Monday, June 24, 2024

Fiduciary Duties Trump Contracts?!

Many in the business law world have been following the saga involving the adoption of  S.B. 313 by Delaware's General Assembly last week.  S.B. 313 adds a new § 122(18) to the General Corporation Law of the State of Delaware (DGCL) that broadly authorizes corporations to enter into free-standing stockholder agreements (not embodied in the corporation's charter) that restrict or eliminate the management authority of the corporation's board of directors.  See my blog posts here and here and others cited in them, as well as Ann's post here.

In the floor debate on S.B. 313 last Thursday in the Delaware State House of Representatives, a proponent of the legislation stated that fiduciary duties always trump contracts.  That statement deserves some inspection in a number of respects.  I offer a few simple reflections here from one, limited perspective.

The historical centrality of corporate director fiduciary duties (which were the fiduciary duties referenced on the House floor) is undeniable.  Those who have taken business associations or an advanced business course with me over the years know well that I emphasize in board decision making that the directors’ actions must be both lawful and consistent with their fiduciary duties in order to be legally valid and enforceable.  I doubt my teaching is exceptional in that regard.

But the floor debate involved a different kind of tangle between legal obligations and fiduciary duties than exists in the board decision-making context in which corporate action is written on a tabula rasa.  The comment made in last Thursday’s legislative session responded to the suggestion that a board of directors may later decide to breach a contract that is lawful and was approved by the board in a manner that is consistent with director fiduciary duty compliance.  That scenario involves board action to disregard the terms of an agreement—by authorizing and directing the corporation to breach a legal obligation of the corporation because the directors have, in good faith and with due care, determined that the breach of contract is in the best interest of the corporation.

This type of board action is certainly not unprecedented.  An example from my practice immediately springs to mind: no-shop, non-solicitation, and related clauses in business combination (M&A) agreements.  These provisions may be (or at least appear to be) lawful and compliant with director fiduciary duties when made but may interfere with a target board’s fiduciary duties if the board later determines it has a fiduciary obligation to engage in interactions with a potential transactional partner in violation of that type of deal protection provision. 

The resolution of this issue in the M&A context has largely been contractual.  Fiduciary outs of various kinds have been common in M&A agreements for decades.  (I gave my first CLE talk on them back in the 1980s.)  Through these provisions, directors consider and prepare in advance for the potentiality of a later conflict between the deal protection obligations of the corporation and their fiduciary duties to the corporation.  Properly drafted, fiduciary outs help  protect the legal validity and enforceability of the original contract from future challenge and preserve the board’s legal right to respond to new circumstances without breaching the contract.

As those who work in this space well know, a watershed case involving deal protection provisions is Omnicare, Inc. v. NCS Healthcare, Inc., 818 A.2d 914 (Del. 2003). In its Omnicare opinion, the Delaware Supreme Court assesses the validity of a merger agreement that effectively locked up a majority of the votes needed to approve the merger.  The merger agreement did not include a fiduciary out provision. The directors had no ability to terminate the merger agreement or nullify its terms to comply with their fiduciary duties without breaching the contract.  The court found the deal protections invalid and unenforceable.

Proponents of S.B. 313 clearly state that a corporation's exercise of its authority to enter into stockholder agreements under § 122(18) will be subject to challenge if the directors breach their fiduciary duties to the corporation in approving a stockholder agreement or in later authorizing the corporation's performance under that agreement.  If the corporation's directors are found to be in breach, the stockholder agreement then may be found invalid or unenforceable.  The prospect of that occurring in the stockholder agreement context is as real as it is in the M&A deal protection context.

Perhaps, then, fiduciary outs are a best practice that should grow out of the new DGCL § 122(18).  If the parties truly intend for fiduciary duties to trump the contract (as the bill proponents have claimed) and we can anticipate challenges in that regard based on the nature of the agreement, stockholder agreements should provide in advance for the eventuality of a conflict.  Otherwise, a stockholder agreement authorized under DGCL § 122(18) may be found either invalid ex post because the board’s original approval of the agreement may later be determined to have been a breach of the directors’ fiduciary duties (for failure to include a fiduciary out, as in Omnicare) or unenforceable in litigation over a board decision to breach or refrain from breaching the agreement in the face of a perceived fiduciary duty conundrum related to the corporation’s performance under the terms of the agreement.  A well-crafted fiduciary out (which would undoubtedly be somewhat bespoke, as it should be in the M&A context, based on the nature of the corporation’s obligations in the contract) should help avoid litigation, or at least enable its early dismissal, in the event of either type of legal claim.

Your reactions to these musings are, as always, welcomed.  We will be operating in new territory here assuming the Governor of Delaware signs S.B. 313 into law (as he has signaled).  If I am missing an element of statutory or decisional law or strategic litigation practice that impacts my arguments, I would appreciate hearing about it.  Regardless, it is now time that we all think about how to address anticipated issues arising from the Pandora’s box that the Delaware General Assembly has opened.  That may include practice-oriented solutions to perceived legal questions or tensions as well as potential further adjustments to the DGCL.  As to the latter, I note that I raised in one of my earlier posts the desirability of looking at DGCL subchapter XIV in light of the provisions of DGCL § 122(18).  Perhaps that issue merits a subsequent post . . . .

June 24, 2024 in Ann Lipton, Compliance, Contracts, Corporate Governance, Current Affairs, Delaware, Joan Heminway, Lawyering, Legislation, Management | Permalink | Comments (4)

Friday, June 21, 2024

C.R.E.A.M.

Some variations on a theme this week.

First, the Delaware legislature has now passed the amendments to the DGCL, which means that as of August 1, it will be legal for a company like Tesla, say, to contract with a shareholder like Elon Musk, say, to give him power to veto or demand specific AI initiatives, regardless of his particular financial stake in the company.  By contrast, at least as I read Texas law, such a contract would not be possible for Texas-organized entities, because Texas only permits agreements to restrict board discretion in nonpublic corporations.

Do you suppose this means Tesla will reincorporate back to Delaware?

Second, the Senate raked Boeing CEO Dave Calhoun over the coals this week.  Sen. Josh Hawley said: “I think you’re focused on exactly what you were hired to do.  You’re trying to squeeze every piece of profit out of this company. You’re strip mining it.”  He also posted to Twitter, “Boeing’s planes are falling out of the sky in pieces, but the CEO makes $33 million a year. What exactly is he getting paid to do?”  Meanwhile, at the hearing, Sen. Richard Blumenthal said, “Boeing needs to stop thinking about the next earnings call and start thinking about the next generation.”

So I, for one, am very glad to see in this polarized age that Democrats and Republicans can come together to endorse ESG.

I kid, I kid, of course they’re not endorsing ESG – they’re just endorsing a reduced focus on profit seeking in favor of corporate social responsibility.

For real, it reminds me of this clip of Katie Porter, that I like to show to my students.  In the clip, she establishes that a drug company executive would increase his bonus by increasing drug prices.  Which sounds bad, until you look at the results of the shareholder vote overwhelmingly approving his compensation package – which shareholders are required to approve due to – let me check this – ah right, congressional legislation and (federal) stock exchange listing rules.   Not to mention the pay-for-performance disclosures that, wait let me see – Congress also mandates.  If members of Congress are unhappy with how that’s worked out, they have some tools in the box beyond jawboning executives.

And third, Exxon.  Exxon, Exxon.  Exxon bypassed the SEC and sued its own shareholders to avoid putting another climate change shareholder proposal on the ballot – ironically, even though Engine No. 1’s purportedly climate-transition-focused directors are still right there on the board – and even after it got everything it wanted, still tried to press the case until Judge Pittman concluded there was no remaining controversy to adjudicate.  

In response, some institutional shareholders, including various state pension plans, organized a “vote no” campaign against Exxon’s directors.  They varied as to which directors – some urged voting no for all of them, and there were some who focused on Joseph Hooley and Darren Woods, while Glass Lewis urged voting no for Joseph Hooley alone.  Their argument was less about the merits of this specific climate change proposal than about the importance of preserving shareholder voice.  There was no possibility that these directors would lose their seats, but a strong protest vote against them might have indicated that shareholders supported the principle of being free to bring items to a vote.

And, well ….   There does seem to have been a slight dip in support for Woods and Hooley as compared to last year, but not by a whole lot.

All of which suggests that large institutional investors may mouth words about stewardship or whatever but they actually don’t want these kinds of public votes, and that’s partly because it puts them on record as taking positions (that can then become controversial), and partly because the largest investors don’t need formal avenues of input; they can simply make phone calls, and partly, perhaps, because many large investors have their own shareholders they want to fight off.

Which takes us right back to the DGCL amendments and the muted response from investor advocates.  As I mentioned before in “Take Three” of my Takes on the Tesla vote, investors do seem to be sending a signal, and it’s that they don’t really place much value on governance rights; let’s not forget they only started exercising them seriously after the SEC and the DOL largely required them to.

June 21, 2024 in Ann Lipton | Permalink | Comments (2)

Wednesday, June 19, 2024

I Also Write Letters!

Further to Ann's post on Sunday sharing the text of her comment letter on Delaware's S.B. 313 (and more particularly the proposal to add a new § 122(18) to the General Corporation Law) and my post on § 122(18) last week, I share below the text of my comment letter to the Delaware State House of Representatives Judiciary Committee.  Although Ann and I each got one minute to deliver oral remarks at the hearing held by the Judiciary Committee on Tuesday, 60 seconds was insufficient to convey my overarching concerns--which represent a synthesis and characterization of selected points from my post last week.  The comment letter shared below includes the prepared remarks I would have conveyed had I been afforded additional time.

Madame Chair and Committee Members:

I appreciated the opportunity to speak briefly at today’s hearing. As I explained earlier today, although I am a professor in the business law program at The University of Tennessee College of Law, my appearance before the committee relates more to my nearly 39 years as a corporate finance practitioner, which has included bar work (most recently and extensively in the State of Tennessee) proposing and evaluating corporate and other business entity legislation. This letter expands on the virtual oral comments I offered at the hearing on the proposed addition of § 122(18) to the General Corporation Law of the State of Delaware (DGCL). My goal is simply to best ensure that the committee and the General Assembly are well informed about the significance of this proposed new section of the DGCL.

Both proponents and critics of proposed § 122(18) concur that the stockholder agreements that would be authorized by that provision can currently be accomplished in a corporation’s certificate of incorporation—the corporate charter. Indeed, as was alluded to in the testimony earlier today, current Delaware law expressly authorizes transferring governance authority from a corporation’s board of directors to its stockholders through charter amendments and through certificates of designation (instruments providing for new classes or series of stock) as well as for statutory close corporations, a status designated in the certificate of incorporation. As a result, questions raised at today’s hearing about why the new authority embodied in proposed DGCL § 122(18) is needed—or why it would be objectionable—are well taken. As I indicated in my oral testimony earlier today, the answer to those questions lies in public policy.

Current Delaware law on stockholder agreements promotes notice, transparency, and assent. Provisions in a Delaware corporation’s certificate of incorporation are matters of public record in the State of Delaware on which stockholders and prospective stockholders rely. They must be filed with the Delaware Secretary of State. Thus, Delaware’s corporate law currently requires that stockholders and potential future stockholders have public notice of any fundamental alteration in the statutory power of the board of directors to manage the corporation. Stockholder agreements like those authorized under proposed DGCL § 122(18) are not required to be filed with the state (although they would have to be filed with the U.S. Securities and Exchange Commission under the federal securities laws at some point after they are signed, for public companies). Moreover, under current Delaware law, if an amendment to the certificate of incorporation is required to achieve a shift in governance authority from the board of directors, then a stockholder vote is required. These requirements, which evidence Delaware’s public policies of notice, transparency, and assent, are what ultimately divide the supporters and detractors of proposed DGCL § 122(18). Your ultimate views on these policies—your determination as to whether they are important to the integrity of Delaware corporate law—should be strong factors in your determination of how to vote on proposed DGCL § 122(18). I submit that these policies should not be abandoned or reduced without careful consideration.

Last week, I wrote about my policy concerns relating to proposed DGCL § 122(18) in a blog post published on the Business Law Prof Blog. That post can be found here. Although my blog post was written for a different and broader legal audience (and therefore includes some technical legal references), it may be useful to you as additional statutory and judicial support for the positions I have taken in this letter and in my oral testimony. The post also includes several drafting observations relevant to the productive introduction of statutory authority for stockholder agreements that you may appreciate having.

I am grateful to have had the opportunity to share these insights with you today in writing and orally during the hearing this afternoon. I wish you well in your deliberations.

Very truly yours,

Joan M Heminway
Rick Rose Distinguished Professor of Law, The University of Tennessee College of Law
Member and Former Chair, Tennessee Bar Association Business Law Section
Former Chair and Member, Boston Bar Association Corporate Law Committee

The Delaware State House of Representatives may vote on the bill tomorrow (Thursday) afternoon.  It is the last item listed in the Main House Agenda for tomorrow's session.  I can only hope that the members of the House feel better informed after the House Judiciary Committee hearing on Tuesday.  I know many of us tried to ensure that they are well informed.

June 19, 2024 in Ann Lipton, Corporate Finance, Corporate Governance, Corporations, Current Affairs, Delaware, Joan Heminway, Legislation | Permalink | Comments (0)

Sunday, June 16, 2024

I Write Letters!

Here is the text of a letter I submitted in advance of the Delaware House Judiciary Committee Meeting regarding the proposed amendments to the DGCL:

Dear Chair Griffith:

I write to express my concerns about S.B. 313, and in particular the proposed amendments to Section 122 of the Delaware General Corporation Law (DGCL).  I believe the proposed amendments will cause Delaware to lose control over its law.

As proposed, the statute authorizes a shift of corporate governance from the charter to private contracts.  Corporate charters are subject to the law of the chartering state, thus, Delaware law.  Private stockholder agreements are not necessarily subject to the law of the chartering state.  That means other states’ laws would govern the interpretation of these contracts, and the appropriate remedies for any breaches.[1]

Additionally, the Federal Arbitration Act (FAA) provides that agreements to arbitrate disputes “shall be valid, irrevocable, and enforceable.”[2]  In practical effect, the FAA bars states, including state courts, from prohibiting or regulating arbitration agreements, and requires that such agreements be enforced as written.  It is likely that the FAA does not apply to corporate charters,[3] which is why Delaware was able to adopt Section 115 of the DGCL, prohibiting corporations from including forum provisions in their charters that would bar access to the Delaware courts.[4]

By contrast, the FAA almost certainly would apply to stockholder agreements.  If parties to a stockholder agreement agree to arbitrate disputes, a Delaware court will be required to enforce that provision.  Those disputes could easily include questions about the legality of the contract under Delaware law, or whether a stockholder took on fiduciary obligations, and abused them, as a result of the control conferred by the contract.[5]  As a result, important questions of Delaware law would be decided by non-Delaware actors, often in confidential proceedings.  Arbitration provisions could also bind public stockholders who bring derivative actions on the corporation’s behalf.[6]   Even stockholders who bring direct actions regarding stockholder agreements, on behalf of themselves rather than the corporate entity, may find themselves bound to arbitrate disputes regarding the agreement.[7]

Moreover, as drafted, the amendments would explicitly permit stockholder agreements to select a forum for disputes outside of Delaware – either in arbitration or another state.  Once again, that would mean that other states, or arbitrators, would decide whether the stockholder contract violated Delaware law, and whether the stockholder abused its governance rights under the contract.

Delaware’s value to incorporators includes its robust body of caselaw decided by expert Delaware judges. The proposed amendments endanger that value proposition.

                                                                    Sincerely,

                                                                    Ann M. Lipton

 

[1] See generally Ann M. Lipton, Inside Out (or, One State to Rule Them All): New Challenges to the Internal Affairs Doctrine, 58 Wake Forest L. 321 (2023); see also KT4 Partners v. Palantir, 203 A.3d 738 (Del. 2019) (involving an investor in a Delaware corporation with a stockholder agreement governed by California law).

[2] 9 U.S.C. § 2.

[3] See generally Ann M. Lipton, Manufactured Consent: The Problem of Arbitration Clauses in Corporate Charters and Bylaws, 104 Geo. L.J. 583 (2016).

[4] Del. Code tit. 8, § 115.

[5] See, e.g., Basho Techs. Holdco B, LLC v. Georgetown Basho Invs., LLC, No. 11802, 2018 WL 3326693 (Del. Ch. July 6, 2018) (involving such a scenario).

[6] See, e.g., Ernst & Young, LLP v. Tucker ex rel. HealthSouth Corp., 940 So. 2d 269 (Ala. 2006).

[7] See Richard J. Tyler, Kicking and Screaming: Joinder of Non-signatories in Arbitration Proceedings, 75 Disp. Resol. J. 111 (2020).

June 16, 2024 in Ann Lipton | Permalink | Comments (0)

Thursday, June 13, 2024

Moelis, § 122(18), and DGCL Subchapter XIV - Knowing Legislative Policy Shift?!

Like so many others, I have wanted to say a word about West Palm Beach Firefighters’ Pension Fund v. Moelis & Company, 311 A.3d 809 (Del. Ch. 2024).  My angle is a bit different from that of many others.  It derives from my 15-year practice background, my 24-year law teaching background, and my 39-year bar service background.  It focuses on a doctrinal analysis undertaken through a policy lens.  But I want to note here the value of Ann Lipton’s existing posts on Moelis and the related proposed addition of a new § 122(18) to the General Corporation Law of the State of Delaware (DGCL).  Her posts can be found here, here, here, and here.  (Sorry if I missed one, Ann!)  Ben Edwards also published a related post here.  They (and others offering commentary that I have read) raise and touch on some of the matters I address here, but not with the same legislative policy focus.

I apologize at the outset for the length of this post.  As habitual readers know, long posts are “not my style” as a blogger.  This matter is one of relatively urgent legislative importance, however, and I am eager to get my thoughts out to folks here.

I begin by referencing the DGCL provision in the eye of the storm.  DGCL § 141(a) provides for management of the business and affairs of a Delaware corporation by or under the direction of the corporation’s board of directors, except as otherwise provided in the corporation’s certificate of incorporation or the DGCL.  In Moelis, Vice Chancellor Travis Laster found various provisions in a stockholder agreement unlawful under DGCL § 141(a).  Specifically, a series of governance-oriented contractual arrangements at issue in Moelis were not authorized under the corporation’s certificate of incorporation or another provision of the DGCL.

The tension in this space involving DGCL § 141(a) is not new.  For many years, the legal validity of so-called stockholder agreements—technically, agreements (as opposed to charter provisions) that shift governance power from the directors of a corporation to one or more of its stockholders—has been questionable for most Delaware corporations, including public companies.  (I say “many years” because the legal validity of these agreements was an issue I routinely wrestled with before I left the full-time private practice of law in 2000.) 

The DGCL is different from the Model Business Corporation Act (MBCA) in this regard.  The MBCA has long had a broad-based statutory provision, MBCA § 7.32, authorizing shareholder agreements under specified conditions.  States adopting the MBCA have made a (presumably) conscious choice to embrace shareholder governance under the circumstances provided in the MBCA, including through § 7.32.  The MBCA’s provision expressing the management authority of the corporation’s board of directors, MBCA § 8.01(b), expressly references MBCA § 7.32, providing that:

[e]xcept as may be provided in an agreement authorized under section 7.32, and subject to any limitation in the articles of incorporation permitted by section 2.02(b), all corporate powers shall be exercised by or under the authority of the board of directors, and the business and affairs of the corporation shall be managed by or under the direction, and subject to the oversight, of the board of directors.

There is no analogous provision in the DGCL.  The only way to be sure that one could accomplish a shift in governance power from directors to stockholders under the DGCL has been for a corporation either to include the governance provisions in its certificate of incorporation or to organize as a close corporation under Subchapter XIV.  Close corporation status requires charter-based notification and conformity to a number of statutory requirements set forth in DGCL §§ 341 & 342, including that the certificate of incorporation provide that the stock be represented by certificated shares “held of record by not more than a specified number of persons, not exceeding 30,” that the stock be subject to transfer restrictions, and that there not be a “public offering” of the stock. DGCL § 342(a)(1)-(3).  Thus, by legislative design, statutory close corporation status is not available to publicly held corporations organized under Delaware law (which makes total sense for those who understand what a closely held corporation is, in a general sense).

Members of the Delaware State Bar Association (DSBA) Corporation Law Section know all of this well.  As leaders in reviewing and proposing changes to the DGCL over the years, this group of folks has thoughtfully weighed policy considerations relating to the DGCL’s application to the myriad situations that Delaware corporations may face.  Without having researched or inquired about the matter, I find it hard to believe that the section has not previously discussed the desirability of an express statutory provision allowing for the approval and execution of stockholder agreements outside a corporation’s certificate of incorporation.  The matter has been addressed by the Executive Council of the Tennessee Bar Association’s Business Law Section, which engages in similar legislative initiatives in Tennessee, more than once during the time I have been serving on it.  I therefore assume that the choice to refrain from proposing a specific statute authorizing stockholder agreements outside a corporation’s certificate of incorporation over the years has been both informed and intentional.

Yet, earlier today, Senate Bill 313 passed in the Senate Chamber of the Delaware General Assembly.  In that bill, vetted and approved by the DSBA Corporation Law Section and blessed by the DSBA Executive Committee, the longstanding policy decision to refrain from allowing stockholder agreements outside of the certificate of incorporation or Subchapter XIV is being summarily reversed through the proposal to adopt a new DGCL § 122(18)—an alteration of the corporate powers provision of the DGCL.  That new proposed DGCL section provides a corporation with the power to enter into stockholder agreements within certain bounds, but those bounds are relatively broad.

As others have noted (at least in part), the drafting of the proposed DGCL § 122(18) (and the related additional changes to DGCL § 122) reflects a belt-and-suspenders approach and is otherwise awkward.  Multiple sentences are crammed into this one new subpart of DGCL §122 to effectuate the drafters’ aims.  The DGCL has been criticized for its complex drafting in the past (resulting in, among other things, a project creating a simplified DGCL), and the approach taken by the drafters of the proposed DGCL § 122 changes adds to the complexity of the statute in unnecessary ways.  A provision this significant should be addressed in a separate statutory section, the approach taken in MBCA §7.32.  That new section then can be cross-referenced in DGCL § 141(b)—and, if deemed necessary, DGCL § 122.  Breaking out the provision in its own section also should allow legislators to more easily and coherently identify strengths and weaknesses in the drafting and build in or remove any constraints on stockholder governance that they may deem necessary as the proposed provision gets continued attention in the Delaware State House of Representatives.  I offer that as a drafting suggestion.

Apart from the inelegance of the drafting, however, I have one large and important question as Senate Bill 313 continues to move through the Delaware legislative process: do members of the Delaware General Assembly voting on this bill fully understand the large shift in public policy represented by the introduction of DGCL § 122(18)?  If so, then they act on an informed basis and live with the consequences, as they do with any legislation they pass that is signed into law.  If not, we all must work harder to enable that understanding. 

It is all fine and good for us to point out how hasty the drafting process has been, how traditional debate and procedures may have been short-changed or subverted, how waiting for the Delaware Supreme Court to act on the appeal of the Chancery Court decision before proceeding is prudent, etc.  But the fact of the matter has been that potential and actual stockholders of Delaware corporations have been able to rely exclusively on charter-based exceptions to the management authority of the board of directors—whether those exception are authorized in Subchapter XIV of the DGCL or otherwise.  This has meant that prospective equity investors in a Delaware corporation knew to carefully consider a corporation’s certificate of incorporation to identify any pre-existing constraints on the management authority of the board of directors before investing.  This also has meant that any new constraints on the board of directors’ authority to manage the corporation’s business and affairs required a charter amendment of some kind—either a board-approved and stockholder-approved amendment of the certificate of incorporation or the board’s approval of a certificate of designations under charter-based authority of which existing stockholders should be aware.

Ann noted this issue in a previous post.  The enactment of proposed DGCL § 122(18) will make it more challenging for potential equity investors to identify the locus/loci of management power in the corporation.  Although both the certificate of incorporation and any stockholder agreement would be required to be filed with the U.S. Securities and Exchange Commission for reporting companies (the latter as an instrument defining the right of security holders under paragraph (b)(4) or as a material contract (b)(10) of Regulation S-K Item 601), the current draft of proposed DGCL § 122(18) does not provide that a copy of any contract authorized under its provisions be filed with the Delaware Secretary of State or that its existence be noted on stock certificates (a requirement included in MBCA §7.32(c)).  In addition, stockholders will lose their franchise if the stockholder agreement would otherwise have required a stockholder vote.

Finally, it seems important to note that the judicial doctrine or independent legal significance—or equal dignity—has been strong in Delaware over the years as a factor in the interpretation of Delaware corporate law.  This has helped practitioners and the judiciary to navigate difficult issues in advising clients about the outcomes of Delaware corporate law debates.  The rule typically has been that, if one takes a path afforded by the statute, they get what the statute provides.  And if one does not take a provided statutory path, they cannot later be heard to argue for what the statute provides for users of that untaken statutory path. 

Classically, in dicta in Nixon v. Blackwell, 626 A.2d 1366 (1993), Chief Justice Veasey wrote (on pp. 1380-81) about the importance of DGCL Subchapter XIV in construing corporate governance arrangements in light of the doctrine of independent legal significance:

 . . . the provisions of Subchapter XIV relating to close corporations and other statutory schemes preempt the field in their respective areas. It would run counter to the spirit of the doctrine of independent legal significance and would be inappropriate judicial legislation for this Court to fashion a special judicially-created rule for minority investors when the entity does not fall within those statutes, or when there are no negotiated special provisions in the certificate of incorporation, by-laws, or stockholder agreements.

With the passage of proposed DGCL § 122(18), parts of Subchapter XIV of the DGCL will seemingly be rendered vestigial (i.e., they will no longer have independent legal significance).  Consideration of this and any other potential collateral damage to the interpretation of Delaware corporate law that may be created by the enactment of proposed DGCL § 122(18) should be carefully undertaken and, as desired, additional changes to the DGCL should be debated before voting on Senate Bill 313 is undertaken in the Delaware State House of Representatives.

I do not argue for a specific result in this post.  Rather, I mean to illuminate further the significance of the decision facing the Delaware General Assembly (and, potentially, the decision of the Governor of the State of Delaware) in the review of proposed DGCL § 122(18).  In doing so, I admit to some sympathy for those who may have clients with stockholder agreements they now know or suspect to be unlawful under the Moelis opinion.  In all candor, any legislation on this topic should more directly address those existing agreements given that the provisions of proposed DGCL § 122(18) are not a mere clarification of existing law.  Agreements not re-adopted under any new legislative authority may be found unlawful in the absence of clarity on this point.  As a reference point, I note that, in amending MBCA § 7.32 to remove a previous 10-year duration limit, the drafters specified the effect on pre-existing agreements in MBCA § 7.32(h).  Take that as another drafting suggestion . . . .

I welcome comments on any or all of what I offer here.  If I have anything incorrect, please correct me.  Regardless, I hope this post provides some additional information to those in the Delaware General Assembly and elsewhere who have an interest in proposed DGCL § 122(18).

June 13, 2024 in Ann Lipton, Compliance, Corporate Governance, Corporations, Current Affairs, Delaware, Joan Heminway, Legislation, Management, Shareholders | Permalink | Comments (0)

Tesla takes, get ‘em while they’re hot!

Whenever I talk about Elon Musk and corporate governance, an objection is raised to the effect of, “Isn’t Musk sui generis?  Can we really take any lessons from him?”

It’s a fair question, but if Musk is sui generis, there is no meaning in any of this, and that’s no fun at all.  So, for the purposes of this post, I’m putting it aside.

Take One:  What a supreme failure of the SEC

I’m sorry, I have to start here.  Sometime in the middle of the night (I was asleep), Elon Musk tweeted an extremely informal spreadsheet screencapture of the purported shareholder vote, and for the next several hours – including during actual trading – no one knew if he was telling the truth.  I spoke to reporters, which is a thing I do now whenever Musk is in the news (i.e., on days that end in “y”), and they were simply not sure whether to take the tweet seriously.  Initial headlines read “Elon Musk says” rather than “The vote is.”

It is unacceptable that the CEO of an S&P 500 company could publicly release extremely material information and have the entire world spend multiple hours wondering if he was just kidding.

I can only assume the tweet was not, in fact, reviewed by the Twitter Sitter, even though Musk lost on all his attempts to challenge his settlement.

If the SEC cannot ensure the basic accuracy of something as simple as a report of the results of a shareholder vote on one of the most widely traded, publicly watched companies in history, what are we even doing here?  The phrase “You had one job” takes on new meaning.

Take Two: What is the value of fiduciary litigation?

The debate has long raged over whether fiduciary litigation brings any actual benefit to shareholders.  You can ask about that in specific cases – are these all nuisance suits that only benefit the attorneys? – and you can also ask more broadly, i.e., maybe having the system of fiduciary litigation in general keeps directors on the straight and narrow, and ultimately contributes to shareholder wealth systemically.

Notwithstanding Tesla’s assertions to the contrary, I think it’s fair to say most spectators associated a move to Texas with a reduction in fiduciary litigation, or at least, successful litigation.  Partly, this is just a mood, i.e., the expectation that Texas judges presiding over cases involving Texas employer Elon Musk, under the watchful eye of Musk’s good friend Greg Abbott, are more likely to rule in Tesla’s favor.  But it’s also potentially built into Texas law, which may be interpreted as requiring plaintiffs to clear a higher bar for showing a lack of board independence.

So what does it mean, that shareholders – especially institutional shareholders – voted to reincorporate?

Well, one story is, they agree that fiduciary litigation is rent-seeking, contrary to shareholder interests, and does nothing more than distract boards from doing their actual jobs.  In this story, Tesla’s shareholders voted to limit the nuisances that threatened the ability of Elon Musk to run the company as he sees fit – in a manner that would ultimately maximize the benefits to Tesla shareholders.  In other words, fiduciary litigation is too powerful, in that it inhibits too much managerial flexibility by imposing inappropriate one-size-fits-all standards.

But another story is that shareholders were, in fact, coerced, in the sense that they believed defying Musk’s wishes would cause him to violate his fiduciary duties to Tesla by redirecting its resources to his private companies.  But if that’s the story, you have to also believe that shareholders thought there was no remedy for that kind of breach.  After all, even though there are new complaints against Musk alleging that he misappropriated Tesla resources and opportunities, at the end of the day, no court can literally stand over him 24/7 and make him develop AI.  So under that view, fiduciary litigation is too weak to protect shareholder interests.

Either way, though, the conclusion might be that fiduciary litigation – be it too strong or too weak – doesn’t add value to shareholders.

(A third story, incidentally, is that shareholders are okay with Musk not maximizing Tesla’s value, if he’s saving humanity or taking us to Mars or whatever, and so they’ll willingly hand over Tesla assets for that project.  Which is actually really interesting and not entirely without evidentiary support, but would seem to come more from retail than institutions.)

Take Three: What does this mean for the proposed DGCL amendments?

I’ve previously blogged about proposed amendments to the DGCL (prior posts here, here, herehere, and here). None of those amendments are directly relevant to Musk (except in the very abstract way that they would authorize a shareholder agreement to substitute for the kind of dual-class recapitalization currently prohibited by listing rules).  But there is a theme here, and it’s that Delaware has become too strict in terms of limiting the flexibility of insiders, managers, and large investors.  And the Texas move, especially if it heralds additional flight, could be read as confirming that perception.  If so, that might weigh in favor of the proposed amendments – or at least, tempering at the Delaware Supreme Court level.

But a corollary to that is – and now we’re really veering off Musk and into the DGCL proposals – what is the larger political picture?  Delaware may claim that its law is shaped by balancing the interests of shareholders and managers, but it’s possible that shareholders in fact have very little interest or influence (here’s a paper discussing the lack of institutional investor bargaining power re: private equity; and in general, the fact that investors were so willing to invest in Chinese VIEs despite increasing warnings by the SEC regarding the lack of shareholder protections tells me something, anyway, about how much attention investors actually pay to governance rights ex ante).   

If that’s true, why does Delaware provide any protections for shareholders at all?  Well, one answer is – Delaware operates in competition with the SEC, which provides mandatory investor protection.  And so, Delaware strategically protects investors just enough to keep the SEC and Congress off its turf.  And corporate managers understand that dynamic, and even tolerate it, in tacit collusion with Delaware, to ward off federal intervention.

But what does the world look like when federal intervention is off the table, perhaps because we have a court that will strike down any move the SEC makes?   Maybe it looks very much like this world, where Delaware leaps at the chance to eliminate investor voice.

Take Four: How easy is it to escape Delaware’s protections via reincorporation?

This is obviously the main issue in TripAdvisor, but I can’t help considering the issue in light of the woes of – yes, Paramount.  Because according to news reports, a big stumbling block in Shari Redstone’s attempt to sell her stake is that (1) she wants to receive more consideration than the public shareholders but (2) she fears the liability would follow.  That liability comes from Delaware law.  Take Nevada, for instance.  It seems Nevada would give a free pass to controller transactions, absent evidence of intentional misconduct, fraud, or knowing violation of law, and it does not seem as though a simple conflict of interest rises to that level.

So, can we imagine a world where Shari Redstone uses her controlling stake to force a reincorporation to Nevada, and then sells the company on her terms?  I can imagine it, sure, and the lesson here is how difficult it is for states to maintain different standards so long as managers can choose the law to govern their affairs.

Of course, if you truly believe that the market will police all of this, then, maybe you think that, in the future, shareholders of Delaware companies will demand charter protections against reincorporation without disinterested shareholder approval.

Or, maybe, contra what I said in Take Three, you believe investors will pay less for their stakes if they do not have governance rights.  Which is exactly what this paper demonstrates regarding firms backed by PE that go public with shareholder agreements in place.  Except the dollar figures still appear to be so high that PE firms are willing to make that sacrifice in order to retain the private benefits of control.  I’d argue – as I said previously – that since the financial power associated with control translates into political power, we have an explanation for why PE firms would make that trade.  And that really is about much more than the market reaching an appropriate discount for appropriation risk; that is a problem for the Rest of Us.

Take Five: Superstar CEOs

There’s been a lot of talk about them but, in Tesla’s case, there’s a really specific issue on the table.  What if, Tesla is just a car company?  What if, Tesla’s current market valuation is entirely untethered from its actual potential – under the direction of Musk or anyone else?  What if the only reason for its stratospheric valuation is because Musk has a PT Barnum like ability to convince people of a mythical future that will never come to pass?

I am a lawyer, I’m not a financial analyst, and I’m not going to weigh in on whether that’s correct. I am safe in saying, however, that there’s certainly a contingent of relatively informed people who feel that way (though certainly not everyone).

Indulge me, for a moment, in a thought experiment.  If the critics are right, that puts Tesla’s investors in a bind.  Elon Musk may be mismanaging the company, in the sense of diverting resources to his private firms and stocking the board with his bestest buddies and doing whatever he’s doing while high, but there is no solution via traditional channels.  Any activist move to oust him and install better governance will still result in a drop in stock price to reflect Tesla’s true potential.  Current shareholders are benefitting, in other words, from misplaced confidence.  (Cf James Spindler on why existing shareholders prefer securities fraud).  That means, they cannot risk instilling any kind of discipline at all.

If that’s true, then we are back to where we started.  Because if there’s one other thing the securities laws are intended to do, beyond ensure the basic accuracy of public material information, it’s to keep stock prices at least relatively tethered to corporate fundamental value, so as to ensure efficient capital allocation.  And for whatever reason (Elon Musk personally, the difficulty with policing projections of future performance, the irrationality of retail, take your pick), that process has entirely failed in the case of Tesla.  And we are now witnessing the downstream effects.

June 13, 2024 in Ann Lipton | Permalink | Comments (7)

Friday, June 7, 2024

In Which Elon Musk (Again) Illustrates Basic Corporate Law Concepts

I swear I wasn’t going to blog about Elon Musk this week; I had several other ideas planned, but then someone went ahead and filed a new complaint in Delaware and I just can’t help myself.

In Ball v. Tesla, the plaintiff challenges both the upcoming pay ratification vote, and the Texas redomestication.  The arguments against pay ratification are pretty much the ones you’ve already heard in this space (as well as ones advanced by Prof. Elson in his proposed amicus brief), and we’ve pretty much exhausted those so I’ll skip it.

As for the Texas redomestication vote, the plaintiff claims that the required threshold to leave Delaware is 2/3 rather than a simple majority of outstanding shares due to certain provisions in Tesla’s charter.

I’ve previously blogged about this issue at Tesla; it has a staggered board and keeps trying reduce the stagger, but it can’t get the required 2/3 outstanding vote, because so many shareholders do not cast ballots at all. 

When Tesla drafted its charter way back when, it set about minimizing shareholder rights as much as it could under Delaware law.  It instituted a staggered board, it prohibited shareholders from acting by written consent – they can only act at a duly called meeting – and prohibited them from calling a meeting themselves.  And then, to ensure shareholders couldn’t amend the charter and remove the protections, it insulated those provisions with a two-thirds voting requirement to amend them (and a two-thirds vote requirement to amend the voting standard to amend them):

Notwithstanding any other provision of this Certificate of Incorporation … the affirmative vote of the holders of at least 66 2/3% of the voting power of all then outstanding shares of capital stock of the corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter or repeal, or adopt any provision as part of this Certificate of Incorporation inconsistent with the purpose and intent of, Article V, Article VI, Article VII or this Article IX …

Now Tesla wants to move to Texas.  But Texas guarantees more shareholder rights than Delaware.  Specifically, in Texas, corporations cannot eliminate either the right of shareholders to act by written consent, nor the right of shareholders to call special meetings.  So when Tesla drafted a new Texas charter, it tried to minimize those rights as much as possible.  Specifically, the Texas charter permits action only by unanimous written consent, and permits shareholders to call a special meeting only if 50% of shareholders demand it (the highest threshold Texas permits).  Additionally, as Tesla notes in its proxy, under Texas law, even if shareholders call a special meeting, the Board may still postpone or reschedule it.

So, in Ball v. Tesla, the shareholder claims that these new charter provisions expand the rights granted in the original charter, and therefore, can only be amended – and the redomestication can only be approved – with the approval of two-thirds of the outstanding shares.

What happens next?

Well, I’m assuming Ball will be in some way consolidated with Tornetta.  I also assume the good attorneys at BLBG will be not at all happy about the challenge to the pay package, because they want to maintain control over the litigation.  If nothing else, their fee depends on the “benefit” they provided to Tesla shareholders, and Tesla has already telegraphed that if shareholders vote to ratify, the company plans to argue that the attorneys did not provide any benefit to Tesla shareholders, and therefore the fee should be reduced or eliminated.  So the Tornetta team already has a very strong incentive to argue that the ratification has no effect, and they will not be pleased that an interloper is trying to seize control of the issue.

With respect to the Texas redomestication, the vote’s in a week.  Chancellor McCormick cannot risk the company redomesticates and then she somehow has to reel it all back, which means she either has to decide this issue very quickly, or she has to make sure Tesla won’t move while there are (plausible) arguments outstanding.  That said, the Texas move is not self-executing once the vote occurs; even if shareholders vote in favor, Tesla will still have to file the appropriate forms with the Texas Secretary of State.  So, if Chancellor McCormick believes the complaint has merit, she does not have to block the vote (which is not something Ball has asked for anyway); she can enjoin Tesla (or seek a promise, which she seems to prefer), from filing the forms until the matter is sorted out.

Which brings us to – does the complaint have merit?

Imma stop you right there on the written consent thing.  The two-thirds requirement only applies to actions that are “inconsistent with the purpose and intent of” the original charter provisions, and there is no possibility of getting unanimous written consent in a public company (plus, Elon Musk owns shares; if he’s consenting, the point is moot anyway since he can call a special meeting).  Ball’s not going to succeed on that one.

What about the 50% threshold for calling a special meeting?

I’m going to start by saying I have not actually researched any caselaw on this, which might very well exist, and that obviously supersedes anything I’m about to say, but – I’d still rather be Tesla than Ball.  Fifty percent is still almost impossible to achieve in a public company outside the context of a shareholder meeting; moreso now that Tesla’s shareholder base is in the ballpark of 45% retail, and especially taking into account that Musk himself owns 13% (20% if you count the unexercised options, which number includes the ones in dispute).

So I think the real action here is over the pay ratification.

But I promised a lesson about corporate law, and here it is.

What if this challenge presented more of a threat to redomestication?  What if, for example, Texas set the maximum threshold for shareholders to call a special meeting at 25% – which is the MBCA standard – rather than 50%?

In that event, we can imagine a scenario.  Suppose Elon Musk called up his good buddy Governor Greg Abbott, and told him, “Greg, Tesla would love to reincorporate to Texas, but your law is blocking us!  Can you do something about that?”

How much do you think Texas cares about that maximum vote threshold for shareholders to demand a meeting – especially if, in my hypothetical, Texas just adopted the MBCA as written?

Probably not much.

So we can imagine that, at the next legislative session, a bill sails through the legislature to amend Texas’s corporate code to eliminate the right of shareholders to call special meetings, and voila!  Tesla freely reincorporates.

All of this is a thought experiment for Tesla but it’s a real-world thing that happens with companies all the time.  For example, this paper tells the story of the time that Massachusetts actually changed its corporate law in the middle of an active proxy fight in order to protect the management of a local firm.  And that’s not even unusual.

But, corporations and shareholders assume, it doesn’t happen in Delaware.  Why?  Partly because Delaware cares a lot more about its corporate code, but also because Delaware doesn’t have local firms.  I mean, you know, not really.  So it’s pretty much neutral ground.

At least, that’s what everyone’s always thought.

But right now, there’s a proposal to amend Delaware’s corporate code rather dramatically (prior posts here, here, herehere, and here), and as far as I can tell, that’s largely to protect a group of specific companies that got a bit over their skis with aggressive shareholder agreements when they went public, and now some faction of the Delaware bar is seeking to change the law in order to retroactively validate those arrangements.

So, you know.  We’ll see what happens.

Edit: In the comments, it's proposed that the complaint fails for a simpler reason regarding the terms of Delaware's redomestication statute, which overrides specific supermajority charter provisions.  That may be right.  Interestingly, Tesla recommends against shareholder proposals seeking declassification on the ground that they are impossible to implement without a two-thirds majority, but it cagily does not say that it could not implement them in conjunction with redomestication.  ISS reports that when it raised the possibility of declassification in conjunction with the Texas move, Tesla simply stated it preferred to keep the new Texas charter as close in form to the old one as possible and committed to revisiting the issue of declassification when it achieved sufficient shareholder participation at a meeting.

June 7, 2024 in Ann Lipton | Permalink | Comments (1)

Saturday, June 1, 2024

I Can't Help It, if You Start Talking About Caremark, it's Like a Honey Pot

Which is why you get an extra blog post this week.

So I’m reading this entire fairness conflicted controller opinion and right there at the end, VC Laster preemptively wanders into a Caremark discussion - and the reason this is important is it hits on some of the issues I’ve blogged about previously with respect to the (over) extension of Caremark.

The case is Firefighters' Pension System v. Foundation Building Materials, and I’ve got threads up at other social media spaces of the horror show of fiduciary breaches (help yourself), but here I’ll talk about the Caremark piece, which is tangential to the actual claims but important for theory. 

The traditional rule is that “Delaware law does not charter law breakers,” articulated in In re Massey Energy Co., 2011 WL 2176479 (Del. Ch. May 31, 2011), and part of a general family of cases that fall under the Caremark rubric that requires Delaware managers to take reasonable steps to ensure legal compliance.

Here’s what VC Laster writes in Foundation Building Materials:

timing principles govern Massey and Caremark claims. Before a plaintiff can invoke those theories, the plaintiff must point to some sufficiently concrete corporate injury. Typically, that will require a prior adjudication that the statute or regulation was violated, the payment of a fine or penalty, or a settlement.

The existence of a predicate injury serves an important policy function by limiting the ability of plaintiffs to use Massey and Caremark claims as vehicles to litigate alleged violations of far-flung statutory and regulatory regimes. Without that type of gating requirement, a stockholder plaintiff could assert that directors had knowingly violated a statutory or regulatory scheme in another state or country, plead facts supporting a statutory violation, and then litigate that claim in the Court of Chancery

In prior blog posts, I’ve expressed concern about how Caremark claims have been used as political weapons to attack corporate conduct even before a prior adjudication of wrongdoing or obvious injury to the corporation.

VC Laster’s new opinion therefore takes some first steps toward cabining that kind of use. 

The problem that remains theoretically, of course, is that to the extent the claim involves intentional lawbreaking, it isn’t intended to protect shareholders at all.  A claim for intentional lawbreaking can proceed even if, ex ante, the corporation calculates - correctly! - that the net present value of the wrongdoing, taking into account the risks involved, financially benefits shareholders.  In that sense, Massey claims are for society, not shareholders; they represent the outer limits of shareholder primacy.

For that reason, one could argue that the requirement of a prior corporate trauma raises questions about “fit.”  If the claim isn't really about shareholders at all, why must there be a corporate trauma first before the claim can be brought? 

The argument would be, I suppose, something like, for the purposes of practicality of enforcement, it's a risk shifting framework.  Directors can take that risk of lawbreaking to benefit shareholders, but they’re the ones who will financially suffer (or their insurance) if the risk doesn’t pan out and ultimately the corporation is injured as a result, because they’ll functionally indemnify the corporation for any damages suffered as a result of the lawbreaking.

The problem is, that kind of calculus fits poorly with Massey-like rhetoric about Delaware not chartering lawbreakers; it ends up right back with a permission structure for lawbreaking.  

June 1, 2024 in Ann Lipton | Permalink | Comments (1)

Friday, May 31, 2024

You'll never guess what today's blog post is about

Maybe this is a time when other news has overtaken corporate governance disputes, but governance disputes are we do here, so.

Also, what obviously has my attention right now are two issues: the upcoming Tesla vote on Musk’s pay and redomestication to Texas, and the proposed amendments to the DGCL.  This blog post is a couple of quick notes about both.

On the Tesla vote.

I previously blogged that a good argument could be made that restoring Musk’s pay package now offers no economic benefit to Tesla, and therefore would fall into the legal category of waste – which, under current doctrine (even if subject to challenge in the modern era) would require unanimous shareholder approval.  At the time, I offered the reservation that, from a practical perspective, waste would be difficult to litigate (and yes, if shareholders vote in favor, the effect of the vote will absolutely be litigated, by Tornetta, the current plaintiff, if no one else).  That’s because a court might be hesitant to hold that major institutional shareholders – with a fiduciary duty to maximize value for their beneficiaries – would cast an economically irrational vote.  From there, the court might reason backward and conclude that it couldn’t possibly be economic waste.

I also offered a rejoinder – namely, institutions might vote to approve the package because they were “coerced,” perhaps due to Musk’s threats to develop AI in his private businesses rather than Tesla (which he is using Tesla data to do).  But in my post, I treated that as a difficult argument to make, given that there was no suggestion of a threat in the proxy; the plaintiff would have to reach back to those earlier comments by Musk and ask a court to draw the inference that they were still influencing shareholders in June.

And then, of course, Musk couldn’t quite stay off ex-Twitter and he reaffirmed the threat, which Tesla was then forced to file as proxy solicitation material.  He also hinted at it during an earnings call before stopping himself, which was also filed as solicitation material, and Musk boosters are making the point pretty explicitly on social media:

Picture1

And all the reporting mentions the threat to develop AI outside of Tesla, so, now, it’s much easier for the plaintiff to argue that any shareholder vote in favor of Musk’s pay is coerced, and therefore without ratifying effect.  It works in tandem with the waste argument, even though they’re also alternatives – why did shareholders vote for waste? Coercion.  How do we know it was coercive?  Because of the lack of (legitimate) economic value for Tesla.  Etc.

And then there’s Texas. I think it would be difficult, legally, for shareholders to challenge reincorporation to Texas as somehow damaging to their rights; leaving aside the uncertain status of TripAdvisor, Texas’s law is similar to Delaware’s, and so formally, reincorporation doesn’t present the same specter of self-dealing.  (I’m not saying no one’s gonna try, who knows what those wacky shareholders might do).  And Tornetta’s legal team probably is going to stay focused on the pay package rather than the Texas issue (except to the extent they’re worried a reincorporation in Texas means a new lawsuit will be filed there that’s res judicata in Delaware).

Nonetheless, the attempt at reincorporation now adds color to the pay dispute.  Because yes, of course, Tesla’s proxy statement makes clear, the states have a lot of formal similarities in their laws.  And academics debate whether there’s any real benefit to incorporating in Delaware, and it might be reasonable for a startup entrepreneur setting up a new company headquartered in Texas to choose Texas as its chartering state.  But Tesla is not a new company – it’s an established public company that has already been operating according to (well, not according to) Delaware law for a while, now contemplating an expensive switch – involving special committee payments, advisors, hours, and expert analysis, not to mention vote whipping – for benefits that even the company itself claims largely are about branding. 

Even then, if Tesla were doing this on a clear day, then, you know, shrug. 

But it’s not a clear day, it’s in the wake of two high profile losses for Tesla – the Tornetta decision, and the earlier settlement over director pay – and one personal one for Musk, namely the Twitter case (which he dropped, because he knew he would lose), and comes only after Musk tweeted his declaration that Tesla would reincorporate in Texas, reincorporated his other companies out of Delaware, and tweeted that he would not acquire Delaware companies.  In the midst of several tweets about Delaware’s perfidy, he even urged other companies to leave.  Given that context – not to mention Chancellor McCormick’s previous findings regarding the Board’s deference to Musk – there is certainly cause to doubt that the Board, or the special committee, was entirely forthcoming about its reasons, and acting entirely in good faith, when insisting that Tesla should move to Texas right now because Tesla is “all-in on Texas,” and not at all acting on Musk’s personal ire.  Which is apparently what ISS said in its proxy recommendation – I don’t have access to the report itself, but it noted that, while the move itself was unobjectionable, “the process undertaken by the board to reach a decision . . . does leave something to be desired.”  And certainly outside observers read the move as an attempt to free the board to give Musk as much compensation as he wants.

And if that’s right – that no matter how thorough the proxy statement is about describing the Board’s reasoning and the special committee’s diligence, it’s impossible to escape the doubts raised by the context in which this is occurring – then even if the Texas proposal is not directly challenged by Tornetta, the fact of its existence supports the argument that all of the Board – including the special committee – is beholden to Musk.  Therefore, none of the Board’s actions – including the recommendation that the pay package be restored – can be trusted.

Point being, it adds heft to any legal challenges to the pay vote.

BUT!!  Given that it is, frankly, politically awkward for one state – Delaware – to claim there’s anything wrong with incorporating in another state, I wouldn’t be surprised if Chancellor McCormick didn’t want to engage with the Texas issue directly.  But it could still affect her thinking (and the thinking of the Delaware Supreme Court on appeal).

On Proposed Amendments to Delaware Law

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Prior posts in reverse chronological order here, herehere, and here.

VC Laster has been active on LinkedIn, highlighting various ambiguities in the proposed DGCL 122(18).  But he’s doing more than poasting; in Columbia Pipeline Merger Group Litigation and in Wagner v. BRP Group, Inc., his legal reasoning reads as a direct challenge to the synopsis to those amendments, by demonstrating the fiduciary “outs” they propose are ephemeral.

For example, the DGCL 122(18) synopsis says:

even the enforceability of a claim for money damages for breach of the covenant may be subject to equitable review, and related equitable limitations, if the making or performance of the contract constitutes a breach of fiduciary duty…

New § 122(18) does not relieve any directors, officers or stockholders of any fiduciary duties they owe to the corporation or its stockholders, including … with respect to deciding whether to perform, or cause the corporation to perform, or to breach, the contract, whether in connection with their management of the corporation’s business and affairs in the ordinary course or their approval of extraordinary transactions, such as a sale of the corporation

However, in both Columbia Pipeline and BRP, Laster extensively discusses how fiduciary obligations cannot require corporations to break contracts, or free them of consequences (including damages or equitable remedies) when they do so.  The synopsis suggests contracts might be set aside when directors’ actions are reviewed under “enhanced scrutiny”; Laster takes that one on as well in both cases, concluding that it’s a misreading of Paramount Commc’ns Inc. v. QVC Network Inc., 637 A.2d 34 (Del. 1994).

Additionally, the synopsis says:

New § 122(18) does not relieve any directors, officers or stockholders of any fiduciary duties they owe to the corporation or its stockholders, including with respect to deciding to cause the corporation to enter into a contract with a stockholder or beneficial owner of stock….

In BRP, Laster highlights that fiduciary duties are only owed to current – not future – shareholders.  Which means, if fiduciary obligations are the only thing that protects shareholders when boards adopt these contracts, anyone who was not a shareholder at the time of contracting will have no claim.  In practical effect, a contract adopted pre-IPO could not be challenged by public stockholders.

Additionally, in Moelis, Laster held that the improper provisions of a stockholder agreement might be replicated via a preferred share issuance, though reserving the question just how far preferred shares might go.  In BRP, he elaborated on that point, arguing that some restrictions on board authority must be contained in the charter “proper,” and cannot even be included in preferred shares.  As he put it:

A counterparty also would not be able to secure covenants that bind the board through a preferred stock issuance. A certificate of designations can set forth “the designations and the powers, preferences and rights, and the qualifications, limitations or restrictions” of the class or series of stock that the board authorizes using blank check authority. 8 Del. C. § 102(a)(4). That list of features does not include imposing covenants on the board. To constrain or mandate action by the board under Section 141(a) requires a charter provision directed to the board, not a charter provision limited to the “the designations and the powers, preferences and rights, and the qualifications, limitations or restrictions” of a class or series of shares.  That type of provision could appear in the original charter. It also could be implemented through charter amendment duly approved under Section 242, or through a merger or comparable transaction where the DGCL authorizes amendments to the charter of the surviving corporation. A covenant binding the board could not be imposed through a certificate of designations. Under current law, it also cannot be imposed through a governance agreement.

Proposed DGCL 122(18) would authorize contracts that:

covenant that the corporation or one or more persons or bodies will take, or refrain from taking, actions specified in the contract

The implication being, DGCL 122(18) would authorize contracts that go further than what could be accomplished in a preferred share issuance.  Assuming that’s right, it just further demonstrates how DGCL 122(18) would more than authorize governance contracts, but actually encourage a shift of governance from the corporate form and into personal contracts. 

 

May 31, 2024 in Ann Lipton | Permalink | Comments (0)

Friday, May 24, 2024

What is the value of the corporate charter, a reprise

I previously posted about the proposed changes to Delaware law, the latest version of which would allow shareholder agreements insofar as they don’t go further than what a charter – including a preferred share issuance – could allow (except for the exemption from DGCL 115)

One thing I should have mentioned, though, highlighted by Marcel Kahan and Edward Rock here, is that the difference between a share issuance/charter provision, and a contract, is highly salient for purposes of an exchange listing.  Exchanges define control in terms of voting power, not contractual power; moreover, they prohibit corporate actions that would limit shareholder voting power after listing; dual class shares are fine, they just need to be established prior to listing rather than taking away shareholder voting power mid-stream.  What they don’t address, though, is power through shareholder agreements.  Which means, if the DGCL is amended as proposed, a public company could hand over additional governance powers to particular shareholders through contract, without affecting the formal voting power of existing shareholders, and very possibly remain compliant with Exchange rules.

To put it concretely: Elon Musk has vocally demanded 25% voting power of Tesla so that he can control the development of AI. He’s also admitted he can’t get that through a switch to dual-class shares, because of the listing rules.  If the DGCL changes go through, though, there is no reason the board couldn’t “contract” with him to give him outsized influence over Tesla’s governance, regardless of how existing shareholders vote. 

And that leads to the elephant in the room.  Delaware law is all about shareholder wealth – full stop.  My paper on Twitter v. Musk (which is now published and the final version is on SSRN, by the way /plug) is all about the fallacy of relying on Delaware law to advance any value other than shareholder wealth maximization.  But corporate governance does, in fact, matter to the rest of us; it matters whether single individuals wield nearly unchecked power over how corporations behave. 

Back in the 1930s, Congress actually legislated to discourage the use of holding companies, precisely in order to limit the power that individuals could wield over large corporate structures with only a small slice of equity interest.

More recently, as I talk about in my paper Beyond Internal and External, the FTC settled with Mark Zuckerberg to prevent him from exercising his rights as a shareholder to interfere with Facebook’s compliance with a privacy settlement.  Zuckerberg’s unchecked power in his shareholder capacity threatened Facebook’s ability to comply with the law.

So these proposed DGCL changes have very far reaching social consequences that simply have not been explored by Delaware lawmakers, let alone The Rest of Society.

Anyhoo, links to a recent news article here and a collection of Chancery Daily links here.

 

 

May 24, 2024 in Ann Lipton | Permalink | Comments (0)

Friday, May 17, 2024

Playtika

Earlier this month, VC Glasscock issued an opinion in Kormos v. Playtika Holding UK II, where he dismissed breach of fiduciary duty claims against the Chair/CEO and CFO of a controlled company.  The opinion made reference to an earlier bench ruling where he sustained claims against the company’s controlling shareholder, Giant/Alpha, which is what alerted me to the bench ruling – which issued in January – in the first place.  And that bench ruling is actually what has my attention.

Playtika Holding Corp is a publicly traded company with a controlling shareholder, Playtika Holding UK II Limited (“Holding”).  Holding is a wholly-owned subsidiary of Giant/Alpha.  In 2021, Giant/Alpha faced a liquidity crisis and desperately needed to raise cash, which it sought to do by selling Holding’s Playtika stock, potentially in connection with a sale of the entire company.  But the process was rushed and messy, with Playtika itself and Giant/Alpha running separate inquiries; eventually, Giant/Alpha instructed Playtika’s board to stop talking to potential buyers, but to instead cause Playtika to institute a self-tender for its own stock.  SEC rules require that tender offers treat all shares of a class equally, which meant that the public shareholders – as well as Giant/Alpha – were able to tender in to the offer.  But, with Giant/Alpha tendering, it could receive cash back from Playtika which would then solve its liquidity problems.

Plaintiffs, the public holders of Playtika, alleged that this was a conflicted transaction that was not in Playtika’s best interests, and was therefore subject to entire fairness review (though they did not claim the price paid for the shares was unfair).

There’s just one problem with that argument, doctrinally: ever since Sinclair Oil Corp. v. Levien, 280 A.2d 717 (Del. 1971), we know that in order to be a conflicted transaction, implicating the duty of loyalty, the controller must receive a nonratable benefit, i.e., some benefit not available to the other stockholders – and arguably, it has to be a benefit that specifically comes at the minority’s expense.  In Sinclair itself, for example, the controlling shareholder caused the company to pay out massive dividends that allegedly robbed the company of the ability to take advantage of alternative opportunities, and it did so for its own private reasons.  Still, the dividend payments weren’t a conflict transaction – and were therefore subject only to business judgment review – because all shareholders got the same dividends, controller and noncontrollers alike.  The controlling shareholder did not receive a special benefit at the expense of the minority (As the Delaware Supreme Court put it, “a proportionate share of this money was received by the minority shareholders of Sinven. Sinclair received nothing from Sinven to the exclusion of its minority stockholders. As such, these dividends were not self-dealing”).

Similarly, in Playtika, the self-tender may have been motivated by Giant/Alpha’s need for cash, but all shareholders could participate in the tender on equal terms, meaning, it wasn’t a conflict transaction, and was therefore subject only to business judgment review.

Except! 

There was a twist.

Giant/Alpha did not want to risk tendering so many shares that it actually lost control of Playtika.  So, it negotiated a provision whereby Playtika would have to announce the number of shares tendered publicly, which would allow Giant/Alpha to keep close tabs on the status of the offer.  Giant/Alpha could also withdraw shares that it previously tendered – which I gather was a negotiated term of the agreement, but also, by the way, required under SEC rules for all tendering shareholders.  So, because Giant/Alpha was able to monitor the shares tendered, and withdraw its own shares, it could adjust its tender and maintain control of the company.

Those provisions, according to VC Glasscock – as he explained in his bench ruling in January, and again in his recent opinion earlier this month, were a nonratable benefit to Giant/Alpha, because they uniquely allowed Giant/Alpha to maintain control, which was not something the minority could share.  And that was enough to transform the Playtika self-tender into a conflict transaction, subject to entire fairness review.

So here’s the thing.

Treating the right to monitor the number of public shares tendered as a nonratable benefit to Giant/Alpha – let alone one that comes at the expense of minority shareholders – strikes me as a bit of a reach.  SEC rules require that tendering shareholders be able to withdraw before the tender offer closes; that wasn’t a benefit unique to Giant/Alpha.  And if Playtika publicly announced how many shares had been tendered, that meant everyone could see what the status was.   

That said, the whole scenario was obviously hinky from the get-go.  There was an awful initial search for alternative transactions; the self-tender itself was designed to benefit Giant/Alpha, and you can see why a judge might be looking for a reason to at least scrutinize the arrangement more closely.  Hence, a nonratable benefit was identified – Giant/Alpha’s ability to modulate the number of shares it tendered. 

And it matters because, as I’ve written two papers about, and also blogged repeatedly (here, here, here, here, here, here, here, here, here, here, here, here, here, and here), the more that Delaware makes it very easy to insulate deals from review unless they involve a controlling shareholder conflict, the more that courts are motivated to identify a controlling shareholder conflict in order to give themselves the opportunity to review problematic transactions.  As my papers discuss, that’s often exhibited in the definition of what it means to be a controlling shareholder in the first place – but, as we can also see here, it exhibits itself in the definition of conflict, as well.

Anyway, that kind of morass is exactly why the Delaware Supreme Court granted interlocutory review of TripAdvisor, i.e., to address the definition of a conflict transaction.  But TripAdvisor involves a reincorporation from Delaware to Nevada; I have no idea whether the court will address just that scenario – which obviously involves questions of comity not present for other kinds of potential conflicts – or whether it will take a broader view of the problem.

May 17, 2024 in Ann Lipton | Permalink | Comments (0)

Friday, May 10, 2024

What is the Value of the Corporate Charter?

A few weeks ago, I blogged about the proposed amendments to the DGCL, and the questions they raised.  Well, I wasn’t the only one who had concerns, and so, now, there are new amendments to the amendments (which The Chancery Daily has posted here).  And once again, I just got these last night and I read quickly (in the middle of end-of-semester grading) so I reserve the right to be completely wrong, but, here is my quick reaction.

As I explained in my prior post , many of the original amendments were intended as a response to VC Laster’s decision in West Palm Beach Firefighters’ Pension Fund v. Moelis & CoMoelis struck down a shareholder agreement that functionally conveyed management power on a particular stockholder, by giving him veto power over most board decisions.  VC Laster held that a board’s authority can only be cabined to such a degree in the charter, including through a preferred share issuance – and he also suggested that there may be some outer limits on how far even a charter provision could go in restricting board authority.

The original proposed DGCL amendments would have overruled Moelis in both respects.  They would have authorized stockholder agreements that usurped board authority and would not have placed any limits on the degree of authority that could be usurped.  The latter point struck me as particularly important, because traditionally, the corporate form is defined by its board-centric model.  If that can be contractually avoided, does the corporate form have any value at all?

The new amendments are a little different, in that they do not permit contracts that would confer governance powers beyond what could be included in the charter, or would be contrary to Delaware law.  In other words, if there are certain core powers that must remain with the board and can’t be visited in someone else via the charter, then, these amendments to the amendments would not allow those powers to be transferred via stockholder contracts.  The new language provides:

no provision of such contract shall be enforceable against the corporation to the extent such contract provision is contrary to the certificate of incorporation or would be contrary to the laws of this State … if included in the certificate of incorporation.

But also, in determining what these “core” board powers are, courts can’t rely on the fact that the power is one that is statutorily conferred on the board.  As the amendments put it, “a restriction, prohibition or covenant in any such contract that relates to any specified action shall not be deemed contrary to the laws of this State or the certificate of incorporation by reason of a provision of this title or the certificate of incorporation that authorizes or empowers the board of directors (or any one or more directors) to take such action.”

Now, the first thing that leaps out at me is how these new amendments interact with VC Laster’s decision in McRitchie v. Zuckerberg.  There, Laster held that the directors of a Delaware corporation have a duty to maximize the value of the equity, and do not have a duty to maximize the value of a diversified portfolio. (I blogged about the case when the complaint was first filed).  But Laster went on to hold that corporations could adopt charter provisions that would change directors’ fiduciary duties, so that they are obligated to consider diversified shareholders.   That’s contestable; Steve Bainbridge, for example, has suggested that Delaware corporations cannot by private ordering depart from shareholder wealth maximization and I personally would ask what’s the difference between Laster’s proposal and a charter provision that waives the duty of loyalty – which has long been assumed to be unwaivable, except as otherwise statutorily provided (like, opportunity waivers). 

But if Laster is right, then, of course, that represents a very broad view of how far charters can go to alter the board’s authority, which would also mean that stockholder agreements, under the amended proposed amendments, could go very far in altering board authority. 

Which then raises the question: Is there value to requiring that restrictions on board authority be placed in the charter rather than a separate shareholder agreement?

One obvious value is transparency; at least if the company is not subject to SEC reporting, shareholder agreements may not be available to the public or even to other shareholders.  Another value may concern the ease with which an agreement versus a charter could be amended, though I still think that if you conferred special rights to preferred shareholders, you could also confer the right to vote on amendments to those rights to the same preferred shareholders, which would make ease of amendment roughly equivalent.

Another value, though, concerns choice of law.  As I previously blogged, shareholder agreements are subject to ordinary choice of law principles; charter provisions and preferred share terms are subject to the internal affairs doctrine.  (Read my paper addressing this!)

The comments to the amendments to the amendments now discuss choice of law, but I don’t think they change the landscape.  The comments say:

Notwithstanding any choice of law provision in the contract, the reference in the last sentence of § 122(18) to the law “governing” the contract shall be deemed to refer to the laws of this State if and to the extent choice of law principles (such as the internal affairs doctrine) so require.

In other words, it’ll be another state’s law if choice of law principles so require, which, for stockholder agreements, they often do.

But further muddying the waters is this:  The new amendments say that stockholder contracts can’t go beyond what a charter amendment would permit except with respect to DGCL §115, which can be waived in a stockholder contract.

DGCL §115 requires that a Delaware forum be available for claims that “(i) that are based upon a violation of a duty by a current or former director or officer or stockholder in such capacity, or (ii) as to which this title confers jurisdiction upon the Court of Chancery.”

So, as I understand it, let’s say a stockholder agreement conferred extraordinary governance powers on a single stockholder.  Let’s say those powers arguably made the stockholder a “controller” subject to fiduciary obligations.  The contract could also provide that claims against the stockholder for breach of fiduciary duty must be brought in an arbitral or non-Delaware forum.  Presumably, this would include derivative claims – a shareholder would sue derivatively claiming self-dealing by a controller, the corporation would be bound by the forum selection clause, and so, the claim would be heard outside of Delaware.

I also assume that disputes regarding compliance with, or even the interpretation of, a stockholder agreement could be heard in a non-Delaware forum.  So, if someone wanted to claim that a particular stockholder agreement was unenforceable because it conferred power on a stockholder that went beyond what Delaware law permits, and it turned out that the agreement selected another state’s courts as the forum for disputes, that argument – that Delaware law does not permit delegation of such-and-such power – would not be heard in a Delaware court.

As far as I can tell, this provides an incentive for stockholders to enter into these agreements – even if they have hard control over the board and don’t really need them – because it allows them to opt out of DGCL 115, and possibly even the statutory limits on the agreements themselves, which will no longer be policed in Delaware.

Well, I have no idea how this ends but, I gotta tell you, all this drama fascinated my corpgov seminar students, so I suppose I will have much to discuss with my classes next year.

May 10, 2024 in Ann Lipton | Permalink | Comments (0)

Friday, May 3, 2024

Hu, Malenko, and Zytnick on Proxy Advice

I very much enjoyed Edwin Hu, Nadya Malenko, and Jonathon Zytnick’s new paper, Custom Proxy Voting Advice.   They find that most institutional investors who buy proxy voting advice from ISS and Glass Lewis don’t use their benchmark recommendations, but instead create a tailored set of preferences and get recommendations that are based on those preferences.  Then, in particular cases, they may depart from those recs and vote another way – which in fact appears to happen quite a bit for shareholders who use customized recommendations, because, the authors speculate, the customized recommendations free up attention from less contentious votes, and permit shareholders to focus on the more contentious ones.

The point is important because, first, it may mean that headlines like “ISS recommends XXX” may be less meaningful than we think, because the benchmark recommendation may not be what many clients receive.  And second, these findings continue to demonstrate the folly of the perennial corporate complaints that proxy advisors have too much power and/or shareholders “robovote” in response to proxy advisor recommendations.   The real complaint is that shareholders have too much power and too many preferences, and if that’s the problem – well, management should take it up with them.

The final thing to note is that much of the differential comes, unsurprisingly, environmental/social proposals.  Which makes me want to draw attention to this paper by Roni Michaely, Guillem Ordonez-Calafi, and Silvina Rubio, Mutual Funds’ Strategic Voting on Environmental and Social Issues.  They find that ESG-themed mutual funds within larger mainstream families engage in a subtle form of greenwashing, whereby funds within larger families tend to vote for the E/S proposals when the proposals are very likely to pass, or very likely not to pass – and they deviate and vote with the family for the closer votes.  So they vote E/S more than regular-themed funds, but only when those votes won’t make a difference in outcome.  Which is consistent, I think, with Hu, Malenko, and Zytnick’s findings regarding how institutions use custom proxy voting advice, and deviate from it.

May 3, 2024 in Ann Lipton | Permalink | Comments (0)

Friday, April 26, 2024

The Delaware contretemps continues

Previously, I posted about the grumbles of discontent from the corporate bar regarding several recent Delaware Court of Chancery rulings, resulting in proposals for statutory amendments that seemed somewhat hasty and poorly thought-out.  Sujeet Indap had a piece in the Financial Times about it; before that, there was coverage in a local Delaware outlet.

Now, Law360 reports on a new memo issued by Wilson Sonsini, reminiscent of Martin Lipton's famous Interco memo, warning that Delaware may no longer be as friendly to business.  From the memo:

In recent months, a conversation has emerged as to whether Delaware should remain the favored state of incorporation for business entities. Indeed, many of our clients have asked us whether they should remain in Delaware or choose Delaware as the state of incorporation for their new ventures. In this discussion, we provide our reflections on that question and various factors that entrepreneurs, investors, and companies should consider when weighing incorporation in Delaware against incorporation in another state. ...

In the conversations that we have had with clients, businesspeople, and others in the corporate bar, we have heard the following reasons given for reconsidering incorporation in Delaware:

  • A growing number of cases that have addressed technical issues, in the M&A context and elsewhere, and reached unexpected results in a manner that has impacted corporate structuring and transaction planning
  • A perception that Delaware judges have in several opinions adopted an increasingly suspicious or negative tone toward corporate boards and management, and toward the corporate bar
  • The challenges that the case law can pose for companies with influential founders or significant stockholders, the process mechanisms that such companies are expected to use, and the remedies that have been reached in those cases
  • A sense that Delaware judges can be skeptical of the governance of venture-backed private companies and many Silicon Valley-based companies
  • The increasingly active, and successful, plaintiffs’ bar in both technical and fiduciary claims, which can leave boards and management with the sense that they are planning around “gotcha” litigation driven by plaintiffs’ lawyers more than those lawyers’ individual clients

Obviously, the third point here regarding influential founders/significant stockholders is a reference to the MFW process, which the Delaware Supreme Court just reaffirmed.  But the Delaware Supreme Court also just granted interlocutory review in TripAdvisor, which raises the possibility that some of the tension will be ratcheted down through a narrowed definition of what counts as a conflicted transaction that triggers the need for entire fairness review/MFW cleansing in the first place.

What's more interesting to me are points 2 and 4.  I assume that some of those objections are about Moelis, which struck down the type of shareholder agreement that seems to have become common in VC-backed firms and was carried over to the public space, and maybe even go as far back as decisions like Trados, which held that in a VC backed firm, the directors' fiduciary obligations run to the common over the preferred (even though Trados itself did not grant any damages to the common shareholders).

But I also suspect that some of the sturm und drang has its antecedents in In re Oracle Corp. Derivative Litig., 824 A.2d 917 (Del. Ch. 2003), when then-Vice Chancellor Strine held that the independence of a special committee was compromised by close professional and networking ties.  The case was a break from prior Delaware jurisprudence, which treated directors as independent in almost all situations that didn't involve either blood or money, and the Delaware Supreme Court rejected his approach in Beam v. Stewart, 845 A.2d 1040 (Del. 2004).  Once Strine ascended to the Delaware Supreme Court, though, the caselaw started inching back his way, starting with Sanchez, continuing on with Sandys v. Pincus, and culminating in Marchand v. BarnhillThe thing about these more nuanced tests for dependence/independence is that they may, in fact, hit Silicon Valley companies particularly hard, because of the chumminess of the tech world, and it's not surprising that once independence is questioned, the tone of the opinions is going to come off as skeptical, in a manner that defendants do not like.  

Anyway, I'll just conclude by echoing the comments in the Law360 article, namely, that whatever the correct direction of Delaware law, this kind of open warfare (and, frankly, attempted deployment of political muscle) challenges the reputation Delaware has built for comity and a technocratic approach to lawmaking. That's the kind of thing that undermines Delaware's legitimacy as, in a sense, a de facto federal agency.  It's the kind of thing that invites more intrusion from federal regulators, and less respect from other jurisdictions - not just other states, but around the world.

 

 

April 26, 2024 in Ann Lipton | Permalink | Comments (0)

Another paper from me

In September, I was honored to deliver the Boden Lecture at Marquette Law School; a video of that lecture is available here.  (I also gave a vaguely similar, but not identical, talk at College of the Holy Cross earlier this month, which is available here).

Anyway, the Boden Lecture, in a more formalized form, will be published in the Marquette Law Review.  Here is the abstract:

Of Chameleons and ESG

Ever since the rise of the great corporations in the late nineteenth and early twentieth centuries, commenters have debated whether firms should be run solely to benefit investors, or whether instead they should be run to benefit society as a whole. Both sides have claimed their preferred policies are necessary to maintain a capitalist system of private enterprise distinct from state institutions. What we can learn from the current iteration of the debate—now rebranded as “environmental, social, governance” or “ESG” investing—is that efforts to disentangle corporate governance from the regulatory state are futile; governmental regulation has an inevitable role in structuring the corporate form.

The paper is available on SSRN at this link.

April 26, 2024 in Ann Lipton | Permalink | Comments (0)

Thursday, April 18, 2024

Tesla and Waste

Yup, we have another opportunity for Elon Musk to make new law.

This time, it comes in the form of an extraordinary proxy statement recommending that shareholders vote to ratify the compensation package that Chancellor McCormick invalidated in Tornetta v. Musk, and that they vote to reincorporate the company in Texas.

There are many many questions raised and I’m sure I’ll be revisiting a bunch of them over the next couple of months, but I’m zeroing in on one in particular: the pay package ratification vote.  Can they really do that?

And hoo boy did this get long, so behind a cut it goes; however, I personally find the most interesting part to be the realpolitik of it all if it ends up in a courtroom, so knowledgeable readers may want to skip to that part at the end.

More under the jump

Continue reading

April 18, 2024 in Ann Lipton | Permalink | Comments (5)

Monday, April 15, 2024

I Still Think My Disclosure Advice to Clients is the Same After Macquarie

I appreciate Ann's super helpful post on omissions liability after the U.S. Supreme Court's decision in Macquarie Infrastructure Corp. et al. v. Moab Partners, L. P., et al.  The hair splitting in that opinion is, in my view, dubious at best.  The Court's creation of a legally significant concept of "pure omissions" in a public company disclosure context is doctrinally counterfactual.  The omission to state a fact required to be disclosed under a mandatory disclosure rule like Item 303 of Regulation S-K necessarily occurs in a veritable river of disclosures in SEC filings and more generally and has the potential of making those disclosures misleading.  If material, such an omission should be actionable as deceptive or manipulative conduct under Section 10(b) of and Rule 10b-5 under the Securities Exchange Act of 1934, as amended.  Period.

Of course. civil liability would require proof of all elements of the claim, including (even for public enforcement officials) the requisite state of mind or scienter.  Private class action plaintiffs also would have heightened pleading burdens.  And a criminal prosecution can only be sustained if the predicate conduct is willful, as provided in Section 32(a) of the Exchange Act.

The point is that there is no such thing as a "pure omission."  Investors logically rely on the interplay between and among public statements made in filings and elsewhere.  If X exists for Public Company A, and Public Company A is required to disclose X in a public filing but does not do so, investors will view and assess all of the relevant public information about Public Company A assuming X does not exist for Public Company A.  If the omission makes existing disclosures misleading, is material, is made withe the action-appropriate state of mind, and deceives or manipulates, the basis for a Rule 10b-5 cause of action against Public Company A plainly exists based on the language of Section 10(b) and Rule 10b-5.  Back in January, wben I first wrote about Macquarie and an amicus brief I coauthored for the case (which you can fined here), I stated as much.  It seems Ann agrees when she says that "whatever the language of 10b-5(b), it seems entirely unobjectionable that it should be considered a “manipulative or deceptive device or contrivance” within the broader meaning of Section 10(b) to intentionally withhold information you have a duty to disclose – from some other source – in order to mislead someone else."  (Her further analysis follows.)

As Ann's post notes, much remains to be seen and said about the impact of Macquarie, and the Court has signaled that the true wisdom we can gain from its opinion in Macquarie may be constrained to actions brought under Rule 10b-5(b) and to certain factual contexts.  As a result, I have determined it is still appropriate--and wise--to caution public company clients that their failure to comply with mandatory disclosure requirements may make them subject to, among other things, Section 10(b)/Rule 10b-5 litigation.  One should, of course, note (among other things) that the omission would have to be material, make other disclosed facts misleading, and be made recklessly or willfully in order for liability to attach. 

Do you disagree?  Do you believe there are "pure omissions" in a public company disclosure context? Let me know.

 

April 15, 2024 in Ann Lipton, Joan Heminway, Securities Regulation | Permalink | Comments (0)

Friday, April 12, 2024

Macquarie Infrastructure Corp. v. Moab Partners, L. P.

I’ve frequently posted about omissions liability under the federal securities laws; you can read many of those posts, in reverse chronological order, here, here, and here.  But, here’s the CliffsNotes version of where we are now, after the Supreme Court’s decision today in Macquarie Infrastructure Corp. v. Moab Partners, L. P..

 

Once upon a time, there was a statute, Section 10(b) of the Exchange Act. That statute made it unlawful:

 

To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, or any securities-based swap agreement any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.

The Commission did, in fact, adopt those rules and regulations, in the form of Rule 10b-5, which made it unlawful:

 

(a) To employ any device, scheme, or artifice to defraud,

(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or

(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,

in connection with the purchase or sale of any security.

These subparts, collectively, were intended to prohibit the full extent of conduct prohibited by Section 10(b) itself.  See SEC v. Zandford, 535 U.S. 813 (2002).   That is, if it could fall into the category of a “manipulative or deceptive device or contrivance” in connection with the purchase or sale of a security, then it must be prohibited by at least one of Rule 10b-5’s subparts.

 

Back in kinder, simpler times, U.S. courts throughout the land interpreted Section 10(b) and Rule 10b-5 to prohibit not only “manipulative or deceptive device[s] or contrivance[s]”, but also conduct that aids and abets the “manipulative or deceptive device or contrivance” of someone else.  But, alas, in Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U.S. 164 (1994), the Supreme Court said – nay!  Section 10(b) prohibits “only the making of a material misstatement (or omission) or the commission of a manipulative act”; mere “aiding” someone else’s “manipulative or deceptive device or contrivance” is not prohibited.

 

That, of course, kicked off years of litigation over the distinction between aiding a “manipulative or deceptive device or contrivance” and actually participating in one.

 

Which brought us to Janus Capital Group, Inc. v. First Derivative Traders, 564 U.S. 135 (2011).  There, investment adviser Janus Capital Management caused its affiliated mutual funds to file false prospectuses about those funds’ policies. The Supreme Court held that the investment adviser had not violated Rule 10b-5(b), because it had not actually “made” a false statement.  The funds made false statements.  Though the funds’ statements had been drafted by its investment adviser, the statements had been filed under the funds’ name, making the funds – and only the funds – responsible for their contents.  This highly technical definition of the word “make,” the Court further explained, was necessary to preserve the line between primary liability and aiding and abetting liability.

 

Oh no.

 

Because, aiding and abetting, we learned from Central Bank, is outside the scope of the Section 10(b) statute.  But the Janus holding was based on a technical definition of the word “make,” which appears only in one subpart of Rule 10b-5.  Was the Court seriously proposing that intentionally causing a captured entity to issue false statements is not a “manipulative or deceptive device or contrivance” within the meaning of Section 10(b)?  Or was the Court merely holding that such conduct does not run afoul of Rule 10b-5(b), but still could run afoul of Rule 10b-5(a) or (c)?

 

In Lorenzo v. SEC, 587 U.S. 71 (2019), we got an answer.  Janus was about Rule 10b-5(b); there may well be conduct – including distributing false statements that someone else made, with an intent to deceive – that falls within Section 10(b), but not Rule 10b-5(b) (i.e., that falls within Rule 10b-5(a) or 10b-5(c)).

 

Which brings us to Moab v. Macquarie, wherein the Supreme Court decided that the Central Bank to Janus to Lorenzo journey was so much fun, it was worthwhile to do it again.

 

In Moab, shareholders of Macquarie Infrastructure Corp. brought a fraud on the market class action, alleging that Macquarie filed its 10-K without including certain information required to be disclosed under Item 303.  The shareholders contended that omitting required information was prohibited by Rule 10b-5(b).

 

The Supreme Court rejected the claim.  According to the Court, Rule 10b-5(b)’s language is limited solely to affirmatively false or misleading statements – not “pure” omissions.  The Court contrasted the language of Rule 10b-5(b) with the language of Section 11 of the Securities Act of 1933.  The latter prohibits not only false statements and misleading omissions, but also failure to disclose required information; Rule 10b-5(b), however, says nothing about failure to disclose required information.  Therefore, concluded the Court, absent an affirmative false or misleading statement, Rule 10b-5(b) does not create liability.

 

Except, we know that Section 10(b) prohibits “pure” omissions.  We know that because the Supreme Court has said so.  See Chiarella v. U.S., 445 U.S. 222 (1980) (“the Commission recognized a relationship of trust and confidence between the shareholders of a corporation and those insiders who have obtained confidential information by reason of their position with that corporation. This relationship gives rise to a duty to disclose because of the ‘necessity of preventing a corporate insider from . . . tak[ing] unfair advantage of the uninformed minority stockholders.’”); SEC v. Zandford, 535 U.S. 813 (2002) (“each [sale] was deceptive because it was neither authorized by, nor disclosed to, the Woods”); Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 152-53 (1972) (“The individual defendants, in a distinct sense, were market makers, not only for their personal purchases constituting 8 1/3% of the sales, but for the other sales their activities produced. This being so, they possessed the affirmative duty under the Rule to disclose this fact to the mixed-blood sellers.”).  

 

Which makes perfect sense!  Because whatever the language of 10b-5(b), it seems entirely unobjectionable that it should be considered a “manipulative or deceptive device or contrivance” within the broader meaning of Section 10(b) to intentionally withhold information you have a duty to disclose – from some other source – in order to mislead someone else.

 

The inescapable conclusion, then, is that if pure omissions are not prohibited under 10b-5(b), they must be prohibited under either 10b-5(a) or 10b-5(c).

 

Except Moab included this curious footnote:

 

The Court granted certiorari to address the Second Circuit’s pure omission analysis, not its half-truth analysis. See Pet. for Cert. i (“Whether . . . a failure to make a disclosure required under Item 303 can support a private claim under Section 10(b), even in the absence of an otherwise-misleading statement” (emphasis added)) …The Court does not opine on issues that are either tangential to the question presented or were not passed upon below, including what constitutes “statements made,” when a statement is misleading as a half-truth, or whether Rules 10b–5(a) and 10b–5(c) support liability for pure omissions.

It also included such language as:

 

Neither Congress in §10(b) nor the SEC in Rule 10b–5(b) mirrored §11(a) to create liability for pure omissions…

 So … either pure omissions – even if the omissions were part of an intentional effort to deceive someone to whom there was a duty of disclosure – do not count as “manipulative or deceptive device[s] or contrivance[s]”, which will come as a pleasant surprise to various insider traders and faithless brokers, or Rules 10b-5(a) and (c) prohibit conduct outside the scope of Section 10(b).

 

Or … we’ll be walking all this back in a couple of years.

 

Okay, fine, here’s the actual way out: The Court didn’t exactly say omissions aren’t prohibited; it said “A pure omission occurs when a speaker says nothing, in circumstances that do not give any particular meaning to that silence.”  Only these “pure omissions” are not prohibited.

 

Presumably, circumstances that give meaning to the silence are when one acts as a broker, or a market maker, or trades on the information provided in the context of a trusting relationship.  Or, it is not a “pure” omission – it is an omission coupled with conduct – when one misuses a brokerage account, or acts as a market maker, or trades in stock.

 

Without explanation – or even an acknowledgment of the inferential leap – the Supreme Court apparently concluded that no conduct is involved, or no “circumstances … giv[ing] any particular meaning to that silence” exist, when a defendant engages in the action of filing an official document with the SEC that omits required information. 

 

So I assume that the next smartass who tries to cite Moab as a defense to insider trading will be told “but that’s a circumstance that gives particular meaning to the silence!”

 

In other words, the rule, such as it is, appears to be that it’s not fraud if it’s in connection with a fraud on the market class action, and it is fraud anywhere else.  Which means, we must ask – is it a circumstance that gives particular meaning if someone doesn’t merely leave required information out of a form but fails to file a form at all? 

 

I guess we’ll soon find out. 

 

Finally, as I previously mentioned, the SEC can fix this – or most of this – by adding a line item to every filed form declaring that it is not only accurate, but also complete.  That would be the explicit statement rendered false by a failure to include required information.  Still, such a certification is not a complete panacea – there would still be uncertainty around entire failures to file a form, and over whose scienter would be attributed to the company for a false certification, but it would solve some of the problem.

 

Also, icymi, earlier today I posted a plug about stuff I've done recently.

April 12, 2024 in Ann Lipton | Permalink | Comments (0)

New Stuff From Me

Just posting the obligatory plug of a couple of new things.  First up, I reviewed Stephen Bainbridge's book, The Profit Motive: Defending Shareholder Value Maximization for the Harvard Law Review.  Here is the abstract:

Professor Stephen Bainbridge’s new book, The Profit Motive: Defending Shareholder Value Maximization, uses the Business Roundtable’s 2019 statement of corporate purpose as a jumping off point to offer a spirited defense of shareholder wealth maximization as the ultimate end of corporate governance. Beginning with an analysis of classroom standards like Dodge v. Ford Motor Co., and continuing through the modern era, Bainbridge argues both that shareholder value maximization is the legal obligation of corporate boards, and that it should in fact be so, partly because of wealth maximization’s prosocial tendencies, but also because of the lack of a viable alternative. Drawing on his decades of work as one of America’s most influential corporate governance theorists, Bainbridge offers up sharp critiques of the kind of enlightened managerialism reflected in the Business Roundtable’s statement, and advocated by academics like Professor Lynn Stout and practitioners like Martin Lipton. Along the way, he also has harsh words for trendy alternatives such as “environmental, social, and governance” (ESG) investing and proposals to reform the structure of the corporation itself.

In many ways, The Profit Motive is an essential resource for any theorist, or student, in this field. Deftly intertwining economic theory with sharp anecdotes and historical retrospectives, Bainbridge offers an entertaining account of the realpolitik of corporate functioning and the major legal developments that brought us to where we are today. However, as I argue in this book review, there are many facets to stakeholderism and the ESG movement, and the very features Bainbridge identifies as flaws could, in fact, turn out to be hidden virtues.

Second, last week, I spoke to students at College of the Holy Cross in Worcester, Massachusetts about ESG and the social responsibility of business.  The talk was somewhat similar to one I gave at Marquette Law School a few months ago, but this was the first time I had the opportunity to present to undergraduate students rather than law-type people.  Anyway, there's video:

 

 

April 12, 2024 in Ann Lipton | Permalink | Comments (0)

Monday, April 8, 2024

Trial Court Blesses Shadow Insider Trading

A federal jury found Matthew Panuwat liable for insider trading late last week.  As you may recall, the U.S. Securities and Exchange Commission (SEC) brought an enforcement action against Mr. Panuwat in the U.S. District Court for the Northern District of California back in August 2021.  In that legal action, the SEC alleged that Mr Panuwat violated Section 10(b) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5, seeking a permanent injunction, a civil penalty, and an officer and director bar. The theory of the case, as described by the SEC in a litigation release, was founded on Mr. Panuwat's deception of his employer, Medivation, Inc., by using information obtained through his employment to trade in the securities of another firm in the same industry.

Matthew Panuwat, the then-head of business development at Medivation, a mid-sized, oncology-focused biopharmaceutical company, purchased short-term, out-of-the-money stock options in Incyte Corporation, another mid-cap oncology-focused biopharmaceutical company, just days before the August 22, 2016 announcement that Pfizer would acquire Medivation at a significant premium. Panuwat allegedly purchased the options within minutes of learning highly confidential information concerning the merger. According to the complaint, Panuwat knew that investment bankers had cited Incyte as a comparable company in discussions with Medivation and he anticipated that the acquisition of Medivation would likely lead to an increase in Incyte's stock price. The complaint alleges that Medivation's insider trading policy expressly forbade Panuwat from using confidential information he acquired at Medivation to trade in the securities of any other publicly-traded company. Following the announcement of Medivation's acquisition, Incyte's stock price increased by approximately 8%. The complaint alleges that, by trading ahead of the announcement, Panuwat generated illicit profits of $107,066.

The SEC's theory of liability, an application of insider trading's misappropriation doctrine as endorsed by the U.S. Supreme Court in U.S. v. O'Hagan, has been labeled "shadow trading."

The Director of the SEC's Division of Enforcement, Gurbir S. Grewal, put it plainly in responding to the jury verdict in the Panuwat case on Friday:

As we’ve said all along, there was nothing novel about this matter, and the jury agreed: this was insider trading, pure and simple. Defendant used highly confidential information about an impending announcement of the acquisition of biopharmaceutical company Medivation, Inc., the company where he worked, by Pfizer Inc. to trade ahead of the news for his own enrichment. Rather than buying the securities of Medivation, however, Panuwat used his employer’s confidential information to acquire a large stake in call options of another comparable public company, Incyte Corporation, whose share price increased materially on the important news.

Yet, many assert that the SEC's theory in Panuwat broadens the potential for SEC insider trading violations and enforcement.  See, e.g., here, here, and here. They include:

  • a wide class of nonpublic information that may be determined to be material and give rise to an insider trading claim;
  • the expansive scope of insider trading's requisite duty of trust and confidence (and the potential importance of language in an insider trading compliance policy or confidentiality agreement in defining that duty); and
  • the potentially large number of circumstances in which employees may be exposed to confidential information about their employer that represents a value proposition in another firm's securities.

Three of us on the BLPB have held some fascination regarding the Panuwat case over the past three years.  Ann put the case on the blog's radar screen; John later offered perspectives based on the language of Medivation's insider trading compliance policy; and I offered comments on John's post (and now offer this post of my own).  I am thinking we all may have more to say on shadow trading as additional cases are brought or as this case further develops on appeal (should there be one).  But in the interim, we at least know that one jury has agreed with the SEC's shadow trading theory of liability.

April 8, 2024 in Ann Lipton, Current Affairs, Financial Markets, Joan Heminway, John Anderson, Securities Regulation | Permalink | Comments (0)