 2008.
The board responded to Burkle’s stock purchases by introducing a so-called poison pill in November 2009 to limit his ownership to 20 percent. Yucaipa Cos., Burkle’s Los Angeles- based investment fund, sued to overturn the pill and lost.
Yucaipa then waged a proxy contest last year to add Burkle and two other candidates to the board, losing to Riggio’s slate. Yucaipa held almost 19 percent of Barnes & Noble as of October, compared with about 30 percent for Riggio, according to data compiled by Bloomberg.
The dispute between Yucaipa and the BKS board was the subject of litigation in Delaware last summer. In that case, Ron Burkle
claimi[ed] that the adoption of the pill, and the board's refusal to amend the pill per Burkle's specific suggestions, was a breach of the directors' fiduciary duties. As relief, Yucaipa argues that the pill's threshold as to Yucaipa should be increased to equal that applicable to Riggio, and that the pill trigger should be amended to allow Yucaipa to form a coalition with other investors to run a joint slate in a proxy contest this autumn. Yucaipa supports this request for relief with the argument that the pill was a disproportionate response to an illusory threat.
Here's the opinion in that case -- the court largely upheld the board's position.
Justice Randy Holland has been confirmed for a third term. With that he becomes the first Justice on the Delaware Supreme Court to be appoint three times (from the AP):
The state Senate has confirmed Delaware Supreme Court Justice Randy Holland to a third term on the state's highest court.
With Wednesday's confirmation, Holland becomes the first Supreme Court justice in state history to be appointed to a third term.
Holland was first appointed to the Supreme Court in 1986 at the age of 39, becoming the youngest person ever to serve on the court. He already is the longest serving Supreme Court justice in Delaware history.
Here's a link to Markell's press release.
Tuesday, March 22, 2011
The Takeover Panel in the UK is moving forward with reforms adopted in the wake of Kraft's acquisition of Cadbury. One of the reforms is a near ban on termination fees.
Among the biggest changes will be a tightened “put up or shut up” period, requiring a publicly named bidder to declare its formal intentions within 28 days, from a system where the clock starts ticking at the request of the target company.
Other changes include banning incentives that give special protection to the first bidder, commonly known as break fees.
This move highlights two different directions that regulatory bodies have moved with respect to the question of deal protections. On the one hand, we have Delaware. It's reasonableness standard with respect to any ex post review of deal protections is pretty deferential of board action. Absent allegations of loyalty conflicts, a board acting in good faith basically has a green light to grant deal protection measures. On the other, we have an series of ex ante rules that govern what a board can or cannot do in advance of an acquisition, including setting strict limits on termination fees. These are two very different ways of looking at the world. If you were to only read Delaware case law, you'd think that no bidder would ever come forward absent strong deal protection measures. But, when you look at the UK's takeover market you know that it's just not the case. There is room for diversity in regulatory approaches.
Sunday, March 20, 2011
AT&T announces that is acquiring T-Mobile for $39 billion. My first thought is that this will take a long time to clear the HSR process. I haven't given this much thought, yet, but if this transaction doesn't at least go through a 'second request' we should just shut down the FTC altogether. I mean, there is no question that this transaction will result in AT&T being the single largest wireless carrier by far. Because this is a telecom deal, the FCC will also have a say in whether this deal can go forward. The FCC's mandate to ensure that mergers are in the "public interest" has come under some criticism for being too far reaching at times. The FCC was able to squeeze out of CenturyLink/Qwest commitments to build out low-income broadband access as a condition to approving that merger just last Friday. I wonder if the FCC can squeeze out of AT&T a commitment not to drop more of my calls?
In any event, the FCC has recently been talking about reworking its merger approval process, perhaps narrowing its scope. Jonathan Baker, the Chief Economist over at the FCC posted a couple of days ago to the FCC's official blog on the proposed changes to the FCC's merger approval process.
AT&T and T-Mobile have a transaction web-site up already: http://www.mobilizeeverything.com. Go there for merger docs, etc.