In re Edgio, Inc. Stockholders Litigation, decided by VC Zurn this week, presented the unsettled question whether Corwin cleansing would apply to post-closing shareholder actions seeking injunctive relief for defensive/entrenchment measures.  Interestingly, she held it would not.

The set up: A company was in distress and its stock price was tumbling.  It became afraid that it might be targeted by activist investors.  It also had the opportunity for a very favorable deal: It could buy a business unit owned by Apollo for a large number of newly-issued shares.  The contract specified that Apollo would get one-third of the board seats, but would be required to vote its shares in favor of existing board members.  It would also be prohibited from selling for two years, and after that, it would not be able to sell to “any investor on the most recently published ‘SharkWatch 50’ list for twelve months.”

This was not a transaction that required shareholder approval under Delaware law, but the share issuance did require shareholder approval under NASDAQ rules, and the shareholders voted overwhelmingly in favor.

Post-closing, shareholders brought an action seeking to enjoin the entrenchment measures – not the deal itself – arguing that they violated Unocal.  Defendants, naturally, argued that the whole thing had been cleansed under Corwin by means of the shareholder vote.

VC Zurn began by noting that Corwin itself distinguished between injunctive relief and damages relief; in that case, the Delaware Supreme Court held that “Unocal and Revlon are primarily designed to give stockholders and the Court of Chancery the tool of injunctive relief to address important M & A decisions in real time, before closing. They were not tools designed with post-closing money damages claims in mind.”

In light of that language, VC Zurn held:

Corwin explains that conduct supporting a post-closing claim for damages can be cleansed by stockholders who were satisfied with the economic value they received in a transaction. Inequities in a transaction’s price or process are compensable by monetary damages, and therefore able to be cleansed by stockholders satisfied with the consideration they already received.  But Unocal scrutiny is inspired by concerns that directors may act to “thwart the essence of corporate democracy by disenfranchising shareholders,” which prototypically causes irreparable injury.  Because a dollar value cannot be affixed to the harm caused by unjustifiably entrenching actions, it cannot be said that a stockholder can consider wrongfully entrenching actions as part of the “economic merits” of a transaction.

Similar language about Corwin’s scope, she noted, was used in Morrison v. Berry, 191 A.3d 268 (Del. 2018).

But then she had to reconcile three different pre-Corwin Delaware precedents.

The first, In re Santa Fe Pacific Corporation Shareholder Litigation, 669 A.2d 59 (Del. 1995), involved a pre-closing, post-vote challenge to a merger agreement that contained various lockups that had prevented the company from striking a deal with a competing bidder.  In that context, the court held that the shareholder vote had not restored business judgment review, reasoning:

Permitting the vote of a majority of stockholders on a merger to remove from judicial scrutiny unilateral Board action in a contest for corporate control would frustrate the purposes underlying Revlon and Unocal. Board action which coerces stockholders to accede to a transaction to which they otherwise would not agree is problematic. …Thus, enhanced judicial scrutiny of Board action is designed to assure that stockholders vote or decide to tender in an atmosphere free from undue coercion…

In voting to approve the Santa Fe–Burlington merger, the Santa Fe stockholders were not asked to ratify the Board’s unilateral decision to erect defensive measures against the Union Pacific offer. The stockholders were merely offered a choice between the Burlington Merger and doing nothing. The Santa Fe stockholders did not vote in favor of the precise measures under challenge in the complaint. Here, the defensive measures had allegedly already worked their effect before the stockholders had a chance to vote.  In voting on the merger, the Santa Fe stockholders did not specifically vote in favor of the Rights Plan, the Joint Tender or the Termination Fee.

Since the stockholders of Santa Fe merely voted in favor of the merger and not the defensive measures, we decline to find ratification in this instance.

But, in two other decisions, Stroud v. Grace, 606 A.2d 75 (Del. 1992) and Williams v. Geier, 671 A.2d 1368 (Del. 1996), corporations had adopted various changes to their articles of incorporation that had the effect of entrenching existing management.  When these changes were subsequently challenged by dissenting minority shareholders, the Delaware Supreme Court held that the shareholder votes in favor ratified the amendments.

Faced with this somewhat conflicting set of cases, VC Zurn held:

Stroud and Williams are inconsistent with my reading of Corwin, and, unlike Santa Fe, neither was acknowledged in relevant part by the Corwin Court. Corwin cites Stroud as an example of a vote required by statute or charter that affected the standard of review, indicating the Supreme Court thought the Stroud vote properly had that effect.  Corwin also cites Williams, albeit for the pedestrian principle that a vote will not have a cleansing effect if it is coerced and for the general principle that an informed statutory vote is “the highest and best form of corporate democracy.” Corwin did not explicitly resolve the apparent tension between Santa Fe on one hand, and Stroud and Williams on the other.

I believe I am duty-bound to follow the most recent and specific Delaware Supreme Court authority. Notwithstanding Stroud and Williams, I read Corwin’s plain text as reiterated in Morrison v. Berry, together with Santa Fe’s instructions that Corwin implicitly preserved, to take a claim to enjoin defensive measures under Unocal enhanced scrutiny out of Corwin’s reach. I read that to compel the conclusion that a claim for injunctive relief under Unocal enhanced scrutiny is not susceptible to restoration of the business judgment rule under Corwin.

After that, it was just a question of actually applying Unocal to this particular deal.  And since there was evidence that these moves were intended as a takeover defense – and since the defendants did not even argue that they would pass the Unocal test (only that Unocal did not apply) – she sustained the complaint and ordered the parties to confer further.

So.

It’s actually fairly difficult to imagine that shareholder votes can’t cleanse entrenchment measures.  For example, proxy advisors like ISS generally oppose poison pills that last for over a year unless they are put to a shareholder vote; see also The Williams Cos. Stockholder Litigation, 2021 WL 754593 (Del. Ch. Feb. 26, 2021) (explaining that both ISS and Fidelity had recommended the board put a pill up for a shareholder vote).  Which makes perfect sense: Poison pills, as originally conceived, operated to solve a shareholder collective action problem – two-tier tender offers, for example, put shareholders in a prisoners’ dilemma that requires a cooperative response. 

Further, Corwin did distinguish between injunctive and damages relief in the Unocal context, ‘tis true, but it also distinguished between pre-closing and post-closing.

Moreover, VC Zurn’s pronouncement that “a dollar value cannot be affixed to the harm caused by unjustifiably entrenching actions” is curious; I mean, leave out the “unjustifiably” piece and it seems clear that control rights can be priced.  After all, in Brookfield Asset Mgmt., Inc. v. Rosson, 261 A.3d 1251 (Del. 2021), the Delaware Supreme Court, quoting Paramount Communications, Inc. v. QVC Network, Inc., 637 A.2d 34 (Del. 1994), held:

“the acquisition of majority status and the consequent privilege of exerting the powers of majority ownership come at a price,” and that price “is usually a control premium which recognizes not only the value of a control block of shares, but also compensates the minority stockholders for their resulting loss of voting power.”

That said, there is a very real distinction between Stroud and Geier on the one hand, and Santa Fe on the other, and it comes from the language of Santa Fe itself.  In that case, shareholders were presented with a deal – a full package of items, including a buyout at a premium; there was no opportunity to vote separately on the deal protections.  By contrast, in Stroud and Geier, shareholders were presented with an opportunity for a clean up-or-down vote on the entrenchment measures alone.

What immediately springs to mind, then, is the possibility – again, suggested in Santa Fe – that the shareholder vote in that case was not in fact free and fair, but was coerced.  Shareholders had to accept the deal protections if they wanted the premium, and there was certainly no way to know whether another deal would come through if they rejected the package outright.

That is what’s known as a “bundling” problem, i.e., when shareholders are not permitted to vote separately on particular items, and it’s actually something the SEC (theoretically) regulates, although of course the SEC hasn’t changed the requirements of Delaware law.

Not long ago, in Sciabacucchi v. Liberty Broadband Corp., 2017 WL 2352152 (Del. Ch. May 31, 2017), VC Glasscock held that a shareholder vote in favor of a share issuance to an existing blockholder was coerced – and thus not subject to Corwin – because it was “bundled” with certain transactions that would be beneficial to shareholders.  As VC Glasscock put it, the issuance was plausibly “extrinsic, and tacked to the Acquisitions to strong-arm a favorable vote.”

One could say something similar about the facts of Edgio: a favorable transaction was conditioned on acceptance of the entrenching measures, and therefore the shareholder vote was not free and fair, as Corwin requires.

But that argument perhaps proves too much.  Is it “bundling” if there is a premium-generating deal that comes with the loss of control rights, or is that merely a bargained-for exchange?  Commenters have repeatedly attacked Corwin itself for creating a “bundling” problem, in that shareholders voting on a deal are deemed to also be voting to absolve fiduciaries of any liability, but the Delaware Supreme Court obviously didn’t have a problem with that.

In other words, what is needed is some kind of theory as to what counts as an “extrinsic” condition versus what counts as intrinsic to the deal.  (Obligatory plug: I previously likened this issue to the unconstitutional conditions doctrine in my essay, The Three Faces of Control.)

One other point I’ll make on this, though.  Corwin itself, as well as Kahn v. M&F Worldwide, 88 A.3d 635 (Del. 2014), are implicitly predicated on the recognition that today’s shareholder base is concentrated and institutionalized, and therefore presumably capable of protecting its own interests; indeed, many of the Chancery court decisions that paved the way said so explicitly.  See, e.g., In re MFW S’holders Litig., 67 A.3d 496 (Del. Ch. 2013); In re Cox Commc’ns, Inc. S’holders Litig., 879 A.2d 604 (Del. Ch. 2005); In re Netsmart Techs. S’holder Litig., 924 A.2d 171 (Del. Ch. 2007).  Which is why it is striking that Delaware is proposing to amend its law to make it easier to pass certain charter amendments (pertaining to increasing or decreasing shares outstanding), in recognition of the meme stock era and the re-retailization of the shareholder base.   It remains to be seen whether Delaware takes any steps to soften its standards of review as well.