Topic: Books and Records Demand

COURT OF CHANCERY FINDS NO SECTION 220 ISSUE WHERE STOCKHOLDER’S AND ITS COUNSELS’ PURPOSES FOR DEMAND ALIGN

By: Megan A. Wotherspoon and Rachel Cheasty Sanders

In Inter-Local Pension Fund GCC/IBT v. Calgon Carbon Corp., C.A. No. 2017-0910-MTZ (Del. Ch. Jan. 25, 2019), the Delaware Court of Chancery enforced an institutional stockholder’s demand for books and records under Title 8, Section 220 of the Delaware General Corporation Law (“Section 220”). The Court found that the stockholder’s affidavit affirming the demand in substantially final form, although not in exact final form, did not violate Section 220’s “under oath” requirements where the only change between the versions was the addition of a signature and the date. The Court also found that the stockholder’s demand was not lawyer-driven under Wilkinson v. A. Schulman, Inc., C.A. No. 2017-0138-VCL (Del. Ch. Nov. 13, 2017), where the stockholder’s goals of the demand and the purposes stated in the lawyer-drafted demand were not fundamentally misaligned, even where the stockholder’s representative could not articulate all the legal nuances of such purposes in deposition testimony.

In 2016, Japanese company Kuraray Co., Ltd. (“Kuraray”) contacted Defendant Calgon Carbon Corporation, a publicly-traded Delaware corporation (“Calgon” or the “Company”), to express interest in the companies forming a partnership. Although Calgon initially informed Kuraray it was not for sale, on June 14, 2017, Kuraray delivered to Calgon an acquisition proposal with an exclusivity agreement and a promise to retain existing management. Kuraray later delivered a second proposal that increased the purchase price per share. Two months later, upon a favorable recommendation from its financial advisor and senior management, Calgon’s board of directors (the “Board”) decided to move forward with the second proposal from Kuraray, but refused to extend exclusivity.

On September 5, 2017, a group of Calgon’s independent directors prohibited senior management from discussing their post-acquisition job prospects with Kuraray until after all other material terms of the deal were settled. On September 14, the independent directors decided the deal was settled enough to allow Randall S. Dearth, Chairman of the Board and President and CEO (“Dearth”), to discuss his retention with Kuraray. The next day, Dearth met with Kuraray and gave them terms for his and other senior managers’ continued employment. The terms included no change in title or base salary, and a one-time post-closing bonus of $5.5 million for Dearth and $1.25 million for the others. Dearth reported the contents of the term sheets to the Board on September 16, after which the Board reinstated its prohibition on senior management negotiating their employment with Kuraray until the deal terms were settled. On September 19, Calgon and Kuraray agreed to the deal terms, and the next day the Board approved the merger with Dearth committed to remain as CEO. On November 28, Calgon issued the proxy statement to its stockholders.

On December 14, 2017, Calgon stockholder Inter-Local Pension Fund GCC/IBT (“Plaintiff””) retained counsel and demanded Calgon’s books and records pursuant to Section 220. Plaintiff sought to investigate potential breaches of the fiduciary duty of loyalty by Calgon directors with respect to the Kuraray transaction, as well as mismanagement and wrongdoing by officers. As evidence of wrongdoing, Plaintiff pointed to the Board’s and senior management’s substantial equity awards received as a result of the transaction. Calgon refused to comply and, the next day, Plaintiff sued to enforce the demand. Kuraray acquired Calgon on March 9, 2018, and the case proceeded to trial in July 2018.

Section 220 grants a stockholder the right to inspect the corporation’s books and records “for any proper purpose.” Investigating wrongdoing and mismanagement of directors is a proper purpose. While the stockholder bears the burden of establishing “credible bases” of director wrongdoing or mismanagement, it need only provide “some evidence” to infer there are legitimate issues that warrant further investigation.

Calgon argued (i) Plaintiff’s demand did not technically conform to Section 220’s form and manner requirements, and (ii) Plaintiff’s purposes for the demand were not its own, but were lawyer-driven and therefore prohibited by Wilkinson v. A. Schulman, Inc. Section 220 requires a stockholder to make a demand “under oath.” Stockholders often fulfill this requirement by attaching a notarized affidavit to the demand. Fund plan administrator Lawrence C. Mitchell, a nonparty, signed a notarized affidavit approving the demand “in substantially final form.” Calgon argued that Mitchell’s affidavit violated Section 220’s oath requirement because it approved a version of the demand letter that was not in its final form. The Court found that the demand did comply with Section 220, because there were no substantive differences between the version of the demand Mitchell reviewed and the final form, the only change being that the final demand was signed and dated. However, the Court did recommend that “the best practice is for the stockholder to review the final version of a demand letter, including the effective date.”

A stockholder’s demand under Section 220 can be found to lack a proper purpose “[w]hen counsel for a stockholder presses a purpose that is different from the stockholder’s actual purpose.” The Court upheld this principle in Schulman, when it refused to enforce a demand where the stockholder’s counsel initiated the demand, drafted it based on different issues than what motivated the stockholder to seek counsel in the first place, and litigated the demand largely without the stockholder’s involvement. Calgon argued Schulman applied because Plaintiff’s demand was lawyer-driven by Plaintiff’s counsel, and therefore Plaintiff lacked a proper purpose under Section 220. The Court held that Calgon failed to prove Plaintiff put forward its demand under false pretenses, a high standard. The Court noted the key issue in Schulman was the fundamental “misalignment of goals” between stockholder and counsel, which was not present in this case. Mitchell testified regarding Plaintiff’s purposes for the demand, which aligned with the purposes in the demand drafted by Plaintiff’s counsel. Calgon argued that Mitchell’s inability to articulate the details of the demand showed it was entirely conceived by Plaintiff’s counsel without Plaintiff’s involvement. However, the Court held that a stockholder’s inability to “articulate the legal nuances” of a demand is not enough to establish that the stockholder lacked a purpose. The Court expressed concern that holding otherwise would restrict Section 220 only to “sophisticated stockholders,” and recognized that stockholders are entitled to rely upon counsel to monitor its investments, raise concerns, and pursue appropriate remedies.

Additionally the Court found Plaintiff met its burden of establishing some credible bases to infer possible wrongdoing, mismanagement, and lack of director independence, to justify an investigation. Plaintiff showed Calgon refused Kuraray’s overtures until Calgon’s management and directors were offered lucrative rewards and personal benefits in the merger, casting doubt on the entire process as artificially restrictive and tainted by the decision-makers’ personal interests. Also, Plaintiff sufficiently showed that Calgon employed central projections in the merger with short time-frames; this excluded a potentially lucrative future project that would have increased Calgon’s projections substantially. Plaintiff alleged that Calgon’s directors purposefully used short projections to facilitate Kuraray’s acquisition of the company for their own personal benefit.

Further, the Court found any merit contentions put forward by Calgon would not defeat Plaintiff’s credible bases to inspect Calgon’s books and records under Section 220 because the Court does not consider the merits beyond the low “credible bases” standard. The Court explained that while Calgon’s merit arguments ultimately may be successful in subsequent plenary litigation, they do not defeat Plaintiff’s demand to inspect books and records. The Court also found the books and records were “necessary and essential” to that investigation into the credible inferences of wrongdoing and mismanagement because they “address the ‘crux of the shareholder’s purpose’” and the “information ‘is unavailable from another source.’” The Court granted nine of Plaintiff’s thirteen documents requests, and narrowed in scope several of the granted requests.

SOPHISTICATED PARTY OR NOT, LLC AGREEMENT STILL GOVERNS

By: Scott Waxman and Rich Minice

In Durham v. Grapetree, LLC, Civil Action No. 2018-0174-SG (Del. Ch. June 4, 2019), the Delaware Court of Chancery granted the request made by Grapetree, LLC ( “Grapetree”) to shift its fees incurred in defending this litigation to the mostly unsuccessful plaintiff, Andrew Durham (“Durham”). In shifting Grapetree’s fees under this litigation, the Court reinforced the longstanding principal that Delaware law is contractarian in nature, and that parties shall be held to their bargains regardless of their legal sophistication. The underlying litigation and the Court’s initial findings (the “Books and Records Action”) were previously summarized by this blog here.

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WITHDRAWN LIMITED PARTNER IS NOT ALLOWED TO INSPECT BOOKS AND RECORDS

By Scott E. Waxman and Annamarie C. Larson

In Harry Greenhouse v. Polychain Fund I LP and Polychain 2030, LLC, C.A. No. 2018-0214-JRS (Del. Ch. May 29, 2019), the Delaware Court of Chancery held that a withdrawn limited partner no longer retains an equity interest in the partnership and therefore is not entitled to inspect the partnership’s books and records.

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CHANCERY COURT GRANTS MOTION TO DISMISS SECTION 220 DEMAND MADE DURING A PENDING PLENARY CLAIM DUE TO LACK OF SPECIAL CIRCUMSTANCES

By: Remsen Kinne and Stephanie Winkler

In CHC Investments, LLC v. FirstSun Capital Bancorp, C.A. No. 2018-0610-KSLM (Del. Ch. January 24, 2019), the Court of Chancery (the “Court”), in a motion to dismiss, found that CHC Investments, LLC’s (“CHC” and “Plaintiff”) pending plenary claims rendered CHC’s purpose for demanding inspection corporate books and records pursuant to Section 220 of the Delaware General Corporate Law (“Section 220”) improper, and granted FirstSun Capital Bancorp’s (“FirstSun” and “Defendant”) motion to dismiss.

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NO LOVE LOST IN BOOKS AND RECORDS REQUESTS

By: Scott Waxman and Rich Minice

In Durham v. Grapetree, LLC, Civil Action No. 2018-0174-SG (Del. Ch. January 31, 2019), the Delaware Court of Chancery granted in part and denied in part a suit to compel books and records under Section 18-305 of the Delaware Limited Liability Company Act. Durham is illustrative of the rule that books and records requests are not a proper method to conduct plenary discovery into a business entity or its management, especially if driven by animus, but must be related to a proper purpose established by the requestor in his or her demand on the business.

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CHANCERY COURT GRANTS CERTAIN BOOKS AND RECORDS DEMANDS BY MINORITY STOCKHOLDER RELATED TO A MERGER AND VALUATION OF UNDERLYING ASSETS

By: Jessica Pearlman and Adam Heyd

In Mudrick Capital Management, L.P. v. Globalstar, Inc., C.A. No. 218-0351-TMR (Del. Ch. July 30, 2018), plaintiff Mudrick Capital Management L.P. (“Mudrick Capital”), a minority stockholder of defendant Globalstar, Inc. (the “Company”), brought a demand under Section 220 of the Delaware General Corporate Law (“Section 220”) to inspect certain communications and documents relating to the Company’s proposed merger with Thermo Acquisitions, Inc. (“Thermo”).  The Delaware Court of Chancery granted Mudrick Capital’s demand for certain emails, communications and valuation materials relating to the merger, and denied Mudrick Capital’s demand for certain internal draft materials.

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Manager is Entitled to Books and Records in Capacity as Manager, and as a Member Under the LLC Agreement, Despite Assertion of Improper Purpose

By: Scott E. Waxman and Douglas A. Logan

In William T. Obeid v. Gemini Real Estate Advisors, LLC, et al., (C.A. No. 2017-0510-JTL (Del. Ch. June 5, 2018)) the Court ruled the manager of a limited liability company had an essentially unfettered right to access the books and records of the company.

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Chancery Court Limits Access to Books and Records Based on Stockholder’s Failure to State Purpose in Section 220 Demand

By: James S. Bruce and Taylor B. Bartholomew

In KT4 Partners LLC v. Palantir Technologies, Inc., C.A. No. 2017-0177-JRS (Del. Ch. Feb. 22, 2018), in a post-trial ruling, the Delaware Court of Chancery granted a stockholder limited rights to inspect a corporation’s books and records related to the stated purpose of investigating possible wrongdoing, but the Court denied the stockholder’s request to obtain other books and records related to the purpose of valuing its shares because its initial demand did not explicitly state a valuation purpose.

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Chancery Court Finds Credible Basis for Demand to Inspect Books and Records of UnitedHealth in connection with Possible Medicare Overbilling

By: David Forney and Joshua Haft

In In re UnitedHealth Group, Inc. Section 220 Litigation, Consolidated C.A. No. 2017-0681-TMR (Ch. Ct February 28, 2018) certain stockholders (“Plaintiffs”) of UnitedHealth Group, Inc. (“UnitedHealth”) sent a books and records inspection demand to UnitedHealth relying on a complaint in a type of whistleblower (qui tam) action alleging that UnitedHealth engaged in improper Medicare billing, United States ex rel. Poehling v. UnitedHealth Group, Inc. (the “Qui Tam Action”).  The Qui Tam Action was based in part on a 5-year investigation by the US Department of Justice (“DOJ”) and included depositions of 20 of UnitedHealth’s employees and production by UnitedHealth of over 600,000 documents. Plaintiffs made their demand in order to investigate mismanagement or misconduct, possible breaches of fiduciary duties and the independence and disinterestedness of the board. UnitedHealth rejected the demand and a trial was held on January 9, 2018.  UnitedHealth argued that Plaintiffs were not entitled to inspection of books and records because they lacked a credible basis to infer wrongdoing or mismanagement based on the Qui Tam Action and because the alleged activities of UnitedHealth were not illegal.  The Court found that Plaintiffs’ demand stated a proper purpose and a credible basis from which a court could infer mismanagement or wrongdoing.

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Court of Chancery Compels Production of Some, but not all, Books and Records for Plaintiff’s Permitted Purposes

By Scott Waxman and Ernest Simons

In Aloha Power Company, LLC v. Regenesis Power, LLC, the Court of Chancery granted in part and denied in part plaintiff’s action to compel inspection and production of certain books and records pursuant to provisions in the defendant’s operating agreement and the Delaware Limited Liability Company Act.  The Court held that the operating agreement expressly required production of certain books and records without demand for inspection and determined whether there existed a proper purpose for inspection for the remaining demanded books and records.

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Court of Chancery Holds That Corwin Defense Is Not Appropriate for the Limited Scope and Purpose of a Books and Records Action Under Section 220

By: David Forney and Tami Mack

In Lavin v. West Corporation, C.A. No. 2017-0547-JRS (Del. Ch. December 29, 2017), the Court of Chancery held that stockholder plaintiff Mark Lavin (“Lavin”) had adequately demonstrated a credible basis from which the Court could infer that wrongdoing had occurred regarding the merger of West Corporation (the “Company”) and Apollo Global Management (“Apollo”) in support of Lavin’s Section 220 demand for inspection, and that a Corwin defense (that the transaction at issue was approved by a majority of disinterested and informed stockholders) is not a bar to an otherwise properly supported Section 220 demand for inspection.

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Chancery Court Partially Grants Books and Records Request

By David Forney and Jonathan Miner

In Mehta v. Kaazing Corporation, C.A. No. 2017-0087-JRS (Del. Ch. Sept. 29, 2017), the Delaware Court of Chancery partially granted and partially denied a plaintiff shareholder’s books and records inspecting demand under Section 220(c) of the Delaware General Corporation Law (“DGCL”).  Although valuation of equity is usually a proper purpose, here the shareholder did not identify any reason why his equity needed to be valued, so this purpose was deemed improper.  The shareholder’s other purposes, including alleged wrongdoing and mismanagement, were deemed proper notwithstanding the shareholder’s open employment litigation action against the company, but the scope of his requests were limited only to those documents that addressed the crux of those purposes.

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