Yesterday, the Delaware Court of Chancery found the controlling shareholder-CEO and General Counsel of Dole Food Co. Inc. liable to investors for $148 million for fraudulently driving down the company’s share price in anticipation of a going-private transaction. What’s particularly noteworthy here is that the controlling shareholder appears to have structured the transaction with all of the protections required for minority shareholders (see In Re MFW Shareholders Litigation), including approval by a committee comprised of independent directors, approval by a majority of minority shareholders and even a fair price.
In the words of the court:
“But what the Committee could not overcome, what the stockholder vote could not cleanse, and what even an arguably fair price does not immunize, is fraud. Before Murdock [the CEO] made his proposal, Carter [the GC] made false disclosures about the savings Dole could realize after selling approximately half of its business in 2012. He also cancelled a recently adopted stock repurchase program for pretextual reasons. These actions primed the market for the freeze-out by driving down Dole‘s stock price and undermining its validity as a measure of value. Then, after Murdock made his proposal, Carter provided the Committee with lowball management projections. The next day, in a secret meeting that violated the procedures established by the Committee, Carter gave Murdock‘s advisors and financing banks more positive and accurate data. To their credit, the Committee and Lazard recognized that Carter‘s projections were unreliable and engaged in Herculean efforts to overcome the informational deficit, but they could not do so fully. Critically for purposes of the outcome of this litigation, the Committee never obtained accurate information about Dole‘s ability to improve its income by cutting costs and acquiring farms.
By taking these actions, Murdock and Carter deprived the Committee of the ability to negotiate on a fully informed basis and potentially say no to the Merger. Murdock and Carter likewise deprived the stockholders of their ability to consider the Merger on a fully informed basis and potentially vote it down. Murdock and Carter‘s conduct throughout the Committee process, as well as their credibility problems at trial, demonstrated that their actions were not innocent or inadvertent, but rather intentional and in bad faith.”
You can read the full opinion here.
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