UnitedHealth Group Inc. v. Wilmington Trust Co. ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1904
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UnitedHealth Group Inc., *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Wilmington Trust Co., not in its *
individual capacity, but solely in its *
capacity as Indenture Trustee on behalf *
of all Holders of 5.800% Notes Due *
March 15, 2036, of UnitedHealth *
Group Inc., *
*
Defendant-Appellant. *
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Submitted: November 13, 2008
Filed: December 1, 2008
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Before MURPHY, HANSEN, and RILEY, Circuit Judges.
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MURPHY, Circuit Judge.
UnitedHealth Group (UHG) brought suit seeking a declaratory judgment that
its failure to file timely reports with the Securities and Exchange Commission (SEC)
violated no duties owed to its noteholders. Wilmington Trust Company (Wilmington
Trust), as trustee for certain UHG notes, filed counterclaims asserting violations of the
notes indenture, the Trust Indenture Act of 1939, and an implied covenant of good
faith and fair dealing. The parties filed cross motions for summary judgment, and the
district court1 granted judgment in favor of UHG on all claims and counterclaims. We
affirm.
I.
The basic facts of this case are undisputed and relatively straightforward. On
March 2, 2006, UHG publicly issued $850 million of 5.800% senior notes due March
15, 2036 (the notes). The notes were issued pursuant to an indenture entered into by
UHG and the Bank of New York as trustee. As trustee, the Bank of New York was
charged with enforcing, as necessary, the indenture provisions against UHG.
Throughout the life of the notes, UHG has made all required interest payments and the
debt has continuously been rated investment grade.
As a publicly traded company, UHG is required to make periodic financial
disclosures, including quarterly filings on SEC form 10-Q. See Securities and
Exchange Act of 1934 (Exchange Act) §§ 13, 15(d), 15 U.S.C. §§ 78m, 78o(d). UHG
came under public scrutiny in 2006 for backdating employee stock options by using
the benefit of hindsight to assign option grant dates retroactively in order to reflect the
most favorable historical market values. In response to public concerns about this
practice, UHG formed a committee of independent directors to study its financial
affairs. Because of this ongoing review, UHG failed to file its 2006 second quarter
form 10-Q (2Q 10-Q) by its August 9 due date. Under such circumstances, SEC
regulations require a delinquent filer to submit a form 12b-25 notification of late
filing. 17 C.F.R. § 240.12b-25. UHG complied with this requirement on August 10.
The company’s 12b-25 filing explained the reasons for the delay and was
accompanied by a 44 page appendix containing substantially the same information as
1
The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
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the company would have included in a timely form 10-Q. A copy of this filing was
forwarded to the trustee on August 14.
On August 25, 2006, a notice of default was sent to UHG on behalf of certain
hedge funds which collectively owned more than twenty five percent of the
outstanding principal balance on the notes. The notice claimed that UHG’s failure to
file a timely 2Q 10-Q violated § 504(i) of the trust indenture. That section reads as
follows:
So long as any of the Securities remain Outstanding, the Company shall
cause copies of all current, quarterly and annual financial reports on
Forms 8-K, 10-Q and 10-K, respectively, and all proxy statements,
which the Company is then required to file with the [Securities and
Exchange] Commission pursuant to Section 13 or 15(d) of the Exchange
Act to be filed with the Trustee and mailed to the Holders of such series
of Securities at their addresses appearing in the Security Register
maintained by the Security Registrar, in each case, within 15 days of
filing with the Commission. The Company shall also comply with the
provisions of TIA [Trust Indenture Act] ss. 314(a).
(emphasis added). At the very least, § 504(i) requires that UHG forward to the
indenture trustee copies of the company’s required financial reports within fifteen
days of actually filing such reports with the SEC. The notice of default claimed that
§ 504(i) also imposed an affirmative duty to file timely reports with the SEC and that
UHG’s failure in that regard constituted a default under the indenture. The notice
gave UHG sixty days to cure the default.
UHG publicly disclosed the notice of default in an SEC form 8-K filing. The
company asserted it was not in default and intended to defend itself against the
allegation. In mid October, the company filed another form 8-K in which it reported
the findings and recommendations of the review committee and added that it was still
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digesting the report and had not yet determined if it needed to restate its past
financials. It further announced it would delay filing a third quarter 10-Q.
On October 25, 2006, UHG filed this action against the Bank of New York as
trustee,2 seeking a declaratory judgment that it had not violated the terms of the
indenture by failing to file a timely 2Q 10-Q. Shortly thereafter, on October 30, the
hedge funds caused a notice of acceleration to be served on UHG. The notice
observed that UHG had not cured the alleged default under § 504(i) and, based on that
failure, demanded accelerated payment of the full principal amount of the notes.
Effective January 18, 2007, Wilmington Trust Company succeeded the Bank of New
York as trustee and was substituted as the defendant. On January 26, 2007,
Wilmington Trust counterclaimed for breach of contract, violation of the Trust
Indenture Act of 1939 (TIA) § 314(a), 15 U.S.C. § 77nnn(a), and breach of an implied
covenant of good faith and fair dealing.
UHG finally filed its 2Q 10-Q on March 6, 2007, almost seven months late. It
simultaneously submitted an amended form 10-Q for the first quarter of 2006, a tardy
form 10-Q for the third quarter of that year, and a form 10-K for the year ending
December 31, 2006. The financial information contained in the 2Q 10-Q differed by
less than one percent from the preliminary data which had accompanied the August
form 12b-25 notice of late filing.
Both parties filed cross motions for summary judgment. The district court
granted summary judgment in favor of UHG on all claims and counterclaims.
Wilmington Trust now appeals, arguing the district court erroneously construed
UHG’s contractual and statutory duties. UHG urges that we affirm the district court.
2
The registered holder of the note, Cede and Co., was also initially named as a
defendant but was later voluntarily dismissed.
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II.
We review de novo the district court’s grant of summary judgment. Carraher
v. Target Corp., 503 F.3d 714, 716 (8th Cir. 2007). Summary judgment is proper
where there are no genuine issues of material facts and the moving party is entitled to
judgment as a matter of law. Id. Here the basic facts are undisputed, and the
outstanding issues are purely legal questions of contract interpretation and statutory
construction. Resolution of the issues by summary judgment was therefore
appropriate.
Section 1306 of the indenture provides that its terms “shall be governed by and
interpreted under the laws of the State of New York.” Under New York principles of
contract interpretation, “[t]he words and phrases used by the parties must . . . be given
their plain meaning.” Brooke Group Ltd. v. JCH Syndicate 488, 663 N.E.2d 635, 638
(N.Y. 1996); see also Whitebox Convertible Arbitrage Partners, LP v. IVAX Corp.,
482 F.3d 1018, 1021 (8th Cir. 2007).
III.
Wilmington Trust advances three main arguments, all of which relate to UHG’s
failure to file a timely 2Q 10-Q. According to Wilmington Trust, this failure violated
UHG’s obligations under § 504(i) of the indenture, TIA § 314(a), and an implied
covenant of good faith and fair dealing. We examine each in turn.
A. Section 504(i) of the Indenture
Wilmington Trust argues that § 504(i) of the indenture imposes an independent
obligation on UHG to file timely SEC reports and, within fifteen days afterwards, to
forward copies of such reports to the trustee. Under the Trust’s interpretation, when
UHG failed to file its 2Q 10-Q on time, it not only ran afoul of the Exchange Act and
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SEC regulations, but it also violated the indenture duties to its noteholders. UHG
asserts that § 504(i) imposes no independent obligation to make timely SEC filings.
Rather, the provision merely requires the company to transmit to the trustee copies of
whatever reports it actually files with the SEC. Based on this analysis UHG maintains
that its indenture obligations were not even triggered until March 2007 when it finally
filed its tardy 2Q 10-Q. Since the company forwarded a copy to Wilmington Trust
within fifteen days of actual filing, UHG argues that it has not defaulted under the
indenture.
Section 504(i), reduced to its essence, reads as follows: “the Company shall
cause copies of . . . financial reports . . . which the Company is then required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act to be filed
with the Trustee . . . within fifteen days of filing with the Commission.” Wilmington
Trust argues that the plain meaning of the phrase “then required to file” imposes an
independent obligation to file timely reports. Wilmington Trust correctly notes that
the word “then” means “at that time.” But for our purposes the word’s placement and
function within the sentence are just as important as its definition.
In § 504(i) the phrase “then required to file” is part of a longer clause
introduced by the relative pronoun “which.” The antecedent of “which” is clearly and
unambiguously the word “reports.” Thus, as a simple matter of syntax, the phrase
“then required to file” modifies the word “reports” and indicates which reports are
subject to § 504(i)’s terms. Just as clearly and just as unambiguously, the phrase
“within fifteen days of filing with the Commission” modifies “shall cause . . . to be
filed” and indicates when § 504(i)’s command must be fulfilled. The plain meaning
of § 504(i) thus imposes only a relative time constraint: copies of the indicated reports
must be forwarded to the trustee within fifteen days of actually filing them with the
SEC. The clause imposes no absolute timetable or independent obligation to comply
with the Exchange Act or SEC regulations. In fact, the plain language of § 504(i)
makes clear that any duty actually to file the reports is imposed “pursuant to Section
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13 or 15(d) of the Exchange Act” and not pursuant to the indenture itself. The
provision does not incorporate the Exchange Act; it merely refers to it in order to
establish which reports must be forwarded.
Wilmington Trust also argues that New York law, while respecting the plain
meaning of words and phrases, further requires that “primary attention must be given
to the manifest purpose” of the parties. In re Herzog, 93 N.E.2d 336, 339 (N.Y.
1950). Wilmington Trust notes that in the Internet age, SEC filings are readily
available online through the agency’s EDGAR database. Based on this fact it
maintains that a ministerial duty to forward copies of widely available reports would
be meaningless and of no value to noteholders. The purpose of the provision,
Wilmington Trust asserts, must therefore be to impose an independent obligation to
file timely reports. Wilmington Trust ignores the origin of § 504(i), however. As
UHG points out, the language is derived from a Model Simplified Indenture drafted
by the American Bar Association in 1983. See 38 Bus. Law. 741, 755 (1983). At the
time the model provision was promulgated, the Internet did not exist as we know it
today. The fact that § 504(i) may be of slight value in the Internet age does not
empower Wilmington Trust to impose unbargained for duties on UHG simply to
breathe new relevance into an outdated provision.
UHG notes that another model indenture agreement does incorporate the SEC
filing deadlines. A 1967 proposal prepared by the American Bar Foundation requires
that an issuer “will . . . file with the Trustee, within 15 days after the Company is
required to file the same, copies of the [reports].” This language differs from that of
§ 504(i) in at least one critical respect: § 504(i)’s fifteen day window opens when the
company actually files its reports with the SEC, while the 1967 model’s fifteen day
window opens when the company is required to file regardless of when it actually
does. The parties in this case are sophisticated and represented by teams of
experienced attorneys. They could have chosen the 1967 ABF model over the 1983
ABA model, or they could have drafted their own language imposing a rigid timetable
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or explicitly incorporating SEC regulations. But, as the district court found, “this is
not the agreement they made.” UnitedHealth Group Inc. v. Wilmington Trust Co.,
538 F. Supp. 2d 1108, 1114 (D. Minn. 2008).
The precise issue in this case is a matter of first impression in the Eighth
Circuit. It has recently been presented to three federal district courts and to a New
York State trial court. Although none of the decisions of these courts is binding on
us, we note that the three federal courts all concluded, on nearly identical facts, that
similar indenture provisions did not impose independent obligations to file timely
SEC reports. See Finisar Corp. v. U.S. Bank Trust Nat’l Ass’n, No. C 07-4052, 2008
WL 3916050 (N.D. Cal. Aug. 25, 2008); Affiliated Computer Servs., Inc. v.
Wilmington Trust Co., No. 3:06-CV-1770-D, 2008 WL 373162 (N.D. Tex. Feb. 12,
2008); Cyberonics, Inc. v. Wells Fargo Bank Nat’l Ass’n, No. H-07-121, 2007 WL
1729977 (S.D. Tex. June 13, 2007).
In an unpublished opinion, the commercial division of the New York trial court
reached the opposite conclusion. Bank of N.Y. v. BearingPoint, Inc., No. 600169/06,
2006 WL 2670143 (N.Y. Sup. Ct. Sept. 18, 2006). The BearingPoint court rejected
a debt issuer’s argument that a similar indenture provision made “SEC filings optional
under the Indenture.” Id. at *7. The court’s analysis focused on the mandatory
language of the indenture but did not distinguish between two distinct duties: one to
file reports with the SEC in the first instance and another to forward copies of the
reports to the trustee. More importantly, the court did not consider any timing issues
and simply eliminated the phrase “within 15 days after it files such
. . . reports . . . with the SEC,” replacing it with a set of ellipses.
The Finisar, Affiliated Computer Services, and Cyberonics courts all considered
and rejected BearingPoint, as did the district court in this case. They did so after
coming to the same conclusion: the indenture provisions at issue imposed nothing
more than the ministerial duty to forward copies of certain reports, identified by
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reference to the Exchange Act, within fifteen days of actually filing the reports with
the SEC. As previously discussed, the clear and unambiguous language of the
indenture in this case leads to the same conclusion. We therefore decline to follow
BearingPoint.
Based on the plain meaning of § 504(i), we hold that the indenture imposes no
independent obligation to file timely SEC reports. UHG’s delay in filing its 2006 2Q
10-Q—while potentially a violation of SEC regulations—did not constitute a default
under the indenture. Since UHG did ultimately file with the SEC its “then required”
reports and within fifteen days afterwards did transmit to the trustee copies of the
same, it fulfilled its contractual duties.
B. TIA § 314(a)
The Trust Indenture Act provides in part as follows:
Each person who . . . is or is to be an obligor upon the indenture
securities covered thereby shall: (1) file with the indenture trustee copies
of the annual reports and of the information, documents, and other
reports . . . which such obligor is required to file with the [Securities and
Exchange] Commission pursuant to [§ 13] or [§ 15(d)] of [the Exchange
Act] . . . .
TIA § 314(a), 15 U.S.C. § 77nnn(a). The TIA therefore imposes on UHG a statutory
obligation to provide copies of required SEC reports to the indenture trustee. The
provision is obviously closely related to § 504(i) of the indenture, and in fact § 504(i)
expressly incorporates the provisions of TIA § 314(a).
Nevertheless, the TIA imposes no new obligations or duties and is actually less
burdensome than § 504(i) of the indenture insofar as it imposes no time constraints
whatsoever. While the indenture creates a relative deadline of fifteen days after actual
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filing with the SEC, the TIA is completely silent as to when copies of SEC reports
must be forwarded to the trustee. As was the case with § 504(i) of the indenture, the
TIA’s reference to §§ 13 and 15(d) of the Exchange Act merely identifies which
reports must eventually be forwarded to the trustee. It does not independently impose
any particular timetable for filing nor does it incorporate the SEC’s regulatory
deadlines.
As before, Wilmington Trust argues that a ministerial obligation without a
corresponding duty to file timely reports is meaningless in today’s world of instant
Internet communication, particularly in light of the TIA’s stated purpose to provide
“adequate current information” to investors. See TIA § 302(a)(4), 15 U.S.C. §
77bbb(a)(4) (emphasis added). But the TIA was drafted in 1939. Under the
circumstances of that era, the dissemination of “adequate current information” was
certainly advanced by a ministerial duty to forward financial reports. What seems
redundant in the 21st Century was once a critical mechanism for keeping investors
informed as to a company’s financial health. The development of more efficient
electronic alternatives is no reason to expand UHG’s duties under the TIA.
Wilmington Trust next maintains that the SEC has itself interpreted TIA §
314(a) to impose an independent obligation to file timely reports. For this argument,
Wilmington Trust relies on SEC Rule 19a-1, 17 C.F.R. § 260.19a-1. Following the
indictment of accounting firm Arthur Andersen, the SEC drafted Rule 19a-1 to
provide guidance to companies once audited by that firm. In the wake of Andersen’s
implosion, the SEC created a temporary safe harbor allowing the firm’s previous
clients to file unaudited financials with their quarterly and yearly reports. Rule 19a-1
merely clarifies that such unaudited filings would also satisfy the TIA: a company
“that files with the indenture trustee those Exchange Act reports filed with the
Commission in accordance with [the temporary safe harbor] has met its duty under
Section 314(a)(1) of the [TIA].” 17 C.F.R. § 260.19a-1(c). Thus, Rule 19a-1 merely
indicates that what is good enough for the Exchange Act is good enough for the TIA.
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There is no indication that the TIA imposes any separate or independent obligation to
file timely reports with the SEC.
The Northern District of Texas addressed this same issue in Affiliated
Computer Services and rejected Wilmington Trust’s argument for the same reason.
Although the New York trial court held otherwise in BearingPoint, its reasoning was
not persuasive. We conclude that TIA § 314(a) requires only that debt issuers forward
to their trustees copies of such reports as are actually filed with the SEC. Since UHG
ultimately filed all required reports with the agency and promptly forwarded copies
of the same to the trustee, the company violated no statutory duties under the TIA.
C. Covenant of Good Faith and Fair Dealing
New York recognizes an implied covenant of good faith and fair dealing in
every contract. The covenant “precludes each party from engaging in conduct that
will deprive the other party of the benefits of their agreement.” Filner v. Shapiro, 633
F.2d 139, 143 (2d Cir. 1980). Wilmington Trust argues that UHG’s failure to file its
2Q 10-Q on time left investors in the dark for many months. In fact, UHG seemed to
acknowledge as much in a December 2006 form 8-K: “Because we are not current
with our filings with the SEC, investors in our securities do not have the information
required by SEC rules regarding our business and financial condition with which to
make decisions regarding investment in our securities.”
On the other hand, as the district court noted, UHG undertook to provide as
much information as it reasonably could under the circumstances. It submitted a form
12b-25 notice of late filing which offered its best—albeit uncertified—estimates
regarding its then current financial position. These estimates differed by less than one
percent from the certified 2Q 10-Q which UHG ultimately filed in March 2007. UHG
also provided to investors current updates on its backdating investigation through
form 8-K filings in October and December of 2006. We conclude that UHG took all
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reasonable and necessary steps to provide its noteholders with as much information
as possible and as accurately as possible. More importantly UHG continued to make
all required payments on the notes. We conclude therefore that UHG acted prudently
and responsibly with respect to its investors and that the company’s delay in filing a
certified 2Q 10-Q breached no express or implied covenant of the indenture
agreement.
IV.
UHG was indisputably delinquent in filing its form 10-Q for the second quarter
of 2006. Nonetheless whatever duties UHG might have neglected were imposed by
the SEC and the Exchange Act and not by the indenture or the TIA. UHG’s obligation
to its noteholders was simply to forward to the trustee copies of the required SEC
reports within fifteen days of actually filing them. UHG’s late filing therefore did not
amount to a default on the notes. Moreover in all cases UHG diligently forwarded to
the trustee copies of its required reports within fifteen days of actually submitting
them to the SEC. Consequently, UHG has met all of its contractual and statutory
duties, and the noteholders are not entitled to accelerated payments. The judgment of
the district court is affirmed.
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