M & A Law Prof Blog

Editor: Brian JM Quinn
Boston College Law School

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Friday, November 29, 2013

Dell appraisal

Back in the Summer, Carl Icahn was pushing shareholders to pursue an appraisal claim in connection with the Dell going private transaction.  At the time, it seemed like a transparent attempt to get a majority of the minority to vote 'no'.  In that sense, Icahn's call for shareholders to take an 'appraisal option' by voting no and preserving their right to perfect their appraisal rights was successful.  A majority of the minority voted no.  In the end, that wasn't enough to stop the deal - the special committee waived that majority of the minority requirement and closed the deal anyway.   Not long after, Icahn decided not to opt for the appraisal remedy - taking the cash and moving on. 

Now, it seems that not everyone has moved on.  Apparently, a number of shareholders listened to the siren song of the appraisal option and have gone all-in:

T. Rowe Price Group Inc. and more than 100 other Dell Inc. shareholders who control a combined 47.5 million shares spurned the company’s buyout offer to seek a potentially higher payout through the Delaware court system.

While the shareholders haven't filed an appraisal action in the Chancery Court yet, they haven't accepted payment for their shares and according to Bloomberg they intend to file.  This is all very interesting because while Icahn proposed as much as $14/share for the company, the final deal price was $13.75.  So, presumably, shareholders seeking appraisal are looking for a price somewhere between $13.75 -$14/share?  Seems like a lot of work for an extra $11 million.

-bjmq

November 29, 2013 | Permalink | Comments (1) | TrackBack (0)

Tuesday, November 19, 2013

Why go to Dover?

WHYY reports that the Delaware Supreme Court has begun to post mp4/video recordings of all arguments.  Right now, video recordings are available back to October 9.  You can find them at the Delaware Supreme Court's website.  Going forward the video recordings will be posted as a matter of course, although they will be one or two days delayed.  Nevertheless, they will be a great resource for lawyers, students, and others interested in the corporate law.    

Even though, one can now watch the arguments from afar, I'm still likely going to find myself going to Dover for the arugments in the pending MFW and Cooper appeals (December 18/19).  Corporate geek.

-bjmq 

 

November 19, 2013 in Delaware, Litigation | Permalink | Comments (0) | TrackBack (0)

Monday, November 18, 2013

All means all

Surprising almost nobody, Chancellor Strine issued an opinion in Great Hill Equity Partners vs SIG Growth Equity Fund providing a statutory interpretation of DGCL Sec. 259.   You'll remember that 259 reads in relevant part as follows:

§ 259. Status, rights, liabilities, of constituent and surviving or resulting corporations following merger or consolidation.

(a) When any merger ... shall have become effective ... the separate existence of all the constituent corporations, or of all such constituent corporations except the one into which the other or others of such constituent corporations have been merged ... shall cease and the constituent corporations shall ...  be merged into 1 of such corporations ... possessing all the rights, privileges, powers and franchises as well of a public as of a private nature, and being subject to all the restrictions, disabilities and duties of each of such corporations so merged or consolidated; and all and singular, the rights, privileges, powers and franchises of each of said corporations, and all property, real, personal and mixed, and all debts due to any of said constituent corporations on whatever account, as well for stock subscriptions as all other things in action or belonging to each of such corporations shall be vested in the corporation surviving or resulting from such merger...

The question for the court was whether the attorney client privilege of the seller passes to the buyer upon the closing. You can imagine why this might be of interest to buyers.  You know, a successful buyer of a certain kind might want to use privileged information to seek undemnification for a breach of a representation post-closing, etc.  In Great Hill, the seller was seeking to prevent the buyer from getting post-closing access to privileged attorney-client communications of the seller.  Great Hill asked the court to rule that when 259 says all "privileges" it doesn't mean the seller's attorney-client privilege.  Chancellor Strine wasn't having any of that:

To indulge the Seller‟s argument would conflict with the only reasonable interpretation of
the statute, which is that all means all as to the enumerated categories, and that this
includes all privileges, including the attorney-client privilege.

So, sellers ... remember to box up all that legal work and leave it for the buyers when they wander in to take over. It's theirs.

-bjmq

November 18, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 13, 2013

Annual Nixon Peabody MAC Report

Nixon Peabody just released their annual MAC report.  Here's a taste, the  change in markets carveout:

2013MACCarveouts
 

 

-bjmq

November 13, 2013 in Material Adverse Change Clauses | Permalink | Comments (0) | TrackBack (0)

And then there were two?

According to the Delaware Law Weekly, it's down to two:

Jurden, Strine Still Viewed as Favorites in Chief Justice Race

Delaware legal analysts say that all four candidates to become the next state Supreme Court chief justice are highly qualified, but have handicapped the race for the state's top legal job as a choice between two frontrunners: Court of Chancery Chancellor Leo E. Strine Jr. and Superior Court Judge Jan R. Jurden
 
But why do the headline writers characterize this selection as a race? 
 
-bjmq

November 13, 2013 in Delaware | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 12, 2013

Delaware Arbitration Procedure Appeal Deadline

So, notwithstanding statements that Delaware was considering filing an appeal of the third circuit's opinion declaring the Chancery Court's arbitration procedure unconstitutional, it has allowed the first deadline to pass

Attorneys for Delaware and the Chancery Court could have demanded that all the judges on the U.S. Third Circuit Court of Appeals review the case, a procedure called an “en banc” review, but the deadline to make that request expired Nov. 6, leaving only a possible appeal to the U.S. Supreme Court, which must be done by January 21.

We'll see.  My personal opinion: Delaware should permit the arbitration procedure to go forward, but require the proceedings to remain open to the public.  

-bjmq

November 12, 2013 in Delaware, Litigation | Permalink | Comments (0) | TrackBack (0)

Friday, November 8, 2013

More on Challenge to Edgen Forum Provision

So a couple of days ago, I noted another challenge to an exclusive forum provision (this one in a corporate charter) in connection with the acquisition of Edgen Group by Sumitomo.  So, Edgen had its day in Chancery Court where it argued that the Vice Chancellor should issued an injunction against the plaintiff stockholder to prohibit him from purusing a law suit outside of Delaware.  In considering the whether to issue the order, Vice Chancellor Laster made it clear that Delaware believes exclusive forum provisions are binding on stockholders.  There are no issues for the court with respect to the legality of these provisions.  But...no injunction for Edgen.  Why? Well, on the balance of the equities analysis, the court felt that it wasn't the court's place to tell a court in Louisiana what to do.  Edgen can raise the forum provision in front of the Louisiana court and the court - if fairly applying Delaware law - should toss the case out.  Ahem...we shall see...

Now, what I thought was really interesting about Vice Chancellor Laster's hearing in Edgen was his statements about the nature of plaintiff shareholders.  To get the context, Edgen and their counsel appeared  before Laster for the hearing.  Genoud, the plaintiff, however did not appear.  Genoud's counsel was in fact there, but without authorization to speak on behalf of his client in the Delaware action.  There was a lot of 'we love to appear, but our client hasn't authorized us to appear in Delaware' etc.  To that, Laster had this to say (Transcript Hearing):

Now, Mr. Genoud has not responded to the complaint. Extraordinary efforts have been made by Mr. Slights and his colleagues to track down Mr. Genoud, including the hiring of two process servers and the hiring of a private investigator. His residential address cannot be found. 

The Louisiana counsel who represent Mr. Genoud for purposes of that action have declined to accept service. And the Robbins Geller firm, a firm that I generally have great respect for, has engaged in unsatisfying and, dare I say, pathetic representational contortions in which they have maintained that although they represent Mr. Genoud for purposes of challenging the merger and bringing the lawsuit in Louisiana, they do not represent Mr. Genoud for the clearly-related subject matter of this proceeding.

Now, anyone remotely familiar with this type of stockholder litigation understands that Robbins Geller is not taking its direction from a nominal client on these issues but rather is calling the shots itself. And the idea that Robbins Geller and Louisiana counsel have not been able to reach their client, even though they sued in Louisiana and sought expedited proceedings and have a status conference tomorrow, is either, one, not credible, or two, confirmatory that Robbins Geller is not taking direction from its client about how to handle this litigation.

Frankly, it's quite disappointing behavior from a firm that otherwise has done a great deal to build up reputational capital and credibility with the Delaware courts. It would not have been, I think, any impairment at all to enter an appearance and reserve the ability to fight the jurisdictional issue. It is much more credibility-straining to claim that you can't contact your client, and that although you have been engaged to handle a broad and expedited attack on a merger and to sue in a jurisdiction internationally removed from your client's residence, you have nevertheless not been retained to handle a related proceeding in another court that, although I haven't done the math, is probably equidistant, if not closer, to the plaintiff's residence.

The Louisiana court held a hearing in this case yesterday.  I'm assuming the plaintiff (or his counsel) turned up for that hearing.  No word yet on the outcome of that hearing. 

-bjmq

November 8, 2013 in Litigation | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 6, 2013

The New Professional Plaintiffs

I started a paper like this once.  After a colleague warned me that I might want to hire legal counsel before I published it I thought better of finishing it.  I'm happy to say, however, the world is full of brave people.  Jessica Erickson has published The New Professional Plaintiffs in Shareholder Litigation

In 1995, Congress solved the problem of professional plaintiffs in shareholder litigation — or so it thought. The Private Securities Litigation Reform Act (PSLRA) was designed to end the influence of shareholder plaintiffs who had little or no connection to the underlying suit. Yet it may have failed to accomplish its goal. In the wake of the PSLRA, many professional plaintiffs simply moved into other types of corporate lawsuits. In shareholder derivative suits and acquisition class actions across the country, professional plaintiffs are back. They are repeat filers involved in dozens of lawsuits. They are the attorneys’ spouses, parents, and children. They may even be entities created for the primary purpose of filing litigation. These new professional plaintiffs have flown almost entirely under the radar of corporate law scholarship. This Article pulls back the curtain on professional plaintiffs, examining court filings and other public records in the first comprehensive study of professional plaintiffs’ role in corporate law. In most instances, professionalism is a good thing — but not when it comes to choosing plaintiffs.

Download the paper and meet the "mythical" Alan Kahn, as well as Doris & Steven Staehr among others!

-bjmq

November 6, 2013 in Litigation | Permalink | Comments (2) | TrackBack (0)

Prognostication

So, the Delaware Law Weekly broke news last night with a report that four people had applied for the job of Chief Justice of the Delaware Supreme Court. According to the Delaware Law Weekly, those four are: 

Supreme Court Justice Carolyn Berger, Superior Court President Judge James T. Vaughn Jr., Superior Court Judge Jan R. Jurden and Court of Chancery Chancellor Leo E. Strine Jr.

The conventional wisdom has it that Leo Strine is going to get the job.  Why?  Well, because the conventional wisdom hangs around mid-town Manhattan.  Delaware is clearly concerned about its corporate law brand and certainly Chancellor Strine has a clear advantage in that area over the rest.  But the Chief's job isn't entirely about corporate law.  So, while the CW says Strine, we immediately shouldn't discount any of the others.  They are all intriging and equally plausible.  Let's give them a look.

Justice Berger would ensure continuity as she is already sitting on the court.  She is a respected jurist.  She would also be the first woman appointed to the job.  That's a big statement if the Governor wants to make it.  In addition, moving Justice Berger over to Chief would open up an associate justice job for one of the other candidates if the Governor is hestitant to appoint someone straight into the Chief's job.  Moving Justice Berger over would also make room for a second woman to join the Delaware bench.  That's an even bigger statement with lots of political upside if Markell wants to make it.

However, if the Governor were going to appoint someone right into the Chief's job, perhaps Judge Vaughn is the right one.  He is already President of the Superior Court so is familiar with the administrative duties that come along with being a chief judicial officer.   He is a criminal lawyer by training and profession, so he would also be able to represent the other (non-corporate) aspects of Delaware's jurisprudunce.

On the other hand, there is my favorite dark horse - Judge Jan Jurden.  She is a judge on the Superior Court and a military verteran, so she wouldn't be likely to take any gruff from sitting justices were she to be appointed. She also has had a broad set of experiences.  She has held a number of judicial administrative positions over the years - overseeing the Mental Health Court, the Conflict Attorney Program.  She was previously both a Civil and Criminal Adaministrative Judge.  And, she is presently a member of the Superior Court's Complex Commercial Litigation Division.  To top it off, in 1989 she was on the legal team that represented Paramount before the Delaware Supreme Court in Paramount v Time. She ultimately had a 13 year career as a litigator at Young, Conway before departing for the bench.

Anyway, don't believe anything you hear.  Nobody knows nothing for now.

-bjmq 

November 6, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 5, 2013

Boston Bar M&A Event

For those of you in the Boston area -- of maybe for those of you looking for an excuse to be in the Boston area -- the Boston Bar is putting on what looks to be an excellent day-long conference on M&A. Info here:

First Annual Mergers & Acquisitions Conference

Wednesday, November 13, 2013 8:30 AM to 12:45 PM
Boston Bar Association - 16 Beacon Street, Boston, MA

Panelists:

Drafting and Negotiating Acquisition Agreements – The Words Really Matter
C. Stephen Bigler - Richards, Layton & Finger, P.A. 
Laurie A. Cerveny - Bingham McCutchen LLP
Richard E. Climan - Weil, Gotshal & Manges LLP
Hon. Leo Strine, Jr. - Chancellor of the Delaware Court of Chancery

Everything Tender Offers
Frederick H. Alexander - Morris, Nichols, Arsht & Tunnell LLP
Margaret A. Brown, Skadden, Arps, Slate, Meagher & Flom LLP
James R. Griffin - Weil, Gotshal & Manges LLP
Hal J. Leibowitz - Wilmer Cutler Pickering Hale and Dorr LLP

The Evolving Standards of Judicial Review for M&A Transactions and Recent Developments in M&A Litigation
Kevin R. Shannon - Potter, Anderson & Corroon LLP
Jane Goldstein – Ropes & Gray LLP
James P. Smith, III – Winston & Strawn LLP

The BBA has put together quite a group.  Make time to be there!

-bjmq 

November 5, 2013 | Permalink | Comments (0) | TrackBack (0)

Another challenge to an exclusive forum provision

Edgen Group recently announced that it would be acquired by Sumitomo Corp.  No surprise, there is transaction related litigation.  A stockholder brought a case in Louisiana, the state of Edgen Group's headquarters (Edgen Complaint-LA).  You know the argument...the board has obligations under Revlon, yadayada, the board sold at too low a price, yadayada...  Well, turns out that Edgen is a Delaware Corp with an exclusive forum provision in its charter.  The provision reads as follows:  Edgen-EFP

Exclusive forum provisions in corporate bylaws, you'll remember, were ruled to be legal by Chancellor Strine and the pending appeal of that ruling before the Delaware Supreme Court was later dropped.  Here, Edgen's argument to have the exclusive forum provision enforced is even stronger than in Chevron because the provision is found in the certificate of incorporation rather than the bylaws.  Now, Edgen has sued in Delaware to have the Chancery Court force stockholder plaintiffs to bring their case to Delaware (Complaint - Edgen- Delaware).  Although, it's all very interesting, what matters most in this case is whether the judge in Louisiana cares about the forum provision and whether that judge is going to enforce the provision.  He should, but there's no telling...

-bjmq

 

 

November 5, 2013 | Permalink | Comments (0) | TrackBack (0)