Conditions on Statutory Inspections of Corporate Books and Records

In United Technologies Corp. v. Treppel, No. 127, 2014 (Del. Dec. 23, 2014), the Supreme Court of Delaware reiterated the Court of Chancery’s wide discretion in placing reasonable conditions on a shareholder’s right to inspect corporate books and records pursuant to Section 220(c) of the DGCL.  In this opinion, the Supreme Court highlights the statutory grant of discretion to the Court of Chancery to impose reasonable conditions on the inspection of corporate books and records, and discusses the body of precedent that applies that discretion.

A common condition to the exercise of the statutory inspection right is the entry into a reasonable protective order designed to protect the confidentiality of the Corporation’s information.  Here, the company sought to add a provision to the protective order that would limit the stockholder’s ability to use the results of the inspection by requiring that “any claim, dispute, controversy or causes of action . . . arising out of, relating to, involving, or in connection with” be brought in a court in Delaware.  Treppel refused to consent to such a provision and filed a Section 220 suit in the Court of Chancery.  In a bench decision in January 2014, the Court of Chancery rejected the proposed condition and held that such a limitation “is not the type of restriction that 220(c) seeks to impose.”  United Technologies appealed.

The Supreme Court reversed and remanded based upon its holding that because “the plain text of Sec. 220(c) provides broad power to the Court of Chancery to condition a books and records inspection, the court erred in determining that it lacked authority under the statute to impose the requested restriction.”  The Supreme Court, however, declined the invitation to pass judgment on the particular clause at issue and remanded for the Court of Chancery to exercise its own discretion–in the first instance–in determining whether under the facts of this particular dispute such a condition might be warranted.  The Supreme Court highlighted the following facts as being relevant to that determination: (1) the potential claims Treppel might file arise out of conduct that has already been challenged in a derivative suit in the Court of Chancery; (2) the company’s interest in having consistent rulings on related issues of Delaware law; (3) the fact that the company had–during the course of the litigation–adopted a forum selection bylaw specifying Delaware as the forum for any litigation related to the company’s internal affairs; and (4) the investment the company had already made in Delaware in addressing not only this matter, but also a previous derivative suit challenging related conduct.

Advisors of Delaware corporations should keep an eye on the remanded proceedings in the Court of Chancery, as this may become yet another tool in the corporate tool kit to combat multi-jurisdictional litigation and drive all litigation involving the internal affairs of a Delaware corporation to one specific jurisdiction.

 

Delaware Supreme Court Issues Important Revlon Reminder

On December 19, 2014, the Supreme Court of Delaware issued an engaging opinion reminding readers of the historical origins of the Revlon doctrine in Delaware corporate jurisprudence and reversing the Court of Chancery’s grant of preliminary injunctive relief because it was based on an erroneous view of the doctrine’s requirements.  In C&J Energy Services, Inc., et al. v. City of Miami General Employees’ and Sanitation Employees’ Retirement Trust, No. 655/657, 2014 (December 19, 2014), the Supreme Court reversed a mandatory preliminary injunction the Court of Chancery issued requiring C&J Energy Services, Inc. (“C&J”) to “go shop” itself after finding that a failure to shop the company either before or after the transaction made it “plausible” that the court would find a violation of the Revlon doctrine.

While deal-makers will find the opinion an interesting read for the discussion of a fairly unique deal structure, important to understanding the Supreme Court’s discussion of Revlon duties are the following salient facts: (1) the board was majority independent; (2) none of the directors had any prior relationship with the deal partner;  and (3) C&J bargained hard for significant corporate governance concessions that inured to the benefit of the C&J stockholders.  The corporate governance concessions included, among other things, a commitment in the by-laws of the new entity (which would be majority owned by the transaction partner for tax and purposes of domestication in Bermuda) that in the event of a future sale of the company, all shareholders would share equally and ratably in the proceeds of any such transaction.

Given the key facts noted, the Supreme Court found that “[a]lthough the record before us reveals a board process that sometimes fell short of ideal, Revlon requires us to examine whether a board’s overall course of action was reasonable under the circumstances as a good faith attempt to secure the highest value reasonably attainable.”  The Supreme Court noted that “as the years go by, people seem to forget that Revlon was largely about a board’s resistance to a particular bidder and its subsequent attempts to prevent market forces from surfacing the highest bid.”  Given that re-focus on the historical foundation for Revlon duties, the Supreme Court recited the following regarding the proper focus of a Revlon analysis:

Not only did the Court of Chancery fail to apply the appropriate standard of review, its ruling rested on an erroneous understanding of what Revlon requires. Revlon involved a decision by a board of directors to chill the emergence of a higher offer from a bidder because the [company’s] CEO disliked the new bidder, after the target board had agreed to sell the company for cash. Revlon made clear that when a board engaged in a change of control transaction, it must not take actions inconsistent with achieving the highest immediate value reasonably attainable.

But Revlon does not require a board to set aside its own view of what is best for the corporation’s stockholders and run an auction whenever the board approves a change of control transaction. As this Court has made clear, there is not single blueprint that a board must follow to fulfill its duties, and a court applying Revlon’s enhanced scrutiny must decide whether the directors made a reasonable decision, not a perfect decision.

In a series of decisions in the wake of Revlon, Chancellor Allen correctly read its holding as permitting a board to pursue the transaction it reasonably views as the most valuable to stockholders, so long as the transaction is subject to an effective market check under the circumstances in which any bidder interested in paying more has a reasonable opportunity to do so. Such a market check does not have to involve an active solicitation, so long as interested bidders have a fair opportunity to present a higher-value alternative, and the board has the flexibility to eschew the original transaction and accept the higher-value deal. The ability of the stockholders themselves to freely accept or reject the board’s preferred course of action is also of great importance in this context. (internal quotations omitted and italics in original)

This is an important opinion given its reminder that there are many ways for a board to satisfy its Revlon duties so long as the actions taken are reasonably calculated to achieve the best value reasonably attainable for the shareholders.  The key factor, however, will be the Court’s assessment of the likelihood that superior alternative proposals–if any are available–had a fair opportunity to percolate to the top, and the board maintained the ability to present those alternatives to the shareholders.

“Per Capita” v. “Per Share” Voting in Agreements–Words Matter

In Salamone, et al. v. Gorman, No. 343, 2014 (Del. Dec. 9. 2014), the Supreme Court of Delaware writes for nearly 60 pages sorting out contradictory provisions in a voting agreement that was supposed to clearly spell out the rights of various investors and investor groups to elect directors to the board.  It did not, and the Court was forced to resolve ambiguities in the document that made it unclear whether directors were to be elected and removed on a “per share” or a “per capita” basis by different classes of investors.

The voting agreement at issue intended to set forth a scheme by which, among other things, (1) one independent director was to be designated by “the majority of holders of the Series A Preferred Stock, and (2) two directors were to be “elected by the Key Holders,” who were defined in the agreement.  The potential ambiguity in the wording of the director election provisions came to the fore when compared to the director removal clause which provided, in material part, that the removal of the two types of directors noted would only be valid where “such removal is directed or approved by the affirmative vote of the Person, or of the holders of more than fifty percent (50%) of the then outstanding Shares entitled under Section 1.2 to designate that director.”

The litigation centered upon the efforts of one of the stockholders, who controlled a majority of the voting shares, to single-handedly remove and replace the independent director and the two directors to be elected by the Key Holders based on that majority voting power.  Such power would follow from a “per share” voting scheme.  The opposing parties, however, argued that the voting agreement was designed to disaggregate voting power and to give particular investors an equal voice in selecting directors to represent their respective class of equity.  Thus, they argued that the voting agreement set forth a “per capita” scheme pursuant to which the majority shareholder had just one of several votes, and thus must convince a majority of the individual investors that either held Series A Preferred or who were Key Holders to support his nominees.

After employing a host of contractual interpretation devices, the Supreme Court ultimately found that (1) the “majority of the holders” language regarding the independent director’s election referred to a “per share” basis for election and removal, and (2) that the Key Holders elected and removed their representative directors on a “per capita” basis.  In so ruling, the Supreme Court’s decision seems to turn on two important points.  First, the Supreme Court found that the election and removal provisions should be read as setting forth the same–rather than contradictory–methods for the election and removal of directors.  Second, the Court applied the judicial presumption under Delaware law that, absent clear and convincing evidence to the contrary, the Court will not infer an intent to disenfranchise a majority stockholder by recognizing that “[a] court ought not to resolve doubts in favor of disenfranchisement.”

This facts presented in this case, and the Supreme Court’s efforts to bring order to the voting agreement’s terms, show that terms like “majority of the holders” can be ambiguous in application and that carefully considering such provisions can avoid the troubles presented in this litigation.

A Bit About Break-up Fees in M&A

In In re Comverge, Inc. Shareholders Litig., C.A. No. 7368-VCP, a decision on a motion to dismiss by Court of Chancery, Vice Chancellor Parsons provided practitioners and clients with a thorough and helpful analysis (essentially a road-map) of  how the Court of Chancery reviews challenges to third-party sale transactions, that are approved by a disinterested board, under the enhanced scrutiny of Revlon.  In addition to the primer on a Revlon analysis, the opinion is worth a read for its discussion of what the Court considers the outer bounds for break-up fees.  The Vice Chancellor allowed claims challenging the break-up fees in this transaction to go forward because, when viewed in the aggregate, they could total north of 11% of the equity value.  For purposes of this motion, the Vice Chancellor accepted the plaintiff’s argument that a convertible note held by the buyer, if converted, could add more than $3 million to the purchase price if another bidder emerged, and thus should be considered an enhancer of the termination fees.  The Vice Chancellor held he could not dismiss this claims because it is reasonably conceivable that the plaintiffs might be able to show that this decision by the board was so far out of bounds as to be only explainable as “bad faith”—and thus not exculpable under a Section 102(b)(7) exculpatory clause.

How Immediate is “Prompt” in a Contract? New Delaware Supreme Court Justice Vaughn Finds that It Depends

What does the term “prompt” mean in a contract? Well, it depends, according to Judge James T. Vaughn Jr., who was recently confirmed to the Delaware Supreme Court. In an opinion issued last week from his prior post in the Superior Court (Complex Commercial Division), Justice Vaughn found that notice after ten months may in some circumstances constitute “prompt notice.”

In Avaya, Inc. v. Charter Communications Holding Company, LLC, C.A. No. N14C-03-052, Plaintiff Avaya, Inc. (“Avaya”) moved for summary judgment, arguing that defendants Charter Communications Holding Company, LLC and Charter Communications, Inc. (together “Charter”) failed to satisfy a contractual indemnity requirement to “promptly notify” Avaya of a claim or suit for which indemnity was requested. Charter was served with the complaint at issue on September 5, 2006. However, Charter did not provide a copy of that complaint and tender its defense to Avaya until approximately ten months later on July 2, 2007.

Justice Vaughn denied Avaya’s summary judgment motion, declining to find that notice given ten months after the filing of a lawsuit was, as a matter of law, not prompt. Instead, the Court found that Charter should have the opportunity to conduct discovery to develop the “attendant facts and circumstance.”

Avaya and Charter were party to a Master Purchase Service Agreement (“Agreement”) pursuant to which Charter purchased certain equipment and software from Avaya, including a “private branch exchange system,” an “automatic call distribution system,” and customer management software.

Under the Agreement, Avaya was required to “defend, or settle, at its own expense”, and “pay all damages and costs” relating to, any claims for infringement of patent, copyright or trade secret brought against Charter related to Charter’s use of Avaya products purchased under the Agreement. However, the Agreement also provided, among other things, that “Avaya’s obligation is expressly conditioned upon the following: (1) [Charter] shall promptly notify Avaya in writing of such claim or suit…” The Agreement further provided that if any Avaya product is, or is likely to become, the subject of an infringement lawsuit, that Avaya would procure sufficient rights for Charter to continue using the product without infringement, or would provide a sufficient replacement product or a refund.

On September 1, 2006, Ronald A. Katz Technology Licensing, L.P., sued Charter in the United States District Court for the District of Delaware (the “Infringement Suit”), alleging that Charter’s “call process systems” and “telephone bill pay services” (among other things) infringed Katz’s patents. Charter was served with the complaint on September 5, 2006 and Charter gave notice ten months later.

Avaya initially rejected the indemnification request on grounds that the Infringement Suit did not specifically allege infringement by an Avaya product. Avaya did not initially raise lack of “prompt notice.” On March 16, 2014, Avaya filed the declaratory judgment action in the Delaware Superior Court seeking a determination that “prompt notice” was not given and that Avaya had no duty to defend and indemnify Charter in the Infringement Suit.

Avaya argued that providing notice in 10 months is not “prompt notice” as a matter of law, and that there are no mitigating factors here that would excuse Charter’s delay. Judge Vaughn rejected the argument. “I am not persuaded that the fact alone of a ten month period between the commencement of the Katz Lawsuit and the giving of the July 2, 2007 notice constitutes lack of prompt notice as a matter of law. I agree with Charter that the phrase is subject to some interpretation, and that the interpretation may be influenced by attendant facts and circumstances.”

The Agreement was governed by New York law, and while there was no caselaw discussion, Justice Vaughn did cite to one case in a footnote: Am. Transtech Inc. V. U.S. Trust Corp., 933 F. Supp. 1193, 1200 (S.D.N.Y. 1996). The court in Transtech found that “prompt notice” in an indemnification provision meant notice that gives the indemnitor sufficient time to participate in the defense and that a determination of “sufficient time” required consideration of all of the circumstances.

Delaware Supreme Court Finds Secured Lender’s Subjective Intent Irrelevant to Effect of UCC Termination Statement

The subjective intent of a secured lender is not relevant to a determination of whether a termination statement was effective under the Delaware Uniform Commercial Code (“UCC”) to terminate the secured lender’s perfected security interest, the Delaware Supreme Court has ruled.

The Delaware Supreme Court considered the issue as a question certified to it by the US Court of Appeals for the Second Circuit in In re: Motors Liquidation Company, 755 F.3d 78, 86 (2d Cir. 2014).  The opinion serves as a reminder (and cautionary tale) for agents, lenders and their counsel to closely scrutinize not only transaction documents, but also financing statements and termination statements being filed as part of a closing. Continue reading “Delaware Supreme Court Finds Secured Lender’s Subjective Intent Irrelevant to Effect of UCC Termination Statement”

Corporations Don’t Independently Owe Fiduciary Duties to Stockholders

On August 7, 2014, Vice Chancellor Glasscock issued a letter opinion in the matter Buttonwood Tree Value Partners, L.P., et al. v. R.L. Polk & Co., Inc., et al., C.A. No. 9250-VCG that is not attention-grabbing because it wrestles with some nuanced topic du jure of Delaware corporate law, but rather because it deals nearly entirely with the rather pedestrian, but not often explicated, principal that a Delaware corporation does not independently owe its stockholders fiduciary duties. Rather, fiduciary duties are owed to the stockholders (and the company) by the directors and officers who are the actual actors on behalf of the company. Continue reading “Corporations Don’t Independently Owe Fiduciary Duties to Stockholders”

Fee-Shifting Corporate Bylaws–The Judicial Challenges Begin

As discussed in a previous post, the Delaware General Assembly has tabled its consideration of a bill that would ban fee-shifting bylaws for traditional corporations until the next legislative session. This legislative push followed the Delaware Supreme Court’s holding, in responding to certified questions of law, that “fee shifting provisions in a non-stock corporation’s bylaws can be valid and enforceable under Delaware law”. See ATP Tour, Inc., et al. v. Deutscher Tennis Bund (German Tennis Federation), et al., No. 534, 2013 (Del. Supr. May 8, 2014). The fee-shifting bylaws being considered are designed to shift the company’s costs (including attorneys’ fees) of successfully defending against litigation prosecuted by a company’s stockholders to the stockholder plaintiff. As one might imagine, such a scenario might be seen as a “game changer” with regard to shareholder representative litigation.

Continue reading “Fee-Shifting Corporate Bylaws–The Judicial Challenges Begin”

Delaware Fee-Shifting Bill Shelved For 2014

A joint resolution of the Delaware State Senate and House of Representatives, with the approval of Governor Markell, has shelved a bill to ban Delaware stock corporations from adopting bylaw provisions to shift attorneys’ fees and expenses in corporate litigation to unsuccessful plaintiffs.

The bill was drafted and approved by the Delaware State Bar Association and presented to the General Assembly following the May 8, 2014, en banc response of the Delaware Supreme Court to certified questions of law from the U.S. District Court for the District of Delaware in ATP Tour, Inc. v. Deutscher Tennis Bund (German Tennis Federation), et al., No. 534, 2013 (Del. May 8, 2014). The Supreme Court stated in ATP that a “fee shifting” bylaw provision in a non-stock corporation’s bylaws “can be valid and enforceable under Delaware law.” The bylaw at issue would shift the company’s defense fees and costs to a member who had sued the company (or any other member) and was unsuccessful in “substantially achiev[ing], in substance and amount, the full remedy sought” in the litigation.

Continue reading “Delaware Fee-Shifting Bill Shelved For 2014”

Amendments to Delaware LLC and Partnership Acts Pass House

Proposed changes to Delaware’s alternative entity statutes, including amendments providing greater flexibility in finance and other transactions, were passed unanimously by the state House of Representatives on June 10, 2014.

The proposed amendments to the Limited Liability Company Act, 6 Del. C. §§ 18-101, et seq. (LLC Act), the Revised Uniform Limited Partnership Act, 6 Del. C. §§ 17-101, et seq. (LP Act) and the Revised Uniform Partnership Act, 6 Del. C. §§ 15-101, et seq. (GP Act), if approved by the Senate and Governor Markell, by their own terms will become effective on August 1, 2014.

Continue reading “Amendments to Delaware LLC and Partnership Acts Pass House”