The Delaware Chancery Court is renowned for its ability to handle complex corporate cases in an expeditious manner, but every now and again, a lawsuit comes along that manages to throw sand in the Court’s gears. That’s clearly the case with the litigation involving Oracle’s 2016 acquisition of NetSuite. As Vice Chancellor Glasscock observed in his recent decision in In re Oracle Corp. Derivative Litig., (Del. Ch.; 6/21), that litigation has now generated five memorandum opinions from the Chancery Court without moving beyond the motion to dismiss stage.
The latest go-round involved motions to dismiss fiduciary duty claims against certain officers and directors of Oracle. Two of the defendants were directors and executive officers of the company, while the third was an outside director who chaired Oracle’s special committee. In earlier proceedings, all three had been found to be not independent of Oracle’s CEO, Larry Ellison, who in addition to his significant ownership stake in Oracle, owned or controlled nearly 45% of NetSuite.
The Vice Chancellor dismissed the claims against the two officer-director defendants,. As to the first, the company’s late CEO Mark Hurd, VC Glasscock found that his challenged actions were undertaken solely in his capacity as an officer, and that the plaintiffs failed to adequately pled that he acted in a grossly negligent manner. As to the second, the company’s Vice Chair Jeffrey Henley, the Vice Chancellor found that his actions were undertaken solely in his capacity as a director, and that the plaintiffs complaint did not adequately allege any non-exculpated breaches of fiduciary duty. Accordingly, the Vice Chancellor dismissed the fiduciary duty claims against these defendants.
The Vice Chancellor reached a different conclusion when it came to the fiduciary duty allegations against the chair of Oracle’s special committee, Renee James. Since James served only as a director, the Vice Chancellor applied the two-prong test for allegations of disloyalty established by the Delaware Supreme Court in its 2015 Cornerstone Therapeutics decision. The Cornerstone test requires the complaint to state facts establishing a rational inference that the director both: (a) lacked independence from an interested party, and (b) “acted to advance” the self-interest of the same interested party.
Since the Court had previously determined that James lacked independence, the Vice Chancellor focused on the second part of the test, and found that the plaintiffs’ allegations made the cut:
James was the chairperson of the Special Committee and, as demonstrated by her attendance at a diligence meeting with NetSuite without the other two directors of the Special Committee, took an active role in the negotiations. It is reasonably conceivable that James, who both is not independent of Ellison and who actively participated in the formulation of the NetSuite acquisition, acted to advance Ellison’s self-interest in securing the deal.
Earlier this month, I blogged about the Albertsons case, in which Vice Chancellor Slights held that allegations that the buyer had breached contractual obligations not to take actions intended to avoid payment of an earnout were sufficient to withstand a motion to dismiss. The plaintiff also brought a fraud claim premised on the buyer’s alleged assurances that it intended to grow the seller’s business, but that claim didn’t make the cut.
One of the interesting aspects of the Vice Chancellor’s decision to dismiss the fraud claim was the fact that the agreement did not include a reliance disclaimer, but only a standard integration clause. That kind of clause is generally insufficient to bar fraud claims based on oral misrepresentations made during the negotiation process, but as this Weil blog points out, the problem for the plaintiff here was that it didn’t allege any misrepresentations of fact. This excerpt explains:
The selling shareholders were not alleging that the buyer made any misrepresentations of fact, however, but instead alleged that the buyer had “lied” about the buyer’s future intent respecting the operation of the target post-closing. According to the Court of Chancery, “[w]hile anti-reliance language is needed to stand as a contractual bar to an extra-contractual fraud claim based on factual misrepresentations, an integration clause alone is sufficient to bar a fraud claim based on expressions of future intent or future promises.”
Indeed, “[a]s distinguished from a claim of extra-contractual fraud based on a statement of fact, the fraud claim based on a ‘future promise’ amounts to an improper attempt to introduce ‘parol evidence that would vary the extant terms in the subsequent integrated writing.’” As a result, the selling shareholders are free to attempt to prove a breach of the specific contractual commitment made by the buyer not to intentionally take action to avoid the payment of the earnout, “but [they] cannot claim fraud based on future promises [to continue to operate the target as an ecommerce business] not memorialized in the Merger Agreement.”
The blog notes that this position applies to claims made by both buyers and sellers, and is also consistent with cases holding that reliance on statements outside of the contract is not justifiable when they are directly contradicted by the language of the contract itself.
This Morris James blog reviews UBOE Holdings v. Drakulic, (Del. Ch.; 4/21), a recent Delaware Chancery case in which a buyer attempted to enforce a merger agreement’s forum selection clause against a former shareholder who allegedly violated non-compete obligations imposed under the agreement. The only problem was that the deal team apparently actively hid certain terms of the deal – including the forum selection clause – from the seller. This excerpt from the blog says that wasn’t a very good idea:
The Court recognized that, normally, a party in the defendant’s position would be held to an agreement he signed, whether he read it or not. But here, the party purportedly negotiating on the defendant’s behalf actively kept him in the dark. The defendant never saw, or had the opportunity to see, the forum selection provision prior to signing.
When he later requested a copy of the merger agreement, the deal team provided only an excerpted copy that did not include the forum selection provision. Because there was an active attempt to keep the defendant ignorant of the forum selection provision, there was no meeting of the minds on that term and thus, he could not have consented to jurisdiction in Delaware.
As a result, then Vice Chancellor McCormick concluded that “it would simply be unjust to assert personal jurisdiction over [Defendant] under a consent-based theory where consent was a total fiction,” and dismissed the lawsuit.
According to a recent NVCA newsletter, the venture capital industry is pretty worried about the prospect that the antitrust legislation currently floating around the nation’s capital might actually become law. Here’s an excerpt:
Several recently proposed antitrust bills in the U.S. would restrict the ability of large technology companies to make acquisitions. That, in turn, would discourage venture investors from making deals, hurt their returns and decrease the number of new venture funds, says a new report funded by the National Venture Capital Association. A venture-backed company is about ten times more likely to be acquired than to go public, according to the NVCA.
“We are very concerned that these restrictions on acquisitions will at least partially, if not completely, shut off that avenue of exit,” said Jeff Farrah, general counsel at the NVCA, in a call with media on Monday.
The NVCA took aim at the Competition and Antitrust Law Enforcement Reform Act, sponsored by Sen. Amy Klobuchar (D. Minn.); the Trust-Busting for the Twenty First Century Act, sponsored by Sen. Josh Hawley (R. Mo.); and the Platform Competition and Opportunity Act, sponsored by Rep. Hakeem Jeffries (D., N.Y.) and introduced Friday.
Speaking of antitrust legislation that dealmakers are guaranteed to hate, remember that New York “mini-HSR” legislation that I blogged about a few months ago? This White & Case memo says it’s still bouncing around the state legislature, and that it has a chance to become law.
In In re Tilray, Inc. ReorganizationLitig., (Del. Ch.; 6/21), the Delaware Chancery Court held that the founding shareholders of Tilray constituted a “control group,” and that they received non-ratable benefits in a tax-driven reorganization transaction. As a result, Chancellor McCormick held that the transaction was subject to review under the entire fairness standard. Here’s an excerpt from this Shearman blog discusses the Chancellor’s reasoning:
The Court held that plaintiffs adequately pleaded that the founders comprised a control group as the complaint alleged a “concurrence of interests” among the founders along with several “plus factors.” Specifically, the Court found that plaintiffs sufficiently alleged that the founders collectively shared a “desire to avoid massive tax liability associated with the substantial increase on [their] initial investment,” which was “not shared by other . . . stockholders.”
The Court also found that plaintiffs adequately alleged “historically and currently significant ties and transaction-specific ties among the [f]ounders,” including that they (i) were “long-time friends”; (ii) founded the parent and jointly managed the Company and other portfolio companies; (iii) “held each other out as ‘partners’” and defined themselves in organizational documents as the “Founders”; and (iv) negotiated the reorganization collectively.
The Court also rejected defendants’ contention that entire fairness review did not apply because the tax benefits “were not extracted from and were never available to [the Company’s] minority stockholders” and the reorganization “caused no detriment to the minority.” The Court instead found that multiple decisions have held that “entire fairness presumptively applies whenever a controller extracts a non-ratable or unique benefit.”
Even if some detriment to the minority shareholders is required in order to invoke entire fairness, the Chancellor held that the complaint’s allegations that the board failed to exert its leverage over the founders to the detriment of the minority were sufficient to establish it.
For better or worse, it looks like the U.K. has decided to open its financial markets to the latest craze from the U.S. – SPACs. This Weil memo discusses the Financial Conduct Authority’s consultation paper outlining proposed amendments to listing criteria intended to encourage SPACs to list on the LSE’s main market. Here’s an excerpt from the intro:
The amendments modify some aspects of the FCA’s Listing Rules that have made it practically impossible for SPACs to list in London with the characteristics that have made them such a popular alternative for companies seeking to go public in the U.S. (as well as lucrative for their sponsors and attractive for certain public market investors).
The key problem is that under the existing rules, the FCA will suspend trading in the SPAC’s shares if there is a leak or an announcement about a potential ‘reverse takeover’ (which, in the case of a SPAC, means any acquisition), until the SPAC can publish sufficient information about the target, typically in a revised prospectus. Under the proposed amendments, suspension will no longer apply if the requirements set out below have been and remain satisfied.
The memo goes on to detail each of the requirements that a SPAC that wants to list on the LSE would have to satisfy. These include raising at least £200m in gross proceeds from the public, “ring-fencing” the capital raised with a third party pending completion of the de-SPAC or liquidation, completion of the de-SPAC within two years of listing, specified disclosures about the target to be included in the announcement, board and shareholder approval requirements, the use of a fairness opinion to address certain conflicts, and a redemption right for shareholders regardless of how they vote on the de-SPAC.
The consultation period ended May 28th, and according to media reports, several SPACs are ready to launch once the rules are in place early this summer.
Recent cyber attacks targeting U.S. businesses & President Biden’s executive order aimed at enhancing the nation’s cybersecurity posture have focused attention on the need for companies to improve their own cyber defenses. This FTI memo says that those efforts to improve cybersecurity are even more critical for companies that may become subject to CFIUS’s scrutiny.
In the current environment, U.S. businesses involved with critical technologies, infrastructure or sensitive data could face increased governmental scrutiny. If those businesses are backed by foreign investors, failure to satisfy that scrutiny could result in greater difficulty in obtaining CFIUS approval for future deals or, in the worst case scenario, an order to divest from a previously completed transaction. This excerpt from the memo provides some of the actions parties should take to help ensure that they are prepared to meet CFIUS’s cyber compliance expectations:
For parties pursuing a deal, assessing cybersecurity posture is critical to meeting CFIUS’ compliance expectations. That might seem straightforward, but it’s easy to get caught in a web of potentially overlapping compliance and regulatory standards. Here are primary actions parties must consider:
– Conduct a regulatory gap assessment to identify necessary changes that need to be made to achieve compliance across export controls, data privacy, and cybersecurity obligations
– Assess the data environment, the control status of any sensitive technology, security infrastructure, and existing cybersecurity policies, procedure, and processes
– Design a control development and revision strategy that will recommend technology solutions, human resources protocol, and policy changes
These actions can enhance a company’s overall cybersecurity posture, and can also reduce corporate risks and reduce the costs associated storing and securing data. The memo cautions that parties pursuing an M&A transaction should pay particularly close attention to these first moves, since cyber risk is often overlooked or given less attention than it merits pre-closing. Proactively identifying and addressing areas of vulnerability early on in the process can help to put the deal on a better footing in the event of CFIUS review.
If you’re interested in the history of how the modern deal economy came to be, check out this excerpt from Prof. Jonathan Levy’s book, “Ages of American Capitalism.” Levy provides an overview of how “financiers blew up the postwar industrial corporation and dethroned the postwar managerial class.” Here’s a discussion of how the mantra of “shareholder value” transformed everything:
The investment bank Drexel Burnham Lambert is a good place to begin to dig into the character of the post-1982 business expansion. In enterprise, the turn to leveraged asset appreciation required nothing short of a revolution in US corporate governance, in which financiers, including investment bankers, continued to wrest ever more power from an already-floundering managerial class.
The weapon was the new gospel of “shareholder value,” which demanded that managers act in the pecuniary interests of shareholders. That often meant slashing wages, foregoing long-term investments, or selling off assets, all in order to benefit the immediate bottom line. There was and is no hard law that says that US corporations must be motivated to maximize short-term profit. Most postwar industrial corporations, focused on long-term growth metrics and the maintenance of “organizational slack,” had not even tried. With the shareholder value revolution of the 1980s, the present stock market price of corporate shares newly became the metric of corporate success.
What enthroned shareholder value was a wave of sometimes hostile corporate takeovers. The movement began in the late 1970s, when oilmen flush with cash from the high prices of the oil shock came to believe that the stocks of large, diversified energy companies were trading below the value of their physical assets. During his 1983 bid to take over Gulf Oil, the Texas oilman T. Boone Pickens declared in The Wall Street Journal, “We are dedicated to the goal of enhancing shareholder value.”
There’s plenty more where that came from, including the story of how Pickens successfully “greenmailed” Gulf Oil, and how institutional investors fueled the corporate takeover boom. Sometimes, it’s easy to forget that things weren’t always like they are today, but it wasn’t all that long ago that “The Organization Man” reigned supreme.
If you’re looking for more on how deal economy has evolved over the past several decades, be sure to check out The Lipton Archive, which contains a treasure trove of material by and about Marty Lipton, the legendary Wachtell Lipton lawyer who was there at the beginning and continues to be a driving force in the development of the law and practice of M&A.
We’ve posted the transcript for our recent webcast: “Capital Markets 2021.” If your practice involves capital markets transactions, you’ll want to check this out. Panelists Katherine Blair of Manatt, Sophia Hudson of Kirkland & Ellis, and Jay Knight of Bass Berry & Sims participated in an in-depth discussion of a number of topics, including:
– The State of the Capital Markets
– The SPAC Phenomenon
– Equity Financing Alternatives for Public Companies
– Debt Financing Alternatives: Investment-Grade/Non-Investment-Grade Issuers
– Recent Offering/Issue Trends
When negotiating an earnout, buyers typically resist efforts to tie their hands when it comes to operating a business post-closing. Frequently, the contract expressly gives the buyer discretion with respect to decisions relating to post-closing operations. That can be a formidable obstacle for a seller to overcome when in earnout litigation, but the Chancery Court’s recent decision in Shareholders Representative Services v. Albertsons, (Del. Ch.; 6/21) shows that it’s not always insurmountable.
The case arose out of the supermarket goliath Albertsons’ 2017 acquisition of Plated, a subscription food kit delivery business. Under the terms of the deal, Albertsons agreed to an upfront payment of $175 million at closing, and an earnout provision obligating it to pay up to an additional $125 million if certain milestones were met.
The earnout language gave Albertsons the right to make all post-closing business and operational decisions “in its sole and absolute discretion” and expressly stated that it would have “no obligation to operate [Plated] in a manner to maximize achievement of the Earnout Issuance.” However, that right was subject to a provision obligating Albertson’s not to “take any action (or omit to take any actions) with the intent of decreasing or avoiding” payment of the earnout.
The plaintiff contended that the earnout was premised on Plated’s historical performance and projected results, and that Albertsons had provided repeated assurances throughout the negotiating process that it intended to grown Plated’s traditional e-commerce business. According to the plaintiff, that would’ve given Plated’s shareholders a good shot at achieving the earnout milestones, but Albertsons immediately put the e-commerce business on the back burner. This excerpt from Steve Quinlivan’s blog on the case provides more detail on the plaintiff’s claims and Vice Chancellor Slights’ response:
According to Plaintiff, immediately upon closing, Albertsons directed that Plated drastically reallocate its resources to get a retail product into 1,000 stores in the span of one week, to the detriment of the e-commerce business. Albertsons, according to Plaintiff, knew this endeavor was commercially unreasonable. It created a reasonable inference that Albertson’s knew its push for in-store sales at the expense of subscriptions and the e-commerce business would cause Plated to fail to reach the earnout targets.
According to the Court, the reasonable inference allowed by Plaintiff’s allegations is not that Albertsons sabotaged a company it just paid $175 million for. Rather it created an inference that Albertsons intended to avoid short-term earnout targets in favor of long term gains. Even if Albertsons took these actions only in part with the purpose of causing Plated to miss the earnout milestones, this was enough at the pleading stage to support Plaintiff’s breach of contract claim.
Albertsons argued that Plaintiff’s allegations cannot sustain a breach of contract claim when the conduct giving rise to the claim was expressly permitted under that same contract. In doing so the Court said Albertsons seized upon its contractual allowance to operate Plated within its discretion. However, Albertsons had ignored the contractual prohibition against operational decisions intended to avoid or reduce the earnout.
The plaintiff alleged that Albertsons’ actions violated its contractual obligations under the terms of the earnout, involved a breach of the implied covenant of good faith and fair dealing, and constituted fraudulent inducement. The Vice Chancellor rejected the latter two claims, but held that the plaintiff had made reasonably conceivable allegations that Albertsons’ actions with respect to Plated’s business were engaged in with the intent to avoid the earnout in violation of its contractual obligations.