July 1, 2020

Conflicts of Interest: Undisclosed Comp Discussions Rebut BJR

Yesterday, in Fort Myers Gen. Emp. Pension Fund v. Haley, (Del. 6/20), the Delaware Supreme Court overruled an earlier Chancery Court decision and held that a seller CEO’s failure to disclose discussions with the buyer about his post-closing comp during the negotiation process was sufficient to rebut the business judgment presumption and subject the transaction to review under the entire fairness standard.

In her opinion, Justice Valihura acknowledged that since the allegations focused on the conduct of a single officer & director, in order to rebut the presumption of the business judgment rule, the plaintiffs must adequately allege that (i) the director was “materially self-interested” in the transaction, (ii) the director failed to disclose his “interest in the transaction to the board,”  and (iii) “a reasonable board member would have regarded the existence of [the director’s]  material interest as a significant fact in the evaluation of the proposed transaction.”

The Supreme Court, with Justice Vaughn dissenting, concluded that the plaintiffs’ allegations met this threshold, despite the fact that the Chancery Court had determined otherwise.  In that earlier decision, Vice Chancellor McCormick held that the business judgment rule applied for three reasons. First, she concluded that the board knew the CEO would likely receive a larger salary when running the combined entity, and therefore was fully informed of the conflict when it appointed him as lead negotiator. Second, the board was generally kept apprised of the negotiations. Finally, the compensation discussion in question only concerned a proposal, and the CEO’s actual compensation was not negotiated until after the merger closed.

The Supreme Court’s decision focused on the meaning of the term “materiality” in this context, and concluded that none of the factors cited by the Chancery Court was sufficient to undermine a conclusion that information about the compensation discussions was material:

The issue here is whether the alleged omissions meet the legal definition of  materiality. We hold that the Plaintiffs have adequately alleged that the Proposal altered the nature of the potential conflict that the Towers Board knew of in a material way.  “Material,” in this context, means that the information is “relevant and of a magnitude to be important to directors in carrying out their fiduciary duty of care in decisionmaking.”

It is elementary that under Delaware law the duty of candor imposes an unremitting duty on fiduciaries, including directors and officers, to “not use superior information or knowledge to mislead others in the performance of their own fiduciary obligations.” Further, “[c]orporate officers and directors are not permitted to use their position of trust  and confidence to further their private interests.”

This doesn’t appear to be a case in which there were significant differences between the Supreme Court and the Chancery Court about what the law required. Instead, it seems that the two courts simply reached different conclusions about the implications of the CEO’s conduct.  That point is underscored by the first sentence of Justice Vaughn’s dissenting opinion, in which he noted his agreement with the legal principles underlying the decision, but dissented “simply because when I apply those principles to the facts as pled in the complaint, I come to a different conclusion.”

John Jenkins