Friday, March 22, 2013
Sounds like the judicial fireworks are flying in Tulane (note to self: go next year). At a panel discussion Chief Justice Myron Steele apparently continued his crusade to get the Chancery Court to shut up (via WSJ Deal Journal:
“Every time they open their mouth they make the law,” Steele said Thursday, discussing how he would love to get that idea into the heads of judges. Steele said it was inappropriate to force lawyers to read transcripts in order to determine the law.
Steele didn’t name names.
But we know. It's funny. The Supreme Court would like the Chancery Court to say less and only speak through its opinions and only on issues that are directly before the court. All of this other stuff is just dicta. It forces lawyers to read transcript hearings and search speeches for hints at what the law is. As an aside - if the court were really worried about closing off access to knowledge of the state of the law, it would reconsider its Chancery Arbitration procedures. Just saying.
Anyway, those things that Steele thinks are bugs, are considered features by the Chancery Court. In a paper (forthcoming in W&L Law Review) by Vice Chancellor Donald Parsons and his former clerk Jason Tyler, the authors point to dicta and judicial asides as an important component of the law making/dealmaking function of Delaware law:
To give just one small example of the organic nature of this process, in December 2011, Vice Chancellor Laster issued an opinion in In re Compellent Technologies. In dicta, he questioned the wording of a provision of a merger agreement requiring the target company’s board to give notice to the acquirer if any subsequent, superior offers arose. The Vice Chancellor did not question the general validity of this relatively common information rights provision, just the particular verbiage used to express it in the merger agreement at issue in that case. Less than two months later, another case—In re Micromet—challenged a merger agreement containing a nearly identical provision, except for a revision in the language the court had questioned in Compellent. The court in Micromet found the revised provision unobjectionable. More important than the outcomes of those two cases, however, is what one reasonably can infer from their facts and sequence. Apparently, within a matter of weeks, transactional attorneys had read the Compellent opinion and advised their clients accordingly in connection with a later transaction that, when challenged, survived judicial scrutiny.
So, it's a bit of a judicial tug of war that will no doubt continue to play out.
Wednesday, March 20, 2013
According to Richards Layton & Finger, Delaware is in the process of amending the DGCL to add a new Sec. 251(h), the purpose of which will be to eliminate a required shareholder vote in the second step of a two-step acquisition:
Under new subsection 251(h), a vote of the target corporation’s stockholders would not be required to authorize the merger if: (1) the merger agreement expressly provides that the merger shall be governed by this new subsection and shall be effected as soon as practicable following the consummation of the offer described below; (2) a corporation consummates a tender or exchange offer for any and all of the outstanding stock of the target corporation on the terms provided in such merger agreement that would otherwise be entitled to vote on the adoption of the merger agreement; (3) following the consummation of the offer, the consummating corporation owns at least the percentage of the stock of the target corporation that otherwise would be required to adopt the merger agreement; (4) at the time the target corporation’s board of directors approves the merger agreement, no other party to the merger agreement is an “interested stockholder” (as defined in Section 203(c) of the DGCL) of the target corporation; (5) the corporation consummating the offer merges with the target corporation pursuant to such merger agreement; and (6) the outstanding shares of the target corporation not canceled in the merger are converted in the merger into the same amount and kind of consideration paid for shares in the offer.
Given the recent proliferation of top-up options, the back end shareholder vote has lost much of its kick, if it ever had any. Really, by now if a target requires an actual back-end vote it's because it either doesn't have enough shares outstanding to permit a top-up option or there were just really bad lawyers working the deal.
Tuesday, March 19, 2013
This client alert from Gibson Dunn discusses Chancellor Strine's bench ruling rejecting a disclosure-only, negotiated settlement of an M&A stockholder lawsuit. According to the authors,
The decision, in In re Transatlantic Holdings Inc. Shareholders Litigation , Case No. 6574-CS, signals that the Chancery Court will carefully scrutinize the terms of negotiated settlements to ensure that named stockholder plaintiffs are adequate class representatives and that the additional disclosures provided some benefit to the purported stockholder class. At the same time, the decision represents an unmistakable warning to plaintiffs’ firms that they cannot continue to count on paydays through the settlement of meritless lawsuits filed in the wake of announced deals.
Thursday, March 7, 2013
Many times my students will ask me, well how bad does director inattentiveness to board duties have to be win on a care claim much less a Caremark claim? There are, of course, multiple levels of answers to that question, but the simplest is, "pretty bad". Now we have a stark example of some facts from a recent Delaware transcript ruling that might get you there - In re Puda Coal (Puda_Coal Transcript_Ruling). In Puda, we have a Chinese coal company incorporate in Delaware and trading on US markets with five directors - 2 inside Chinese directors and 3 outside American directors. OK, so it turns out that the 2 inside directors stole all the corporate assets and appropriated them all for themselves. For two years, the outside directors had no idea. They relied on reports from the CEO and sat in the US all the while assuming there were corporate assets somewhere in China. So, the directors, including the outside directors all get sued. OK, so far so good.
During the course of an internal investigation, all the outside directors realizes what had been going on and quit in response, leaving the inside directors in charge of their own malfeseance. Then outside directors turn up in Chancellor Strine's court as defendants seeking to have the derivative suits dismissed for because demand was not excused. Theory: a majority of the directors were independnet and could well have sought to prosecute this case, had it been presented to them. That didn't go well for them:
A Delaware lawyer is telling me, I think, if I dismiss the case on demand excusal grounds, I dismissed it because control of the lawsuit belongs to the company, therefore the decision to sue the insiders who took the assets belongs to the company. The company might conclude that it's perfectly okay to take the assets, or there's a cost benefit analysis of suing and it's just not worth it. I can't take on to myself in that situation. I can't enter a judgment at the instance of derivative plaintiffs because control of a lawsuit belongs to the board, which is now controlled by the guy who your clients suspect stole the assets out from under them.
What stuck in Strine's craw, I think, was the fact that when the outside directors who were a majority realized that the all the assets of the corporation had been sold out from under them that their response was not to sue the bad directors and seek to defend the corporation, but to resign and walk away:
When, as a matter of undisputed reality, when they were faced with knowing in their view that there had been the most extreme sort of fiduciary violation you could imagine, rather than have the company sue, they quit, then come into court and seek to use 23.1 and, frankly, disable the derivative plaintiffs from even going after the bad guys. When I mean bad guys, I'm using your client's own view of these people. I'm trying to understand how my state -- if I were to embrace this -- my state's corporate law would not be justly subject to ridicule.
And that's when the hearing starts to go really bad for the outside directors. Turns out only one of the outside directors speaks Chinese. Whoops. (Note to self, pick up a Rosetta Stone before taking that directorship in the Mongolian company). Strine then let them have it with this:
I think those of us who actually -- judges in Delaware who participate in corporate law in Delaware take legitimate umbrage when folks say that we don't hold managers accountable for breaches of fiduciary duty in Delaware. I find that claim to be astonishingly outdated and simple-minded, when any review of our corporate law will see -- just out of our statutory corporate law will say that is, frankly, much more pro stockholder and more balanced than any of our other states, most of which have stronger insulations against director liability, many of which allow directors in the context of takeovers to use takeover defenses not permissible in Delaware, and when the major controversies that have come out of Delaware over the last 30 years, some of them have been about things that are anti-stockholder. Many of them are cases like Van Gorkom, Omnicare, Quickturn. Guys like me, El Paso, Southern Peru, Loral, where we've held people accountable in big ways for things. And we take seriously in the derivative suit contest that, frankly, you shouldn't lightly take away from the board of directors the ability to control a lawsuit. But to use doctrinal law in some sort of gotcha way is just not appropriate
Now, he's just venting; he's right, but he's just venting. So by now it's pretty obvious that the defendants made an error is seeking to dismissal on failure to make demand. Then Strine turned to the question of whether a 12(b)(6) motion can survive. Sorry, it's not going to get any better for these defendants. But here, Strine lays out some minimum standards for independent directors of Delaware corporations headquartered abroad, and it's pretty sensible:
Independent directors who step into these situations involving essentially the fiduciary oversight of assets in other parts of the world have a duty not to be dummy directors. I'm not mixing up care in the sense of negligence with loyalty here, in the sense of your duty of loyalty. I'm talking about the loyalty issue of understanding that if the assets are in Russia, if they're in Nigeria, if they're in the Middle East, if they're in China, that you're not going to be able to sit in your home in the U.S. and do a conference call four times a year and discharge your duty of loyalty. That won't cut it. That there will be special challenges that deal with linguistic, cultural and others in terms of the effort that you have to put in to discharge your duty of loyalty. There's no such thing as being a dummy director in Delaware, a shill, someone who just puts themselves up and represents to the investing public that they're a monitor. Because the only reason to have independent directors -- remember, you don't pick them for their industry expertise. You pick them because of their independence and their ability to monitor the people who are managing the company. And a lot of life – I would not serve on -- if I were in the private sector -- not that anybody would want me -- but there are a lot of companies on boards I would not serve because the industry's too complex. So if I can't understand how the company makes money, that's a danger. If it's a situation where, frankly, all the flow of information is in the language that I don't understand, in a culture where there's, frankly, not legal strictures or structures or ethical mores yet that may be advanced to the level where I'm comfortable? It would be very difficult if I didn't know the language, the tools. You better be careful there. You have a duty to think. You can't just go on this and act like this was an S&L regulated by the federal government in Iowa and you live in Iowa.
So on Caremark alone, I have no problem saying that it passes muster under 12(b)(6).
This is a case to watch as it winds its way through the courts. It may well start making its way into case books soon.
Wednesday, March 6, 2013
In a recent case in Delaware we get an expected but still important decision in Meso Scale Diagnostics. This is just blocking-and-tackling. The question for the court was whether a reverse triangular merger constituted an assignment with respect to the surviving corporation. The court concluded it did not. In doing so, Vice Chancellor Parsons declined to follow a California case (SQL Solutions) that held that a reverse triangular merger resulted in an assignment by operation of law with respect to the surviving corporation:
Delaware courts have refused to hold that a mere change in the legal ownership of a business results in an assignment by operation of law. SQL Solutions, on the other hand, noted California courts have consistently recognized that an assignment or transfer of rights does occur through a change in the legal form of ownership of a business. The SQL Solutions case, however, provides no further explanation for its apparent holding that any change in ownership, including a reverse triangular merger, is an assignment by operation of law. Both stock acquisitions and reverse triangular mergers involve changes in legal ownership, and the law should reflect parallel results. In order to avoid upsetting Delaware‘s well-settled law regarding stock acquisitions, I refuse to adopt the approach espoused in SQL Solutions.
In sum, Meso could have negotiated for a change of control provision. They did not. Instead, they negotiated for a term that prohibits assignments by operation of law or otherwise. Roche has provided a reasonable interpretation of Section 5.08 that is consistent with the general understanding that a reverse triangular merger is not an assignment by operation of law.
Another reason why the triangular merger structure remains the go-to structure for dealmakers.
Tuesday, January 22, 2013
If you are in NYC on February 7, I'd encourage you to stop by Cardozo for its panel on the Delaware arbitration procedure. They have assembled a great panel, including David Finger, counsel for the Delawaree Coalition for Open Government. Mark your calendars!
Wednesday, December 19, 2012
So, the relevant question is - if the world is going to end on Friday, why did I spend the past week in a cocoon grading exams? Anyway...
On Monday, Chancellor Strine weighed in on Dont Ask-Don't Waive provisions in a bench ruling in the Ancestry.com shareholder litigation. This issue has come before the court a couple of times in the past few months. In November, Vice Chancellor Laster was asked to consider the provision in In re Complete Genomics. He found it troubling. And before that in Celera Corporation Shareholders Litigation Vice Chancellor Parsons also had an opportunity to weigh in on don't ask-don't waive. In Celera, Parsons found them troublesome:
Here, the Don't-Ask-Don't-Waive Standstills block at least a handful of once-interested parties from informing the Board of their willingness to bid (including indirectly by asking a third party, such as an investment bank, to do so on their behalf), and the No Solicitation Provision blocks the Board from inquiring further into those parties' interest. Thus, Plaintiffs have at least a colorable argument that these constraints collectively operate to ensure an informational vacuum. Moreover, the increased risk that the Board would outright lack adequate information arguably emasculates whatever protections the No Solicitation Provision's fiduciary out otherwise could have provided. Once resigned to a measure of willful blindness, the Board would lack the information to determine whether continued compliance with the Merger Agreement would violate its fiduciary duty to consider superior offers. Contracting into such a state conceivably could constitute a breach of fiduciary duty.
Bidders aren't allowed to bid and sellers aren't allowed to ask. To the extent previous Chancery Court rulings have ruled that boards violate their duties to the corporation by engaging in willful blindness, Don't-Ask Don't Waive provisions in standstills do raise legitimate issues.
Chancellor Strine recognized these potential problems on Monday when he considered the same provision in the Ancestry.com Shareholder Litigation. He noted a couple of important things. First, these provisions are not per se illegal. There are uses of don't ask-don't waive that are consistent with a director's fiduciary duties under Revlon. For example, in designing an auction process, directors might want to design credible rules that will generate incentives for bidders to put their best bids on the table right away and thereby avoid potentially lengthy serial negotiations down the road. The don't ask-don't waive provision signals to bidders (credibly, if it's enforceable) that they get only one shot at the apple.
On the other hand, such provisions as Strine noted, can be used by boards in a way that is inconsistent with their fiduciary duties. If directors lean on such provisions to close their eyes to a materially higher subsequent bid, they may be violating their duties to remained informed in the manner that Vice Chancellor Parsons was worried about in Celera.
In this case, the board had disclosed to shareholders - who are supposed to vote on December 27 - that the board could terminate the transaction in the event it received a superior proposal. The board did not disclose to shareholders that the most likely topping bidders were all boxed out by don't ask-don't waive provisions in the standstill agreement. Strine ordered additional disclosures prior to the planned shareholder meeting, sidestepping for the timebeing the question of the don't ask-don't waive provision.
I understand what he's trying to accomplish. On the one hand, shareholders need to know that there isn't effective competition for the seller because of the provision that leaves out the most likely bidders. On the other hand, if shareholders miss the Dec 27 window, then "fiscal cliff" implications may leave shareholders holding a much bigger tax bill. Damned if you do, damned if you don't so to speak. So, he let it proceed and left it to shareholders with all the information in their hands, to decide whether or not to accept the offer on the table.
Thursday, December 6, 2012
This post is not about football, though I will admit to being amused by the circus that presently calls itself the NY Jets. No, it's about an article by David Marcus who points out how Vice Chancellor Laster has lined up with Chancellor Strine on the other side of Chief Justice Myron Steele and the Delaware Supreme Court over the issue of default fiduciary duties in LLCs. It's really not about the issue at hand -- whether managers in an LLC are subject to fiduciary duties by default -- but a larger issue that relates to sometimes tense relationship between the Chancery Court and the Supreme Court. The default fiduciary duty issue is an interesting one with some important ramifications (e.g. can you have federal insider trading liability in a publicly-traded LLC where managers don't have fiduciary duties?, etc), but I'll leave that for another day.
In a per curiam decision last month in Gatz Properties LLC v Auriga Capital, the Supreme Court attempted to put Chancellor Strine back on a short leash:
The opinion suggests that “a judicial eradication of the explicit equity overlay in the LLC Act could tend to erode our state’s credibility with investors in Delaware entities.” Such statements migh be interpreted to suggest (hubristically) that once the Court of Chancery has decided an issue, and because practitioners rely on that court’s decisions, this Court should not judicially “excise” the Court of Chancery’s statutory interpretation, even if incorrect. That was the interpretation gleaned by Auriga’s counsel. During oral argument before this Court, counsel understood the trial court opinion to mean that “because the Court of Chancery has repeatedly decided an issue one way, . . . and practitioners have accepted it, that this Court, when it finally gets its hands on the issue, somehow ought to be constrained because people have been conforming their conduct to” comply with the Court of Chancery’s decisions. It is axiomatic, and we recognize, that once a trial judge decides an issue, other trial judges on that court are entitled to rely on that decision as stare decisis. Needless to say, as an appellate tribunal and the court of last resort in this State, we are not so constrained.
It seems that too many people are forgetting that the Chancery Court is a trial court and not an appellate court, the Supreme Court is reminding us, and practitioners, and the Chancery. OK, got it. Oh, and then the court adds this:
Fifth, and finally, the court’s excursus on this issue strayed beyond the proper purview and function of a judicial opinion. “Delaware law requires that a justiciable controversy exist before a court can adjudicate properly a dispute brought before it.” We remind Delaware judges that the obligation to write judicial opinions on the issues presented is not a license to use those opinions as a platform from which to propagate their individual world views on issues not presented. A judge’s duty is to resolve the issues that the parties present in a clear and concise manner. To the extent Delaware judges wish to stray beyond those issues and, without making any definitive pronouncements, ruminate on what the proper direction of Delaware law should be, there are appropriate platforms, such as law review articles, the classroom, continuing legal education presentations, and keynote speeches.
Uh, ouch. OK, but Marcus points to a recent opinion, Feely v NHAOCG LLC by Vice Chancellor Laster in which he lines up with Chancellor Strine and takes issue with the Surpreme Court that Chancellor Strine's analysis of default fiduciary duties in the LLC context are "dictum without any precendential value." He points to the long line of Chancery cases on this issue as persuasive and until such point as the Supreme Court rules on the issue, those cases and Chancellor Strine's analysis of default fiduciary duties will be good enough for him:
The Delaware Supreme Court is of course the final arbiter on matters of Delaware law. The high court indisputably has the power to determine that there are no default fiduciary duties in the LLC context. To date, the Delaware Supreme Court has not made that pronouncement, and Gatz expressly reserved the issue. Until the Delaware Supreme Court speaks, the long line of Court of Chancery precedents and the Chancellor's dictum provide persuasive reasons to apply fiduciary duties by default to the manager of a Delaware LLC. As the managing member of Oculus, AK-Feel starts from a legal baseline of owing fiduciary duties.
Is any of this earth shattering or new? No, but it's an example of the real tension between the Chancery Court and the Supreme Court as it plays out in the opinions of both courts. This dynamic has existed for some time now - predating Strine and Laster. Court watchers - and court anthropoligists - shouldn't be surprised by this.
Monday, December 3, 2012
The Chancery Court approved a settlement in the El Paso case. Here's the El Paso Settlement. Something I thought was interesting - the transaction attracted 22 lawsuits - 13 in Delaware, 8 in Texas, and one in New York. That's quite a crowd. Then again, the facts in the case were the type that made it an attractive target for litigation. In the settlement, El Paso will pay $110 to the class fund and Goldman will give up its $20 million fee. Plaintiff counsel received $26 million in fees to split amongst all the counsel.
Tuesday, September 18, 2012
The Southern Copper case has generated lots of attention - and for good reason. The courts don't often hand out $2 billion verdicts. Over at the WSJ Dealpolitik column, Ronald Barusch takes a look at the hefty legal fee - an eye popping $304 million (or an approximate $35,000/hour fee) and suggests it might be time for state legislatures to step in and reform shareholder litigation -- perhaps by relyiong on administrative remedies against directors. That's not altogether a unique recommendation. My colleague, Renee Jones, recently published a piece in the Vanderbilt Journal of Transnational Law recommending director bars as an alternative administrative remedy for director violations of the duty of care. It's an idea worth pursuing especially given the ubquity of 102(b)(7) protections.
In any event, I'm getting far afield. Rather than see Southern Copper as an example of judicial overreach, it might be better to put it in the context of Delaware trying to muddle through the problem of transaction-related litigation. By now, it's pretty well known that almost every public transaction is bound to be the subject of litigation. Most of that litigation is, to be perfectly frank, nuisance litigation. That said, shareholder litigation remains an important quiver in the corporate governance arrow. So, how to encourage good suits and discourage bad ones? There have been lots of attempts to get a handle on this problem - PSLRA for example. In recent years, the courts in Delaware have (I supposed relying on the hive-mind) decided that policing down fees on "bad" cases and being generous with fees on "good" cases is one way to set the incentives. Southern Copper falls into the "good" case category. Chancellor Strine presumably wants to signal to potential litigants that these kinds of cases, where the duty of loyalty is at issue, will be cases that pay off and that plaintiffs should invest their resources in pursuing these cases over the garden variety disclosure cases that often accompany merger announcements.
Thursday, September 13, 2012
Tom Hals at Reuters has a good piece on the potential for Chancery arbitration following the recent district court decision. Backers of Chancery arbitration are looking to appeal the ruling that struck down teh ability of parties to maintain confidentiality of the proceedings. That seems like the right result. Now, they are seeking to appeal the ruling and get Chancery arbitration back on track. This struck me in Hals' piece:
Supporters said that despite the legal setback, they expect that Delaware Chancery arbitrations, in some form, will likely take root in the coming years.
"In five years, we could see substantial growth in the number of these cases, said Gregory Varallo, of Richards, Layton & Finger in Wilmington, "It could even rival the number of public business cases."
That's what I'm afraid of. I'm working on a paper on Chancery arbitration (now have to rework parts of it given that it's been overtaken by events in the district court). The key problem as I see it with respect to arbitration for me is the long-term impacts of having a significant number of public business cases decided by arbitration before the Delaware courts rather than by the Delaware courts themselves. Though backers seem to think Chancery arbitration is critical to maintaining Delaware's competitive position, I take the position over the long term - or even five years if there is a significant move in that direction - Chancery arbitration could in fact weaken Delaware's position with respect to its corporate law franchise. Sure, there may be a lot of cases (arb/formal) being decided, but the number of precedents being set and the continued maintenance of the law will suffer. Good for the short term but bad for the long term -- and not just for Delaware if one thinks that there are positive network effects associated with the Delaware corporate law franchise.
But that's just me and I don't know much.
Monday, September 10, 2012
Now, I don't often say that, but things are happening up there that we should pay a little attention to. Canada has for a long time been much less solicitous towards the poison pill than Delaware (or other US) courts. In Canada, boards have the authority to adopt poison pills, subject to review by the provincial securities commissions. The commissions have the authority to order pills redeemed. In making the determination with respect to whether or not to order a pill redeemed, the commissions consider, among other things, whether the shareholders have voted to ratify the adoption of the plan. (I've blogged about Candadian pill standards before, see here).
In any event, the Canadians take a position that is very Gilson/Bebchuk-like on the scale of things in the long-standing takeover debate: the corporation is ultimately owned by the stockholders. In response to an unsolicited offer, boards may use defensive measures in order to help negotiate a higher price, but in the end, a board may not stand between shareholders and the opportunity to tender into a non-coercive offer. I suspect there's a finance study out there on takeover premia in Canada. If not, that sounds like a study/summer project.
Contrast the Canadian position with the Delaware position, which, following Airgas and Versata, can only be called a reluctant endorsement by the Chancery Court of "just-say-no". In that long-standing debate, it's pretty clear that Marty Lipton has won the day.
So, and this is where Canada is interesting, it looks like Canada is making increasing noises about moving away from its long-standing position with respect to poison pills and its more shareholder-centric approach to the takeover law and towards a more Delaware-like approach. Already last year, it was bubbling under the surface. High profile takeovers of Canadian firms by foreign acquirers tends to ignite the passions of nationalism. Recently, it's been proposed acquisition of Rona Inc by Lowe's Co - we can't have the Yanks owning our big-box hardware stores afterall. In any event, the acquisition played an important role in the recent provincial elections in Quebec, which saw the Quebec nationalist party put back in power. During that election, both the Liberal and PQ included anti-takeover legislation in their party platforms. Liberal leader Charest went so far as to announce a $1 billion "foreign-takeover fund" that would be used to finance domestic acquisitions of Quebecois companies. No clue whether he intended to use the proposed fund to fend off interlopers from Alberta, but we won't ever find out. Charest lost and he's on his way out. The incoming PQ has already signaled that they aren't supportive of a Lowe's/Rona deal (and here). I suppose the PQ could try to stymie foreign takeovers by requiring that all tender offer documents be in French. Or, it could repeat what the Canadian government did last year in the proposed Potash aquisition - declare the Rona hardware retailer a vital national asset and a transaction not to Canada's benefit block the deal. Uh ... too much?
Short of that, it looks like the more obvious path would be to adopt a constituency statute that would place more power in the hands of the board and permit them to more aggresively resist unwanted offers.
So, something to watch. Of course, putting more power in the hands of boards doesn't ensure that Canadian businesses stay Canadian, but I suppose that's a lesson our friends up North will have to learn on their own.
Wednesday, September 5, 2012
Following the recent federal district court ruling on the constitutionality of the Delaware Chancery Court arbitration procedure, I've gotten a lot of questions about the procedure, so I figured it might be helpful to post links to all the arbitration related posts from past couple of years.
- Delaware’s new arbitration rules
- Arbitration in Delaware
- Arbitration for merger agreements
- Skyworks arbitration
- Arbitration system challenges in Delaware
- Skyworks fireworks
- Thoughts on challenge to Delaware arbitration procedure
- Delaware’s fragile network
- WSJ on Delaware arbitration
- Chancery arbitration ruling handed down
I have to admit being a little disappointed. Now that the district court opinion has been published, I'll have to reframe a paper on Chancery arbitration that I've been writing. Oh well, those are the risks of trying to current.
Thursday, August 30, 2012
A Federal District Court in Philadelphia just handed down a ruling in the challenge to Delaware's Chanery arbitration procedure, which I wrote about some months ago (November Post: More Thoughts on the Chancery Arbitration Procedure). The court ruled in favor of the Delaware Coalition for Open Government's position that the public has a qualified right of access to proceedings of the public courts. Arbitration conducted before Delaware chancellors pursuant to the Chancery arbitration procedure is sufficiently like a non-jury trial as to implicate that right notwithstanding the legislation creating the procedure and the wishes of the parties.
Short version: the confidential arbitration procedure falls.
Here's the opinion: DCOG v Strine, et al Opinion.
Friday, August 24, 2012
Peter D. Lyons, David P. Connolly and Zhak S. Cohen of Shearman & Sterling analyze a series of recently decided high-profile cases involving conflicts of interest in change of control transactions and conclude that these cases
have not changed our guidance for handling conflicts: identify them early, disclose them appropriately, determine whether they are disqualifying or can be mitigated and, when mitigation is possible, mitigate them effectively.
You can read the whole thing here.
Thursday, August 23, 2012
Ok, news for corporate law geeks. The Corporate & Securities Law Blog reports this morning that the Appellate Division of the New York Supreme Court in Yudell v Gilbert has discarded its previous case-by-case approach to determining whether shareholder litigation is direct or derivative. Rather, it held that going forward the test to apply is the test announced in the Tooley v. Donaldson, Lufkin & Jenrette (Delaware Supreme Court). The Tooley test asks a court to consider two things: 1) who suffered the harm in question; 2) to the extent there is a remedy, who will receive it. Where the answers to those questions are "the corporation", then the litigation is derivative. Where the answers are "the shareholder", then the litigation is direct.
The question of whether shareholder litigation is direct or derivative is a go-to for law professors at exam time. I guess the beginning of a new academic year is the right time to iron our some of the jurisdictional differences in favor of a more "common sense approach" (NY's words).
Monday, July 2, 2012
What? Was it a slow news week last week? Nothing else newsworthy to write about? [jk] That can be the only explanation for this piece that appeared in this weekend's NYTimes, "How Delaware Thrives as a Tax Haven". There are two issues pushed in the article: first, the "tax haven" thing. Firms use Delaware corporations to avoid state, not Federal, tax liabilities on trademarks, patents, and investments. Here's the strategy as they described in a 2009 NY Times piece ("Critics Call Delaware a Tax Haven"):
Corporations are allowed to establish these shell companies in Delaware, as well as in Nevada and Wyoming.
Typically, they then transfer to these subsidiaries ownership of things like trademarks, patents and investments. Delaware does not tax holding companies set up to own and collect income from such lucrative intangible assets.
The parent companies of these shells usually pay royalties to the Delaware subsidiaries to lease back those assets. By doing so, they can claim income tax deductions in states where they actually do business. The shells also funnel profit, tax free, back to their parents, in the form of dividends and loans.
OK. So I guess one can get some tax savings at the state level by structuring this way. But, is that news? My guess is no. How can it be? The Times published a 2009 piece on the exact same subject.
In any event, the tax thing is just a set up for the second issue raised in the article, which is the more nefarious one...Delaware corporations are secretive, more secretive than Cayman corporations!
Big corporations, small-time businesses, rogues, scoundrels and worse — all have turned up at Delaware addresses in hopes of minimizing taxes, skirting regulations, plying friendly courts or, when needed, covering their tracks. Federal authorities worry that, in addition to the legitimate businesses flocking here, drug traffickers, embezzlers and money launderers are increasingly heading to Delaware, too. It’s easy to set up shell companies here, no questions asked. ...
What does it take to incorporate a company in Delaware? Not a lot, tax experts say. Shell companies — those with no employees, no assets and, in fact, no real business to speak of — are remarkably easy to establish here, and it doesn’t always matter who you are or what business you are in. Viktor Bout, the Russian arms dealer known as “the merchant of death,” used two Delaware addresses. In April he was sentenced to 25 years in prison on terrorism charges resulting from an American sting operation.
Did you know that if someone incorporates a business in Delaware, that no one, not even the state of Delaware knows who the beneficial owners are! And that's the reason why Delaware is such a popular location for incorporations. Wait ... what?
Now, if Delaware were the only state in the U.S. to shield the identities of beneficial owners, I might be interested in the rest of what this article has to say. But, let me just state as a matter of fact, most - if not all - states in the U.S. have the same basic rule with respect to beneficial ownership. And that is, the identities of beneficial owners of corporations incorporated in the US states are not known to the state government by default. Can you imagine what the paperwork burden would be on the state and start-ups if everytime an employee at a start-up was issued an immediately exercisable stock option the corporation had to make a report to the State? Uh ... hellooo!
It's really a non-starter of an idea and the resistance to the idea won't come primarily from Delaware, it'll come from California, home of most of America's start-ups. Anyway, if you want to go after anyone for excessive privacy with respect to corporations, why not go after someone who really deserves it, like Nevada. That was their schtick for a long time. Not only do you not have to report the identities of your beneficial holders, you can report "nominee" directors and officers on your annual reports. That's even more secret than Delaware!
Michal Barzuza has a very good recent paper on Nevada as a "liability-free zone" for incorporations. The Times should have started there rather recyle an old story in a "slow news week".
Monday, April 30, 2012
I'd like to use this public forum to thank Justice Carolyn Berger of the Delaware Supreme Court to taking the time to visit Boston College Law School last week. Just Berger spoke to our Business & Law Society's annual dinner. It was a great talk and the students and alumni who were in attendance came away with plenty to think about.
Wednesday, April 11, 2012
Following up on a recent flattering feature on Leo Strine in The Globe and Mail, Conrad Black is sending warnings to his fellow Canadians not to fall for that " influential small-town American judge" in Delaware. I think he's still angry over the Delaware case against him in the sale of Hollinger:
Strine is, I am reliably told, conversationally and socially rather aggressive, and improbably, given his physical stature and Mr. Peepers likeness, is an ostentatious sports fan. He rules his court like a full-time martinet and constantly inflicts what he evidently considers to be his unfailingly rapier-like wit on all those to whom his judgments are too important to permit the groans that commend themselves. He will get to any plausible speaking event (including one in Toronto not long ago), if necessary by flapping his arms. He fancies himself a crusader for the little person, a holy terror against “hinky” boardroom and executive suite practices, a shoot-from-the-hip authority on almost anything, and a crack philologist, constantly adding funky new words to the language; what isn’t “hinky” is apt to be “freakin” and so forth. A bright, energetic little man, seeking attention and trying to become a celebrity despite his rather dry and technical occupation, is not unprecedented and need not be exceptionable.
In Strine’s case, there is cause for concern. While, (unlike Posner as far as I am concerned), he reads the papers filed in his court, he has an untrustworthy and even bigoted (not in any racial or sectarian sense), intuition and a whim of iron. Because few judges have the ambition to attract public attention as Strine does, and most are happy not to be bothered with the media, whom Strine pursues with the shameless tenacity of a vendor of fake religious relics hustling pilgrims in Bethlehem, he is becoming an eager go-to default source for the media on any aspect of commercial law, (and doubtless, would expand his repertoire of pontifical opinion to a range as vast as the great outdoors, if asked).
He goes on about how Strine is "feckless and flippant" and has little regard for shareholders when he inserts himself into board decisions. Given the recent result in El Paso, Black is either wrong in his broad characterization or Stine has changed since Hollinger.
Saturday, March 24, 2012
You may remember that in February Navistar and about a dozen other companies that had adopted exclusive forum bylaw provisions were sued by shareholders in the Delaware Chancery Court. The suits challenged the enforceability of the bylaw provisions. A similar bylaw was struck down last year by a Cxalifornia district court in Galaviz v Berg as lacking sufficient indicia of consent. That's probably the right result with respect to bylaw provisions (as compared to exclusive forum provisions in certificates of incorporation).
In any event, one reason why it can be hard to convince clients to adopt such provisions in their bylaws or charters is that it's a pain in the next to be the first ones to do so. You get sued, get an ISS negative vote, etc. It's a real bother. Such a bother that sometime clients just say "to heck with it." Which is apparently what Navistar did the other day. Quietly, it filed a 8-K announcing that it had dropped it exclusive forum provision from its bylaws. AutoNation also did the same thing yesterday:
On March 23, 2012, the Board of Directors (the “Board”) of AutoNation, Inc. (the “Company”) approved an amendment to the Company’s By-Laws (as amended, the “Amended and Restated By-Laws”), effective immediately, to remove Article VIII, in its entirety, from the By-Laws. Prior to the amendment, Article VIII provided that the Court of Chancery for the State of Delaware would be the exclusive forum for certain corporate legal actions and proceedings involving the Company or its directors, officers or employees, including derivative claims, breach of fiduciary duty claims, claims under the General Corporate Law of the State of Delaware, the Company’s Certificate of Incorporate or the Company’s By-Laws, and claims governed by the internal affairs doctrine. As part of the amendment, Article IX of the Company’s By-Laws was renumbered as Article VIII.
No doubt, Navistar and AutoNation will appear in the Chancery Court sometime in the next few days asking to have the case dismissed for mootness. But wait, upon further inspection, these two aren't alone! Superior Energy, Franklin Resources and Curtiss Wright also deleted their provisions. Goodness, it's a wholesale surrender of the exclusive bylaw forces.
Who's left? Solutia (just sold to Eastman), Chevron, SPX, and Danaher. My guess all of those - except Solutia - will be walking away from their bylaws early next week as well. (Update: Tom Hals at Reuters also has the story.)