AM General Holdings LLC v. The Renco Group, Inc. -and- The Renco Group, Inc. v. MacAndrews AMG Holdings LLC ( 2017 )

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
417 S. State Street
JOSEPH R. SLIGHTS III Dover, Delaware 19901
VICE CHANCELLOR Telephone: (302) 739-4397
Facsimile: (302) 739-6179
Date Submitted: February 21, 2017
Date Decided: May 17, 2017
Stephen P. Lamb, Esquire Kevin G. Abrams, Esquire
Meghan M. Dougherty, Esquire J. Peter Shindel, Jr., Esquire
Paul, Weiss, Rifkind, Wharton Abrams & Bayliss LLP
& Garrison LLP 20 Montchanin Road, Suite 200
500 Delaware Avenue, Suite 200 Wilmington, DE 19807
Wilmington, DE 19801
Thad J. Bracegirdle, Esquire Joel Friedlander, Esquire
Wilks, Lukoff & Bracegirdle, LLC Friedlander & Gorris, P.A.
4250 Lancaster Pike, Suite 200 1201 N. Market Street, Suite 2200
Wilmington, DE 19805 Wilmington, DE 19801
Re: AM General Holdings LLC v. The Renco Group, Inc.;
C.A. No. 7639-VCS
The Renco Group, Inc. v. MacAndrews AMG Holdings LLC
C.A. No. 7668-VCS
Dear Counsel:
The parties have filed cross-motions for partial summary judgment on two
counts (Count I for Breach of Contract and Count VII for Declaratory Judgment) of
the Verified Second Amended Complaint (the “Complaint”). This decision
AM General Holdings LLC v. The Renco Group, Inc.
C.A. No. 7639-VCS
The Renco Group, Inc. v. MacAndrews AMG Holdings LLC
C.A. No. 7668-VCS
May 17, 2017
Page 2
represents the latest chapter in protracted litigation between the parties as they battle
over the distribution of profits from their joint venture.1 Specifically, Plaintiff, The
Renco Group, Inc. (“Renco”), alleges that Defendant, MacAndrews AMG Holdings
LLC (“MacAndrews AMG”), used its control over AM General Holdings LLC
(“Holdco” or the “Company”) as managing member to cause Holdco to distribute
$72.8 million to MacAndrews AMG that should have gone to Renco. It is alleged
that this wrongful distribution of funds out of the joint venture was in breach of the
1
As I have previously noted, the parties have litigated with remarkable intensity. Readers
interested in a more detailed description of the background facts can refer to any of a
number of written decisions by this court. See, e.g., AM Gen. Hldgs. LLC v. The Renco
Gp., Inc., 2016 WL 4440476 (Del. Ch. Aug. 22, 2016); AM Gen. Hldgs. LLC v.
The Renco Gp., Inc., 2015 WL 3465956 (Del. Ch. May 29, 2015); AM Gen. Hldgs. LLC v.
The Renco Gp., Inc., 2015 WL 1726418 (Del Ch. Apr. 9, 2015); The Renco Gp., Inc. v.
MacAndrews AMG Hldgs. LLC, 2015 WL 394011 (Del. Ch. Jan. 29, 2015); AM Gen.
Hldgs. LLC v. The Renco Gp., Inc., 2014 WL 6734250 (Del. Ch. Nov. 28, 2014); AM Gen.
Hldgs. LLC v. The Renco Gp., Inc., 2013 WL 5863010 (Del. Ch. Oct. 31,
2013); The Renco Gp., Inc. v. MacAndrews AMG Hldgs. LLC, 2013 WL 3369318 (Del.
Ch. June 25, 2013); AM Gen. Hldgs. LLC v. The Renco Gp. Inc., 2013 WL 1668627 (Del.
Ch. Apr. 18, 2013); AM Gen. Hldgs. LLC v. The Renco Gp., Inc., 2012 WL 6681994 (Del.
Ch. Dec. 21, 2012).
AM General Holdings LLC v. The Renco Group, Inc.
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The Renco Group, Inc. v. MacAndrews AMG Holdings LLC
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Limited Liability Agreement of AM General Holdings LLC dated August 10, 2004,
that governs the parties’ relationship (the “Holdco Agreement”).
The Holdco Agreement, inter alia, sets forth a complex scheme by which the
parties agreed that profits and losses of the joint venture should be allocated to each
member. The cross-motions for summary judgment identify several provisions of
the Holdco Agreement that create and implement this allocation scheme. Both
parties agree that the relevant provisions are clear and unambiguous and that a proper
construction of the provisions will allow the Court to adjudicate this dispute as a
matter of law. Of course, that is where the agreement ends. The parties disagree on
what the language says and what it means.
Our law is settled that “[a] contract is not rendered ambiguous simply because
the parties do not agree upon its proper construction.”2 Rather, the court will deem
contractual language ambiguous only if the language is “reasonably or fairly
2
Rhone-Poulenc Basic Chem. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196 (Del.
1992).
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susceptible of different interpretations.”3 After carefully reviewing the provisions
of the Holdco Agreement at issue here, and the parties’ competing constructions of
those provisions, I am satisfied that both parties have interpreted the contract
reasonably. Consequently, the cross-motions for summary judgment must be
denied.
A. Summary Judgment Standard
“There is no ‘right’ to a summary judgment.”4 Summary judgment is only
appropriate when “there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.”5 “When the issue before
the Court involves the interpretation of a contract, summary judgment is appropriate
only if the contract in question is unambiguous.”6 In the procedural context of cross-
3
Id.4
Telxon Corp. v. Meyerson, 802 A.2d 257, 262 (Del. 2002).
5
Ct. Ch. R. 56(c).
6
United Rentals, Inc. v. RAM Hldgs., Inc., 937 A.2d 810, 830 (Del. Ch. 2007).
AM General Holdings LLC v. The Renco Group, Inc.
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motions for summary judgment, in order to prevail, one of the parties “must establish
that [its] construction is the only reasonable interpretation.”7 If both parties offer
arguably reasonable constructions, even if one might appear more reasonable than
the other, the Court “may, in its discretion, deny summary judgment [so that it may]
. . . inquire into or develop more thoroughly the facts at trial in order to clarify the
law or its application.”8
B. The Dispute Over Distributions
The gravamen of the dispute is whether $72.8 million MacAndrews AMG
distributed to itself in December 2012 and February 2013 should be awarded to
7
Id. (emphasis in original).
8
In re Comverge, Inc. S’holders Litig., C.A. No. 7368-VCMR (Del. Ch. Oct. 31, 2016)
(ORDER) (citing Alexander Indus., Inc. v. Hill, 211 A.2d 917 (Del. 1965)). Even if the
Court determines that one party’s reading of the contract is more reasonable or “natural,”
that does not preclude a finding of ambiguity. Bank of New York Mellon v. Commerzbank
Capital Funding Trust II, 65 A.3d 539, 550 (Del. 2013) (“[A]lthough the ‘more natural[]’
reading is a factor to be considered, it does not conclude the analysis. Even a ‘less natural’
reading of a contract term may be ‘reasonable’ for purposes of an ambiguity inquiry.”)
(citing Rhone-Poulenc, 616 A.2d at 1196).
AM General Holdings LLC v. The Renco Group, Inc.
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Renco in order to restore compliance with the parties’ bargained-for balance with
respect to their capital interests in the joint venture. Prior to the distributions at issue,
MacAndrews AMG valued Holdco at a fair market value of between $1.489 and
$1.759 billion. MacAndrews AMG attributed approximately $1.164 to $1.434
billion of that value to the equity value of AM General.9 When Renco disagreed
with that valuation, the parties initiated the appraisal procedure detailed in the
Holdco Agreement. At the conclusion of that procedure, an independent appraiser
determined that Holdco had a fair market value of $314 million and that AM General
had an equity value of $27.5 million. Renco argues that MacAndrews AMG used
its inflated valuation to justify the distributions it received and that, based on the new
valuation, the equity value of AM General was well below a value that would trigger
any right MacAndrews AMG may have had to receive a distribution.
9
AM General is the Delaware limited liability company owned by Holdco. The balance
of the fair market value of Holdco is attributable to its membership interest in Ilshar Capital
LLC (“Ilshar”). Holdco’s membership interest in Ilshar entitles Holdco to receive a
cumulative compounded preferred return of 8.25% per annum from Ilshar as well as 10%
of Ilshar’s profits in excess of the preferred return.
AM General Holdings LLC v. The Renco Group, Inc.
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According to Renco, the revised valuation threw the parties’ capital accounts
out of balance. To remedy that imbalance, Renco seeks to invoke a series of
provisions in the Holdco Agreement that it contends allow it to elect to receive
distributions from Holdco (wrongfully taken by MacAndrews AMG) in order to
restore the capital accounts to the bargained-for levels.
C. The Relevant Provisions of the Holdco Agreement
Several provisions of the Holdco Agreement address the parties’ agreement
with respect to the maintenance of their capital accounts and the allocation of profits
and other amounts to the joint venturers. They are summarized below in the order
they appear in the Holdco Agreement.
Section 4.4 sets forth the definition of Revalued Capital Accounts (“RCA”),
a term that appears as a defined term in other relevant provisions. It states:
The Revalued Capital Account of each Member shall be the Capital
Account balance such Member would have if all of the assets of
[Holdco] were sold for their respective gross fair market values . . . and
the resulting Profits, Losses and all other items of income, gain, loss
AM General Holdings LLC v. The Renco Group, Inc.
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and deduction were allocated to the Members pursuant to Sections 8.1,
8.2, 8.3 and 8.4.10
Section 8.3 is entitled Limitation on Allocations. Section 8.3(a) reads, in
relevant part:
Except as provided in Section 8.4, no allocation of Profits or other items
of income or gain shall be made to Renco or any of its Affiliates or
Losses or items of loss, deduction or expense shall be made to
[MacAndrews AMG] or any of its Affiliates during any Fiscal Year, to
the extent such allocation . . . would cause Renco and its Affiliates to
either: (i) have an aggregate Revalued Capital Account equal to or
greater than 80% of the aggregate Revalued Capital Accounts of all
Members (the “Renco 80% Capital Account Cap”); or receive an
aggregate allocation equal to or greater than 80% of the Profits and
other items of income and gain of the Company for the current Fiscal
Year (the “Renco 80% Profits Cap” and together with the Renco 80%
Capital Account Cap, the “Renco 80% Cap”) . . . . [a]ny Profits and
other items of income and gain not allocated to Renco or its Affiliates
or Losses or items of Loss, deduction or expense not allocated to
[MacAndrews AMG] pursuant to the operation of the Renco 80% Cap
shall be reallocated to all the other Capital Members in proportion to
their respective Capital Accounts.11
10
Transmittal Aff. of J. Peter Shindel, Jr. Esq. in Supp. of the Renco Gp., Inc.’s
Memorandum of Law in Supp. of its Mot. for Partial Summ. J. Ex. A (“Holdco
Agreement”) § 4.4.
11
Holdco Agreement § 8.3(a).
AM General Holdings LLC v. The Renco Group, Inc.
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Section 8.3(b) provides:
At the election of Renco, the Managing Member shall cause AM
General and its Subsidiaries to distribute any AM General Available
Cash to the Company and the Company shall distribute any Cash
Available for Distribution to Renco to reduce or eliminate the excess of
Renco and its Affiliates’ aggregate Revalued Capital Account over the
Renco 80% Capital Account Cap or to permit Renco to be allocated
Profits to reverse prior Losses specially allocated to Renco or any of its
Affiliates and in respect of prior Profits specially allocated away from
Renco or any of its Affiliates under this Section 8.3 but in no event
exceeding the Renco 80% Profits Cap (the “Renco 80% Cap
Distribution”).12
Finally, Section 9.4(c) provides for restrictions on distributions to
MacAndrews AMG:
The Company shall not make any distributions to [MacAndrews
AMG], (i) if [MacAndrews AMG] so elects or (ii) if it would cause
[MacAndrews AMG’s] Revalued Capital Account to be equal or less
than 20% of the aggregate Revalued Capital Accounts of all Members
in the Company. The Company shall notify [MacAndrews AMG] of
its intent to make a distribution pursuant to Section 9.1 at least five days
prior to such distribution. The Company shall not make such
distribution to [MacAndrews AMG] unless [MacAndrews AMG]
12
Holdco Agreement § 8.3(b).
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notifies the Company of its determination that the Company may make
such distribution pursuant to this Section 9.4(c).13
D. The Parties’ Reasonable Competing Constructions
The parties have offered competing constructions of the relevant provisions
in support of their respective applications that the Court declare as a matter of law
that the distribution of profits from Holdco to MacAndrews AMG either did or did
not breach the Holdco Agreement. Both are reasonable.
Renco’s view of the interaction of these provisions begins with the prohibition
expressed in Section 9.4(c) that “[Holdco] shall not make any distributions to
[MacAndrews AMG] . . . if it would cause [MacAndrews AMG’s] Revalued Capital
Accounts to be equal to or less than 20% of the aggregate Revalued Capital Accounts
of all Members in [Holdco].” Renco then moves to Section 8.3(b), which provides
that Renco can elect to cause Holdco to make a distribution to Renco in order to
reduce or eliminate any excess in Renco and its Affiliates’ aggregate Revalued
Capital Account over the Renco 80% Capital Account Cap as defined in
13
Holdco Agreement § 9.4(c).
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Section 8.3(a). Renco maintains that nothing in Section 8.3 suggests that the parties
intended that Section 8.3(b) would apply only after the allocations contemplated by
Section 8.3(a) had occurred. Rather, Sections 8.3(a) and 8.3(b) offer two alternatives
to achieve the same end—ensuring that Renco’s capital account stays below the
Renco 80% Capital Account Cap and that MacAndrews AMG does not receive
distributions if such distributions “would cause [MacAndrews AMG’s] Revalued
Capital Accounts to be equal to or less than 20% of the aggregate Revalued Capital
Accounts of all Members in [Holdco].”14
Renco contends that the recent valuation of Holdco reveals that MacAndrews
AMG’s Revalued Capital Account was below 20% of the Members’ aggregate
Revalued Capital Accounts before MacAndrews AMG caused Holdco to make
distributions to MacAndrews AMG.15 Therefore, applying its construction of
14
Holdco Agreement § 9.4(c).
15
Under Section 4.4 of the Holdco Agreement, MacAndrews AMG, as the Managing
Member, has the right to make an initial determination of the RCAs. Renco, however,
maintains the right to invoke the appraisal procedure set forth in Section 15.12 if it
disagrees with MacAndrews AMG’s initial determination. MacAndrews AMG is then
responsible for engaging an appraiser to perform an appraisal of the assets of Holdco, a
AM General Holdings LLC v. The Renco Group, Inc.
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Section 9.4(c) and Sections 8.3(a) & (b), Renco maintains that MacAndrews AMG
was prohibited from receiving any distribution and, instead, Renco was entitled to
elect to receive the distribution in order to bring its balance beneath the Renco 80%
Capital Account Cap.
Renco’s proffered construction is reasonable. It gives meaning to the
language in Section 9.4(c) that would appear to prohibit MacAndrews AMG from
receiving distributions when its RCA balance is below 20% (or when the distribution
critical input for the calculation of the RCAs. If Renco disagrees with this initial appraisal
value, it has a right, after providing written notice of its disagreement, to engage its own
appraiser in order to perform an alternate appraisal. If MacAndrews AMG disagrees with
the results of the alternate appraisal, then the parties are to select a third appraiser. The
parties initiated this process, disagreed with each other’s appraisals and then could not
agree on the third appraiser. The Court intervened and appointed Valuation Research
Corporation (“VRC”) as the third appraiser. VRC issued a report dated June 22, 2016. The
parties disagree about the effect of that appraisal. Renco argues that, because VRC arrived
at a valuation of Holdco that was significantly lower than MacAndrews AMG’s original
valuation, Renco’s RCA is above the Renco 80% Capital Account Cap and, therefore,
pursuant to Sections 9.4(c) and 8.4(b), the distribution of $72.8 million should have gone
to Renco to lower its RCA. MacAndrews AMG counters that the results of the third
appraisal are but one input when calculating the RCAs, that the results of the third appraisal
do not change the manner in which the contractual provisions operate, that its revised
calculation of the RCAs was proper and, therefore, that the distributions to MacAndrews
AMG were also proper.
AM General Holdings LLC v. The Renco Group, Inc.
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The Renco Group, Inc. v. MacAndrews AMG Holdings LLC
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would cause its RCA balance to drop below 20%) in violation of the Renco 80%
Capital Account Cap. Renco also reasonably construes Section 8.3(b) as an option
to remedy any imbalance in the parties’ capital accounts to restore the agreed-upon
limits. As Renco argues, the terms of Section 8.3 do not clearly state that Section
8.3(a) must always be applied prior to Renco exercising its right to elect to receive
a distribution under Section 8.3(b). In other words, Section 8.3 can reasonably be
construed as providing Renco with the option to elect to receive a distribution in
order to re-align the RCA balances.
Having determined that Renco’s proffered construction is reasonable,
however, does not end the inquiry. Renco’s construction cannot prevail on summary
judgment if MacAndrews AMG’s construction of the same provisions is also
reasonable. For the reasons that follow, I am satisfied that it is.
MacAndrews AMG’s view of the allocation scheme flows from its reading of
Sections 4.4 and 8.3(a). Under Section 4.4, the RCA of each Member is defined as
“the Capital Account balance such Member would have if all of the assets of
[Holdco] were sold for their respective gross fair market values . . . and the resulting
AM General Holdings LLC v. The Renco Group, Inc.
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Profits, Losses and all other items of income, gain, loss and deduction were allocated
to the Members pursuant to Sections 8.1, 8.2, 8.3 and 8.4.” MacAndrews AMG
points out that the value “of the assets of Holdco . . . [if] sold for their respective
gross fair market values” was revealed by the recent appraisal process. Using this
value, MacAndrews AMG argues that the hypothetical gains and losses from a sale
of those assets must be “allocated to the Members pursuant to Sections 8.1, 8.2, 8.3
and 8.4” in order to determine each Member’s RCA. According to MacAndrews
AMG, the reallocations required by Section 8.3(a) are mandatory. Therefore, any
losses that would result from a hypothetical sale of the Company, as contemplated
by Section 4.4, must be allocated away from MacAndrews AMG under
Section 8.3(a) for the very purpose of preventing Renco’s RCA balance from hitting
the 80% Renco Capital Account Cap.
Under MacAndrews AMG’s construction, the prohibition in Section 9.4(c)
against certain distributions, upon which Renco so heavily relies, is actually intended
to allow MacAndrews AMG to prevent distributions that would cause its RCA to
drop below 20%. By preventing its own RCA from dipping below 20%,
AM General Holdings LLC v. The Renco Group, Inc.
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MacAndrews AMG is also able to prevent Renco’s RCA from going above 80% and
thereby prevent a breach of the Renco 80% Capital Account Cap. This construction
does not render Renco’s right to receive distributions under Section 8.3(b)
superfluous because that provision exists to remedy imbalances in the Members’
actual capital account balances that cannot be remedied by the reallocations of losses
pursuant to Section 8.3(a).
MacAndrews AMG’s proffered construction is reasonable. Section 4.4
requires the managing member, MacAndrews AMG, to determine the Members’
RCA balances by applying Sections 8.1, 8.2, 8.3 and 8.4. Section 8.3(a) states that
in calculating the balances, hypothetical losses are to be allocated away from
MacAndrews AMG to Renco. This provision reasonably can be read to require the
managing member to apply the allocation limits of Section 8.3(a) before determining
whether Renco is entitled to receive any distributions. For its part, Section 9.4(c) is
clearly meant to prevent distribution to MacAndrews AMG in certain circumstances,
but it is reasonable to construe the language in Section 8.3 as requiring the
reallocation of losses prior to Renco being entitled to take any distributions. In other
AM General Holdings LLC v. The Renco Group, Inc.
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words, even if Section 9.4(c) applies, it is not clear that Renco has the immediate
right to elect to receive a distribution under Section 8.3(b) prior to the managing
member applying the allocation limitations in Section 8.3(a).
Because the applicable provisions of the Holdco Agreement are “reasonably
or fairly susceptible of different interpretations or may have two or more different
meanings,” the contract is ambiguous.16 “[W]hen there is uncertainty in the meaning
and application of contract language, the reviewing court must consider the evidence
offered in order to arrive at a proper interpretation of contractual terms.” 17 The
Court’s construction of the Holdco Agreement must await the presentation of
extrinsic evidence that hopefully will provide insight regarding the parties’ intent.
16
Rhone-Poulenc, 616 A.2d at 1196.
17
Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232–33 (Del. 1997)
(noting that extrinsic evidence used to construe ambiguous contractual provisions may
include “evidence of prior arrangements and communications of the parties as well as trade
usage or course of dealing.”).
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E. The Court Cannot Invoke the “Stipulation” Provision in Court of
Chancery Rule 56(h)
Under Court of Chancery Rule 56(h), “[w]here the parties have filed cross
motions for summary judgment and have not presented argument to the Court that
there is an issue of fact material to the disposition of either motion, the Court shall
deem the motions to be the equivalent of a stipulation for decision on the merits
based on the record submitted with the motions.” At the end of the hearing on the
cross-motions, I asked the parties to consider and then advise me whether they
believed I should treat the cross-motions as a stipulation for a decision on the merits
based on the record submitted even if I concluded that the relevant provisions of the
Holdco Agreement were ambiguous. Suffice it to say, the parties did not agree.
Having studied the record submitted, I am satisfied that it is inadequate to allow the
Court to discern the parties’ intent under the Holdco Agreement with respect to the
distributions at issue. While “the filing of cross-motions will often trigger Court of
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Chancery Rule 56(h),”18 that is not always the case. 19 “Given the complex legal and
factual issues that remain unresolved, this case is a clear instance where the court
should inquire more thoroughly into the facts in order to clarify the application of
law to the circumstances.”20
The cross-motions for summary judgment are denied without prejudice. The
parties shall submit a case scheduling order that conforms to the direction set forth
in the Court’s letter to counsel dated May 2, 2017, so that appropriate discovery of
extrinsic evidence may commence. The parties should also consider whether it is
appropriate to invoke the “stipulation” provision of Court of Chancery Rule 56(h)
after the record is further developed with respect to the contract construction issues
addressed here. The Court will entertain renewed cross-motions for summary
18
Bernstein v. TractManager, Inc., 953 A.2d 1003, 1007 n. 8 (Del. Ch. 2007).
19
Lillis v. AT&T Corp., 2006 WL 3860915, at *1 (Del. Ch. Dec. 21, 2006) (holding that
“the submissions simply cannot be read as the equivalent to a stipulation for decision as
contemplated under Rule 56(h)”).
20
Id. at *2 (internal quotation marks and citations omitted).
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judgment should the parties deem that to be the most efficient means to submit this
aspect of the dispute for final adjudication.
Very truly yours,
/s/ Joseph R. Slights III