A few months ago, in the wake of the Department of Justice’s inquiry into alleged anti-competitive behavior among private equity firms, a handful of class actions have been filed alleging collusion among private equity firms (here is an example of a complaint from a Massachusetts lawsuit). These complaints generally alleged a conspiracy among private equity firms to rig bids or otherwise collude to suppress the prices paid in going-private transactions.
On February 21st, in what appears to be the first decision to address these issues, a district court dismissed an action – Pennsylvania Avenue Funds v. Edward J. Borey (W.D. Wash) – against two private equity firms that had joined forces in a bidding contest, concluding that the facts alleged did not establish a violation of the Sherman Act. We have posted a bunch of memos analyzing this decision in our “Antitrust” Practice Area.
The Williams Act – 40 Years Later!
On May 21st and 22nd, Georgetown University Law Center will be hosting a conference to commemorate the 40th anniversary of the adoption of the Williams Act takeover regulations. The speakers and panelists will include members of the SEC staff, academics, financial journalists, international takeover regulators, practitioners, bankers, and Delaware judges. It’s free – but you still need to register (here is the agenda). If you have questions, contact Larry Center at center@law.georgetown.edu.
Earlier that week, the SEC’s Division of Corporation Finance will be hosting a meeting of international takeover regulators at the Commission’s headquarters – so representatives from the U.K., Germany, France, Hong Kong, Australia and Japan will be at the conference, lunch and reception if you want to rub elbows with folks from other regulators.
Many thanks to Broc for inviting me to join the blog. I thought I’d use my first post to flag a new case out of Delaware – from the Superior Court, not the Court of Chancery.
In Transched Systems Ltd. v. Versyss Transit Solutions, LLC, 2008 WL 948307 (Del. Super. Ct. Apr. 2, 2008), the court dismissed negligent misrepresentation claims allegedly made by a seller while negotiating an asset purchase agreement. The court had no trouble dismissing the claim in light of the contract’s exclusive remedy provision:
The foregoing indemnification provisions shall constitute the sole and exclusive remedy for monetary damages in respect of any breach of or default under this Agreement by any Party and each Party hereby waives and releases any and all statutory, equitable, or common law remedy for monetary damages any Party may have in respect of any breach of or default under this Agreement.
The court also relied on an integration clause and the following extra-contractual disclaimer:
Except as expressly set forth [herein], Sellers make no representation or warranty, express or implied, at law or in equity, in respect of any of its assets (including, without limitation, the Acquired Assets), or operations, including, without limitation, with respect to the merchantability or fitness for any particular purpose. Buyer hereby acknowledges and agrees that, except to the extent specifically set forth [herein], Buyer is purchasing the Acquired Assets “as-is, where-is.” Without limiting the generality of the foregoing, Seller makes no representation or warranty regarding any assets other than the Acquired Assets or any liabilities other than the Assumed Liabilities, and none shall be implied at law or in equity.
This case is one of many Delaware decisions blessing specific contract language that can limit a party’s remedies to indemnification (except for fraud). It’s also a good reminder for buyers and sellers of the significance of extra-contractual disclaimers.
In yesterday’s fee rate advisory, the SEC announced that filing fees will be going up after October 1st (or whenever Congress approves the SEC’s budget, which historically is significantly later than October 1st) to $55.80 per million from $39.30 per million of securities registered with the SEC.
This is a 42% hike, after a 28% hike last year. Before this period, there had not been a hike for quite some time. Note that there is no mention in the SEC’s press release of a reason for the hike. Actually, the press release doesn’t even mention that this is a hike from last year (but we still remember how Chairman Cox was quite proud of the steep drop in ’06, with a lot of fanfare in that press release). You may recall that the SEC’s fee rates aren’t related to the amount of funding available to the SEC; instead, the money goes to the US Treasury.
Coming Soon: SEC’s Proposal on Cross-Border Rules
I wonder who put the SEC’s Office of Public Affairs up to issuing this odd press release Tuesday to announce that Corp Fin has made its recommendations to the Commission regarding proposals on the cross-border tender, exchange offer and business combination rules? That’s a new one – and I doubt we shall see a press release each time a rulemaking is sent to the 10th floor for consideration.
As noted in this NY Times article on Friday (and this Wilson Sonsini memo), the SEC settled a case with a former securities who allegedly spread false rumors to profit from a pending buyout of Alliance Data Systems by the Blackstone Group (the deal tanked later due to other reasons). The SEC said this was its first “rumormongering” case.
According to the NY Times article, the trader allegedly “fabricated a rumor that Alliance Data’s takeover was being renegotiated to $70 a share from $81.75 a share. The trader said that Alliance Data’s board was meeting to discuss the revised proposal. At the time, Alliance Data’s board members were on a plane and could not be reached for comment.” Trading in Alliance Data’s stock was suspended due to heavy volume caused by the rumor, which the trader had sent via instant messages to 31 other traders and other market participants. He was short selling the stock at the time.
Reading the SEC’s complaint, it’s not clear if the trader knew that the board was on a plane and unavailable – my guess is that he didn’t know (and thus was unlucky because if they had been reached and quashed the rumor more quickly, the damages would have been reduced and perhaps this case wouldn’t have been brought or the penalty would be been less than the $130,000 he ended up paying.
In the SEC’s press release, SEC Chairman Cox noted ““The commission will vigorously investigate and prosecute those who manipulate markets with this witch’s brew of damaging rumors and short sales.” It will be interesting to see if the SEC’s Enforcement Division will be bringing more of these cases, particularly due to the heightened interest in hedge funds and their failures to adopt adequate insider trading compliance programs (see Dave Lynn’s recent blog on the SEC’s Section 21(a) Report involving the investigation of the Retirement Systems of Alabama).
Tune in tomorrow for our webcast – “JPMorgan Chase/Bear Stearns: Splicing the Delaware Issues” – during which Professors Elson, Cunningham and Davidoff will analyze the novel Delaware issues presented by the Bear Stearns transaction, including addressing:
– What significant anti-takeover provisions are in the amended merger agreement?
– How does the provision work that calls for the parties to work in good faith to restructure the deal if Bear Stearn’s shareholders turn it down?
– What is the JPMorgan Chase guarantee – and how does it work? How about the NYC building option and the Section 203 provision?
– How valid are the attacks against the fairness opinions delivered in the deal?
– Why was there a discussion of a 39.5% share exchange and what would be the Delaware law on it?
– How about the abandoned, uncapped 19.9% option – was that valid under Delaware law?
To warm up for the program, check out Professor Davidoff’s analysis of the Form S-4 filed for the deal (which the SEC declared effective on Friday) as well as this WSJ article indicating that post-deal details will be announced soon.
Claims Against Clear Channel Are Dismissed in New York Lawsuit
A New York judge dismissed counterclaims against Clear Channel Communications on Friday in a lawsuit over the funding of a $20 billion buyout of the radio station operator, Reuters reported. (Here is the complaint.)
The private equity buyers, THL Partners and Bain Capital, sued the banks in New York and Texas, seeking to force them to fund the deal. Clear Channel joined them in the Texas suit, but was not a plaintiff in the New York case. The banks had filed several counterclaims against both Clear Channel and the buyout firms.
The judge dismissed the counterclaims against Clear Channel, but said the counterclaims against the buyout firms would continue. The buyout firms must answer those counterclaims within 10 days, the judge said in the ruling. A copy of the ruling was obtained by Reuters.
“We are grateful that Justice Freedman sent our case back to Texas where it belongs,” Clear Channel said in a statement. Clear Channel had agreed to be acquired at the height of the private equity boom last year. The credit markets has changed significantly since then, causing the cost of financing leveraged-loan debt to surge.
The banks were to provide more than $22 billion financing and earn more than $400 million in fees, but they balked when the debt markets deteriorated and asked for the terms of the deal to be changed, according to a copy of one of the suits. “The banks can have their lawyers churn out as many motions and briefs as they want, but ultimately this case boils down to a simple question of right and wrong, and they will face a jury in Texas to decide that question,” Clear Channel said.
The banks, which include Citigroup, Morgan Stanley, Credit Suisse Group , Royal Bank of Scotland Group, Deutsche Bank and Wachovia, said in a statement: “We are happy that the court has ordered that the banks counterclaims against the sponsors should proceed in New York.”
On Monday, the Department of the Treasury’s Committee on Foreign Investment in the United States (“CFIUS”) issued proposed regulations governing national security reviews of foreign investments in US companies. The proposed regulations – issued to implement amendments adopted by the Foreign Investment and National Security Act of 2007 – are the most significant changes to the CFIUS rules since their adoption in ’91. Some say they do not go as far as had been feared in tightening review of foreign acquisitions, but that they do expand the scope and nature of such reviews in limited but important ways. We have posted memos analyzing the proposed changes in our “Sovereign Wealth/National Security Considerations” Practice Area.
Congrats to Michele Anderson, who was promoted to Corp Fin’s new Chief of the Office of Mergers & Acquisitions. Most recently, Michele served as a Legal Branch Chief in the Office of Telecommunications – but she spent time in OM&A a few years back. She replaces Brian Breheny, who was promoted to Deputy Director a few months ago.
Introducing InvestorRelationships.com!
I just put the finishing touches on our new newsletter – “InvestorRelationship.com” – which is a quarterly online publication. This newsletter is free, as well as all the issues for the rest of ’08. You simply sign-up online to be notified when the next issue is available (you also need to sign-up to be e-mailed an ID and password in order to access future issues).
Why this new newsletter? As you can see from the article titles in the Spring ’08 issue listed below, I felt there was a dearth of practical guidance on the cutting-edge – as well as the “bread ‘n butter” – issues confronted by those involved in investor relations, shareholder services and corporate governance today. Take a look and let me know what you think:
– The E-Proxy Experience: Practice Pointers and Pitfalls to Avoid
– The Coming Online IR Campaigns: The Future of Director Elections
– The Regulation FD Corner
– Ten Steps to a Clawback Provision with “Teeth”
– Notables: All the Latest
Washington Mutual: Case In Point
The jaw-dropping results from the Washington Mutual annual meeting this week are timely in that they bolster my argument that companies need to learn how to “campaign” during the proxy season cycle. These arguments – and specific recommendations about how to campaign – are in my piece entitled “The Coming Online IR Campaigns: The Future of Director Elections” (sign-up to obtain your free copy).
So what happened at the WaMu meeting? Here is what has been reported so far:
– One director resigned, Mary Pugh, who was the Chair of the company’s Finance Committee.
– Some reports state that all director nominees received majority support (eg. see this article); others are reporting that three nominees failed to reach a majority. Change to Win’s press release states that one director had 51.2% withheld, another had 50.9% withheld and Ms. Pugh had 61.9% withheld.
– Change to Win called on the WaMu board to immediately release full election results and demand the resignation of any directors who failed to win majority shareholder votes. WaMu then issued this press release that contains preliminary results – notice the paragraph at the bottom that leads one to believe that the difference in the three challenged nominees getting majority support was the presence of broker non-votes.
– With a vote of 51%, shareholders supported a precatory proposal to appoint an independent director as chair.
– In February, WaMu revised its incentive program in a way so that mortgage-related credit losses and foreclosure costs could have been cast aside when awarding management’s performance bonuses. Shareholders were not pleased – and WaMu’s CEO announced at the annual meeting that the board would soon revise the pay program to hold management more accountable for credit-related losses.
The campaign against WaMu has been intense during the past month, fueled by plenty of online tactics. For example, Change to Win launched this blog that targeted the company. Yes, the future is now. Read the Spring ’08 issue of InvestorRelationships.com today to learn how to protect yourself. ]
On Monday, the Delaware Court of Chancery ruled on another advance by-law case (here is a blog about the other case). Here is some analysis from Travis Laster: If the recent JANA Partners v. CNET decision (currently on expedited appeal) wasn’t enough to make corporations review and update their advanced notice bylaws, the attached opinion should do the trick. In Levitt Corp. v. Office Depot, Inc.,, Vice Chancellor Noble holds that (i) a bylaw requiring advanced notice of “business” to be proposed at an annual meeting extends to director elections and director nominations, but that (ii) the advanced notice bylaw was not applicable because the corporation had given notice that the election of directors would be an item of business at the meeting. In light of the second holding, the Court concluded that the stockholder did not have to give advance notice of its intent to run a short slate. As with CNET, this is a decision that will likely prompt an appeal.
On March 14, 2008, Office Depot sent out its notice of annual meeting. Item 1 on the list of items of business was “To elect twelve (12) members of the Board of Directors for the term described in this Proxy Statement.” The proxy statement contained standard Rule 14(a) disclosures regarding how votes would be tabulated in an uncontested versus a contested election. On March 17, 2008, Levitt filed its own proxy statement seeking to nominate two candidates for director.
Office Depot had a relatively standard advanced notice bylaw which provided that “business” could be brought before the annual meeting if (i) specified in the notice, (ii) otherwise properly brought before the meeting by the board, or (iii) proposed by a stockholder in compliance with advanced notice requirements. The time period for advanced notice was “not less than 120 calendar days before the date of the Company’s proxy statement released to shareholders in connection with the previous year’s annual meeting.” The bylaw required the stockholder proposing business to provide standard information, including basic stockholder information and a brief description of the business to be conducted.
Levitt did not try to comply with the advance notice bylaw. Office Depot rejected Levitt’s nominations for failure to comply.
In granting judgment on the pleadings for Levitt, Vice Chancellor Noble first held that the scope of “business” under the Office Depot advanced notice bylaw extended to director nominations by stockholders. The Court construed the plain meaning of the term “business” broadly to include all “affairs” or “matters” that could be considered at an annual meeting. This included director elections. (11-12). The Court also relied on Section 211(b) of the DGCL, which provides for an annual meeting to elect directors “and other business.” As a matter of plain language, the Court held that this section indicated that electing directors was “business.” (13)
This holding makes sense as a matter of contractual interpretation, but it conflicts with widespread corporate practice. Many corporations have separate advance notice bylaw requirements, one for “nominations” and another for “business.” The information requested for the former is typically different than the latter. The advance notice windows are also often different, with the former including additional windows for issues such as an increase in the size of the board. The Levitt decision could render the bylaws of companies with dual structures ambiguous, as nominations now arguably will be covered by two competing sections. It would be prudent to clarify when “business” means “all business, including nominations of candidates for and the election of directors” versus “all business other than nominations of candidates for and the election of directors.” Interestingly, the opinion indicates that Office Depot previously had a dual structure, but eliminated its “nomination” bylaw. The Court declined to give significance to the amendment.
Based on this first holding, one would think that the Office Depot advanced notice bylaw would apply to Levitt’s nominations. But the Court then went in a different direction. The Court instead agreed with Levitt that because Office Depot had sent out a notice of meeting saying that the business of the meeting would include the election of directors, that item of business was properly before the meeting under the advanced notice bylaw and the stockholder did not have to separately give advance notice. (15-16). The Court rejected the argument that the notice of meeting contemplated only a vote on the corporation’s nominees for directors, finding that it was not supported by the text of the notice (which referred generally to “elections of directors”). In support of its interpretation that the notice also contemplated a contested election, the Court cited the standard Rule 14(a) language on contested elections that appeared in the Office Depot proxy statement.
As in JANA, the Levitt decision effectively left the corporation without any advance notice protection whatsoever for director nominations. This, of course, is an odd result for a company that nominally has an advance notice structure in place. In support of this outcome, the Court observed that “neither Subchapter VII of the [DGCL] nor any provision of Office Depot’s Bylaws discusses or imposes limitations on the nomination process.” The Court did not explain how it reached this conclusion given its prior holding that the term “business” in Office Depot’s advanced notice bylaw included director elections and nominations.
In light of the Levitt decision, corporations should make sure that their bylaws explicitly discuss “nominations.” Corporations also may wish to consider changing the historic and ubiquitous language that appears in notices of annual meetings and identifies the first item of business as “election of directors.” One alternative to avoid the Levitt problem would be to say “election of the Board of Directors’ nominees.” Because all candidates are voted on as a single item of business, however, the better route is likely to be to maintain the historic language in the notice of meeting and instead make sure that the bylaws have a specific advance notice structure for stockholder nominations.
This recent Chicago Tribune article quotes Pat McGurn of RiskMetrics noting that the number of dissident shareholder demands tracked so far this year are the highest ever. The article notes that more than 200 “contested solicitations” — shareholder resolutions not approved by management — have been filed this year.
There are a variety of reasons for this – one being the worsening economy -and one being the topic of our May 7th webcast: “2008: The Year of the Hedge Fund Activist.”
JPMorgan Chase/Bear Stearns: A”Done Deal”?
Last week, JPMorgan Chase filed an amended Schedule 13D to note that their open market purchases of Bear Stearns had passed 11% – and combined with the 95 million shares it swapped for earlier, it has over 46% of Bear Stearns outstanding now – nearly enough to ensure majority shareholder approval is locked-up. Here’s some analysis from DealBook about whether this arrangement honors Omnicare, which will be a topic during our April 29th webcast: “JPMorgan Chase/Bear Stearns: Splicing the Delaware Issues.”
Closing Time: When the Founder is Ready to Sell
Tomorrow, catch our webcast – “Closing Time: When the Founder is Ready to Sell” – to hear about the special issues that come into play when the founders of a privately-held company want to sell out to a private equity firm or a professional roll-up operator. Join these experts:
– Brad Finkelstein, Partner, Wilson Sonsoni Goodrich & Rosati LLP
– Don Harrison, Senior Counsel, Google
– Armand Della Monica, Partner, Kirkland & Ellis LLP
– Geoffrey Parnass, Partner, Parnass Law
– Sam Valenzisi, Vice President, Lincoln International LLC
From Travis Laster: On Wednesday, Vice Chancellor Parsons of the Delaware Court of Chancery stayed an action filed in Delaware to enjoin the Bear Stearns-JPMorgan Chase merger, deferring to a parallel action in New York. Here is VC Parsons’ opinion.
The following quote says it all: “I have decided in the exercise of my discretion and for reasons of comity and the orderly and efficient administration of justice, not to entertain a second preliminary injunction motion on an expedited basis and thereby risk creating uncertainty in a delicate matter of great national importance.” There are references throughout the opinion to the involvement of the Federal Reserve and the Treasury Department in the deal.
The opinion does not shed any meaningful light on how the Court would view the exceptional lock-ups that are part of the deal package. The opinion does say that “the claims asserted in the Complaint only require the application of well-settled principles of Delaware law to evaluate the deal protections in the merger and the alleged breaches of fiduciary duty” (14). The Court then described the factual situation as sui generis (16). The Court concluded that the involvement of the federal players rendered the situation rare and unlikely to repeat – and therefore not one in which Delaware had a paramount interest.
On April 29th, join us for the webcast – “JPMorgan Chase/Bear Stearns: Splicing the Delaware Issues” – as Professors Elson, Davidoff and Cunningham analyze a host of novel provisions in the JPMorgan Chase/Bear Stearns merger agreement (as well as this – and any other – court opinion).