Wednesday, October 10, 2018
Since Kahn v. M&F Worldwide there have been a series of challenges to the application of the business judgment presumption in the context of controller squeezeout transactions. The crux of these challenges was M&F's ab initio requirement.
You'll remember that in M&F, the court tried to iron out the problems associated with the Kahn v. Lynch standard that were essentially flypaper for litigation in controller squeezeout transactions. It didn't matter how good a job you might have done in structuring a transaction to look like an arm's length deal, under Lynch your deal was still going to be subject to entire fairness review and you were going to get sued. Although entire fairness was the standard of review for a controller squeezeout with robust procedural protections (approval by disinterested special committee or stockholders), Lynch shifted the pleading burden to plaintiffs rather than the board. That was a mistake by the Del. Supreme Court. Rather than reward boards and give controllers an incentive to do the right thing, shifting the burden of proving entire fairness to plaintiffs simply ensured plaintiffs would sue and demand their day in court - guaranteeing that even meritless litigation had settlement value.
M&F sought to address this problem adopting the following standard:
[B]usiness judgment is the standard of review that should govern mergers between a controlling stockholder and its corporate subsidiary, where the merger is conditioned ab initio upon both the approval of an independent, adequately-empowered Special Committee that fulfills its duty of care; and the uncoerced, informed vote of a majority of the minority stockholders.
Of course, no good deed goes unpunished. What does ab initio mean anyway? Does it mean that if the controller's first proposal to the board doesn't stipulate the M&F conditions that the transaction must be subject to entire fairness review under Lynch? Or is it more forgiving than that? The Chancery Court has taken the position in a series of cases that ab initio should not be read so rigidly. Now, the Delaware Supreme Court has agreed. In Flood v. Synutra, the Court yesterday clarified what it meant by ab initio:
Admittedly, our opinion and the Court of Chancery’s opinion in MFW uses what can be read as ambiguous language to express the requirement that the key dual procedural protections must be in place before economic negotiations so the protections are not used as a bargaining tool in substitution for economic concessions by the controller. In describing this prerequisite to the invocation of the business judgment rule standard of review, we and the Court of Chancery have said the conditions must be in place “ab initio,” before the “procession of the transaction,” “from inception,” “from the time of the controller’s first overture,” and “upfront.”
From these uses, the plaintiff argues that MFW strictly hinges the application of the business judgment rule on the controller including the two key procedural protections in the first offer. A controller gets one chance, as the master of its offer, to take advantage of MFW, and if it fails to do so, that is it. But in an earlier case, the Court of Chancery and we did not embrace this rigid reading of MFW. In the case of Swomley v. Schlecht, the Court of Chancery held that MFW’s “ab initio” requirement was satisfied even though “the controller’s initial proposal hedged on whether the majority-of-the-minority condition would be waivable or not” because the controller conditioned the merger on both of MFW’s dual requirements “before any negotiations took place.” We affirmed that well reasoned conclusion, and adhere to that approach[.]
Rather than read ab initio literally and rigidly, the Court wants controllers and boards and, most especially potential plaintiffs to have a more flexible reading of ab initio:
A goal scored in the fifth minute of a 90-minute game would be referred to as a goal at the beginning of the match. Enjoying the beginning of fall refers to those few weeks in late September and early October when the weather gets chilly and the leaves start to change color, not just the autumnal equinox. The beginning of a novel is not the first word, but the first few chapters that introduce the reader to the characters, setting, and plot. Indeed, three years after Britain entered World War II, Winston Churchill famously declared that the War had reached “the end of the beginning.”
So, perhaps this is the beginning of the end of litigation in properly structured controlling shareholder transactions.
Tuesday, February 7, 2017
Over the past couple of years something has been happening in appraisal litigation. For a long time, appraisal litigation was something of a backwater: experts battling over which variables a judge must insert into a discounted cash flow model and the proper level for beta. Shoot me.
Anyway, as I said, something is happening. Appraisal litigation is getting more interesting. In part this is a response to the growing interest in appraisal proceedings by investment funds. Myers and Korsmo wrote about this trend in their 2015 paper Appraisal Arbitrage and the Future of Public Company M&A. As they laid out in their paper, there has been an explosion in investor interest in appraisal proceedings. Appraisal arbitrage, it turns out, is good business.
As the number of appraisal actions has increased (partly also in response to the Corwin ruling having some bite), so too has attention to how fair value is determined by the courts. In the last couple of years, at the Chancery Court, chancellors have started moving away from the view that the court will determine fair value without regard to the merger price. Now, in certain circumstances (where the deal price is a product of a competitive or robust sales price) chancellors may consider merger price as one of the relevant factors for purposes of determining fair value.
Now this question has found its way to the Delaware Supreme Court and the parties are lining up on both sides. There are even amici! Two sets of amici have rolled up: on the one side there are law professors arguing that the court should be able to presumptively rely on merger price to determine fair value in an appraisal proceeding unless that price does not result from arm's length bargaining (DFC Holdings - Bainbridge, et al). On the other are law professors arguing requiring a court to rely on merger price to determine fair value would run counter to the language of the statutory appraisal remedy and also not always reflect fair value (DFC Holdings - Talley, et al). Read both briefs. They are a great review of the issues relating to this issue.
Thursday, April 23, 2015
For what it's worth, Chu and Zhao have released a paper, The Dark Side of Shareholder Litigation: Evidence from Corporate Takeovers, and the abstract:
Exploiting the staggered adoption of universal demand (UD) laws by 23 states between 1989 and 2005 as quasi-natural experiments, we show that reduced shareholder litigation threat improves corporate takeover efficiency. Using a difference-in-differences approach, we find that acquirers from states that adopt UD laws experience significantly higher abnormal announcement returns. We also document that UD laws are associated with better long-run post-merger operating performances. Taken together, our findings suggest that the threat of shareholder litigation leads to inefficient mergers and acquisitions and therefore destroys value ex ante.
This is a pretty good example of what financial economists do, I suppose. Except, here's the thing. The authors are focused on the effect of universal demand in derivative litigation on efficiency of the takeover market. OK, I get it. Transaction related litigation is bad. So, if we raise the hurdles to bringing transaction related litigation, then we should improve efficiency of the market. But...transaction related litigation of the type that one reasonably believes is value reducing is never brought as derivative litigation. It's brought as direct litigation. There's a difference.
In the paper, the authors point to two examples of derivative litigation in the context of a merger as an example of what they are talking about. The two examples are Oracle's acquisition of Pillar (100% owned by Oracle CEO Ellison) and the FreePort-McMoRan Copper acquisition of MMR. Excuse me, but neither of those pieces of litigation are examples of value-reducing litigation. Thank goodness for derivative litigation in those cases!
The challenge for everyone in this business isn't transaction-related derivative litigation. It's the direct litigation. Example: an independent board, sells control of the corporation to a third party in an arm's length deal that has been fully-shopped. Shareholders file direct litigation claiming that the board violated its duties under Revlon to get them the highest price in the sale. There's a very good argument that this kind of litigation is value-reducing, but this kind of litigation, which makes up the vast majority of transaction-related litigation, is not covered by this study.
Notwithstanding the fact that the authors are measuring the effect of an irrelevant variable they find the variable to be significant. OK. Well. There you go.
Friday, July 11, 2014
You know the drill. A merger is announced and immediately a number of lawsuits are filed. Of course, they allege Revlon duties, yada yada… But what does it take for one of these typical Revlon claims to survive a motion to dismiss? A lot. In Dent v Ramtron, Vice Chancellor Parsons reminds us just how hard it is to make a case that a board has run afoul of enhanced review under Revlon where a board has the protection of a 102(b)(7) exculpatory provision:
In that regard, if the corporation’s certificate contains an exculpatory provision pursuant to 8 Del. C §102(b)(7) barring claims for monetary liability against directors for breaches of the duty of care, the complaint must state a nonexculpated claim, i.e., a claim predicated on a breach of the directors‟ duty of loyalty or bad faith conduct.
A factual showing that, for example, a majority of the board of directors was not both disinterested and independent would provide sufficient support for a claim for breach of loyalty to survive a motion to dismiss. “A director is considered interested where he or she will receive a personal financial benefit from a transaction that is not equally shared by the stockholders.” “Independence means that a director’s decision is based on the corporate merits of the subject before the board rather than extraneous considerations or influences,” such as where one director effectively controls another. Moreover, as to any individual director, the disqualifying self-interest or lack of independence must be material, i.e., “reasonably likely to affect the decision-making process of a reasonable person . . . .”
Well-pled allegations that the board did not act in good faith also would state a claim for breach of the duty of loyalty sufficient to survive a motion to dismiss. In general, “bad faith will be found if a ‘fiduciary intentionally fails to act in the face of a known duty to act, demonstrating a conscious disregard for his duties.’” Alternatively, notwithstanding approval by a majority of disinterested and independent directors, a claim for breach of duty may exist “where the decision under attack is so far beyond the bounds of reasonable judgment that it seems essentially inexplicable on any ground other than bad faith.”
So, unless the suit you are filing immediately upon announcement of a deal can allege that directors didn’t act in good faith or a majority of directors were interested and that the disqualifying interest was material, then, well your claim isn’t going very far and it's going to get the business judgment presumption. Revlon is a high bar for plaintiffs.
Wednesday, May 28, 2014
The ubiquity of transaction-related litigation is, I think, a real problem. By now, 94%+ of announced mergers end up with some litigation. I think that most reasonable people can agree that not all 94% of transactions where there are lawsuits do the facts suggest that something has gone wrong. Much of the litigation is really just flotsam intended to generate a settlement -- a settlment that directors are all too willing to grant in exchange for a global release.
In any event, there have been a series of efforts, including exclusive forum provisions, which have been deployed in a self-help manner to try manage this issue and its multi-jurisidictional cousin. In the 2013 Boilermakers opinion, Chief Justice Strine gave his blessing to board-adopted exclusive forum bylaw. Following Galaviz v Berg there was some question as to whether an exlcusive forum bylaw adopted by the board had sufficient inidicia of consent such that it would be enforceable against shareholders. In Boilermakers, Strine noted that forum selection bylaws were consistent with both Delaware and federal law, and also that the mere fact that such a bylaw was adopted by the board does not render such a bylaw invalid:
The certificates of incorporation of Chevron and FedEx authorize their boards to amend the bylaws. Thus, when investors bought stock in Chevron and FedEx, they knew (i) that consistent with 8 Del. C. § 109(a), the certificates of incorporation gave the boards the power to adopt and amend bylaws unilaterally; (ii) that 8 Del. C. § 109(b) allows bylaws to regulate the business of the corporation, the conduct of its affairs, and the rights or powers of its stockholders; and (iii) that board-adopted bylaws are binding on the stockholders. In other words, an essential part of the contract stockholders assent to when they buy stock in Chevron and FedEx is one that presupposes the board’s authority to adopt binding bylaws consistent with 8 Del. C. § 109. For that reason, our Supreme Court has long noted that bylaws, together with the certificate of incorporation and the broader DGCL, form part of a flexible contract between corporations and stockholders, in the sense that the certificate of incorporation may authorize the board to amend the bylaws' terms and that stockholders who invest in such corporations assent to be bound by board-adopted bylaws when they buy stock in those corporations.
Boilermakers set the stage for the Delaware Supreme Court very recent opinon in ATP Tour. ATP Tour, you know, the tennis guys. The issue in the ATP is related both to the question of transaction-related litigation and unilaterally adopted bylaws. In ATP, the tour adopted a fee shifting bylaw that would eschew the "American Rule" and require that in the event of unseuccessful shareholder litigation - or litigation that "does not obtain a judgment on the merits that substantially achieves, in substance and amount, the full remedy sought" then the shareholder will be responsible for paying the corporation's litigation fees. Here's the bylaw as adopted:
(a) In the event that (i) any [current or prior member or Owner or anyone on their behalf (“Claiming Party”)] initiates or asserts any [claim or counterclaim (“Claim”)] or joins, offers substantial assistance to or has a direct financial interest in any Claim against the League or any member or Owner (including any Claim purportedly filed on behalf of the League or any member), and (ii) the Claiming Party (or the third party that received substantial assistance from the Claiming Party or in whose Claim the Claiming Party had a direct financial interest) does not obtain a judgment on the merits that substantially achieves, in substance and amount, the full remedy sought, then each Claiming Party shall be obligated jointly and severally to reimburse the League and any such member or Owners for all fees, costs and expenses of every kind and description (including, but not limited to, all reasonable attorneys’ fees and other litigation expenses) (collectively, “Litigation Costs”) that the parties may incur in connection with such Claim.
Clearly, such a bylaw, if adopted and upheld, would bring the transaction-related litigation train to a screeching halt or at the very least dramatically alter the settlement dynamics.
This bylaw ended up in front of the Delaware Supreme Court as a certified question from the federal district court in Delaware. You'll remember that Delaware is one of the few state supreme courts that will accept certified questions of law. The question before the court was whether the unilaterally adopted fee-shifting bylaw above was valid under Delaware law.
That such a provision is legal under Delaware law isn't all that surprising, really. What is surprising is that court would agree to wander into this hornet's nest of an issue entirely of voluntarily. Whether or not to accept a certified question is entirely within the discretion of the court and the court could have avoided deciding the question altogether had it wanted to. But, apparently it wanted to decide the issue.
The reaction to the opinion has been pretty incredible. For example, Delaware litigator Stuart Grant remarked,"The Delaware Supreme Court seems to have caused Delaware to secede from the union." A little over the top, sure. But, the just because plaintiffs hate the result, don't think that the defense bar is jumping up and down claiming victory and recommending widespread adoption of these provisions. They're not. In fact, many worry that adopting such provisions might just put their clients in the cross hairs. No one wants a fight if they can avoid it. And anyway, the global releases their clients get from settling otherwise trivial transaction challenges are valuable security blankets for directors.
The reaction by both plaintiffs and defendants to the ATP ruling has been a unique constellation of interests. Ronald Baruch calls the reaction evidence of the "cozy" litigation community in Delaware. Plaintiffs want to get paid and defendants want their releases. In response the Corporation Law Section of the Delaware Bar has moved quickly to propose an amendment to elminate fee shifting under the DGCL. The proposed amendment (with underlined insertion) is below:
Amend § 102(b)(6), Title 8 of the Delaware Code by making insertions as shown by underlining as follows:
A provision imposing personal liability for the debts of the corporation on its stockholders based solely on their stock ownership, to a specified extent and upon specified conditions; otherwise, the stockholders of a corporation shall not be personally liable for the payment of the corporation's debts except as they may be liable by reason of their own conduct or acts.
The effect of the proposed amendment would make fee shifting impermissable under the DGCL and therefore rule it out as a bylaw. If approved by the legislature in Delaware, the amended 102(b)(6) would go into effect on August 1. Now that's swift justice.
The battle against transaction-related litigation will have to be fought on other ground.
Tuesday, November 19, 2013
WHYY reports that the Delaware Supreme Court has begun to post mp4/video recordings of all arguments. Right now, video recordings are available back to October 9. You can find them at the Delaware Supreme Court's website. Going forward the video recordings will be posted as a matter of course, although they will be one or two days delayed. Nevertheless, they will be a great resource for lawyers, students, and others interested in the corporate law.
Even though, one can now watch the arguments from afar, I'm still likely going to find myself going to Dover for the arugments in the pending MFW and Cooper appeals (December 18/19). Corporate geek.
Tuesday, November 12, 2013
So, notwithstanding statements that Delaware was considering filing an appeal of the third circuit's opinion declaring the Chancery Court's arbitration procedure unconstitutional, it has allowed the first deadline to pass:
Attorneys for Delaware and the Chancery Court could have demanded that all the judges on the U.S. Third Circuit Court of Appeals review the case, a procedure called an “en banc” review, but the deadline to make that request expired Nov. 6, leaving only a possible appeal to the U.S. Supreme Court, which must be done by January 21.
We'll see. My personal opinion: Delaware should permit the arbitration procedure to go forward, but require the proceedings to remain open to the public.
Friday, November 8, 2013
So a couple of days ago, I noted another challenge to an exclusive forum provision (this one in a corporate charter) in connection with the acquisition of Edgen Group by Sumitomo. So, Edgen had its day in Chancery Court where it argued that the Vice Chancellor should issued an injunction against the plaintiff stockholder to prohibit him from purusing a law suit outside of Delaware. In considering the whether to issue the order, Vice Chancellor Laster made it clear that Delaware believes exclusive forum provisions are binding on stockholders. There are no issues for the court with respect to the legality of these provisions. But...no injunction for Edgen. Why? Well, on the balance of the equities analysis, the court felt that it wasn't the court's place to tell a court in Louisiana what to do. Edgen can raise the forum provision in front of the Louisiana court and the court - if fairly applying Delaware law - should toss the case out. Ahem...we shall see...
Now, what I thought was really interesting about Vice Chancellor Laster's hearing in Edgen was his statements about the nature of plaintiff shareholders. To get the context, Edgen and their counsel appeared before Laster for the hearing. Genoud, the plaintiff, however did not appear. Genoud's counsel was in fact there, but without authorization to speak on behalf of his client in the Delaware action. There was a lot of 'we love to appear, but our client hasn't authorized us to appear in Delaware' etc. To that, Laster had this to say (Transcript Hearing):
Now, Mr. Genoud has not responded to the complaint. Extraordinary efforts have been made by Mr. Slights and his colleagues to track down Mr. Genoud, including the hiring of two process servers and the hiring of a private investigator. His residential address cannot be found.
The Louisiana counsel who represent Mr. Genoud for purposes of that action have declined to accept service. And the Robbins Geller firm, a firm that I generally have great respect for, has engaged in unsatisfying and, dare I say, pathetic representational contortions in which they have maintained that although they represent Mr. Genoud for purposes of challenging the merger and bringing the lawsuit in Louisiana, they do not represent Mr. Genoud for the clearly-related subject matter of this proceeding.
Now, anyone remotely familiar with this type of stockholder litigation understands that Robbins Geller is not taking its direction from a nominal client on these issues but rather is calling the shots itself. And the idea that Robbins Geller and Louisiana counsel have not been able to reach their client, even though they sued in Louisiana and sought expedited proceedings and have a status conference tomorrow, is either, one, not credible, or two, confirmatory that Robbins Geller is not taking direction from its client about how to handle this litigation.
Frankly, it's quite disappointing behavior from a firm that otherwise has done a great deal to build up reputational capital and credibility with the Delaware courts. It would not have been, I think, any impairment at all to enter an appearance and reserve the ability to fight the jurisdictional issue. It is much more credibility-straining to claim that you can't contact your client, and that although you have been engaged to handle a broad and expedited attack on a merger and to sue in a jurisdiction internationally removed from your client's residence, you have nevertheless not been retained to handle a related proceeding in another court that, although I haven't done the math, is probably equidistant, if not closer, to the plaintiff's residence.
The Louisiana court held a hearing in this case yesterday. I'm assuming the plaintiff (or his counsel) turned up for that hearing. No word yet on the outcome of that hearing.
Wednesday, November 6, 2013
I started a paper like this once. After a colleague warned me that I might want to hire legal counsel before I published it I thought better of finishing it. I'm happy to say, however, the world is full of brave people. Jessica Erickson has published The New Professional Plaintiffs in Shareholder Litigation:
In 1995, Congress solved the problem of professional plaintiffs in shareholder litigation — or so it thought. The Private Securities Litigation Reform Act (PSLRA) was designed to end the influence of shareholder plaintiffs who had little or no connection to the underlying suit. Yet it may have failed to accomplish its goal. In the wake of the PSLRA, many professional plaintiffs simply moved into other types of corporate lawsuits. In shareholder derivative suits and acquisition class actions across the country, professional plaintiffs are back. They are repeat filers involved in dozens of lawsuits. They are the attorneys’ spouses, parents, and children. They may even be entities created for the primary purpose of filing litigation. These new professional plaintiffs have flown almost entirely under the radar of corporate law scholarship. This Article pulls back the curtain on professional plaintiffs, examining court filings and other public records in the first comprehensive study of professional plaintiffs’ role in corporate law. In most instances, professionalism is a good thing — but not when it comes to choosing plaintiffs.
Download the paper and meet the "mythical" Alan Kahn, as well as Doris & Steven Staehr among others!
Wednesday, September 11, 2013
The Delaware Supreme Court just issued its opinion in response to a certified question posed to it by the Ninth Circuit in the Countrywide shareholder litigation. The question posed to the court:
Whether, under the “fraud exception” to Delaware’s continuous ownership rule, shareholder plaintiffs may maintain a derivative suit after a merger that divests them of their ownership interest in the corporation on whose behalf they sue by alleging that the merger at issue was necessitated by, and is inseparable from, the alleged fraud that is the subject of their derivative claims.
Short answer: No, affirming Lewis v Anderson. While shareholders' direct claims survive the merger, deritivate claims are extinguished. In answering the certified question, the Supreme Court takes the time to remind us all that dictum is, well, just dictum, not new law.
Monday, June 3, 2013
[Updated] Here are a handful of law firm memos on the MFW Shareholders Litigation (in which the Delaware Court of Chancery held that the Business Judgment Rule applied to a freeze-out merger that was conditioned on the approval of both an independent Special Committee and a Majority-of-the-Minority stockholder Vote). Brian discussed the same case here.
Tuesday, April 30, 2013
Thinking about it now, it turns out that the 2011 settlement approval of In re Sauer Danfoss Shareholder Litig is an important case. Why? Did it set out any special new points in the law? No. But it did one thing of real value for the courts. In Appendix A to the opinion, it set out a chart of recent settlements with identification of the work accomplished by plaintiffs counsel, the benefit achieved, and the fee approved by the court. It's a price list. And, like a price list, the Delaware courts are now regularly referring to it when they are reviewing requests for attorneys fees in disclosure only cases. I suppose that's a good thing. The downside? Well, now Vice Chancellor Laster has to remember to update the appendix every now and again!
Monday, April 1, 2013
(b) Rules adopted under this chapter must provide that in a class action, if any portion of the benefits recovered for the class are in the form of coupons or other noncash common benefits, the attorney's fees awarded in the action must be in cash and noncash amounts in the same proportion as the recovery for the class.
The court ruled that where the only benefit for shareholders in a settlement is additional disclosure, then attorneys cannot be awarded fees. Now, another Texas court has done it again. This time in Kazman v Frontier Oil the plaintiffs will get nothing following a disclosure settlement. So, if a case if typical merger related flotsam, the plaintiffs might be hoping to get a couple of minor disclosures and/or reduction in a termination fee in exchange for legal fees and giving the board a global release. In Texas, that kind of settlement will no longer result in fees for plaintiffs counsel. That pretty much makes such cases -- or settlements in Texas -- a non-starter from now on.
The coupon settlement legislation in Texas appears to be having a big impact on the development of merger litigation Texas. One only need to look at Dell. To be honest, I was a little surprised by the low number of Texas suits followed in connection with this transaction. Of the 25 suits filed, only 5 of them were filed in Texas. Of course, coupon settlement legislation is not the answer to multiforum litigation, but it does make Texas uneconomic as a forum for a lot of transaction related litigation.
Tuesday, March 19, 2013
This client alert from Gibson Dunn discusses Chancellor Strine's bench ruling rejecting a disclosure-only, negotiated settlement of an M&A stockholder lawsuit. According to the authors,
The decision, in In re Transatlantic Holdings Inc. Shareholders Litigation , Case No. 6574-CS, signals that the Chancery Court will carefully scrutinize the terms of negotiated settlements to ensure that named stockholder plaintiffs are adequate class representatives and that the additional disclosures provided some benefit to the purported stockholder class. At the same time, the decision represents an unmistakable warning to plaintiffs’ firms that they cannot continue to count on paydays through the settlement of meritless lawsuits filed in the wake of announced deals.
Wednesday, February 13, 2013
I'll admit to being disappointed by the work ethic of the plaintiff's bar -- so far only 6 complaints have been filed against the Dell transaction. My guess was 9. Six, though, is still above average. Steven Davidoff and Matt Cain have released their statistical compendium of transaction-related litigation for 2012 (SSRN: Takeover Litigation in 2012). This is the second iteration of this statistical compilation and it has quickly become a must read for those of us interested in the issue of transaction-related litigation.
We see the steady upwards trend in transaction-related litigation and how it has really exploded since 2005. Now, almost 92% of all transactions are accompanied by litigation of some sort and 50% of that involved multi-forum litigation. Davidoff and Cain also report median attorneys’ fees for settlements of $595,000 in 2012.
Wednesday, January 30, 2013
... and rightly so. From Bloomberg:
Michael Dell, the special committee of the company’s board and their advisers are finalizing details of the equity financing while making sure they have explored all possible alternative options, including a sale to other buyers, said two of the people familiar with the situation. Given the potential for conflicts in a deal where Michael Dell helps take his company private, financial advisers and Dell’s board are being extra cautious, said these people.
Evercore Partners Inc. (EVR), which is advising the special committee of the board, has approached other potential buyers and no alternative bids have emerged so far, said one of the people. Dell and its advisers have also explored the possibility of a dividend recapitalization, which would involve taking on debt to help pay for a special dividend, as a way to increase shareholders’ value, said another person.
What's the over/under on the number of suits filed once this transaction is announced regardless of how good the process? I say 9.
Thursday, January 24, 2013
For all you law students out there who are mystified by the procedural niceties of derivative litigation (actually, I should include a pile of politicians and media types in this group as well), AIG has filed a copy of its demand refusal with the SEC. It's right here. You'll also find a copy of the plaintiff's demand letter that kicked this whole thing off. I'll probably be using these materials in the future when I next walk through derivative litigation.
What does the filing tell us? Well, after plaintiffs filed their demand that the board took its time and didn't rush its decision with respect to the litigation. When it took up the litigation, it had informed itself of the issues and decided that pursuing Starr's claims in any form wouldn't be in the best interests of the corporation. That's pretty straightforward.
For those of you paying attention to the back and forth related to the H-P/Autonomy acquisition, the question of the potential liability of advisors has popped up more than a couple of times. How could H-P's advisors (investment bankers, lawyers, and accountants) let slip by the alleged accounting fraud that caused H-P to write down more than $5 billion? Close on the heels of that question is whether the advisors should face any liability for not picking up on the fact that Autonomy might not be a good candidate for an acquisition.
Well, for a partial answer as to the liability exposure of M&A advisors when the transaction goes wrong look no further than Baker v. Goldman Sachs, just decided by a jury in federal district court in Boston. There, the founders with Goldman's assistance sold their company, Dragon Systems to Belgium-based Lernout & Hauspie for $580 million in L&H stock. Not long after the transaction closed, fraud at the acquirer was discovered and the acquirer quickly went bankrupt leaving Dragon stockholders holding worthless stock.
Having lost everything, including their tech company, founders Janet and Jim Baker sued Goldman for allegedly failing in its duties to them, their clients, when it brokered the deal. Here's the original complaint (Baker v Goldman) - filed in state court and then removed to federal district court. The jury heard the evidence and the arguments in this case and found that Goldman had not breached any duties to the Bakers.
If H-P is thinking about going after its advisors for its ill-fated Autonomy deal, it will have to be more successful than the Bakers were in convincing a jury that M&A advisors should bear liability for a deal gone wrong.
Thursday, December 6, 2012
This post is not about football, though I will admit to being amused by the circus that presently calls itself the NY Jets. No, it's about an article by David Marcus who points out how Vice Chancellor Laster has lined up with Chancellor Strine on the other side of Chief Justice Myron Steele and the Delaware Supreme Court over the issue of default fiduciary duties in LLCs. It's really not about the issue at hand -- whether managers in an LLC are subject to fiduciary duties by default -- but a larger issue that relates to sometimes tense relationship between the Chancery Court and the Supreme Court. The default fiduciary duty issue is an interesting one with some important ramifications (e.g. can you have federal insider trading liability in a publicly-traded LLC where managers don't have fiduciary duties?, etc), but I'll leave that for another day.
In a per curiam decision last month in Gatz Properties LLC v Auriga Capital, the Supreme Court attempted to put Chancellor Strine back on a short leash:
The opinion suggests that “a judicial eradication of the explicit equity overlay in the LLC Act could tend to erode our state’s credibility with investors in Delaware entities.” Such statements migh be interpreted to suggest (hubristically) that once the Court of Chancery has decided an issue, and because practitioners rely on that court’s decisions, this Court should not judicially “excise” the Court of Chancery’s statutory interpretation, even if incorrect. That was the interpretation gleaned by Auriga’s counsel. During oral argument before this Court, counsel understood the trial court opinion to mean that “because the Court of Chancery has repeatedly decided an issue one way, . . . and practitioners have accepted it, that this Court, when it finally gets its hands on the issue, somehow ought to be constrained because people have been conforming their conduct to” comply with the Court of Chancery’s decisions. It is axiomatic, and we recognize, that once a trial judge decides an issue, other trial judges on that court are entitled to rely on that decision as stare decisis. Needless to say, as an appellate tribunal and the court of last resort in this State, we are not so constrained.
It seems that too many people are forgetting that the Chancery Court is a trial court and not an appellate court, the Supreme Court is reminding us, and practitioners, and the Chancery. OK, got it. Oh, and then the court adds this:
Fifth, and finally, the court’s excursus on this issue strayed beyond the proper purview and function of a judicial opinion. “Delaware law requires that a justiciable controversy exist before a court can adjudicate properly a dispute brought before it.” We remind Delaware judges that the obligation to write judicial opinions on the issues presented is not a license to use those opinions as a platform from which to propagate their individual world views on issues not presented. A judge’s duty is to resolve the issues that the parties present in a clear and concise manner. To the extent Delaware judges wish to stray beyond those issues and, without making any definitive pronouncements, ruminate on what the proper direction of Delaware law should be, there are appropriate platforms, such as law review articles, the classroom, continuing legal education presentations, and keynote speeches.
Uh, ouch. OK, but Marcus points to a recent opinion, Feely v NHAOCG LLC by Vice Chancellor Laster in which he lines up with Chancellor Strine and takes issue with the Surpreme Court that Chancellor Strine's analysis of default fiduciary duties in the LLC context are "dictum without any precendential value." He points to the long line of Chancery cases on this issue as persuasive and until such point as the Supreme Court rules on the issue, those cases and Chancellor Strine's analysis of default fiduciary duties will be good enough for him:
The Delaware Supreme Court is of course the final arbiter on matters of Delaware law. The high court indisputably has the power to determine that there are no default fiduciary duties in the LLC context. To date, the Delaware Supreme Court has not made that pronouncement, and Gatz expressly reserved the issue. Until the Delaware Supreme Court speaks, the long line of Court of Chancery precedents and the Chancellor's dictum provide persuasive reasons to apply fiduciary duties by default to the manager of a Delaware LLC. As the managing member of Oculus, AK-Feel starts from a legal baseline of owing fiduciary duties.
Is any of this earth shattering or new? No, but it's an example of the real tension between the Chancery Court and the Supreme Court as it plays out in the opinions of both courts. This dynamic has existed for some time now - predating Strine and Laster. Court watchers - and court anthropoligists - shouldn't be surprised by this.
Tuesday, December 4, 2012
The typical M&A confidentiality agreement contains a standstill provision, which among other things, prohibits the potential bidder from publicly or privately requesting that the target company waive the terms of the standstill. The provision is designed to reduce the possibility that the bidder will be able to put the target "in play" and bypass the terms and spirit of the standstill agreement.
In this client alert, Gibson Dunn discusses a November 27, 2012 bench ruling issued by Vice Chancellor Travis Laster of the Delaware Chancery Court that enjoined the enforcement of a "Don't Ask, Don't Waive" provision in a standstill agreement, at least to the extent the clause prohibits private waiver requests.
As a result, Gibson advises that
until further guidance is given by the Delaware courts, targets entering into a merger agreement should consider the potential effects of any pre-existing Don't Ask, Don't Waive standstill agreements with other parties . . .. We note in particular that the ruling does not appear to invalidate per se all Don't Ask, Don't Waive standstills, as the opinion only questions their enforceability where a sale agreement with another party has been announced and the target has an obligation to consider competing offers. In addition, the Court expressly acknowledged the permissibility of a provision restricting a bidder from making a public request of a standstill waiver. Therefore, we expect that target boards will continue to seek some variation of Don't Ask, Don't Waive standstills.
December 4, 2012 in Cases, Contracts, Deals, Leveraged Buy-Outs, Litigation, Lock-ups, Merger Agreements, Mergers, State Takeover Laws, Takeover Defenses, Takeovers, Transactions | Permalink | Comments (0) | TrackBack (0)