In a Must-Read Opinion, Delaware Court Rejects Bid to Block Massey Merger

In a Must-Read Opinion, Delaware Court Rejects Bid to Block Massey Merger

According to news reports, on June 1, 2011, Alpha Natural Resources completed its $7.1 billion acquisition of Massey Energy Company. The deal went forward despite last minute efforts by groups of Massey shareholders proceeding in West Virginia and Delaware courts to try to enjoin the transaction on the grounds that the merger did not properly value the pending derivative claims against the company's board, resulting in Alpha being able to acquire Massey without taking into account the fair economic value of the derivative claims.

The courts in both West Virginia and Delaware rejected the preliminary injunction motions. Delaware Vice Chancellor Leo E. Strine Jr.'s  81-page May 31, 2011 opinion (here) refusing to enjoin the merger makes for some extraordinarily interesting reading, as Susan Beck notes in her June 1, 2011 Am Law Litigation Daily article about the decision (here).

All of these events relate back to the April 5, 2010 disaster in Massey's Upper Big Branch Mine in Montcoal, West Virginia, in which 29 miners were killed. In the wake of the disaster, the company's share price declined, and the company struggled to deal with the fallout and scrutiny from the tragedy. These events set up a lengthy process that resulted in Alpha's agreement to acquire Massey. During this process, Massey forced out its long-standing CEO, Don Blankenship.

Another thing that happened in the wake of the disaster ("inevitably," Vice Chancellor Strine noted) is that Massey shareholders filed derivative suits seeking to ensure that to the extent Massey was harmed by the obligation to pay fines, judgments to the deceased miners' families and lost cash flow from the damaged mine, the companies directors and officers should be held responsible for failing to make sure that Massey complied with mine safety regulations.

In addition to damages, the derivative plaintiffs sought a preliminary injunction against the merger, arguing among other things that the merger was at attempt by the board to evade its responsibilities for the harm to the company by means of a sale to Alpha.

In his May 31 opinion, Vice Chancellor Strine denied the plaintiffs' motion for a preliminary injunction, holding that it is "highly doubtful" that the shareholders would be able to show that Massey's board had sought to sell the company "solely, or even in a material way" to escape liability for the shareholder claims. He also said that to delay the deal would "threaten more harm to Massey shareholders than its potential benefits to them," reasoning that Massey's shareholders ought to be able to vote for against the merger on their own.

There are a host of interesting things about Vice Chancellor Strine's highly readable 81-page opinion. Among them, in no particular order, are the following.

First, Vice Chancellor notes that it is "undisputed" "regrettable" "concerning" and "might even be characterized as a breach of the duty of care" that in connection with its consideration of the proposed Alpha merger the Massey board "failed to address the value" of the derivative claims, as the duties of a board in negotiating the sale of company is to consider and get full consideration of "all of the corporation's material assets." However, he added, that "does not much help the plaintiffs obtain an injunction," as the record "does not support the inference that the Derivative Claims are material in comparison to the overall value of Massey as an entity."

Second, as part of reaching the preceding conclusion, Vice Chancellor Strine noted that "the record does not persuade me that the Merger would, after trial, likely prove to be economically unfair to the Massey shareholders," citing a number of considerations. In particular, with respect to the question whether or not the failure to separately negotiate value reflecting the derivative claims, Strine noted numerous difficulties the claims face,  including the difficulty of showing that the defendants "acted with a wrongful state of mind, particularly given the exculpatory provision in Massey's charter"; the possibility that "insurance proceeds may not be available to pay any judgment"; the questionable ability of even the wealthy board members to satisfy any judgment; and the fact that most of the individual defendants are independent directors whose "motivation to tolerate unsafe practices for the sake of profits would be tempered." The value of the derivative claims might represent at most an opportunity for the company to recoup some of the costs for the disaster - and for that reason "it is unlikely that Alpha viewed these Claims as an asset at all, but merely as having some potential to reduce the gravity of the Disaster Fall-Out Alpha was inheriting."

Third, though the Massey board itself might have been unclear on what the merger's completion would mean for the derivative claims, Stine himself is very clear that the claims survive the merger (given his determination that the merger was not motivated primarily to avert the derivative suit liability). But with the merger's completion, Alpha, as Massey's successor in interest, controls the claims, putting the derivative plaintiffs in the position of having to prove demand excusal, and thus "receive leave to proceed in a double derivative action on behalf of Alpha" - an outcome Strine says "is not one an objective mind ought to consider probable" given that Alpha's board has no exposure to the claims but "myriad of rational business reasons why Alpha may later decide that prosecuting these Claims does or does not make sense for Alpha."

Nevertheless, Strine also notes that it is not a foregone conclusion that Alpha would not itself decide to pursue claims against the former fiduciaries of Massey. The fact is, as Strine notes, "Alpha will have to make a difficult business calculation about the extent to which it goes after Massey's former management," and its board will have to answer to Alpha's own shareholders on their decision whether or not to pursue such claims. As Strine notes, "it is not clear why Alpha would not seek to offset the costs to itself of those violations by suing previous management if by doing so it had a realistic chance of obtaining some meaningful recovery." That does not necessarily mean that Alpha will be able to effect a recovery commensurate with this costs (See the "second" item above and the "seventh" item below).

Fourth, Strine has some choice words to say about the Cravath law firm, which is not only acting as the board's counsel in the derivative lawsuit, but also counseled the board on how it ought to consider the derivative suit in connection with the proposed merger. Strine characterized the law firm as being an "awkward source for advice" on this issue, and given the Cravath firm's recommendation that the board not consider the existence of the derivative claims at all, "one cannot conclude that the Massey Board was presented with a reasoned analysis of the 'value' of the Derivative Claims." Strine also faulted Cravath for insufficiently explaining to the board what a survival of derivative claims means in the context of a merger. (Susan Beck's Am Law Litigation Daily article linked above has more on this particular topic.)

Fifth, using language that is both noteworthy and striking, Strine went out of his way to excoriate former Massey CEO Don Blankenship, quoting descriptions of him as "autocratic" and describing him as having an "adversarial relationship" with the UAW and a "combative approach" to the federal mining regulator. He noted that Massey's managers and employees understood that "if you wished to stay or get ahead at Massey under Blankenship, then the priority of profits over safety is one not to be questioned." He also noted that in 2009, after President Obama's election and a change in leadership at the mining regulator, and after Massey had sustained a number of losses in legal proceedings, Blankenship's attitude toward regulators "deteriorated very sharply."

Sixth, Strine makes it clear that he believes the real victims here are the deceased coal miners and their families - and in that regard, Strine is not prepared to let the shareholders off the hook. As he points out in a biting 1,071-word footnote (number 185), Massey's shareholders not only had an annual opportunity to elect directors, but they "continued to invest in a company they say was well known to treat its workers and the environment poorly." Indeed, "to the extent Massey kept costs lower and exposed miners to excess dangers, Massey's stockholders enjoyed the short-term benefits in the form of higher profits." The very practices of which the plaintiff shareholders now complain might rationally have been expected to act as a "goad" to shareholders to "give more weight to legal compliance and risk management in making investment decisions." In the end, Strine notes, the "most sympathetic victims here were not shareholders, they were Massey's workers and the families" and other constituencies who suffered while the company prospered and shareholders benefitted.

Seventh, readers of this blog will be interested in some parenthetical comments Strine has to make about D&O insurance. In noting the difficulties Alpha would have in collecting on any judgment entered in the derivative case, he notes that even if the derivative claims were to settle for the full amount of the D&O insurance, the total amount of coverage available is $95 million - not a "trifle," but also not material in the context a merger valued over $ 7 billion. Also, Strine notes, showing that he has a keen appreciation for the D&O insurance market's dark reality, "anyone who has dealt with coverage questions and insurance carriers would also tell you that a scenario in which the D&O insurers in the 'tower' would easily pay out anywhere near the full amount of the policy in a quick and low-cost way to Alpha is more the stuff of dreams than of real life."

Eighth , it may not be entirely relevant to Vice Chancellor Strine's decision or to the fact that the Alpha acquisition went forward as planned, but it is probably worth noting that among Massey's former independent directors is another individual whose name has been in the news for entirely different reasons this week - that is, among the independent Massey directors named as defendants in the derivative litigation is Ohio State University President E. Gordon Gee. According to Wikipedia, Gee served on Massey's board from 2000 until 2009 (that is, he resigned before the Big Branch Mines disaster, but during many of the prior safety and environmental problems the company faced.)

Now that the merger has been completed, the ball shifts to Alpha's board to consider whether or not to pursue direct claims against the former Massey directors and officers. While Alpha might as Strine notes have substantial business reasons for wanting to close the book on the past and moving forward, the fact is that Alpha also inherited the wrongful death and regulatory claims that were pending against Massey. As much as Alpha might want to move on for business reasons, that may not be an available option.

To the extent Alpha must pay settlements, fines, and judgments, it will have to consider whether or not to pursue claims against the former Massey fiduciaries to try to recoup these costs. And in making that determination, the Alpha board will also have to consider its fiduciary duties to its own shareholders (some of whom now are former Massey shareholders.) I don't know where any of this ultimately will lead, but the insurers in that $95 million insurance tower (whoever they may be, I have no idea) may find it prudent to wait a while before deciding whether or not to take down their reserves on this particular claim.

Special thanks to a loyal reader for providing me with a copy of Judge Strine's opinion.

Yeah, I Really Hate it When the Guy in Front of Me Reclines His Seat Back, Too: On a May 29, 2011 United Airlines flight from Washington Dulles Airport to Ghana, one of the passengers decided to lower his seat back - which set in process a sequence of events that started with a scuffle on the plane and ended with Air Force F-16 fighter jets being scrambled. Because no one could make this up, you really have to read the Washington Post story (here) for yourself.

Just something to think about next time before reclining your seat back, O.K.?

Read other items of interest from the world of directors & officers liability, with occasional commentary, at the D&O Diary, a blog by Kevin LaCroix.

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