The Williams Companies Stockholder Litigation ( 2021 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
THE WILLIAMS COMPANIES Consolidated
STOCKHOLDER LITIGATION C.A. No. 2020-0707-KSJM
MEMORANDUM OPINION
Date Submitted: February 5, 2021
Date Decided: February 26, 2021
Gregory V. Varallo, BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP,
Wilmington, DE; Michael J. Barry, Christine M. Mackintosh, Kelly L. Tucker, GRANT &
EISENHOFER P.A., Wilmington, DE; Mark Lebovitch, Thomas G. James, BERNSTEIN
LITOWITZ BERGER & GROSSMANN LLP, New York, NY; Jeremy S. Friedman,
David F.E. Tejtel, FRIEDMAN OSTER & TEJTEL PLLC, Bedford Hills, NY; Counsel
for Plaintiffs.
William M. Lafferty, Kevin M. Coen, Lauren K. Neal, Sabrina M. Hendershot, MORRIS,
NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE; Andrew Ditchfield, Brian M.
Burnovski, Mari Byrne, DAVIS POLK & WARDWELL LLP, New York, NY; Counsel
for Defendants The Williams Companies, Inc., Alan S. Armstrong, Stephen W. Bergstrom,
Nancy K. Buese, Stephen I. Chazen, Charles I. Cogut, Michael A. Creel, Vicki L. Fuller,
Peter A. Ragauss, Scott D. Sheffield, Murray D. Smith, and William H. Spence.
Patricia R. Urban, Michael A. Weidinger, Megan Ix Brison, PINCKNEY, WEIDINGER,
URBAN & JOYCE LLC, Wilmington, DE; Counsel for Defendant Computershare Trust
Company, N.A.
McCORMICK, V.C.
This litigation concerns the validity of a stockholder rights plan, or so-called “poison
pill,” a device that came to popularity in the 1980s as a response to front-end loaded, two-
tiered tender offers. Coercive tender offers of the 1980s were “to takeovers what the
forward pass was to Notre Dame football in the days of Knute Rockne,” 1 and a powerful
offense required a powerful defense. Of all the defenses developed to fend off hostile
takeovers, the poison pill was among the most muscular. 2 These bulwarks gained judicial
imprimatur in 1985 when the Delaware Supreme Court upheld a poison pill as an anti-
takeover device in Moran v. Household International, Inc. 3 Moran also established
intermediate scrutiny under Unocal as the legal framework for reviewing stockholder
challenges to poison pills. 4
Poison pills metamorphosed post-Moran. The flip-over feature of the Moran pill
was augmented by a flip-in feature. 5 After the adoption of state anti-takeover statutes, 6
trigger thresholds crept down from the 20% threshold of Moran to 15% and then to 10%
1
Robert A. Prentice, Front-End Loaded, Two-Tiered Tender Offers: An Examination of
the Counterproductive Effects of a Mighty Offensive Weapon, 39 Case W. Res. L. Rev.
389, 392 (1989).
2
See generally Martin Lipton & Erica H. Steinberger, 1 Takeovers & Freezeouts § 6.03[4],
at 6-58 (L. J. Press 2009); Prentice, supra note 1 at 412–13.
3
Moran v. Household Int’l., Inc. (Moran II), 500 A.2d 1346 (Del. 1985).
4
Id. at 1357; see Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946 (Del. 1985).
5
See generally Stahl v. Apple Bancorp, Inc., 1990 WL 114222 (Del. Ch. Aug. 9, 1990)
(validating flip-in poison pill).
6
See, e.g., 8 Del. C. § 203 (preventing stockholders from engaging in a tender or exchange
offer for a period of three years after buying more than 15% of a corporation’s stock unless
certain criteria are met). See generally E. Norman Veasey, Jesse A. Finkelstein & Robert
J. Shaughnessy, The Delaware Takeover Law: Some Issues, Strategies and Comparisons,
43 Bus. Law. 865, 868 (1988).
in some instances. 7 The pill’s initial success engendered mission creep. Originally
conceived as anti-takeover armaments, poison pills were redirected to address other
corporate purposes such as protecting net operating loss assets. 8 Recently, pills have been
deployed to defend against stockholder activism.
The plaintiffs in this litigation challenge an anti-activist pill adopted by the board of
directors of The Williams Companies, Inc. (“Williams” or the “Company”) at the outset of
the COVID-19 pandemic and amid a global oil price war. The Williams pill is
unprecedented in that it contains a more extreme combination of features than any pill
previously evaluated by this court—a 5% trigger threshold, an expansive definition of
“acting in concert,” and a narrow definition of “passive investor.”
Unocal calls for a two-part inquiry, asking first whether the board had reasonable
grounds for identifying a threat to the corporate enterprise and second whether the response
was reasonable in relation to the threat posed. 9 The defendants identify three supposed
threats: first, the desire to prevent stockholder activism during a time of market uncertainty
and a low stock price, although the Williams board was not aware of any specific activist
7
See generally Marcel Kahan & Edward Rock, Anti-Activist Poison Pills, 99 B.U. L. Rev.
915, 922 (2019) [hereinafter Anti-Activist Poison Pills].
8
See, e.g., Versata Enters., Inc. v. Selectica, Inc., 5 A.3d 586, 607 (Del. 2010)
(“Selectica II”) (validating an NOL pill).
9
The second prong of Unocal looks first to whether the defensive measure is draconian, in
the sense of being preclusive or coercive, before addressing whether the measure is in the
range of reasonableness. Unitrin, Inc. v. Am. Gen. Corp., 651 A.2d 1361, 1387–88
(Del. 1995) (quoting Paramount Commc’ns, Inc. v. QVC Network, Inc., 637 A.2d 34, 45–
46 (Del. 1994)). In this case, the plaintiffs do not argue that the rights plan is draconian,
and thus this decision goes right to the proportionality analysis.
2
plays afoot; second, the apprehension that hypothetical activists might pursue “short-term”
agendas or distract management from guiding Williams through uncertain times; and third,
the concern that activists might stealthily and rapidly accumulate over 5% of Williams
stock.
Of these three threats, the first two run contrary the tenet of Delaware law that
directors cannot justify their actions by arguing that, without board intervention, the
stockholders would vote erroneously out of ignorance or mistaken belief. This decision
assumes for the sake of analysis that the third threat presents a legitimate corporate
objective but concludes that the Company’s response was not proportional and enjoins the
Williams pill.
I. FACTUAL BACKGROUND
Trial took place over three days. The record comprises 206 trial exhibits, live
testimony from four fact and three expert witnesses, deposition testimony from eight fact
and three expert witnesses, and one-hundred stipulations of fact. These are the facts as the
court finds them after trial. 10
10
The Factual Background cites to: C.A. No. 2020-0707-KSJM docket entries (by docket
“Dkt.” number); trial exhibits (by “JX” number); the trial transcript (Dkts. 111–13) (“Trial
Tr.”); and stipulated facts set forth in the Parties’ Joint Pre-Trial Order (Dkt. 101) (“PTO”).
The following witnesses testified at trial: Plaintiff Steven Wolosky; Defendants Charles
I. Cogut, Murray D. Smith, Nancy K. Buese; Plaintiffs’ expert Joseph Mills; and
Defendants’ experts Guhan Subramanian and Bruce Goldfarb. The parties relied on the
deposition transcripts of the following witnesses: Williams’ Chief Financial Officer John
Chandler and Defendants Stephen W. Bergstrom, Vicki L. Fuller, and Murray D. Smith.
See Dkt. 88, Notice of Lodging of Dep. Trs. Exs. C–G. The deposition transcripts using
the witnesses’ last names and “Dep. Tr.”
3
A. Williams and Its Board
Williams is a publicly traded Delaware corporation with its headquarters in Tulsa,
Oklahoma. 11 It owns and operates natural gas infrastructure assets, including over 30,000
miles of pipelines and 28 processing facilities, and handles approximately 30% of the
nation’s natural gas volumes. 12
At all times relevant to this decision, there were approximately 1.2 billion shares of
Williams common stock outstanding. Based on the stock’s trading price from March 2020
through the time of trial, Williams’ market capitalization ranged from approximately
$11.22 to $27.54 billion. About 50% of Williams’ outstanding shares are owned by
approximately twenty institutional investors. 13 Williams’ largest three stockholders—
Blackrock, Vanguard, and State Street—collectively hold almost a quarter of the
Company’s common stock. 14
Williams’ certificate of incorporation establishes a straight Board of Directors (the
“Board”) and provides “that directors shall be elected annually for terms of one year.” 15
Williams stockholders have the right to remove directors without cause and to act by
written consent. 16
11
PTO ¶ 14.
12
JX-32 at 5; PTO ¶ 14.
13
JX-156 (“Goldfarb Report”) ¶¶ 22–24.
14
Goldfarb Report ¶ 24. Each of BlackRock, Vanguard, and State Street filed a Schedule
13G with the SEC in connection with its stake in Williams. Id.15
JX-8 Art. FIFTH ¶ B, at 28 (May 20, 2010 Form 8-K).
16
See id. ¶ C, at 28 (stating that the “stockholders shall not have the right to remove any
one or all of the Directors except for cause and by . . . affirmative vote,” but then stating
4
As of March 2020, the Board comprised twelve members—CEO Alan Armstrong
and eleven outside directors. The complaint names as defendants Armstrong and ten of
the outside directors—Stephen W. Bergstrom, Nancy K. Buese, Stephen I. Chazen, Charles
I. Cogut, Michael A. Creel, Vicki L. Fuller, Peter A. Ragauss, Scott D. Sheffield, Murray
D. Smith, and William H. Spence (collectively, the “Director Defendants”). 17
B. Williams’ Prior Experience with Stockholder Activism
In late 2011, Soroban Capital Partners LLC (led by Eric Mandelblatt) (“Soroban”)
and Corvex Management LP (led by Keith Meister) (“Corvex”) each acquired slightly less
than 5% of Williams stock. 18 Through a February 2014 agreement with Williams,
Mandelblatt and Meister joined the Board. 19
During their tenure, Mandelblatt and Meister were instrumental in pressing for a
merger with Energy Transfer Equity LP. 20 After the merger was terminated, six of the
Board’s thirteen members—including Mandelblatt and Meister—attempted to remove and
that “[t]he first sentence of this Paragraph C, shall be of no force and effect after the annual
meeting of stockholder [sic] in 2013”); see also PTO ¶ 109 (“Williams’ By-laws permit
stockholders to remove members of the Board of Directors by written consent.”).
17
Dkt. 1, Unsworn Verified Compl. for Decl. and Inj. Relief (“Wolosky Compl.”); JX-60
at 10–11, 16; PTO ¶¶ 15–25. The eleventh outside director, non-party Kathleen Cooper,
retired from the board and is not a defendant. JX-60 at 16; Trial Tr. at 308:8–11 (Smith).
18
PTO ¶ 27; JX-104; Trial Tr. 309:17–310:8 (Smith); Bergstrom Dep. Tr. 37:6–38:6.
19
PTO ¶ 29.
20
Smith Dep. Tr. 9:13–18, 87:7–88:14; Chandler Dep. Tr. at 104:23–105:11; Fuller Dep.
Tr. at 83:7–9.
5
replace Armstrong as CEO. 21 When this effort failed, those six directors resigned.22
Meister then threatened a proxy fight to replace the entire Board, 23 but he agreed to stand
down when Williams named three new independent directors—Bergstrom, Sheffield, and
Spence. 24 Bergstrom became Chair.
Management also underwent significant change. Armstrong remained as CEO, but
the Company hired several new executives, including CFO John D. Chandler and General
Counsel T. Lane Wilson. 25
Armstrong and Smith are the only two Director Defendants who served on the Board
during the Soroban and Corvex era; the others joined the Board in either 2016 or 2018. 26
Smith found Soroban and Corvex’s activism detrimental to the Company. 27 Smith further
felt that Soroban and Corvex pushed for short-term-value-enhancing agendas that were not
aligned with the Board’s long-term goals. 28
C. Williams Stock Price Plummets
Before 2020, Williams stock price traded at a high of $24.04 and had been relatively
stable over the preceding months. In early 2020, however, the COVID-19 pandemic and
21
PTO ¶ 30.
22
Id.; Trial Tr. 312:7–23 (Smith).
23
PTO ¶ 31; Trial Tr. 312:24–313:11 (Smith).
24
PTO ¶ 31; Trial Tr. 313:12–19 (Smith); id. at 129:15–20 (Cogut).
25
Trial Tr. 136:14–138:10 (Cogut); see JX-162 at 1–3.
26
PTO ¶¶ 15–25 (listing the Director Defendants and the year in which each joined the
Board).
27
See, e.g., Trial Tr. at 311:7–16, 314:1–17, 349:14–350:20 (Smith).
28
Id. at 311:10–16 (Smith).
6
the ensuing oil price war between Saudi Arabia and Russia shocked the oil market and sent
stock prices plummeting.
The COVID-19 pandemic hit first. On January 31, 2020, the Department of Health
and Human Services “declared a public health emergency in response to the COVID-19
pandemic.” 29 Williams stock price fell to $18.90 by the end of February 2020. 30 During
this period, trading volume in Williams stock was high and fluctuated dramatically from
day to day, indicating “a lot of unusual and short-term-type trading.” 31
The Board met on March 2, 2020, to discuss solutions for the declining stock price.
Management and representatives from Morgan Stanley explained that the stock was
approaching lows similar to those in 2010 and 2016, despite the fact that earnings were
25% higher and the Company was carrying significantly less debt. 32 The Board discussed
a share repurchase program but opted to preserve liquidity and continue to de-leverage
instead. 33
Then came the oil price war. On March 8, 2020, Saudi Arabia cut prices in reaction
to Russia’s conduct at a March 2020 meeting of the Organization of the Petroleum
29
PTO ¶ 34.
30
Id. ¶ 36.
31
Trial Tr. 538:19–539:1 (Buese).
32
JX-34 at 1–2; JX-35 at 4 (noting that the Company’s stock price was “approaching lows
realized in 2010 and 2016 despite 25% higher earnings and >1 turn less of leverage during
other market stresses”).
33
PTO ¶ 37; JX-34 at 1; JX-35 at 3–4; Trial Tr. 140:14–141:20 (Cogut); Chandler Dep.
Tr. at 203:21–204:4; Fuller Dep. Tr. at 278:16–280:13; Bergstrom Dep. Tr. at 216:11–16.
7
Exporting Countries. 34 The following day energy stocks “fell to their lowest levels in 15
years, dropping 20% in a single day.” 35 Williams stock price closed at $14.99 on
March 9, 2020. 36 By March 19, Williams stock price had fallen to approximately $11,
which was close to a 55% decline since January 2020. 37
D. Cogut’s Plan
Around early March 2020, outside director Cogut conceived of an alternative to the
repurchase program—a stockholder rights plan (the “Plan”). 38 Cogut, a retired lawyer who
had led the M&A and private equity practices of a prominent New York law firm, had
joined the Board in 2016. 39 Cogut had helped clients adopt rights plans roughly a dozen
times beginning in the 1980s. 40
Cogut witnessed the evolution of poison pills throughout his career and described
them at trial as “the nuclear weapon of corporate governance.” 41 He explained his
understanding that the poison pill was historically designed to protect companies from
34
PTO ¶¶ 38, 83.
35
Id. ¶ 39 (internal quotation marks omitted).
36
Id. ¶ 40; PTO Ex. A.
37
PTO Ex. A; JX-157 (“Subramanian Report”) ¶ 22 & n.48.
38
A flip-in poison pill generally works as follows: A company issues its stockholders
rights that have nominal value unless somebody acquires an amount of shares above a
specified triggering threshold, at which point the rights become exercisable, for everyone
other than the acquiring persons, into common or equivalent shares worth more than the
exercise price. JX-155 (“Mills Report”) ¶ 28.
39
PTO ¶ 19; JX-60 at 27.
40
JX-60 at 27; Trial Tr. at 53:5–17 (Cogut).
41
Trial Tr. at 53:18–55:1, 114:10–12 (Cogut).
8
hostile takeovers and that they originated in response to front-end loaded, two-tier tender
offers. 42 Cogut knew that acceptable trigger thresholds had declined from 20% to 15%,
with the occasional 10% trigger. 43 As trigger levels shrank, the pills’ uses expanded.
Cogut observed that companies began using pills to protect their net operating losses
(“NOLs”) and not just as a takeover deterrent. 44
Like many Delaware corporations, Williams had an “on-the-shelf” pill (the “Shelf
Pill”)—a rights plan that the Company could quickly adopt in the event a threat arose. The
Board considered a “refreshment” of the Shelf Pill every so often; the last such refreshment
took place in October 2019. 45 The Shelf Pill was geared towards a traditional change of
control situation. 46 None of the Company representatives could testify as to details of the
Shelf Pill other than its existence, though Cogut testified that it likely had a trigger of 15%
and certainly greater than 5%. 47
Cogut was not concerned with a potential takeover or with NOLs. 48 He felt that the
“circumstances that existed because of the pandemic” warranted “a different type of pill.” 49
42
Id. at 53:10–54:4 (Cogut).
43
Id. at 54:15–18 (Cogut).
44
Id. at 55:2–10 (Cogut).
45
JX-27 at 1; JX-29 at 2.
46
Trial Tr. at 563:17–564:6 (Buese).
47
Id. at 58:15–59:5 (Cogut).
48
Id. at 64:19–23, 69:12–70:16, 93:16–19 (Cogut).
49
Trial Tr. at 65:5–8 (Cogut).
9
The “uncertainty” in the market required a solution that could “insulat[e]” management
from activists “who were trying to influence the control of the company.” 50
Cogut suggested a rights plan to Wilson around March 2 when management was
considering its share repurchase proposal. 51 Cogut’s proposal “was not meant to deal with
the same issues as the stock buyback” and was not fully developed—he simply
recommended that “the concept [of a pill] should be considered” by management. 52 The
goal was to prevent “[a]ny activism that would influence control over the company at an
aggregate level above 5 percent.” 53
Cogut made no distinctions among types of activism. 54 He hoped to impose a “one-
year moratorium” on activism of any type. 55 To accomplish this goal, he proposed “a
shareholder rights agreement with a 5% triggering threshold, a one-year duration, and an
exclusion for passive investors.” 56
50
Id. at 69:8–70:16 (Cogut).
51
Id. at 66:4–10 (Cogut).
52
Id. at 65:19–24, 66:11–67:1 (Cogut).
53
Id. at 70:20–71:5 (Cogut).
54
Id. at 72:21–75:2 (Cogut).
55
Id. at 118:11–18 (Cogut); see also id. at 154:22–155:23 (Cogut) (“I thought that the
company would be best off if there was a limitation on the ability of opportunistic investors
. . . who were interested in influencing control of the company, if there was a limitation on
what they could do, limit their voice over this period of uncertainty.”).
56
PTO ¶ 44.
10
E. Williams Management Proposes the Plan to the Board
After Cogut proposed the Plan, Wilson consulted with Davis Polk & Wardwell LLP
(“Davis Polk”), the Company’s outside counsel. 57 Davis Polk then revised the Shelf Pill
and sent a draft to Wilson on March 11, 2020. 58
After receiving the draft from Davis Polk, Wilson socialized the Plan among senior
management including Armstrong. Cogut expected Armstrong to support the idea because
he had “barely survived” Soroban and Corvex’s “attempt to get him fired.” 59
Management liked the pill. At the time, Williams Director of Investor Relations &
Treasury Brett Krieg had been looking for a way to “monitor the potential emergence of
activists in this low price environment.” 60
On March 17, Wilson forwarded a draft pill to Cogut, along with Davis Polk’s
“explanation of changes.” 61 Wilson noted that he, Armstrong, and Chandler were “all
supportive of moving forward proactively.” 62
Wilson also asked Cogut to discuss the Plan with Bergstrom, who lacked any
experience with poison pills. 63 Cogut emailed Bergstrom to express his “view that
[Williams] should adopt a shareholders’ rights plan with a 1 year term, a 5% threshold, and
57
See JX-42 at 1–2.
58
Id. at 1; JX-42; see also JX-176 at 1.
59
Trial Tr. at 137:8–15 (Cogut); JX-40; JX-174.
60
JX-172 at 3; see also JX-171 at 2.
61
JX-42 at 1.
62
Id.; see also JX-175.
63
Trial Tr. at 75:3–77:17 (Cogut); Bergstrom Dep. Tr. at 29:16–30:7; JX-176 at 1.
11
an exception for 13g holders.” 64 Bergstrom agreed to discuss the Plan with Cogut the
following morning. 65
In the meantime, Armstrong, Bergstrom, and Wilson scheduled an emergency
Board meeting to further evaluate Cogut’s Plan. 66 Wilson had also advised that holding
two meetings would look better; he recommended scheduling a “second board meeting to
approve, at least a day later, to show appropriate consideration by the Board.” 67
Cogut and Bergstrom spoke by phone on the morning of March 18. 68 Bergstrom
expressed concern about the Plan’s novelty. He was wary of the 5% trigger 69 and “had not
joined the enthusiasm of management to proceed.” 70 During a call later that morning,
Bergstrom expressed similar concerns to Wilson. 71
F. The Board Calls an Urgent Meeting
The Board scheduled its first meeting for the evening of March 18. 72 An agenda
distributed to the Board prior to the meeting identified two discussion topics: (i) the Plan,
which the agenda gave forty minutes, and (ii) whether to hold the annual stockholder
64
JX-41.
65
Id.
66
JX-176 at 1.
67
JX-43 at 1; see also JX-47 at 1.
68
See JX-41.
69
Trial Tr. at 79:19–82:20 (Cogut).
70
Id. at 76:14–21 (Cogut).
71
JX-50; JX-52.
72
PTO ¶ 46. In the lead up to the meeting, stockholder activism was a topic of discussion
in emails between Wilson, Davis Polk, and Morgan Stanley. JX-50; JX-52.
12
meeting virtually, which the agenda gave twenty minutes. 73 The agenda attached a
presentation titled “Rights Plan Overview.” 74 The Board did not receive a draft of the Plan
before or during the March 18 meeting. 75
The meeting lasted approximately seventy-five minutes, with most of that time
spent on the Plan. 76 Representatives from Davis Polk and Morgan Stanley attended the
meeting. 77
During the meeting, Armstrong and Wilson delivered the presentation. 78 The
presentation identified the purposes of stockholder rights plans generally, the mechanics of
rights plans, and their dilutive effects. 79
Management’s presentation explained that, generally, rights plans seek to:
• “Discourage unsolicited takeover attempts that do not offer an adequate price
to all stockholders or are otherwise not in the best interests of the company
and its stockholders;”
• “Discourage or prevent coercive or unfair takeover tactics” such as
“acquisitions of control through open market purchases[,] ‘street sweeps,’”
or “coercive tender offers, including partial and two-tiered tender offers;”
• “Encourage bidders to negotiate with the Board;” and
73
JX-54 at 1.
74
Id. at 1–2.
75
See PTO ¶ 55.
76
JX-55 at 1, 4; PTO ¶ 51; see also Trial Tr. at 152:4–7 (Cogut); id. at 326:18–327:11
(Smith); id. at 551:11–17 (Buese).
77
JX-56 at 1–2.
78
Trial Tr. 554:4–9 (Buese); JX-54 at 1.
79
Id. at 3–10.
13
• “Provide the Board with [the] opportunity to preserve existing, more
advantageous strategies or to develop and implement superior
alternatives.” 80
The next slide of the presentation explained that, generally, rights plans are not
intended to:
• “Prevent all acquisitions;”
• “Deter fully priced and fairly structured offers;”
• “Prevent proxy contests for representation on Board;” or
• “[P]revent a group of unaffiliated hedge funds from acquiring meaningful
positions . . . so long as they remain below the threshold.” 81
The presentation went on to identify “the board’s duties.” 82 It also noted certain
“corporate governance matters,” including the possibility of negative reactions from
Institutional Shareholder Services Inc. (“ISS”) and the press. 83
The presentation did not discuss any proposed features specific to the Plan, although
the minutes of the March 18 meeting reflect that the Board discussed a 5% trigger. 84
In addition, the minutes of the March 18 meeting state that:
• Morgan Stanley “advised that, given the extremely unusual market volatility
primarily arising from the uncertainty relating to the coronavirus outbreak
and the disproportionate impact on the Company’s common stock price . . .
a Rights Plan is a valid consideration.”
• Morgan Stanley advised that “in light of existing disclosure regimes, and
high, volatile trading volumes, before the Company would have any insight
80
Id. at 3.
81
Id. at 4.
82
Id. at 11–15.
83
Id. at 16.
84
JX-56 at 2.
14
or knowledge, an opportunistic investor could acquire a sizable position in
the Company’s common stock.”
• Armstrong stated “that the adoption of a Rights Plan would protect and
preserve the interests of long-term shareholders.”
• The Board discussed “protecting long-term shareholders (especially by
exempting all passive investors from the contemplated plan).” 85
The Board also discussed the “market perception” and the anticipated reaction of its
stockholders, the press, and proxy advisory firms to the proposed Plan. 86 The directors
concluded that “further explanation to shareholders” could overcome bad publicity given
“the one year term and other . . . mitigating factors in respect of any potential negative
investor reaction.” 87
Although the Board had not yet seen a draft of the Plan, by the end of the March 18
meeting, the Board had decided to adopt it. Buese stated that the Board had “unanimously”
decided that its “fiduciary duty required [it] to take action in light of the significant
dislocation of the stock” despite the “risk that shareholders could vote out a director” in
response. 88 The only open issues were logistical questions and a formal vote. 89
As recommended by Wilson, the Board scheduled a second meeting for the
following day, the evening of March 19. 90 The Board briefly discussed transitioning its
85
Id.
86
Id.; JX-53 at 16; Trial Tr. at 550:20–551:10 (Buese); Fuller Dep. Tr. at 49:11–24, 59:13–
60:24.
87
JX-56 at 2; Trial Tr. at 546:11–16 (Buese).
88
Trial Tr. at 551:4–10 (Buese).
89
See id. at 550:20–551:10 (Buese).
90
Trial Tr. at 153:4–11 (Cogut).
15
2020 Annual Meeting of Stockholders to a virtual setting before adjourning for the
evening. 91
G. The Board Adopts the Plan.
Immediately after the March 18 Board meeting, Williams corporate secretary Bob
Riley emailed Computershare Trust Company, N.A. (“Computershare Trust”) noting that
“our Board will tomorrow adopt a shareholder rights plan” and asking to “chat tomorrow
about Computershare’s role as the rights agent.” 92 Later that evening, Riley emailed the
agenda and materials for the meeting to the Board, including the Plan. 93
On the morning of March 19, Williams filed its 2020 Proxy Statement in
anticipation of its April 28, 2020 annual stockholder meeting. 94 The Proxy Statement did
not disclose that the Board was considering the Plan. 95
An agenda was sent to the Board a few hours before the meeting. 96 The agenda
allocated sixty minutes to “[a]pproval” of a “Shareholder Rights Plan,” including: Morgan
Stanley’s presentation, discussion of the Plan, review of a draft Form 8-K and a Form 8A
91
JX-56 at 2–4; Trial Tr. at 83:23–84:3, 152:4–7 (Cogut); id. at 551:11–17 (Buese).
92
JX-58 at 1.
93
JX-59; PTO ¶ 55.
94
JX-60 at 4–5.
95
See JX-60 at 7 (listing agenda items but not including information about the Plan).
96
JX-65 at 1–2.
16
registration statement, adoption of resolutions approving the Plan, and review of a draft
press release. 97
The email also included a presentation prepared by Morgan Stanley. 98 Buese
testified that she reviewed these materials and “touch[ed] base” with Bergstrom and Wilson
prior to the March 19 Board meeting. 99 She did not review every detail but focused instead
on key terms and provisions.
The March 19 Board meeting began at 6 p.m. with the full Board and representatives
from Morgan Stanley and Davis Polk in attendance. 100 The Morgan Stanley team opened
the meeting, beginning its presentation with an executive summary of the Plan before
turning to “Considerations Regarding a 5% Trigger.” 101 The executive summary stated:
The key benefit of a rights plan is to prevent an opportunistic
party from achieving a position of substantial influence or
control without paying a control premium to other
shareholders.
A shareholder rights plan does not deter friendly or hostile
M&A; however, an acquiror would be forced to negotiate with
the Board.
An activist would be limited in its ability to accumulate a large
stake. 102
97
Id. at 2. The agenda is dated March 18, 2020. Id. Given its distribution on March 19,
and the numerous differences from the March 18 agenda, this was likely a typo. See Buese
Dep. Tr. at 205:10–206:13.
98
JX-65 at 3; see Trial Tr. at 153:12–16 (Cogut); id. at 596:18–597:4 (Buese).
99
Trial Tr. at 552:7–553:6 (Buese).
100
JX-67 at 1.
101
JX-65 at 4–5.
102
Id. at 4 (emphasis added) (formatting altered).
17
The executive summary stated that “campaigns from well-known activists are
expected to continue at a reasonable pace in the current market.” 103 In connection with this
prediction, the presentation stated that:
The rights plan would deter an activist from taking advantage
of the current market dislocation and challenges in monitoring
unusual trading patterns that results in a rapid accumulation of
a >5% stake. 104
The presentation displayed a chart signaling an upward trend in stockholder
activism and predicting that such activism would not decline as significantly as it did in
response to the market downturn of 2008. 105
As to the trigger, the presentation informed the Board that: (a) only 2% of rights
plans had triggers below 10%; (b) 76% of rights plans “set the trigger” between 15% and
20%; and (c) “[n]o precedents exist below 5%.” 106 The presentation did not cover any
other provisions of the Plan. 107
Morgan Stanley walked the Board through its generation of an exercise price for the
warrants included in the Plan and the impact that triggering the Plan at that price would
have on Company stock. 108
103
Id.
104
Id.
105
Id. at 8.
106
Id. at 5.
107
PTO ¶ 57; Chandler Dep. Tr. 146:15–148:3; see also Trial Tr. at 553:12–563:1 (Buese).
108
Id. at 6–7.
18
The Morgan Stanley team concluded its presentation with some general market data
regarding exercise price multiples. 109 It further identified a substantial decline in active
rights plans among public companies—only 55 at the end of 2019, down from a high of
946 at the end of 2009. 110
After delivering the presentation, the Morgan Stanley and Davis Polk
representatives left the room to allow the Board to deliberate. 111 The minutes indicate that
the Board discussed “recent market events and the impact on the Company’s stock
price.” 112
Cogut confirmed at trial that Morgan Stanley relayed the above information at the
March 19 Board meeting. He regarded the information about other rights plan triggers
“irrelevant” because “this was not a traditional shareholder rights plan.” 113
Buese recalled that the Board discussed the potential impact the Plan would have
on the trading volume of Williams stock. 114 She further noted that the Board revisited
“several levels of thresholds” and “the acting in concert concept.” 115 Buese also recalled
that the Board discussed the “the fact that ISS has a reasonably dim view of rights plans.” 116
109
Id. at 11–14.
110
Id. at 10.
111
JX-67 at 1.
112
Id. at 2.
113
Trial Tr. at 87:22–90:1 (Cogut).
114
Id. at 555:20–556:6 (Buese).
115
Id. at 556:16–557:11 (Buese).
116
Id. at 560:2–11 (Buese).
19
According to Buese, the Board collectively felt that “outreach and engagement and
education” would temper any investor dissatisfaction. 117
Following discussion, the Board unanimously resolved to adopt a stockholder rights
plan “in substantially the form presented at the meeting.” 118 The March 19 meeting,
initially scheduled to last for one hour, adjourned after forty minutes. 119
On March 20, 2020, the Company issued a press release that publicly disclosed the
Board’s adoption of the Plan (the “March 20 Press Release”). 120 On March 30, 2020, the
Company supplemented the 2020 Proxy Statement to disclose the Plan’s adoption (the
“March 30 Proxy Supplement”). 121
The Board elected not to subject the Plan to a stockholder vote. Cogut testified that
the idea of allowing stockholders to vote on the Plan “was not raised” by Morgan Stanley,
Davis Polk, or any of the Board members. 122 At trial, the Director Defendants cited time
constraints as an additional consideration, 123 contending that the 2020 Proxy Statement
“was at the printer” by the time the Board began discussing the Plan. 124
117
Id. at 561:21–562:6 (Buese).
118
JX-67 at 2; Trial Tr. at 154:14–19 (Cogut); id. at 337:5–9 (Smith).
119
JX-67 at 5.
120
JX-69.
121
JX-82.
122
Trial Tr. at 118:8–119:8 (Cogut).
123
Id. at 563:10–16 (Buese).
124
Id. at 117:24–118:4 (Cogut).
20
H. The Plan’s Features
The Plan will expire at the end of one year and has four key features: (i) a 5%
trigger; (ii) a definition of “acquiring person” that captures beneficial ownership as well as
ownership of certain derivative interests, such as warrants and options; (iii) an “acting in
concert” provision that extends to parallel conduct and includes a “daisy chain” concept
(the “AIC Provision”); and (iv) a limited “passive investor” exemption.
While the Plan’s features were a focal point of trial, they received little attention
during the March 18 and March 19 Board meetings. The Director Defendants confirmed
that Board discussions focused almost exclusively on the 5% trigger. 125 Although Buese
recalls having discussed the concept of the AIC Provision, 126 other directors testified that
the Board was informed only that the Plan would apply to groups of investors but did not
review or discuss the actual terms of the AIC Provision. 127 Most directors admitted that
they had not even read the key features of the Plan before this litigation began. 128
The Plan operates in conjunction with regulatory requirements established by
federal and state law. Understanding the Plan’s features requires a quick refresher of
certain of those requirements.
125
See id. at 329:21–331:5 (Smith).
126
Id. at 548:8–22 (Buese); see also id. at 568:8–569:8 (Buese) (testifying that she
reviewed the AIC Provision prior to voting on the Plan). But see Buese Dep. Tr. at 225:1–
228:21 (testifying that she has no recollection of having reviewed the AIC Provision but
assumes that she did because it was her “common practice” to review Board materials).
127
Trial Tr. at 95:17–96:13 (Cogut); id. at 345:5–21 (Smith); Bergstrom Dep. Tr. at 254:5–
22, 293:6–294:10; Fuller Dep. Tr. at 74:5–77:7, 80:3–21.
128
Trial Tr. at 87:1–15, (Cogut); id. at 345:2–7 (Smith); Bergstrom Dep. Tr. at 253:9–24,
272:6–273:13; Fuller Dep. Tr. at 74:5–77:7, 80:3–21.
21
• Section 13(d) of the Securities Exchange Act (the “Exchange Act”) requires
that non-passive investors report “beneficial ownership” of more than 5% of
a class of stock but gives investors a ten-day window to report ownership
levels using a Schedule 13D form. During that window, the investor is
permitted to continue accumulating stock.
• Section 13(d) does not include derivative securities in the definition of
“beneficial ownership.”
• Section 13(d) aggregates the beneficial ownership of investors who are
acting in concert, which under the Exchange Act occurs where “two or more
persons agree to act together for the purpose of acquiring, holding, voting or
disposing of equity securities of an issuer.” 129 Section 13(d)’s definition of
“acting in concert” does not capture “parallel conduct” (discussed below) nor
a “daisy chain” concept (discussed below).
• Section 13(d) excludes “passive investors,” defined as persons who acquired
“securities in the ordinary course of [their] business and not with the purpose
nor with the effect of changing or influence the control of the issuer.” 130
1. The 5% Trigger
The Plan established a trigger threshold of “5% or more.” 131 The Plan is triggered,
and the rights distributed, on “the close of business on the tenth Business Day after” a
“Person” (defined as an individual, firm, or entity) 132 acquires “beneficial ownership” of
5% or more of Williams stock or commences “a tender or exchange offer” that would result
in their ownership reaching that threshold. 133 Given Williams’ market capitalization in
March 2020, triggering the 5% threshold at the time the Plan was adopted would have
129
17 C.F.R. § 240.13d–5(b)(1); see also Subramanian Report ¶ 41.
130
See generally 17 C.F.R. § 240.13d-1.
131
JX-69 at 22.
132
Id.133
Id. at 21.
22
required an economic investment (sometimes referred to as a “toehold”) of approximately
$650 million. 134
2. Beneficial Ownership Definition
The Plan’s definition of “beneficial ownership” starts with the definition found in
Rule 13d–3 of the Exchange Act, then extends more broadly to include “[c]ertain synthetic
interests in securities created by derivative positions,” such as warrants and options. 135
3. The AIC Provision
The AIC Provision deems a Person to be “Acting in Concert” with another Person if:
such Person knowingly acts (whether or not pursuant to an
express agreement, arrangement or understanding) at any time
after the first public announcement of the adoption of this
Right Agreement, in concert or in parallel with such other
Person, or towards a common goal with such other Person,
relating to changing or influencing the control of the Company
or in connection with or as a participant in any transaction
having that purpose or effect, where (i) each Person is
conscious of the other Person’s conduct and this awareness is
an element in their respective decision-making processes and
(ii) at least one additional factor supports a determination by
the Board that such Persons intended to act in concert or in
parallel, which additional factors may include exchanging
information, attending meetings, conducting discussions, or
making or soliciting invitations to act in concert or in
parallel. 136
Breaking it down, the AIC Provision deems a Person to be “Acting in Concert” with
another where the Person: (1) “knowingly acts . . . in concert or in parallel . . . or towards
134
Subramanian Report ¶ 94.
135
JX-69 at 3, 19.
136
PTO ¶ 70; JX-69 at 18.
23
a common goal” with another; (2) if the goal “relat[es] to changing or influencing the
control of the Company or [is] in connection with or as a participant in any transaction
having that purpose or effect;” (3) where each Person is “conscious of the other Person’s
conduct” and “this awareness is an element in their respective decision-making processes;”
and (4) there is the presence of at least one additional factor to be determined by the Board,
“which additional factors may include exchanging information, attending meetings,
conducting discussions, or making or soliciting invitations to act in concert or in
parallel.” 137 The fourth factor of this definition gives the Board “a great amount of latitude”
for making the “Acting in Concert” determination. 138
The “parallel-conduct” dimension of the “acting in concert” provision (sometimes
referred to as a “wolfpack” provision) 139 is a feature of modern pills, 140 as Defendants’
expert witness Professor Guhan Subramanian of Harvard Law School and Harvard
Business School explained. 141 According to Subramanian, poison pills have always
137
PTO ¶ 70; JX-69 at 18.
138
Smith Dep. Tr. at 231:3–21, 248:15–24; Trial Tr. at 96:14–22 (Cogut); Mills Report
¶¶ 67–68.
139
The phrase “wolfpacks” in this context refers to “a loose association of hedge funds that
employs parallel activist strategies toward a target corporation while intentionally avoiding
group status under [S]ection 13(d).” Subramanian Report ¶ 45 n.90 (quoting William R.
Tevlin, The Conscious Parallelism of Wolf Packs: Applying the Antitrust Conspiracy
Framework to Section 13(D) Activist Group Formation, 84 Fordham L. Rev. 2335, 2337
(2016)).
140
Subramanian Report ¶¶ 48–49.
141
Professor Subramanian is a recognized expert in corporate affairs and has been helpful
to this court on many occasions. In re Starz Appraisal, 2018 WL 4922095, at *1 (Del. Ch.
Oct. 10, 2018). His published work concerning policy questions of corporate law fills the
footnotes of many decisions of Delaware courts. See, e.g., In re CNX Gas Corp. S’holder
24
included an acting-in-concert concept. Early poison pills required express agreements,
using language that tracked the definitions of a “group,” “affiliate,” and “associate” under
Section 13(d) and Rule 12b-2 of the Exchange Act. 142 Express agreement provisions do
not capture so-called wolfpack activism achieved through “‘conscious parallelism’ that
deliberately stop[s] short of an explicit agreement.” 143
The AIC Provision includes a “daisy chain” concept, providing that “[a] Person who
is Acting in Concert with another Person shall be deemed to be Acting in Concert with any
third party who is also Acting in Concert with such other Person.” 144 Put differently,
stockholders act in concert with one another by separately and independently “Acting in
Concert” with the same third party.
Litig., 2010 WL 2291842, at *7 n.4, *10 n.5 (Del. Ch. May 25, 2010); In re CNX Gas Corp.
S’holder Litig., 2010 WL 2705147, at *11 (Del. Ch. July 5, 2010); In re MFW S’holders
Litig., 67 A.3d 496, 501 n.3, 530 n.162 (Del. 2013); In re Compellent Techs., Inc. S’holder
Litig., 2011 WL 6382523, at *22 n.11 (Del. Ch. Dec. 9, 2011); In re Del Monte Foods Co.
S’holders Litig., 25 A.3d 813, 840 n.5, 844 n.6 (Del. Ch. 2011); In re Cornerstone
Therapeutics Inc. S’holder Litig., 115 A.3d 1173, 1184 nn.44–45 (Del. 2015).
142
Subramanian Report ¶ 41. Professor Subramanian notes that “under the Hart-Scott-
Rodino (HSR) Act, any person wishing to buy more than $94 million of Williams common
stock would have to disclose its position,” thus imposing a constraint on “activist
shareholders’ trading of Williams stock well before the Williams Pill became relevant.”
Id. ¶ 96; see 15 U.S.C. § 18a. But HSR does not include a group concept and does not
apply to the acquisition of nonvoting, derivative securities, such as stock options; the Plan
thus casts a wider net than federal antitrust law.
143
Subramanian Report ¶ 45.
144
JX-69 at 18.
25
The AIC Provision does not apply to a public proxy solicitation or tender offer. 145
Persons are not deemed to be “Acting in Concert” solely as a result of soliciting proxies in
connection with a “public proxy or consent solicitation made to more than 10 holders of
shares of a class of stock” or when soliciting tenders pursuant to a “public tender or
exchange offer.” 146 While this provision allows stockholders to initiate a proxy contest
and solicit proxies without triggering the Plan, it does not exempt routine communications
among stockholder before the launch of a proxy contest or tender offer.
The AIC Provision is also asymmetrical. It excludes “actions by an officer or
director of the Company acting in such capacities,” such that incumbents can act in concert
without suffering the consequences of the Plan. 147
4. The Passive Investor Definition
The Plan carves out “Passive Investors” from the definition of “Acquiring Persons.”
The Plan defines “Passive Investor” to mean:
[A] Person who (i) is the Beneficial Owner of Common Shares
of the Company and either (a) has a Schedule 13G on file with
the Securities and Exchange Commission pursuant to the
requirements of Rule 13d-1(b) or (c) under the Exchange Act
with respect to such holdings (and does not subsequently
convert such filing to a Schedule 13D) or (b) has a Schedule
13D on file with the Securities and Exchange Commission and
either has stated in its filing that it has no plan or proposal that
145
Id. (excluding from the AIC Provision Persons “(a) making or receiving a solicitation
of, or granting or receiving, revocable proxies or consents given in response to a public
proxy or consent solicitation made to more than 10 [stockholders] . . . , or (b) soliciting or
being solicited for tenders of, or tendering or receiving tenders of, securities in a public
tender or exchange offer”).
146
Id.
147
JX-69 at 18.
26
relates to or would result in any of the actions or events set
forth in Item 4 of Schedule 13D or otherwise has no intent to
seek control of the Company or has certified to the Company
that it has no such plan, proposal or intent (other than by voting
the shares of the Common Shares of the Company over which
such Person has voting power), (ii) acquires Beneficial
Ownership of Common Shares of the Company pursuant to
trading activities undertaken in the ordinary course of such
Person’s business and not with the purpose nor the effect,
either alone or in concert with any Person, of exercising the
power to direct or cause the direction of the management and
policies of the Company or of otherwise changing or
influencing the control of the Company, nor in connection with
or as a participant in any transaction having such purpose or
effect, including any transaction subject to Rule 13d-3(b) of the
Exchange Act, and (iii) in the case of clause (i)(b) only, does
not amend either its Schedule 13D on file or its certification to
the Company in a manner inconsistent with its representation
that it has no plan or proposal that relates to or would result in
any of the actions or events set forth in Item 4 of Schedule 13D
or otherwise has no intent to seek control of the Company
(other than by voting the Common Shares of the Company over
which such Person has voting power). 148
This carve-out was intended to ensure that truly passive investors would be exempt
from the definition of Acquiring Person under the Plan. 149 Director Defendants testified
as to their belief that the definition excludes Schedule 13G filers, defined under the
Exchange Act as an investor that “acquired such securities in the ordinary course of his
148
PTO ¶ 69; JX-69 at 22.
149
Trial Tr. at 106:11–16 (Cogut); id. at 546:20–547:5, 567:11–19 (Buese); Fuller Dep. Tr.
at 151:10–153:12; Chandler Dep. Tr. at 270:24–271:2, 286:24–288:23, 302:6–305:7;
Bergstrom Dep. Tr. at 272:23–273:2; PTO ¶ 44.
27
business and not with the purpose nor with the effect of changing or influencing the control
of the issuer.” 150
As drafted, however, the carve-out is far more exclusive. The definition uses “and”
before romanette (iii), which makes the three requirements of the provision conjunctive.
Thus, a stockholder must meet all three conditions to qualify as an exempt “Passive
Investor.” 151 Consequently, the definition excludes any investor that seeks to “direct or
cause the direction of the management and policies of the Company” as provided in
romanette (ii) of the definition. The “management and policies” qualifier of the AIC
Provision captures a broader range of activity other than the “changing or influencing . . .
control” language applicable to Schedule 13G filers. 152
As most of the defense witnesses testified, this conjunctive language appears to have
been a mistake. 153 The intent was for the provisions to present two options: “(i) or (ii) and
(iii).” 154 Yet, the Board never discussed nor corrected this error. 155
150
17 C.F.R. § 240.13d-1(b)(1)(i) (emphasis added); see Trial Tr. at 106:11–16 (Cogut);
id. at 566:23–567:19 (Buese); Smith Dep. Tr. at 215:21–216:3, 218:18–219:18; see also
JX-161 ¶ 46 (Goldfarb Rebuttal Report).
151
JX-159 (“Mills Rebuttal Report”) ¶ 29.
152
See Mills Report ¶¶ 28–33 (describing various forms of stockholder activism).
153
See Trial Tr. at 107:3–109:15 (Cogut); id. at 606:9–607:13 (Buese); see also id. at
698:21–700:15 (Goldfarb). Subramanian stood out as the sole witness to read the Passive
Investor Definition disjunctively, contending that the provision should be read as “(i) or
(ii) and (iii).” Id. at 505:6–506:1 (Subramanian) (emphasis added). When confronted with
its language he stood his ground, referring to a conjunctive reading of the provision as “just
a red herring.” Id. at 421:16–423:17, 504:21–506:20 (Subramanian).
154
Trial Tr. at 505:6–506:1 (Subramanian) (emphasis added).
155
Id. at 110:11–111:21 (Cogut).
28
Even a disjunctive reading of the Rights Plan’s Passive Investor Definition is quite
narrow. 156 At the time the Board adopted the Plan, Williams had only three 13G filers in
its stock: BlackRock, Vanguard, and State Street. 157 Read disjunctively, the Passive
Investor Definition would include at most those three investors. 158
I. Public Reaction to the Plan
The Board correctly anticipated that the market and stockholders would react
negatively to the Plan. 159 Two of Williams’ largest stockholders reached out regarding the
Plan shortly after its announcement, 160 and ISS recommended in an April 8 report that
stockholders vote against Bergstrom’s re-election at the Company’s annual meeting.
In recommending against Bergstrom’s re-election, ISS cited “The board’s adoption
of a poison pill with a 5 percent trigger is problematic, as it is highly restrictive and could
156
Id. at 109:11–110:4 (Cogut).
157
Id. at 109:2–7 (Cogut); id. at 506:21–507:8 (Subramanian); see also Mills Report ¶¶ 37–
39 (observing that the Plan’s passive investor definition “impedes a wide range of socially
beneficial and/or value-enhancing behavior common to many of the largest institutional
investors, as well as routine discourse between and engagement among stockholders and
management”).
158
Trial Tr. at 506:21–507:8 (Subramanian).
159
See JX-56 at 2 (noting that the Board discussed a “potential negative investor reaction”
to the Plan); Trial Tr. at 550:20–551:10 (Buese); see also JX-63 (Williams’ management
and investor relations teams anticipating the negative reaction to the Plan).
160
See JX-73 at 2–3 (Blackrock emailing Krieg the same day that the Plan was publicly
announced, stating that the Plan “doesn’t look good from an ESG perspective. Has there
been approaches? I think shareholders deserve to have transparency into any potential
discussions even if they don’t make LT [long-term] value creation sense . . . .”); JX-80 at
2–3 (Vanguard emailing Krieg on March 24, 2020, four days after the Plan was publicly
announced, asking to “talk with the appropriate company representative about Vanguard’s
holdings as they relate to your company’s Rights Agreement”).
29
negatively impact the market for the company’s shares as the market recovers.” 161 ISS
noted, “the pill was not a reaction to an actual threat – real or perceived – of an activist
investor or hostile bidder.” 162 ISS further opined that “the board did not appear to consider
other alternatives,” that “[w]hen ISS asked the company whether it had considered a shorter
term, the answer appeared to be ‘no,’” and that “[w]hen ISS asked the company whether it
had considered adopting a more standard pill with a higher trigger and using its upcoming
annual meeting to seek shareholder ratification of its 5 percent plan, the answer appeared
to be ‘no.’” 163
After recognizing on April 7, 2020, that “initial votes [were] trending against”
Bergstrom due to anti-Plan backlash, 164 Williams launched a stockholder outreach
campaign to preserve Bergstrom’s seat. 165 Williams engaged proxy soliciting firm Okapi
Partners and met with stockholders in an attempt “to turn around some of the votes that
ha[d] been cast and shore up the vote.” 166
On April 14, 2020, Williams management held an investors call. The talking points
and agenda addressed the Plan’s adoption:
161
JX-91 at 15. Williams and ISS had communicated regarding the Plan between March
24 and April, and ISS shared a draft of its report with Williams on April 1.
162
Id. at 16.
163
Id. at 18.
164
Id. at 1.
165
Id.; JX-88; JX-90.
166
JX-91 at 1; see also JX-108 (April 13, 2020 email from Wilson detailing a stockholder
engagement game plan).
30
• Their stated “Rationale for Adoption” was to “[p]revent an opportunistic
party from achieving substantial influence or control without paying a
control premium to other stockholders.” 167
• They selected the 5% threshold because with “stock market prices so
dislocated from fundamental values, a threshold above 5% would allow
enormous accumulations by non-passive investors (all passive investors are
exempt)” and because of the Company’s “recent past experiences with
activism,” when “Corvex and Sorobon [sic] owned, either as beneficial
owners or as economic interest owners, 9.96% of the Company’s outstanding
shares. Neither owned more than 5%.” 168
• “Many activist campaigns are conducted at levels below 10% ownership; a
level higher than 5% simply does not protect a company against an
opportunist.” 169
• “The Rights plan is intended to . . . reduce the likelihood of those seeking
short-term gains taking advantage of current market conditions at the
expense of the long-term interests of stockholders, or of any person or group
gaining control of Williams through open market accumulation or other
tactics without paying an appropriate control premium.” 170
• The Board selected a one-year duration because “[n]o one can predict the
duration of the current crisis and the Board wants the management focused
solely on the business, which the Rights Plan is intended to facilitate.” 171
In handwritten notes made to a print-out of the investors call agenda, Chandler wrote:
“limited scope  just activist.” 172
Wilson circulated the talking points and agenda to Bergstrom and others on
April 14. In response, Bergstrom wrote:
167
JX-187 at 3.
168
Id.
169
Id. at 6.
170
Id.
171
Id. at 7.
172
Id. at 1.
31
Only thing is [sic] would add is we saw a 50 plus percent in
stock price and a minimal decline in cash flow and business
fundamentals. We don’t talk about how our business didn’t
change. I use the term you have heard of throw the baby out
with the bath water. In our case they threw the bathtub out as
well. That is why we put it in place at that level because that
is exactly the kind of situation people with bad intentions look
for. Dislocation in market where fundamentals are incongruent
with that situation. 173
Williams gave a slide presentation during the April 14 investors call and disclosed
the presentation the next day as a proxy supplement (the “April 15 Proxy Supplement”).
The presentation stated that the disclosure was intended to explain “the Board’s rationale
for adopting the [Plan], the [Plan’s] key terms, the Board’s process in adopting the [Plan],
and [the Company’s] corporate governance practices generally.” 174 It stated:
• “Our Board adopted a Rights Plan on March 19, 2020 after careful
consideration. This action was taken: [i]n light of unprecedented market
conditions and severe market declines [and] [i]n the best long-term interest
of our stockholders.”
• “Rationale and purpose of adoption: To prevent an opportunistic party from
achieving substantial influence or control without paying a control premium
to other stockholders.” 175
• “Company experience in recent past reinforced Board’s view that 5% is the
right threshold in this environment.” 176
At the April 28, 2020 annual meeting, the stockholders re-elected Bergstrom to the
Board, but by a slim margin—only 67% of the shares were cast in favor of Bergstrom.177
173
JX-114 at 10–11.
174
JX-117 at 3.
175
Id. at 5 (formatting altered).
176
Id. at 7.
177
Mills Report ¶ 76; JX-123 at 2.
32
As Director Chazen noted shortly after the vote, “no one should take great solace from the
voting results,” as “[a] third of the vote against [Bergstrom] is much larger than I would
have guessed.” 178 Fidelity Investments, which voted in support of all directors, emailed
the Company to note that its support was cautionary: “I would encourage you to put the
pill up for a shareholder vote next year if it is extended or we likely will hold directors
accountable.” 179
J. The Board Fails to Redeem the Plan.
The Board has the authority to redeem or amend the Plan, but it remains in place.180
At trial, Buese offered one reason for why the Board did not redeem the Plan. She
speculated that doing so could send a signal “that the board believed we have achieved full
and fair value for the share price,” effectively setting “an artificial ceiling” on the value of
Williams stock. 181 Buese admitted that she did not discuss this justification with any other
director, vet it through advisors, or submit it for Board discussion. 182
178
JX-126 at 1.
179
JX-127 at 3–4.
180
JX-69 at 48–49; Trial Tr. at 611:3–6 (Buese).
181
Trial Tr. at 571:21–572:9 (Buese). Professor Subramanian made the same claim. See
Subramanian Report ¶ 76 (stating that “pills have signaling effects, and eliminating a pill
when there is no clear reason to do so could fuel speculation in the marketplace, thus
creating unnecessary disruption to the company”). The plaintiffs’ expert disputes this. See
Mills Rebuttal Report ¶ 46. The Board never considered the issue, so the experts’ dispute
is irrelevant.
182
Trial Tr. at 611:21–612:14 (Buese).
33
In fact, outside of the context of privileged discussions concerning this litigation,183
the Board never considered redeeming the Plan. 184 In post-trial briefing, the defendants
claimed that maintaining the Plan was a business judgment duly considered by the Board—
they asserted that “the evidence shows that members of the Board, and on one occasion,
the Board as a whole, have considered whether to redeem the Plan and decided that it was
not in the Company’s best interests to do so.” 185 The defendants, however, asserted
privilege over the “one occasion” when the “Board as a whole” supposedly considered
whether to redeem the Plan. Consequently, there is no factual record to support the
defendants’ claim. 186
Meanwhile, Williams stock price has substantially recovered. By June 8, 2020,
Williams stock price had returned to $21.58; it closed at $21.68 on August 24, 2020. 187
Third-quarter financial results for 2020 noted the “stability and predictability of business,”
183
PTO ¶ 109, see also Trial Tr. at 120:22–121:15 (Cogut); id. at 355:21–356:9 (Smith);
id. at 611:13–20 (Buese); Bergstrom Dep. Tr. at 84:7–85:18; Fuller Dep. Tr. 183:19–
184:13, 202:16–203:17.
184
PTO ¶ 109.
185
Defs.’ Opening Br. at 56.
186
Id. Plaintiffs filed a motion in limine to preclude Defendants from relying on the Board
communications over which Defendants asserted privilege. That motion is denied as
unnecessary. Because Defendants blocked testimony as to this Board meeting at trial and
in discovery, there is no factual record on which to base the finding they seek—that the
Board considered whether to redeem the Plan and determined that not doing so was in the
best interest of the Company.
187
PTO ¶¶ 103–104.
34
and Armstrong touted the Company’s strong performance “during a year marked by
disruption and uncertainty.” 188
K. This Litigation
Plaintiff Steven Wolosky filed this litigation on August 27, 2020. Plaintiff City of
St. Clair Shores Police and Fire Retirement System (with Wolosky, “Plaintiffs”) filed a
similar action on September 3, 2020. The court granted expedition on September 8 and
consolidated the two actions on September 15.
The operative complaint asserts a direct claim for breach of fiduciary duty against
the Director Defendants seeking declaratory and injunctive relief regarding the validity and
enforceability of the Plan. The Complaint also names as defendants the Company and
Computershare Trust solely in its capacity as the rights agent for the Plan (together with
the Director Defendants, “Defendants”). 189
On November 11, 2020, over Defendants’ objection, the court certified a class
defined as: “all record and beneficial holders of company common stock who held stock
as of March 20, 2020, and who continue to hold stock through and including the date on
which the rights plan expires or is withdrawn, redeemed, exercised or otherwise
188
Id. ¶ 105.
189
PTO ¶ 26.
35
eliminated,” excluding Defendants. 190 A three-day trial was held from January 12 to 14,
2021. Post-trial briefing concluded on February 5, 2021. 191
II. LEGAL ANALYSIS
Plaintiffs claim that the Director Defendants breached their fiduciary duties when
adopting and maintaining the Plan. This decision agrees and issues a mandatory injunction
requiring redemption.
A. Direct Versus Derivative
The parties dispute whether Plaintiffs’ claim is derivative or direct. Plaintiffs argue
that their claim is direct. Defendants argue that Plaintiffs’ claim is derivative and thus
subject to Court of Chancery Rule 23.1, which requires Plaintiffs to either make a pre-suit
demand on the Board or to demonstrate that demand would have been futile. Plaintiffs did
not make a pre-suit demand, and Defendants argue that Plaintiffs have failed to
demonstrate demand futility, requiring judgment in Defendants’ favor.
In 2004, the Delaware Supreme Court established a two-part test for determining
whether claims are direct or derivative in Tooley v. Donaldson, Lufkin & Jenrette, Inc. 192
190
Dkt. 78, Tr. of 11.18.20 Oral Arg. and Rulings of the Ct. on Pls.’ Mot. for Class
Certification Held Via Zoom at 41.
191
See Dkt. 106, The Williams Defs.’ Opening Post-Trial Br. (“Defs.’ Opening Br.”);
Dkt. 107, Pls.’ Post-Trial Br. (“Pls.’ Opening Br.”); Dkt. 115, The Williams Defs.’
Answering Post-Trial Br. (“Defs.’ Answering Br.”); Dkt. 117, Pls.’ Post-Trial Answering
Br. (“Pls.’ Answering Br.”). Computershare Trust filed memoranda with the court joining
in the Williams Defendants’ post-trial briefing. See Dkt. 108, Def. Computershare Trust
Company, N.A.’s Post-Trial Mem. or, Alternatively, Joinder in The Williams’ Defs.’
Opening Post-Trial Opening Br.; Dkt. 118, Def. Computershare Trust Company, N.A.’s
Joinder in The Williams Defs.’ Answering Post-Trial Br.
192
845 A.2d 1031, 1033 (Del. 2004).
36
Tooley involved a third-party, two-step acquisition in which the target corporation
consented to the acquirer postponing the closing of the first-step tender offer by twenty-
two days. 193 Stockholder plaintiffs sued, claiming that the stockholders of the target
corporation had a contractual right to have the offer close on time. The plaintiffs claimed
that had the offer closed on time, the stockholders would have gotten their money faster.
As damages, the plaintiffs sought the time value of money that they had lost from the
delay. 194
The Court of Chancery held that the claims were derivative and dismissed them
under Rule 23.1. 195 In reaching this conclusion, the trial court relied on Delaware decisions
employing the concept of “special injury” to determine when a plaintiff could sue
directly. 196 Those decisions defined special injury as a wrong “separate and distinct from
that suffered by other shareholders . . . or a wrong involving a contractual right of a
shareholder.” 197
Applying the special-injury test, the trial court held that there was no meaningful
distinction between the contract rights of the tendering and non-tendering stockholders,
such that they all held parallel contract rights. 198 The decision then reasoned that
193
Id. at 1034.
194
Id.195
Id. at 1033.
196
Id. at 1035; see Lipton v. News Int’l, Plc, 514 A.2d 1075, 1079 (Del. 1986).
Moran v. Household Int’l, Inc., 490 A.2d 1059, 1070 (Del. Ch. 1985) (“Moran I”), aff’d,
197
500 A.2d 1346 (Del. 1985) (internal citations omitted).
198
Tooley, 845 A.2d at 1035.
37
“[b]ecause this delay affected all . . . shareholders equally, plaintiffs’ injury was not a
special injury, and this action is, thus, a derivative action at most.” 199 In other words, the
trial court accepted the argument that it was appropriate to treat a claim—there, a
contractual claim—as derivative if all of the stockholders held the same right and all
suffered the same injury to their parallel right.
The Delaware Supreme Court reversed. The high court recognized that the concept
of special injury had become “amorphous and confusing” 200 and traced much of the
uncertainty to Bokat v. Getty Oil Co., where it held that “[w]hen an injury to corporate
stock falls equally upon all stockholders, then an individual stockholder may not recover
for the injury to his stock alone, but must seek recovery derivatively in [sic] behalf of the
corporation.” 201 The Tooley court described Bokat as “confusing and inaccurate” for the
following reasons:
It is confusing because it appears to have been intended to
address the fact that an injury to the corporation tends to
diminish each share of stock equally because corporate assets
or their value are diminished. In that sense, the indirect injury
to the stockholders arising out of the harm to the corporation
comes about solely by virtue of their stockholdings. It does not
arise out of any independent or direct harm to the stockholders,
individually. That concept is also inaccurate because a direct,
individual claim of stockholders that does not depend on harm
to the corporation can also fall on all stockholders equally,
without the claim thereby becoming a derivative claim. 202
199
Tooley v. Donaldson, Lufkin & Jenrette, Inc., 2003 WL 203060, at *4 (Del. Ch.
Jan. 21, 2003).
200
Tooley, 845 A.2d at 1035.
201
262 A.2d 246, 249 (Del. 1970), abrogated by Tooley, 845 A.2d at 1038–39.
202
Tooley, 845 A.2d at 1037 (emphasis added).
38
In this passage, Tooley reframed the analysis in a way intended to remedy the
confusion caused by Bokat by distinguishing between (i) an injury that fell indirectly on all
stockholders equally, which supported a derivative claim, and (ii) an injury that affected
stockholders directly, even if all stockholders suffered the same injury, which gave rise to
a direct claim. 203 Tooley then expressly rejected the special-injury test in favor of a new,
two-part standard, asking: “(1) who suffered the alleged harm (the corporation or the suing
stockholders, individually); and (2) who would receive the benefit of any recovery or other
remedy (the corporation or the stockholders, individually)?” 204
No decision since Tooley has addressed whether a claim seeking to enjoin a
stockholder rights plan is derivative. In one decision, this court dismissed under Rule 23.1
a claim for damages challenging a defensive action, but the defensive action did not involve
a rights plan and the plaintiff did not dispute that the claim was derivative. 205 In another
decision considering a challenge to a series of anti-takeover measures, the court deemed
the direct-derivative distinction immaterial to the outcome and thus declined to determine
whether the claims were solely derivative. 206
203
See generally In re El Paso Pipeline P’rs, L.P. Derivative Litig., 132 A.3d 67, 97–99
(Del. Ch. 2015) (describing Tooley’s treatment of the analysis in Bokat), rev’d on other
grounds sub nom, El Paso Pipeline GP Co., L.L.C. v. Brinckerhoff, 152 A.3d 1248 (Del.
2016).
204
Tooley, 845 A.2d at 1033.
205
Ryan v. Armstrong, 2017 WL 2062902, at *10, *18 (Del. Ch. May 15, 2017) (dismissing
a concededly derivative stockholder challenge to a defensive measure where the plaintiff
failed to plead that a majority of the board was interested in the transaction and instead
relied on “Unocal to get around the demand requirement”).
206
In re Ebix, Inc. S’holder Litig., 2014 WL 3696655, at *14–16 (Del. Ch. July 24, 2014)
(denying motion to dismiss claims challenging, in part, a golden parachute award as an
39
Tooley, however, did not expressly overrule the cases applying the special-injury
test, and the decision suggested that some of those cases might have reached the right
outcome, thus opening the door for litigants to rely on decisions predating Tooley. 207 In
briefing, Defendants rely on this court’s pre-Tooley decision in Moran (“Moran I”) for the
proposition that poison pill challenges must be brought derivatively.
In Moran I, the board of Household International, Inc. (“Household”) adopted a
rights plan with 20% and 30% triggers as a preventive measure to fend off a potential
takeover by an entity affiliated with one of Household’s own directors. 208 Applying the
special-injury test, the trial court concluded that the stockholder plaintiff’s challenge was
derivative:
[W]here, as here, no shareholder is presently engaged in a
proxy battle, and the alleged manipulation of corporate
machinery does not directly prohibit proxy contests, such an
action must be brought derivatively on behalf of the
corporation.” 209
unreasonable anti-takeover device, concluding that “whether this claim is direct or
derivative is immaterial” to the outcome on a motion to dismiss); see also In re Gaylord
Container Corp. S’holders Litig., 747 A.2d 71, 81 (Del. Ch. 1999) (finding under the pre-
Tooley special-injury test that a claim challenging a rights plan was direct in nature, but
observing that claims “implicating the heightened scrutiny required by Unocal” will pass
the demand futility test under Aronson); In re Chrysler Corp. S’holders Litig., 1992
WL 181024, at *4 (Del. Ch. July 27, 1992) (concluding under the pre-Tooley special-injury
test that the court “need not (and therefore does not) decide whether the plaintiffs’ recission
claims [challenging a rights plan] are solely derivative” because they satisfied the Aronson
test).
207
See Tooley 845 A.2d at 1039.
208
Moran I, 490 A.2d at 1066.
209
Id. at 1070.
40
Defendants interpret the above-quoted language as creating a rule that all poison pill
challenges are derivative subject to a narrow exception that applies during an active proxy
contest. 210 For simplicity, this decision refers to this characterization of Moran I as the
“derivative presumption.” Based on this presumption, Defendants argue that because
Plaintiffs are not engaged in a proxy contest, they cannot pursue their claims directly.
As with any pre-Tooley holding, a court must determine whether the ruling resulted
from the now-defunct special-injury test. 211 The derivative presumption of Moran I suffers
from this flaw, as language found just two sentences after the above-quoted language
reveals: “Because the plaintiffs are not engaged in a proxy battle, they suffer no injury
distinct from that suffered by other shareholders as a result of this alleged restraint on the
ability to gain control of Household through a proxy contest.” 212 The emphasized language
reflects that the Moran I court viewed the exception—a stockholder’s active pursuit of a
proxy battle—as a “separate and distinct” feature giving rise to a special injury. Absent
that special injury, the Moran I court saw the pill as affecting the rights of all stockholders
to the same degree. The derivative presumption of Moran I thus appears to be a direct
application of the special-injury test, and this aspect of Moran I was thus impliedly
abrogated by Tooley.
Even before Tooley, the derivative presumption of Moran I drew criticism. Just a
few months after the Delaware Supreme Court issued Moran II, which affirmed Moran I
210
Defs.’ Opening Br. at 22.
211
See Tooley, 845 A.2d at 1039.
212
Moran I, 490 A.2d at 1070 (emphasis added).
41
without addressing the derivative question, a federal court rejected a pleading-stage
argument that a claim challenging a poison pill adopted by the board of Crown Zellerbach
Corporation was derivative in nature. 213
In 1994, the American Law Institute’s Principles of Corporate Governance
highlighted the issue, commenting that “[c]ases have divided as to whether the issuance of
a ‘poison pill’ security can be challenged by a direct action on the grounds that it chills
voting rights or restricts the alienability of the shareholder’s stock.” 214 Foreshadowing the
law’s development in Tooley, the passage criticized Moran I because its “focus on the
similarly of treatment misses the central point that fundamental shareholder rights (e.g.,
voting and alienability) can be infringed by a variety of board actions that treat existing
shareholders alike.” 215
In 1999, this court in Gaylord criticized the derivative presumption in Moran I. 216
There, management owned a majority of the company’s Class B, super-voting stock, which
gave management control of the company. 217 A Chapter 11 restructuring required that the
company reclassify its Class B stock and issue additional equity, which would reduce
management’s voting power from 74% to 20%. 218 Planning ahead, the management-
213
See Duman v. Crown Zellerbach Corp., 107 F.R.D. 761, 764–65 (E.D. Ill. 1985).
2 Principles of Corporate Governance: Analysis and Recommendations § 7.01 n.3, at 29
214
(Am. L. Inst. 1994).
215
See id.
216
See Gaylord, 747 A.2d at 76–79.
217
Id. at 72–73.
218
Id. at 73.
42
dominated board developed a strategy to maintain their control. First, the board adopted a
poison pill with a 15% trigger that made it economically impractical for anyone to
accumulate a meaningful block without the board’s approval. Second, management
exercised its power at both the board and stockholder levels to adopt a series of defensive
charter and bylaw amendments before their voting control expired. 219 The stockholders
challenged the defensive measures and the claims survived a motion to dismiss. 220
On a motion for class certification, then-Vice Chancellor Strine was required to
determine whether the complaint pled derivative or direct claims. 221 He criticized the
reasoning of the rule of Moran I on multiple grounds, centering on Moran I’s failure to
acknowledge who suffered the harm. 222 He pointedly asked “why a board’s action to
interpose itself between stockholders who are ordinarily free to sell their shares, and
purchasers who are ordinarily free to buy those shares—if improper—works an injury on
the corporation as an entity.” 223 By contrast, he thought it was “obvious” that the plan
infringed on stockholders’ fundamental rights to sell and vote. 224 In the end, the Vice
Chancellor followed the derivative presumption of Moran I but observed that the ruling
219
Id.220
Then-Vice Chancellor Balick denied the motion, concluding that Unocal applied
without analyzing whether the plaintiff’s claims were direct or derivative in nature,
reasoning that invocation of Unocal sufficed to defeat a motion to dismiss. In re Gaylord
Container Corp. S’holders Litig., 1996 WL 752356, at *2 (Del. Ch. Dec. 19, 1996).
221
See Gaylord, 747 A.2d at 74–75.
222
See id. at 76–79.
223
Id. at 78 (emphasis added).
224
Id.43
was immaterial on the facts of the case. 225 The Vice Chancellor explained that if the
plaintiff stated a claim implicating Unocal, then the practical effect was “automatic demand
excusal” under Aronson. 226
Tooley addressed the faulty logic of Moran I’s derivative presumption. It is now
possible to embrace the reasoning of Gaylord and acknowledge that poison pills, if
improper, work an injury on stockholders directly by interfering with at least two
fundamental stockholder rights.
“Modern corporate law recognizes that stockholders have three fundamental,
substantive rights: to vote, to sell, and to sue.” 227 From these fundamental rights flow
225
Id. at 82–83; see Moran I, 490 A.2d at 1069–71.
226
Gaylord, 747 A.2d at 83; id. at 81 (observing that “[s]o long as the plaintiff states a
claim implicating the heightened scrutiny required by Unocal, demand has been excused
under” Aronson). At the time, that statement accurately described of Delaware law. The
Aronson test announced in 1984 used “the standard of review for the challenged decision
as a proxy for whether directors face a substantial likelihood of liability sufficient to render
demand futile.” United Food and Commercial Workers Union v. Zuckerberg, 2020
WL 6266162, at *15 (Del. Ch. Oct. 26, 2020). For many years following Aronson,
application of enhanced scrutiny or entire fairness had the collateral effect of satisfying the
pleading-stage demand futility analysis. Id. at *9–11. Delaware law subsequently evolved
to imbue the derivative-direct distinction with greater practical import. As Vice Chancellor
Laster explained in his recent Zuckerberg decision, the standard of review no longer serves
as a proxy for determining whether demand will be futile, and the hair-splitting direct-
derivative distinction now has greater significance in the current jurisprudential landscape
of Delaware law. Id. at *15–16; see also Armstrong, 2017 WL 2062902, at *13 (rejecting
a per se rule that a well-pled Unocal claim is sufficient to survive a Rule 23.1 demand
futility analysis).
227
Strougo v. Hollander, 111 A.3d 590, 595 n.21 (Del. Ch. 2015); see also EMAK
Worldwide, Inc. v. Kurz, 50 A.3d 429, 433 (Del. 2012); Unitrin, 651 A.2d at 1379(affirming stockholders’ fundamental right to vote).
44
subsidiary rights, including the right to communicate with other stockholders, 228 nominate
directors, 229 and communicate with (and even oppose) management and the Board. 230 As
this court has observed, “[o]ne of the basic rights of a stockholder is to be able to
communicate with his fellow stockholders on matters germane to such stock, and, if
necessary, to organize other stockholders for corporate action.” 231
All rights plans interfere to a some degree with the right to sell and the right to vote,
but Moran held that the level of interference is nominal in the traditional anti-takeover pill
that has both a relatively high trigger and an exception for soliciting revocable proxies. A
traditional pill did not attempt to restrict stockholder communications. As discussed below,
the Plan goes beyond a traditional pill by combining a parsimonious trigger of 5% with the
AIC Provision and a limited passive ownership exception. Through this combination of
provisions, the Plan limits the act of communicating itself, whether with other stockholders
or management. It also restricts the stockholder’s ability to nominate directors. It thus
infringes on the stockholders’ ability to communicate freely in connection with the
stockholder franchise, much of which occurs outside the context of proxy contests. 232 This
articulation of the harm flows to stockholders and not the Company. 233 In this way,
228
B.F. Goodrich Co. v. Nw. Indus., Inc., 1969 WL 2932, at *2 (Del. Ch. Mar. 26, 1969).
229
Harrah’s Ent., Inc. v. JCC Hldg. Co., 802 A.2d 294, 310–11 (Del. Ch. 2002).
230
Abajian v. Kennedy, 1992 WL 8794, at *6 (Del. Ch. Jan. 17, 1992).
231
B.F. Goodrich, 1969 WL 2932, at *2.
232
Trial Tr. 189:13–190:14 (Mills).
233
Defendants argue that Plaintiffs cannot show injury because Wolosky testified that he
does not intend on running a proxy contest, replacing any director, acquiring more than 5%
of Williams stock, engaging in a takeover transaction, or engaging with other stockholders,
45
enjoining the Plan is a remedy that affects stockholders alone and not the Company. Thus,
Plaintiffs’ claim is direct under Tooley. 234
B. The Standard of Review
The parties also dispute the applicable standard of review. Plaintiffs contend that
Unocal governs the court’s analysis. Defendants argue that the more deferential business
judgment standard applies.
Since the Delaware Supreme Court’s decision in Moran, this court “and the
Supreme Court have used Unocal exclusively as the lens through which the validity of a
contested rights plan is analyzed.” 235
Defendants nevertheless argue that the Board’s adoption and maintenance of the
Plan should be subject to business judgment review. Defendants say that the sole
and he is not aware of any Williams stockholders who have refrained from taking this
action because of the Rights Plan. See Defs.’ Opening Br. at 21–22. They portray
Wolosky’s harm as entirely speculative. But it is not incumbent on a class representative
to prove a negative. Given the Plan’s features, the absence of stockholder activism could
be a consequence of the Plan. And the fact that the Plan is alleged to have impeded the
stockholder franchise suffices to render Plaintiffs’ claims direct.
234
At trial, Wolosky testified that the Plan impairs the value of the Company as a whole
by stifling value-enhancing activities. Trial Tr. at 28:21–23 (Wolosky). Defendants seize
on this testimony to argue that any damages would flow to the Company as a whole and
not its stockholders directly. See Defs.’ Opening Br. at 20 (quoting Trial Tr. at 28:11–23
(Wolosky)). Defendants’ argument might have merit if Plaintiffs were pursuing a claim
for damages, but Plaintiffs seek only injunctive relief. See Wolosky Compl., Prayer for
Relief at 20–21. Because Plaintiffs are not seeking damages, this court need not resolve
whether such a claim would be derivative in nature.
235
Third Point LLC v. Ruprecht, 2014 WL 1922029, at *15 (Del. Ch. May 2, 2014); see
also eBay Domestic Hldgs., Inc. v. Newmark, 16 A.3d 1, 28 (Del. Ch. 2010) (“Enhanced
scrutiny has been applied universally when stockholders challenge a board’s use of a rights
plan as a defensive device.”).
46
justification for Unocal’s enhanced standard is “the omnipresent specter that a board may
be acting primarily in its own interests, rather than those of the corporation and its
shareholders.” 236 Defendants argue that this specter is not present where a poison pill is
designed to address stockholder activism as opposed to hostile takeover attempts.
There are many possible responses to Defendants’ attempt to parse finely the
concept of entrenchment, but it suffices for present purposes to say that Defendants’
contention runs contrary to the Delaware Supreme Court’s decision in Selectica II.237
There, the poison pill was adopted for the purpose of preserving NOL assets and not
warding off hostile takeover attempts. 238 The court held that the Unocal standard
nevertheless applied because all poisons pills, “by . . . nature,” have a potentially
entrenching “effect.” 239 It is therefore settled law that the Board’s compliance with their
236
Defs.’ Opening Br. at 27 (quoting Unocal, 493 A.2d at 954 (Del. 1985)); see also
Gaylord Container Corp. S’holders Litig., 753 A.2d 462, 474 (Del. Ch. 2000) (observing
the “omnipresent specter” implicated “[w]hen a board adopts measures designed to deter
or defend against an acquisition offer and thereby also against the possibility that the board
and management will lose their positions after the acquisition”).
237
5 A.3d 586.
238
Selectica II, 5 A.3d at 599.
239
Id. (“Any NOL poison pill’s principal intent . . . is to prevent the inadvertent forfeiture
of potentially valuable assets, not to protect against hostile takeover attempts. Even so,
any Shareholder Rights Plan, by its nature, operates as an antitakeover device.
Consequently, notwithstanding its primary purpose, a NOL poison pill must also be
analyzed under Unocal because of its effect and its direct implications for hostile
takeovers.” (emphasis added)); see also Third Point, 2014 WL 1922029, at *15 & n.10
(applying Unocal to an anti-activist poison pill, observing that Delaware courts have “used
Unocal exclusively as the lens through which the validity of a contested rights plan is
analyzed” and that “[t]his includes cases in which a rights plan has been used outside of
the hostile takeover context”); Air Prods. and Chems. v. Airgas, Inc., 16 A.3d 48, 94
(Del. Ch. 2011) (observing that “[t]he Unocal standard of enhanced judicial scrutiny—not
the business judgment rule—is the standard of review that applies to a board’s defensive
47
fiduciary duties in adopting and then failing to redeem the Plan must be assessed under
Unocal. 240
C. The Unocal Analysis
Having addressed the two threshold issues, this decision now turns to the merits of
the enhanced scrutiny analysis. Unocal calls for a two-part inquiry. “The first part of
Unocal review requires a board to show that it had reasonable grounds for concluding that
a threat to the corporate enterprise existed.” 241 Framed more broadly, directors must
demonstrate that they acted in good faith to achieve a “legitimate corporate objective.” 242
actions taken in response to a hostile takeover,” and that “[t]his is how Delaware has always
interpreted the Unocal standard”); eBay, 16 A.3d at 28 (observing that “[e]nhanced
scrutiny has been applied universally when stockholders challenge a board’s use of a rights
plan as a defensive device”); Yucaipa Am. Alliance Fund II, L.P. v. Riggio, 1 A.3d 310,
330–36 (Del. Ch. 2010) (applying Unocal to an anti-activist poison pill).
240
Defendants attempt to meet Selectica with an overly narrow concept of entrenchment.
“Entrench” means to fortify a position—to make change difficult or unlikely. See, e.g.,
Entrench, Merriam Webster, https://www.merriam-webster.com/dictionary/entrench
(defining “entrench’ as “to place within or surround with a trench especially for defense,”
“to place (oneself) in a strong defensive position,” and “to establish solidly”); Entrench,
Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/entrench
(defining “entrench” as “to firmly establish something . . . so that it cannot be changed”);
Entrench, Lexico, https://www.lexico.com/en/definition/entrench (defining “entrench” as
to “[e]stablish (a person or their authority) in a position of great strength or security,” noting
that the word originates from “the sense ‘place within a trench’”). As discussed below, the
Board in this case acted with the purpose of insulating the Board and management from
stockholder influence during a time of uncertainty. This conduct thus seems to fit the
definition of entrenchment.
241
Selectica II, 5 A.3d at 599.
242
See Mercier v. Inter-Tel (Del.), Inc., 929 A.2d 786, 807–810 (Del. Ch. 2007) (cautioning
against placing “too much emphasis on the word ‘threat’” when conducting a Unocal
review); id. (stating that “[t]he core of Unocal’s utility really rests in the burden it asserts
on directors to: (1) identify the proper corporate objectives served by their actions; and (2)
justify their actions as reasonable in relationship to those objectives”).
48
To satisfy the first part of Unocal, Defendants must demonstrate that the Board
conducted a “good faith and reasonable investigation.” 243 The reasonableness of the
investigation is “materially enhanced” 244 where the corporate decision is approved by a
board comprising a majority of outside, nonemployee directors “coupled with a showing
of reliance on advice by legal and financial advisors.” 245
To meet their burden under the first part of Unocal, however, Defendants must do
more than show good faith and reasonable investigation. “[T]he first part of Unocal review
requires more than that; it requires the board to show that its good faith and reasonable
investigation ultimately gave the board ‘grounds for concluding that a threat to the
corporate enterprise existed.’” 246 In other words, after conducting a reasonable
investigation and acting in good faith, the board must show that it sought to serve a
legitimate corporate objective by responding to a legitimate threat. If the threat is not
legitimate, then a reasonable investigation into the illegitimate threat, or a good faith belief
that the threat warranted a response, will not be enough to save the board.
The second part of Unocal requires a board to show that the defensive measures
were “reasonable in relation to the threat posed.” 247 This element of the Unocal test
243
Unocal, 493 A.2d at 955.
244
Id.245
Selectica, Inc. v. Versata Enters., Inc., 2010 WL 703062, at *12 (Del. Ch. Feb. 26, 2010)
(“Selectica I”).
246
Air Prods., 16 A.3d at 104 (quoting Selectica II, 5 A.3d at 599) (emphasis added).
247
493 A.2d at 949. By adopting the nomenclature of Unocal, this court does not place
“too much emphasis on the word ‘threat.’” Mercier, 929 A.2d at 807.
49
recognizes that a board’s powers to act “are not absolute” and that a board “does not have
unbridled discretion to defeat any perceived threat by any Draconian means available.” 248
When applying the reasonableness standard, the court does not substitute its judgment for
that of the board. The court instead determines whether the measure falls within “the range
of reasonableness.” 249
When conducting the proportionality analysis, the court also examines the
relationship between the defensive action that the directors took and the problem they
sought to address. 250 The court thus examines “the reasonableness of the end that the
directors chose to pursue, the path that they took to get there, and the fit between the means
and the end.” 251 It is the specific nature of the threat that “sets the parameters for the range
248
493 A.2d at 949.
249
Unitrin, 651 A.2d at 1387–88 (quoting Paramount, 637 A.2d at 45–46).
250
See Mercier, 929 A.2d at 808.
251
See Obeid v. Hogan, 2016 WL 3356851, at *13 (Del. Ch. June 10, 2016) (providing
overview of enhanced scrutiny); Mercier, 929 A.2d at 810–811 (explaining that when
directors take action that affects stockholder voting, enhanced scrutiny requires that the
defendant fiduciaries bear the burden of proving (i) that “their motivations were proper and
not selfish,” (ii) that they “did not preclude the stockholders from exercising their right to
vote or coerce them into voting a particular way,” and (iii) that the directors' actions “were
reasonable in relation to their legitimate objective”); id. at 811 (“If for some reason, the fit
between means and ends is not reasonable, the directors would also come up short.”); see
also In re Dollar Thrifty S’holder Litig., 14 A.3d 573, 598 (Del. Ch.2010) (explaining that
when applying enhanced scrutiny, “the court seeks to assure itself that the board acted
reasonably, in the sense of taking a logical and reasoned approach for the purpose of
advancing a proper objective, and to thereby smoke out mere pretextual justifications for
improperly motivated decisions”); id. at 599–600 (“[T]he reasonableness standard requires
the court to consider for itself whether the board is truly well motivated (i.e., is it acting for
the proper ends?) before ultimately determining whether its means were themselves a
reasonable way of advancing those ends.”); cf. Yucaipa, 1 A.3d at 337 (“Unitrin left room
50
of permissible defensive tactics” and a “reasonableness analysis requires an evaluation of
the importance of the corporate objective threatened; alternative methods for protecting
that objective; impacts of the defensive action and other relevant factors.” 252
1. The Director Defendants’ Reasons for Acting
The Director Defendants’ actual and articulated reason for taking action figures
prominently in the Unocal analysis. In the traditional language of Unocal, the directors
must have identified and responded to a legitimate corporate threat. They cannot justify
their conduct based on threats that they never identified or beliefs they did not hold. 253
Before turning to the question of whether the threat is legitimate, the court must determine
why the Director Defendants acted. This decision therefore starts by making factual
findings concerning the threat or corporate objective to which the Board was responding
when adopting the Plan.
a. The Actual Threats That the Board Identified
It is often difficult to distill a unified purpose behind a decision made by a group of
people; often, members of the group have different reasons for supporting a decision. It is
particularly difficult to discern such a purpose in the context of litigation, where there is
for a determination that a non-preclusive, non-coercive defensive measure was nonetheless
unreasonable in light of the threat faced by the corporation.”).
252
Selectica I, 2010 WL 703062, at *19 (internal quotation marks omitted) (first quoting
Unitrin, 651 A.2d at 1384, and then quoting Paramount Commc’ns, Inc. v. Time Inc.,
571 A.2d 1140, 1154 (Del. 1989)) (internal quotation marks omitted).
253
See, e.g., Chesapeake Corp. v. Shore, 771 A.2d 293, 332 (Del. Ch. 2000) (finding that
board did not identify and consider a threat it later relied on at trial).
51
always the risk that fact witnesses will recall events that occurred prior to litigation through
the lens of newly crafted litigation positions.
This challenging task is further complicated here because the lawyer-drafted
documents to which one would typically look for a statement of a board’s purpose—e.g.,
board resolutions, board minutes, company disclosures—do not reflect the Board’s actual
intent. The materials from the March 19 Board meeting, including the resolution, the
March 20 Press Release, and the March 30 Proxy Supplement, all state that the Plan was
intended in part to serve as a takeover deterrent. 254 But the Plan was not designed for that
254
JX-67 at 2 (March 19 Board meeting minutes) (“The Board deems it desirable and in
the best interests of the Company and its stockholders that steps be taken to preserve for
the Company’s stockholders the long-term value of the Company in the case of a coercive
or inadequate takeover or rapid accumulations of large positions by persons not having a
passive intent.” (emphasis added)); JX-69 at 2 (March 20 Williams press release) (“The
Board . . . has adopted the [Plan] to reduce the likelihood that a potential acquirer would
gain (or seek to influence or change) control of the Company by open market accumulation
or other tactics without paying an appropriate premium for the Company’s shares.
(emphasis added)); JX-82 at 3 (March 30 Proxy Supplement) (“The Board determined that
the adoption of the [Plan] is appropriate in light of the extreme market dislocation that has
resulted in the company’s stock being fundamentally undervalued. The conditions
stemming from the impact of COVID-19 on the economy and the volatility of the oil
market have resulted in significant decline in the company’s stock price. The [Plan] is
intended to enable all Williams stockholders to realize the full value of their equity
investment and to reduce the likelihood of those seeking short-term gains taking advantage
of current market conditions at the expense of the long-term interests of stockholders or of
any person or group gaining control of Williams through open market accumulation or
other tactics (especially in volatile markets) without paying an appropriate control
premium.” (emphasis added)); id. (“The company has, as of the date of this supplement,
reached out to all of our major stockholders regarding our rights plan. Most of the
stockholders we have engaged with to date have informed us that they understand the need
for the adoption of our [Plan] in the context of the highly unusual and extreme
circumstances that led to the current severe market conditions and the need to protect the
interests of the company and its long-term stockholders.” (emphasis added)).
52
purpose, and some of the directors did not have that in mind when adopting the Plan. 255
The Plan was not adopted with the objective of deterring takeover attempts.
In fact, the Plan was not adopted to protect against any specific threat at all. 256 The
255
See Trial Tr. at 93:16–19 (Cogut) (confirming that “the pill wasn’t intended or designed
to deal with the risk of a takeover at all”); id. at 515:1–7 (Subramanian) (opining that “this
rights plan was not meant to be a hostile takeover deterrent” and that “the pill would have
been virtually irrelevant for that kind of hostile bid” because the company was vulnerable
to takeover activity for other reasons). Other witnesses were more qualified in their
statements, testifying that the Plan was not intended to deal with a specific takeover threat.
See, e.g., id. at 599:7–10 (Buese) (confirming that “the pill was not adopted in response to
any person or group attempting to take control of the company”); Bergstrom Dep. Tr. at
179:23–180:16 (testifying that he was “not aware of any specific takeover threat at the
time”). But see Fuller Dep. Tr. at 56:8–20 (testifying that “we were doing something to
protect the long-term shareholders and prevent someone coming in and, you know, sort of
acquiring stock at very low levels and possibly . . . forcing a sale of the company below its
long-term value” (emphasis added)).
256
PTO ¶ 82; Trial Tr. at 544:8–15 (Buese) (testifying that “there was no actual threat”);
Bergstrom Dep. Tr. at 181:13–19 (testifying that “we were not aware of any specific threat,
as I earlier testified”); Fuller Dep. Tr. at 234:22–235:5 (testifying that she perceived no
“current threat” to Williams when the Plan was adopted); see also JX-78 at 11 (Chandler
telling investors during a Mar. 25, 2020 business update call: “we did not adopt that [rights]
plan . . . in response to any specific threat”); JX-187 at 12 (Krieg emailing Wilson and
Chandler on Apr. 13, 2020, with points for Apr. 15, 2020 investor relationship call, stating
that the “[p]lan was not adopted in response to any known / specific threat”); JX-62 at 1
(Chandler writing in a Mar. 19, 2020 email: “I do think it is important to leave the reader
with the belief this [adoption of the Plan] is not being done because of some ominous
business results that will be coming out . . . . But purely because we don’t think the market
price is reflective of our value.” (ellipses in original)); id. at 2 (Chandler writing in a
Mar. 18, 2020 email: “We will want to alleviate fears that we are doing this because
something ominous is coming.”); id. (Krieg writing in a Mar. 18, 2020 email that “the
strong position of our business is not being recognized by the market; we don’t want
opportunist [sic] to swoop in and claim the true value of the business at an artificially low
value”); Trial Tr. at 92:5–10 (Cogut) (“I think it’s an open question as to whether or not
there needed to be a threat for us to have taken this action.”); id. at 353:6–354:2 (Smith)
(testifying that he was not aware of any activists, or persons generally, seeking to take
advantage of Williams stock price at the time the Plan was adopted).
53
Board was not concerned about any specific activist threat. 257 Nor was the Board acting to
preserve any specific asset like an NOL. 258 Instead, the Board was acting pre-emptively to
interdict hypothetical future threats. 259
The Plan was also not adopted in light of the Company’s prior experience with
activism, although Defendants took that position throughout this litigation. 260 It is true that
257
See Trial Tr. at 321:8–10 (Smith) (testifying that he was not aware of “any particular
risks with respect to shareholder activism”); id. at 93:20–94:7 (Cogut) (“There was, to the
best of our knowledge at that point, very little activist involvement, but there was . . .
a market opportunity for people who might want to come in and exercise influence and
control over the company. . . .”); id. at 599:11–14 (Buese) (confirming that the Plan “was
not adopted in response to any person or group attempting to exercise influence over the
company”); Bergstrom Dep. Tr. at 182:5–9 (testifying that “[t]here was not any specific
activist investor threat”); Fuller Dep. Tr. at 196:3–13 (testifying that the “danger” was that
“someone could amass a fair amount of stock and put itself in a position of forcing the
board to take action that was not in the best interest of the long-term shareholders”).
258
Trial Tr. at 598:23–599:2 (Buese); id. at 346:19–22 (Smith); Chandler Dep. Tr. at
195:17–21.
259
See JX-73 at 1 (Wilson emailing management on Mar. 20, 2020: “I think I can help
convince [Blackrock] that this was solely a proactive effort, that we monitor our positions
frequently and that we have no indication of anyone being in our stock. We can also be
very definitive that we have not received an offer. I also think its fair game to point out
that the company has been through this once before recently and saw how an activist can
destroy long term value – again purely proactive.” (emphasis added)); id. at 2 (Wilson
emailing management on Mar. 20, 2020: “I think we can craft a very good argument that
this should be viewed by our long term investors as good governance. . . . Activists always
push the needle in the wrong direction on those issues, so we are being proactive to prevent
an activist from making a lot of short term money at the cost of the very things Blackrock
views as most important.” (emphasis added)).
260
JX-144 at Response to Interrogatory No. 1 (“The Board’s views and conclusions were
also reinforced by Williams’ experience during the 2013 to 2016 time period with two
shareholder activists, each of whom held less than 5% of Williams stock but who acted
together in a coordinated attempt to exert substantial influence over Williams.”);
Subramanian Report ¶ 16 (“I understand from my review of deposition testimony taken in
this action that one of the factors that motivated the Board’s adoption of a poison pill in
54
Williams management cited prior activism as a justification for the Plan when
communicating with stockholders in advance of the annual meeting. 261 It is also true that
Smith’s prior experience appears to have contributed to his support of the Plan. 262 But
there is no evidence that it was a motivating factor of the Board as a whole. The Board
simply did not discuss the Company’s prior experience with activism during the March 18
or March 19 meetings. 263 This justification appears to have emerged at the Board level
after the Plan had been adopted. 264 Indeed, Cogut testified that “the fact that the company
March 2020 was Williams’ past experience with shareholder activists several years
earlier.”).
261
See, e.g., JX-117 at 7 (communicating to stockholders that “Company experience in
recent past reinforced Board’s view that 5% is the right threshold in this environment”);
JX-70 at 1 (strategizing a response to Blackrock’s concerns, Wilson noting that “it’s fair
game to point out that the company has been through this once before recently and saw
how an activist can destroy long term value”); JX-187 at 3 (noting, in a document
containing talking points for conversations with investors, that Company representatives
should discuss: “Company recent past experiences with activism – Corvex and Sorobon
[sic] owned, either as beneficial owners or as economic interest owners, 9.96% of the
Company’s outstanding shares. Neither owned more than 5%.”).
262
See JX-46 (Smith emailing Wilson on the evening of March 17 that he was “[v]ery
happy about the upcoming discussion on a shareholders rights plan especially after
recounting to [Cogut] what we went thru [sic] in 2015/16”); see also Trial Tr. at 322:9–
323:12 (Smith) (testifying that his email referred to the activism Williams had previously
faced, but that he had not discussed that experience “at this particular time”); id. at 351:23–
352:24 (Smith).
263
Trial Tr. at 334:1–10 (Smith); id. at 548:23–549:3 (Buese); id. at 143:21–144:4 (Cogut).
264
For example, Cogut’s first mention of the prior activism appears in an April 9, 2020
email exchange with Wilson where Wilson suggested adding to the “talking points” to be
discussed with stockholders that “Corvex and Sorobon [sic] owned, either as beneficial
owners or as economic interest owners, 9.96% of our outstanding shares. We’ll have that
in the talking points or facts. It goes to the very reason we did 5%.” JX-104. But see Trial
Tr. at 169:5–12 (Cogut) (testifying that the 5% trigger “was there for a number of reasons,
but not because the Corvex and other guys had 9.6”). And testimony by the Director
Defendants unequivocally confirms that the subject was never discussed by the Board in
55
had to deal with activists before was not a motivating force” 265 and that he “would have
had the same idea whether or not the company had ever had activist experience.” 266
The record is clear that the Company’s declining stock price was the initial catalyst
for the Board’s decision. Testimony and contemporaneous emails align on this fact. 267
The context and timing of the Plan’s adoption further corroborates it, as the Board called
an “urgent” meeting as its stock price continued to decline in the wake of the market
disruption caused by COVID-19 and the oil pricing war. 268
When asked during trial and at their respective depositions about the reasons for
adopting the Plan, Cogut, Smith, Buese, Bergstrom, and Fuller testified generally that the
connection with its pill deliberations. Id. at 143:21–144:4 (Cogut); id. at 334:1–19;
352:15–353:5 (Smith); id. at 548:23–549:15, 577:23–579:11 (Buese).
265
Trial Tr. at 143:21–24 (Cogut).
266
Id. at 144:2–4 (Cogut).
267
See JX-50; JX-62; JX-171; Trial Tr. at 320:1–24 (Smith); id. at 551:7–10, 554:18–555:3
(Buese); Bergstrom Dep. Tr. at 182:5–14; see also Trial Tr. at 147:20–148:5 (Cogut)
(“And, obviously, other than being concerned that there would be market dislocation
because of COVID, you know, I had no expectation that, you know, over the course of the
next two to three weeks that the stock would fall the way it did.”).
268
See JX-45 at 1 (proposing “an urgent special telephonic board meeting to discuss the
possibility of a shareholder rights plan”); PTO ¶ 83 (“The conditions that caused the
significant decline in Williams stock price stemmed from the impact of COVID-19 on the
economy and the volatility of the oil market relating to the pricing war . . . .”); PTO Ex. A
(noting Williams’ declining stock price during March 2020). In briefing, Plaintiffs made
much of the fact that Cogut testified that he “wasn’t really concerned that the [stock] price
was low,” see Pls.’ Opening Br. at 20, but Cogut made this statement almost immediately
after affirming his concern that “the stock price would create a certain amount of
opportunism and availability” for activism to emerge. Trial Tr. at 143:9–20 (Cogut).
Cogut’s testimony, therefore, does not undermine the weight of evidence reflecting that the
market-wide dislocation was the impetus behind the Plan.
56
intent of the Plan was to deter stockholder activism, although they all added their own gloss
when articulating this purpose.
Cogut’s testimony was the most unadorned and refreshingly candid. He testified
that he proposed the Plan to insulate the Board and management from all forms of
stockholder activism during the uncertainty of the pandemic. In Cogut’s words:
• The Rights Plan was a “novel concept” that used “the technology of
shareholder rights plans to provide insulation [for] management during the
uncertainty created by the pandemic.” 269
• The Plan’s objective was agnostic regarding different kinds of activism.
When asked whether Cogut was “drawing distinctions between different
kinds of activism” the Plan was trying to halt, he responded: “Any activism
that would influence control over the company at an aggregate level above
5 percent, yeah.” 270
• The Plan’s value was its ability “to prevent against an activist buying a
toehold of 5 percent or more or acting in concert with other activists so that
our management could be freed up . . . to run a company during
COVID.” 271
• The Plan’s power was immense: “[T]he shareholder rights plan is the
nuclear weapon of corporate governance,” and “nuclear weapons are
deterrents” that would force activists to deal with the Board instead of talking
to each other. 272
• The Plan’s objective was to impose a “one-year moratorium” on activism.273
269
Trial Tr. at 69:8–11 (Cogut) (emphasis added); see also id. 69:22–70:1 (Cogut)
(confirming his view that the purpose of the pill was to “protect against activists during
COVID”); JX-41 (Cogut writing in a March 17, 2020 email that “[t]he goal is to prevent a
raider from taking advantage of the current situation”).
270
Trial Tr. at 70:20–71:5 (Cogut) (emphasis added).
271
Id. at 114:24–125:13 (Cogut) (emphasis added).
272
Id. at 114:10–20 (Cogut) (emphasis added).
273
Id. at 118:11–18 (Cogut) (emphasis added).
57
Smith similarly testified that he hoped to protect the company from outside
pressures to allow the Board and management to “get our job done.” 274 Smith expressed a
desire to protect long-term interests. Smith also expressed a desire to force stockholders
seeking to accumulate stock in excess of 5% to negotiate with the Board. In Smith’s words:
• He described the rights plan as “one more arrow in the quiver” to “protect
the company from more outside pressures so we can get our job done.” 275
• His concern was: “[H]ow do we protect our long-term shareholders? And
how do we protect this company?” 276
• He was not focused on “any particular risks with respect to shareholder
activism,” but he instead sought to “creat[e] a pathway that would allow us
to move forward.” 277
• He viewed the Plan as a form of buffer—“guardrails along the track so that
we could have a map to be able to rationally deal with any type of event that
might occur under a shareholder rights plan.” 278
Buese too was concerned about stockholder activism, but she focused more
specifically on “short-term-oriented investors.” 279 She also expressed concerns about the
“rapid accumulation by shareholders.” 280 In Buese’s words:
• “[I]n the energy space, and the MLP sector in particular, there were a
number of well-known short-termist parties and hedge funds who were
274
Id. at 320:19–20 (Smith).
275
Id. at 320:15–321:5 (Smith) (emphasis added).
276
Id. at 320:21–24 (Smith) (emphasis added).
277
Id. at 321:8–10 (Smith); see also JX-46 (Smith writing in a March 17, 2020 email that
he was “[v]ery happy about the upcoming discussion on a shareholders rights plan
especially after recounting to [Cogut] what we went thru [sic] in 2015/16”).
278
Trial Tr. at 354:19–23 (Smith) (emphasis added).
279
Id. at 539:22 (Buese).
280
Id. at 601:16–17 (Buese).
58
known to work together in certain circumstances and had done so in the
past.” 281
• The volatility in Williams stock price “was creating a lot of uncertainty and
risk for the long-term value of the company that was completely
unwarranted and not borne out by the performance of the company.” 282
• “[S]hort-term-oriented investors not infrequently will take the opportunity
to build up, accumulate shares, and may act in a way or attempt to act in a
way that is not consistent with the long-term, best interests of the overall
shareholder group.” 283
• “[T]he rapid accumulation and the very low share price, even in just raw
dollars, would potentially invite short-termism and hedge funds to jump
in.” 284
• “[Y]ou see the short-termism come out of the woodwork” where “the
market was reacting to the macro conditions with a great deal of
velocity.” 285
• The Board discussed the threat of a rapid accumulation of stock at the
March 19 meeting and Morgan Stanley advised that the Plan “would deter
an activist from taking advantage of the current market dislocation and
challenges in monitoring unusual trading patterns that results in a rapid
accumulation of a >5% stake.” 286
• “[P]art of the fiduciary duty of the board members is that . . . if an offer is
provided to the board and/or to management, that it’s our job to consider it
and give it due course. The entire purpose of the [P]lan is to make sure that
that was not done in a way that is only for the interests of the short-term
investor taking that action and not in the overall best interests of the entire
shareholder group for the longer term.” 287
281
Id. at 548:12–16 (Buese) (emphasis added).
282
Id. at 539:5–18 (Buese) (emphasis added).
283
Id. at 539:21–540:2 (Buese) (emphasis added).
284
Id. at 556:23–557:6 (Buese) (emphasis added).
285
Id. at 539:5–13 (Buese) (emphasis added).
286
Id. at 556:7–23 (Buese) (emphasis added).
287
Id. at 566:9–21 (Buese) (emphasis added).
59
• But the Board was not aware of a “rapid accumulation of Williams stock by
any particular investor” at the time the Plan: “[T]here was no actual
threat. . . . [I]t was a perceived threat . . . .” 288
Bergstrom testified that the Plan specifically targeted activists. He echoed the
“guardrails” and “rapid accumulation” concerns raised by Smith and Buese. In
Bergstrom’s words:
• The Plan was “being used to avoid raiders – activists getting involved at the
company because the stock had dropped from $24 to eight and made it much,
much easier for somebody to come in who wanted to disrupt the company at
that point in time. And that was the . . . concern that I had.” 289
• Activist activity was the “big concern from my perspective. I’m not sure
how widely -- how wide that was a concern of the rest of the board. That
was clearly mine.” 290
• The Plan “allows the company to -- the board to negotiate and talk to the
shareholder who jumps in the middle and wants to do something different
dramatically or different than what the company currently is doing.” 291
• When the Plan was adopted, “[t]here was not any specific activist investor
threat,” but “the result in stock price decline certainly made it much, much
easier for that to occur.” 292
• He further explained that “we thought if we did nothing, that the company
was at risk for activist investors to do things that were not in the best interest
of the total shareholder base. . . . Plus, at that point, you know, the stock
price, our cash flow had not changed materially and the stock price had
dropped . . . by threefold. And the price was not representative of the value
288
Id. at 544:8–15 (Buese) (emphasis added).
289
Bergstrom Dep. Tr. at 52:19–53:2 (emphasis added).
290
Id. at 50:11–14 (emphasis added).
291
Id. at 31:9–25 (emphasis added).
292
Id. at 182:5–9.
60
of the cash flows going forward. And so we felt like as a board we needed
to do something . . . to protect it.” 293
Fuller testified that the Plan was intended to avoid disruption by insulating the
management team to allow them to focus on long-term interests. She too testified as to her
desire to protect the Company against short-termism and the rapid accumulation of stock.
In Fuller’s words:
• “The company is dealing with a whole host of very significant and serious,
serious issues at this time. And what’s being discussed is something to put
in place for the short-term to at least make sure that a group of activists don’t
just take a position without having to declare themselves and their
intention. . . . And I really wanted this excellent management team to at
least be focused on making sure that we weren’t vulnerable.” 294
• “What was foremost in my mind was making sure that we got the best value
for shareholders. And that . . . the management team was focused on
making sure the company navigated and that shareholders, long-term
shareholders . . . would not be in a position where there was a sale that was
way below what the company was truly worth.” 295
• The “danger” posed was that the stock “was so underpriced that someone
could amass a fair amount of stock and put itself in a position of forcing the
board to take action that was not in the best interest of the long-term
shareholders.” 296
• When asked about threats to corporate policy and effectiveness, she
responded that she was “aware of . . . what had happened in a generic sense
in 2013. And that it had been pretty really disruptive to the management of
the company. And thinking about disruption, we are already in a disruptive
environment, hugely disruptive, was something that I was concerned would
have a negative effect on the operations of the company.” 297
293
Id. at 184:10–185:7.
294
Fuller Dep. Tr. at 233:3–234:19 (emphasis added).
295
Id. at 57:25–58:13 (emphasis added).
296
Id. at 196:3–13 (emphasis added).
297
Id. at 225:16–25 (emphasis added).
61
A few themes emerge from the Director Defendants’ testimony. First, they all
expressed the sentiment that the Plan was intended to deter stockholder activism.298
Second, they desired to insulate the board from activists pursuing “short-term” agendas
and from distraction and disruption generally. Third, they were concerned that a
stockholder might stealthily and rapidly accumulate large amounts of stock. 299
b. The Legitimacy of the Actual Threats
The first prong of Unocal requires evaluating whether the Board has demonstrated
that it conducted a good faith reasonable investigation and had “grounds for concluding
that a threat to the corporate enterprise existed.” 300 Defendants have demonstrated that the
Board conducted a good faith, reasonable investigation when adopting the Plan. The
Director Defendants are nearly all independent, outside directors. They considered the
Plan over the course of two meetings. Although aspects of the record create the impression
that the second Board meeting was window dressing, it is clear that there was genuine
298
See also JX-187 at 1 (Chandler writing: “limited scope  just activist”).
299
This last purpose features prominently in the documentary record as well. See JX-171
at 2 (Krieg writing: “One thing we are interested in is folks who may be getting close to
the 5% ownership line in real-time (so surveillance data). Could you all produce a report
that shows folks where [sic] are close to crossing the 5% ownership line or folks who look
like they might be ramping up their position (close to that line)?”); JX-172 at 3 (Krieg
writing: “[C]ould you all take a look at the surveillance data with a view to who might be
working their position upward, towards a 5% ownership position?”); JX-65 at 4 (Morgan
Stanley March 19 Board presentation stating that “[t]he rights plan would deter an activist
from taking advantage of the current market dislocation and challenges in monitoring
unusual trading patterns that results in a rapid accumulation of a >5% stake”); JX-117 at 5
(April 15 disclosure stating that the goal was “[t]o prevent an opportunistic party from
achieving substantial influence or control without paying a control premium to other
stockholders”).
300
Air Prods., 16 A.3d at 104 (quoting Selectica II, 5 A.3d at 599).
62
deliberation concerning the Plan. Defendants were advised by outside legal and financial
advisors who were available to answer questions. Certainly, aspects of the process were
less than perfect. 301 Still, nothing about the process jumps out as unreasonable. 302
The real problem is not the process that Defendants followed, but the threats they
identified. The first threat was quite general—the desire to prevent stockholder activism
during a time of market uncertainty and a low stock price. The second threat was only
slightly more specific—the concern that activists might pursue “short-term” agendas or
distract management. The third threat was just a hair more particularized—the concern
that activists might rapidly accumulate over 5% of the stock and the possibility that the
Plan could serve as an early detection device to plug the gaps in the federal disclosure
regime. 303 Each of the three threats were purely hypothetical; the Board was not aware of
301
See generally Pls.’ Answering Br. at 23–26.
302
See Gaylord, 753 A.2d at 478–79 (finding a good faith, reasonable investigation under
similar circumstances); Moran II, 500 A.2d at 1356 (finding a good faith reasonable
investigation where the board received information from advisors, was informed as to “the
essentials of the [p]lan,” and had a “three-page summary” of the plan). To be sure, it would
have been better if the Director Defendants read the Plan or at least had a more meaningful
discussion of its features before adopting it. But these defects are not fatal. It is generally
true that a director does not need to read every work of a dense legal document to
demonstrate that the investigation was reasonable. See Moran I, 490 A.2d at 1068, 1083(upholding rights plan even though “some directors were not conversant with the
implications of the plan”); Yucaipa, 1 A.3d at 343, 361 (upholding plan even though “some
directors admittedly had difficulty interpreting” it and observing that such difficulty was
“understandable because it [was] a complex agreement”). “Delaware law does not require
that a senior decision-maker . . . read every agreement in haec verba.” ASB Allegiance
Real Estate Fund v. Scion Breckenridge Managing Member, LLC, 2012 WL 1869416,
at *15 (Del. Ch. May 16, 2012), aff’d, 68 A.3d 665 (Del. 2013).
303
See Subramanian Report ¶¶ 79–81.
63
any specific activist plays afoot. The question presented is whether these hypothetical
threats present legitimate corporate objectives under Delaware law.
i. Stockholder Activism
“Stockholder activism” is a broad concept that refers to a range of stockholder
activities intended to change or influence a corporation’s direction. 304 Activists may
pressure a corporation to make management changes, implement operational
improvements, or pursue a sale transaction. They may seek to catalyze or halt a merger or
acquisition. More recently, “ESG activism” has come to the fore, and stockholders have
begun pressuring corporations to adopt or modify policies to accomplish environmental,
social, and governance goals. 305 Many forms of stockholder activism can be beneficial to
a corporation, as Defendants themselves recognize. 306
Under Delaware law, the board of directors manages the business and affairs of the
corporation. 307 Thus, stockholder activism is directed to the board. And activists’ ability
304
Mills Report ¶ 31; accord. Goldfarb Report ¶ 16 (“An activist investor is a shareholder
that seeks to induce management and the board of directors to make changes at a
company.”).
305
See Mills Report ¶ 31; see also Omari Scott Simmons, Chancery’s Greatest Decision:
Historical Insights on Civil Rights and the Future of Shareholder Activism, 76 Wash. &
Lee L. Rev. 1259, 1289–90 (2019) (referring to ESG activism as “[t]he new wave of
corporate social activism” involving “the public-private spheres, evolution of corporate
social responsibility efforts, and expansion of corporate political rights”). Former-Chief
Justice Strine has also suggested that the “E” in “ESG” refers to employee-related action.
See Leo E. Strine, Jr. Toward Fair and Sustainable Capitalism 6 (U. Pa. Inst. For L. &
Econ. Res., Paper No. 19-39, 2019) (reframing ESG as “EESG,” noting “the vital missing
‘E’—the interests of companies’ employees”).
306
See Trial Tr. at 73:7–10 (Cogut); id. at 536:2–16, 581:17–23 (Buese).
307
8 Del. C. § 141(a).
64
to replace directors through the stockholder franchise is the reason why boards listen to
activists. Most activists hold far less than a hard majority of a corporation’s stock, making
the main lever at an activist’s disposal a proxy fight. In this way, stockholder activism is
intertwined with the stockholder franchise.
Under Delaware law, directors cannot justify their actions by arguing that “without
their intervention, the stockholders would vote erroneously out of ignorance or mistaken
belief” in an uncoerced, fully informed election. 308 “The notion that directors know better
than the stockholders about who should be on the board is no justification at all.” 309
Viewing all stockholder activism as a threat is an extreme manifestation of the
proscribed we-know-better justification for interfering with the franchise. That is,
categorically concluding that all stockholder efforts to change or influence corporate
direction constitute a threat to the corporation runs directly contrary to the ideological
underpinnings of Delaware law. The broad category of conduct referred to as stockholder
activism, therefore, cannot constitute a cognizable threat under the first prong of Unocal.
To be sure, Delaware law does not categorically foreclose the possibility that certain
conduct by activist stockholders might give rise to a cognizable threat. Defendants cite to
four cases where a Delaware court upheld defensive actions taken in response to types of
stockholder activism. 310 All involved different scenarios and more specific threats.
308
Pell v. Kill, 135 A.3d 764, 788 (Del. Ch. 2016).
309
Mercier, 929 A.2d at 811.
310
See Defs.’ Opening Br. at 32–36 (citing Third Point, 2014 WL 1922029, at *21–22;
Yucaipa, 1 A.3d at 343; Polk v. Good, 507 A.2d 531, 537 (Del. 1986); Cheff v. Mathes,
199 A.2d 548, 556 (Del. 1964)).
65
Defendants first cite to Polk, a stockholder challenge to Texaco’s agreement to
repurchase the shares of the Bass Brothers, well-known takeover artists and
greenmailers, 311 and who had acquired just under 10% of the company’s stock. 312 The
Bass brothers were poised to launch “some hostile . . . move” on Texaco at a time when
the company was “vulnerable” because “management was consumed with . . . obtaining
government and shareholder approval” of its $10 billion acquisition of Getty Oil
Company—at the time, “one of the biggest corporate acquisitions in history.” 313 The
purchase of the Bass Brothers’ shares drew multiple stockholder lawsuits. The company
settled the lawsuits by agreeing to provide extensive supplemental disclosures and modify
a standstill agreement that was part of the transaction. 314 This court approved the
settlement over the objection of certain Texaco stockholders, and the objectors appealed.
On appeal, the high court found that the board reasonably identified a cognizable
threat under Unocal based on the “disruptive effect and the potential long-term threat”
posed by the Bass Brothers. 315 In support of this conclusion, the high court simply cited
311
See Peter Applebome, Texas Deal Maker: Robert M. Bass; A Younger Brother Steps
Out on His Own, N.Y. Times (June 5, 1988), https://www.nytimes.com/1988/06/05/
business/texas-deal-maker-robert-m-bass-a-younger-brother-steps-out-on-his-own.html;
see also Michael H.Q.L. Lau, Adequate Remedies For Tender Offer Abuse: Resurrecting
Manipulation and Reforming The Business Judgment Rule, 9 U. Haw. L. Rev. 209,
216 n.59 (1987) (referring to the Bass Brothers as “examples of major investors who
profited greatly in 1984 from tremendous greenmail profits”).
312
Polk, 507 A.2d at 533.
313
Id. at 533–34.
314
Id. at 535.
315
Id. at 537.
66
Unocal, which involved defensive measures adopted in response to takeover activity. The
high court’s abbreviated reference to Unocal suggests that the Delaware Supreme Court
credited that the Bass Brothers presented a takeover threat. The lack of more extensive
analysis also is not surprising because Polk involved an appeal from a decision approving
a negotiated settlement. The court thus applied a doubly-deferential legal standard:
settlements are approved at the discretion of the trial court, and those decisions are
reviewed on appeal with deference. 316 The Polk case does no validate a generalized
concern about activism as a threat that supports a defensive response.
Defendants next cite to Cheff, where the board of Holland Furnace Company
(“Holland”) rejected a merger proposal from Arnold H. Maremont of Maremont
Automotive Product, Inc. (“Motor Products”). 317 Unbeknownst to the Holland board at the
time, Motor Products had acquired a large block of Holland shares on the open market, and
after Holland rebuffed Maremont’s merger proposal, Maremont began using his stock
holding to agitate for control and a restructuring of the company. He demanded that he be
named to the Holland board, “threat[ened] to liquidate the company,” and threatened to
“substantially alter” Holland’s sales force, which Holland viewed as a “vital factor in the
company’s success.” 318 Maremont’s threats caused operational disruption—“substantial
316
Polk, 507 A.2d at 536 (observing that “our standard of review is whether under all the
facts and circumstances the Chancellor abused his discretion” and “we must find the
evidence so strongly to the contrary as to amount to an abuse of discretion” (citing Rome
v. Archer, 197 A.2d 49, 54 (Del. 1964)).
317
Cheff, 199 A.2d at 551–53.
318
Id.67
unrest . . . among the employees” that caused twenty-five of the Holland’s “key men” to
resign. 319
As in Polk, the Holland board responded to Maremont’s activity by repurchasing
his shares at a premium, and the repurchase precipitated derivative stockholder actions
alleging that the repurchase constituted a breach of fiduciary duties. 320 The trial court held
in the plaintiffs’ favor. On appeal, the Supreme Court found that the Holland board acted
with justification in response to a reasonable threat to Holland’s existence: “[T]he
board . . . believed, with justification, that there was a reasonable threat to the continued
existence of Holland, or at least existence in its present form, by the plan of Maremont to
continue building up his stock holdings.” 321 Like Polk, Cheff did not involve generalized
concern about activism. It involved a concrete takeover attempt and a specific and on-going
threat.
Defendants further cite to Yucaipa, where Ron Burkle’s activist hedge fund Yucaipa
had acquired a 17.8% stake in Barnes & Noble and disclosed in its 13D that it might acquire
as much as 50%. 322 Another hedge fund with a history of piggybacking on Yucaipa’s
investments increased its stake from 6.37% to 17.44% of the company. 323 In response, the
319
Id. at 551–52.
320
Id. at 552–53.
321
Id. at 556.
322
Yucaipa, 1 A.3d at 318, 323.
323
Id. at 324–25.
68
company adopted a pill with a 20% threshold while grandfathering the 30% stake of the
company’s founder and CEO. 324 Yucaipa brought litigation challenging the pill.
After trial, the court upheld the pill under Unocal. When evaluating the first prong
of Unocal, the court found that the board acted with justification in response to the threat
of a “creeping acquisition” and that the pill was a reasonable response. 325 Like Polk and
Chef, Yucaipa involved a specific takeover attempt—there through a creeping
acquisition—that manifested as a concrete threat. Nothing in Yucaipa validates a general
concern regarding stockholder activism.
Defendants lastly cite to Third Point, as case that resembles Yucaipa. Dan Loeb’s
activist hedge fund Third Point acquired just under 10% of Sotheby’s stock, publicly filed
a “poison pen” letter decrying various board decisions, began spreading rumors that he
intended to replace management, and launched a proxy contest to replace three incumbents
on Sotheby’s twelve-person board. 326 Sotheby’s also detected “several hedge funds” in
addition to Third Point “accumulating its stock simultaneously.” 327 Sotheby’s board
adopted a pill with a 10% threshold. 328 Loeb requested a waiver of the pill, which the board
refused. 329 Third Point brought litigation challenging the adoption and refusal to waive the
pill and sought to preliminarily enjoin the annual meeting pending resolution of its claims.
324
Id. at 320–21.
325
Id. at 352–53, 359–60.
326
Third Point, 2014 WL 1922029, at *6–9.
327
Id. at *17.
328
Id. at *10.
329
Id. at *14.
69
On a decision denying the motion for preliminary injunction, this court concluded
that the plaintiffs were not likely to succeed on their claims. When evaluating the first
prong of Unocal, the court found that the board was justified in adopting the pill for the
purpose of defending against “creeping control.” 330 The court acknowledged, however,
that the creeping-control threat was no longer present when the board determined not to
waive the pill at Loeb’s request. By that time, the threat had morphed into a concern that
Third Point would improperly exercise “effective, rather than explicit, negative control” as
Sotheby’s largest stockholder. 331 The court cautioned against viewing “effective negative
control” as “a license for corporations to deploy defensive measures unreasonably” and
observed that the circumstances in Third Point rendered the threat legitimate in part
because Loeb had acted in an “aggressive and domineering manner.” 332 Third Point thus
involved a specific takeover attempt that started as an effort to obtain creeping control. The
Third Point decision does not validate a general concern about activism as a legitimate
threat.
None of these decisions support the notion that generalized concern about
stockholder activism constitutes a cognizable threat under Unocal. Rather, these cases
demonstrate that a board has authority to respond to a specific takeover attempt, even when
the attempt does not involve a traditional tender offer. Read broadly, the cases support the
proposition that a Board can adopt defensive measures in response to concrete action by a
330
Id. at *17.
331
Id. at *22.
332
Id.
70
stockholder activist. The Board’s general concern about stockholder activism is
insufficient.
ii. Short-Termism and Distraction
The Board’s second concern was that activists might pursue short-term agendas or
disrupt or distract management. The “short-termism” justification refers to the concern
that “a particular activist seeks short-term profit without regard to the impact on the
company’s long-term prospects.” 333 The “disruption” justification typically refers to the
concern that the actions of the activists might cause operational disruption, as in Cheff.
Here, the Director Defendants instead frame this concern as a desire to insulate the
management team from distraction. 334
No case has evaluated under Unocal whether these types of particularized activist
concerns constitute cognizable threats. The threats validated in Defendants’ four cases
discussed above involved threats that differed materially from the factual context here.
Each of Defendants’ cases, unlike this case, involved takeover threats. In Polk, the
Bass Brothers had obtained a substantial equity stake in the company. 335 In Cheff, an
333
Anti-Activist Poison Pills at 931 (internal quotation marks omitted).
334
See supra notes 269, 271, 275, 294, 295 and accompanying text.
335
See Polk, 507 A.2d at 533–34. As discussed above, the Polk court found the “disruptive
effect and the potential long-term threat” posed by a stockholder as cognizable under the
first prong of Unocal. Id. at 537. Although this passing language seems supportive of
Defendants’ position, the facts of this case reveal that the board of Texaco acted in response
to a takeover threat. Also, the court’s reasoning on this point was underdeveloped, perhaps
because Unocal was nascent and the court was applying a highly deferential legal standard.
Consequently, this court does not view reference to a “potential long-term threat” and
“disruptive effect” in Polk as supporting of a holding that such threats standing alone are
cognizable under Delaware law. See id.71
acquirer had made a merger proposal and acquired a substantial bock, then used that block
to advocate for a takeover, resulting in operational disruptions were so severe as to threaten
the corporation’s existence. 336 In Yucaipa and Third Point, the directors responded to
creeping takeovers, which in Third Point could have left the activist with “effective
negative control.” 337 None of the cases involved a response to activism per se.338
Moreover, each of Defendants’ cases, unlike this case, involved defensive measures
adopted in response to a specific activist or group of activists. The threat was not
hypothetical. 339
Reasonable minds can dispute whether short-termism or distraction could be
deemed cognizable threats under Delaware law. These sorts of justifications, particularly
short-termism, are conspicuous in the policy debate, 340 but they become nebulous when
336
Cheff, 199 A.2d at 551, 556.
337
See Third Point, 2014 WL 1922029, at *21–22; Yucaipa, 1 A.3d at 352–53.
338
See, e.g., Anti-Activist Poison Pills at 934–36 (discussing the presence of “creeping
control” concerns in Third Point and Yucaipa).
339
See Third Point, 2014 WL 1922029, at *18, 21–22; Yucaipa, 1 A.3d at 348; Polk, 507
A.2d at 537; Cheff, 199 A.2d at 551–52, 556. Although Cheff was decided in 1964, over
twenty years before Unocal, it was cited favorably in Unocal and thus bears continued
relevance on the application of intermediate scrutiny. See Unocal, 493 A.2d at 953–54
(citing Cheff for the proposition that, when adopting defensive measures, “a Delaware
corporation may deal selectively with stockholders, provided the directors have not acted
out of a sole or primary purpose to entrench themselves in office”).
340
See, e.g., Martin Lipton, The Threat to the Economy and Society from Activism and
Short-Termism Updated, Harv. L. Sch. F. on Corp. Governance (Jan. 27, 2015)
https://corpgov.law.harvard.edu/2015/01/27/the-threat-to-the-economy-and-society-from-
activism-and-short-termism-updated/; Leo E. Strine, Jr., One Fundamental Corporate
Governance Question We Face: Can Corporations Be Managed For The Long Term
Unless their Powerful Electorates Also Act and Think Long Term?, 66 Bus. Law. 1 (2010).
See generally Anti-Activist Poison Pills at 930.
72
viewed through a doctrinal lens. The central criticism of short-termism is that
“shareholders who favor short-termism . . . are hurting themselves as much as they are
hurting their fellow shareholders.” 341 This is a valid policy argument, but as one group of
scholars have commented, the “‘short-termism’ argument just particularizes the concern
that shareholders will cast votes in a mistaken assessment of their own best interests.” 342
That is, short-termism and distraction concerns boil down to the sort of we-know-better
justification that Delaware law eschews in the voting context.
Although there is room to disagree as to whether short-termism or distraction could
be deemed cognizable threats under Delaware law, this decision does not resolve that issue.
Even if justifications of short-termism or disruption could rise to the level of a cognizable
threat, hypothetical versions of these justifications cannot. The concerns in this case are
raised in the abstract—there is no “specific, immediate” activist play seeking short-term
profit or threatening disruption. 343 When used in the hypothetical sense untethered to any
concrete event, the phrases “short-termism” and “disruption” amount to mere euphemisms
for stereotypes of stockholder activism generally and thus are not cognizable threats.
341
Anti-Activist Poison Pills at 931–32.
342
Id. at 931.
343
Trial Tr. at 544:12–15 (Buese) (“No, there was no actual threat. From our perspective,
it was a perceived threat . . . .”).
73
iii. Rapid Accumulation of Stock
The third justification for the Plan is the concern that activists might rapidly
accumulate over 5% of the stock and the belief that the Plan could serve as an early-
detection devise to plug the gaps in the federal disclosure regime.
In his March 2015 Harvard Business Review article, Corporate Governance 2.0,
Professor Subramanian advocates for boards of public companies to adopt what he calls an
“advance notice” pill with a 5% threshold. 344 He argues that “when an activist investor
threatens a proxy contest or a strategic buyer makes a hostile tender offer,” boards often
react with a “no-holds-barred, scorched-earth” defense rather than providing stockholders
with an “orderly shareholder voice.” 345 As a contributing factor to this problem, he cites
“lightning strike attacks,” which are rapid, undetected accumulation of stock in a short
period of time, the precise concern articulated by the Board in this action. 346 Corporate
Governance 2.0 cites to one instance of a lightning-strike raid in 2010 involving J.C.
Penney, where two activist groups acquired more than a quarter of the company’s shares
before the ten-day disclosure requirement expired. 347
Lightning strikes go undetected under the federal disclosure regime, which requires
stockholders to disclose their ownership position after crossing the 5% threshold but gives
344
JX-169 (“Corporate Governance 2.0”) at 15.
345
Id. at 12–14.
346
Id. at 15.
347
Corporate Governance 2.0 at 14–15. The J.C. Penney anecdote demonstrates that
lightning-strike attacks can happen, though the record lacks empirical evidence of their
frequency or likelihood generally or Williams’ susceptibility to such an event.
74
stockholders ten days to do so. The federal disclosure regime does not prohibit
stockholders from continuing to acquire stock during that ten-day period and does not
capture “wolf pack” activity. 348
To avoid lightning strikes and promote an “orderly shareholder voice,”
Subramanian recommends that boards effectuate a private-ordering response in the form
of an advance-notice pill. 349 A similar private-ordering solution to perceived defects in the
federal disclosure regime was endorsed by Professors John Coffee and Dairus Palia in their
Spring 2016 article, The Wolf at the Door: The Impact of Hedge Fund Activism on
Corporate Governance (“Wolf at the Door”). 350 This decision refers to the private-
ordering solutions discussed in both Corporate Governance 2.0 and Wolf at the Door as
“gap-filling pills.”
This decision need not address whether a true gap-filling pill would be permissible.
As discussed below, the features of the Plan are more extreme than any of the gap-filling
pills discussed in Corporate Governance 2.0 or Wolf at the Door. At this stage of the
analysis, the question is whether the desire to fill gaps in federal disclosure laws through
private ordering constitutes a legitimate corporate objective under Unocal. A related
question is whether the gap-filling objective becomes more viable in the face of market
348
Corporate Governance 2.0 at 15.
349
Id.
350
John C. Coffee, Jr. & Darius Palia, The Wolf at the Door: The Impact of Hedge Fund
Activism on Corporate Governance, 41 J. Corp. L. 545, 601–02 (2015).
75
uncertainty or a precipitous stock drop resulting in a stock price that undervalues the
corporation.
Reasonable minds can dispute whether a gap-filling purpose standing alone is a
legitimate corporate purpose under Unocal. The main concern is that if gap filling were a
legitimate corporate objective that justified the adoption of a poison pill, then all Delaware
corporations subject to the federal disclosure regime would have a ready-made basis for
adopting a pill. These policy concerns are only slightly mitigated by a precipitous stock
drop, which is not an uncommon occurrence.
Recognizing an omnipresent justification for poison pills would constitute a
dramatic turn in Delaware law, which has consistently held that a pill’s adoption and
maintenance raises concerns sufficient to give rise to enhanced scrutiny. This court
routinely views poison pills as situationally specific defenses and has conducted fact-
intensive inquiries to determine whether the action is justifiable under the unique
circumstances of the case. Put differently, Delaware law has handled these “nuclear
weapon[s] of corporate governance” with the delicacy they deserve. 351 Delaware’s
approach has created an appropriate culture of caution in the board room. For example,
last year prominent defense firms recommended against the reflexive adoption of a pill in
response to COVID-19, noting the need for “[c]ompany-specific circumstances as well as
indicia of emerging or present threats” to justify a pill’s adoption. 352
351
See Trial Tr. at 53:18–55:10, 114:10–12 (Cogut).
352
See, e.g., David Katz & Sebastian V. Niles, Rights Plans (“Poison Pills”) in the
COVID-19 Environment—“On the Shelf and Ready to Go”?, Harv. L. Sch. F. on Corp.
Governance (Apr. 2, 2020), https://corpgov.law.harvard.edu/2020/04/02/rights-plans-
76
Just as this decision need not decide in the abstract whether a gap-filling pill is
permissible, this decision also need not address whether gap-filling represents a legitimate
corporate objective. This decision instead assumes for the purposes of analysis that gap
filling to detect lightning strikes at a time when stock price undervalues the corporation is
a legitimate corporate purpose under the first prong of Unocal. The question becomes
whether the adoption of the Plan was a proportional response to that assumedly valid threat.
2. The Proportionality of the Response
Because Plaintiffs do not claim that the Plan is coercive or preclusive, 353 the second
prong of the Unocal inquiry requires the court to evaluate whether Defendants proved that
adopting the Plan fell within a range of reasonable responses to the lightning-strike threat
posed. 354
The thirty-thousand-foot view looks bad for Defendants. As Morgan Stanley
advised the Board at the March 19 Meeting, the 5% trigger alone distinguished the Plan;
only 2% of all plans identified by Morgan Stanley had a trigger lower than 10%. 355 Even
among pills with 5% triggers, the Plan ranked as one of only nine pills to ever utilize a 5%
poison-pills-in-the-covid-19-environment-on-the-shelf-and-ready-to-go/ (issuing general
guidance to companies initially responding to the COVID-19 pandemic).
353
Plaintiffs failed to brief and thus waived these arguments. See Emerald P’rs v. Berlin,
726 A.2d 1215, 1224 (Del. 1999) (“Issues not briefed are deemed waived.”); accord.
Adams v. Calvarese Farms Maint. Corp., 2010 WL 3944961, at *21 (Del. Ch.
Sept. 17, 2010) (“Because [plaintiff] did not address these items in her post-trial briefs or
otherwise cogently present evidence and argument regarding them in connection with the
trial, she has waived them.”).
354
See Unitrin, 651 A.2d at 1387–88 (quoting Paramount, 637 A.2d at 45–46).
355
JX-57 at 4 (noting that “[n]o precedents exist below 5%”).
77
trigger outside the NOL context. 356 Among Delaware corporations, it was one of only two.
The other Delaware corporation to adopt a 5% trigger for a non-NOL pill did so in
distinguishable circumstances—in the face of a campaign launched by an activist who held
7% of the company’s outstanding shares at the time the pill was adopted. 357 Of the twenty-
one pills adopted between March 13 and April 6, 2020, only the Plan had a 5% triggering
threshold. 358 Of the twenty-one companies that adopted pills during that time, thirteen
faced ongoing activist campaigns when adopting their pill. 359
The Plan’s other key features are also extreme. The Plan’s “beneficial ownership”
definition goes beyond the default federal definitions to capture synthetic equity, such as
options. 360 The Plan’s definition of “acting in concert” goes beyond the express-agreement
default of federal law to capture “parallel conduct” and add the daisy-chain concept. The
Plan’s “passive investor” definition goes beyond the influence-control default of federal
law to exclude persons who seek to direct corporate policies. In sum, the Plan increases
the range of Williams’ nuclear missile range by a considerable distance beyond the
ordinary poison pill. 361
356
Mills Report ¶ 47.
357
Id.358
JX-92 at 3.
359
Id.360
See Anti-Activist Poison Pills at 949–50.
361
See Mills Report ¶¶ 35, 47 (“Among the COVID Pills, the Williams Pill is by far the
most restrictive. The Williams Pill contains a suite of features that, in combination, appears
to be unprecedented.”).
78
The fact that the Plan’s features depart from the default federal disclosure
regulations is consistent with a gap-filling purpose, but the Plan’s features do not compare
well against those of gap-filling pills. As discussed above, in 2015 and 2016, Professor
Subramanian in Corporate Governance 2.0 and Professors Coffee and Palia in Wolf at the
Door each endorsed different versions of a gap-filling pill. The Plan’s features exceed
what commentators have proposed.
Professor Subramanian described one gap-filling pill in Corporate Governance 2.0.
His advance-notice pill had a 5% threshold tempered by an exemption for stockholders that
disclose their position within two days of crossing the threshold. 362
The authors of Wolf at the Door discuss two gap-filing pills. The first proposal is a
“standing” poison pill that defines a “group” more broadly than the express-agreement
default of federal disclosure law. 363 This standing pill would “preclude any shareholder—
with some possible exemption for ‘passive’ shareholders—from exceeding a specified
level (either 15% or possibly 10%)” and would include an “acting in concert” provision
defined broadly so as to capture persons acting “‘in conscious parallelism’ with the leader
of the ‘wolf pack.’” 364 The authors observe, however, that the standing pill “will create
considerable uncertainty and place high demands on courts.” 365
362
Corporate Governance 2.0 at 15. Although the article is silent as to the pill’s other
features, one can assume that the designer had parallel-conduct AIC provisions and other
expansive features in mind. See Subramanian Report ¶¶ 37–39, 50, 81.
363
Wolf at the Door at 601–02.
364
Id.365
Id. at 602.
79
The authors’ second proposal is a window-closing pill, which builds off of a
proposal made in 2010 by a New York law firm following the J.C. Penney lightning-strike
attack. 366 This pill would maintain the express-agreement acting in concert default of the
federal disclosure regime but include a lower trigger threshold “of as little as 5.1% of the
target’s stock if the acquirer did not file a Schedule 13D before purchasing stock in excess
of the specified threshold.” 367 The window-closing pill “has a limited objective . . . of
compelling disclosure so that a board of directors, stockholders and the trading markets
366
See id.; Peter S. Golden, The Window Closing Pill – One Response to Stealth Stock
Acquisitions, Harv. L. Sch. F. on Corp. Governance (Jan. 6, 2011),
https://corpgov.law.harvard.edu/2011/01/06/the-window-closing-pill-one-response-to-
stealth-stock-acquisitions/ [hereinafter The Window Closing Pill]. The concept of a
window-closing pill has been endorsed by commentators, including former Chief Justice
Strine in his extra-judicial writing. See Leo E. Strine, Jr., Who Bleeds When the Wolves
Bite?: A Flesh-and-Blood Perspective on Hedge Fund Activism and Our Strange
Corporate Governance System, 126 Yale L.J. 1870, 1963–64 (2017); Arthur Fleischer, Jr.,
Alexander R. Sussman & Gail Weinstein, Takeover Defense: Mergers and Acquisitions
§ 5.01[A][1] (8th ed. 2018) (describing the window-closing pill as “essentially benign,
since the acquiror is not precluded from acquiring more than 5% of the target’s outstanding
voting securities once position disclosure has been made”); Simon M. Lorne and Joy
Marlene Bryan, 11A Acquisitions & Mergers: Negotiated and Contested Transactions
§ 5:68.60 (2020) (“The plan is benign because the acquirer is not precluded from acquiring
more than a five percent voting or financial interest in a company and it would not create
an impediment to purchasing shares pursuant to a tender offer.”); William R. Tevlin, Note,
The Conscious Parallelism of Wolf Packs: Applying the Antitrust Conspiracy Framework
to Section 13(D) Activist Group Formation, 84 Fordham L. Rev. 2335, 2349 (2016) (noting
that “corporations may utilize” a window pill “to fight off wolf packs”). But see Maria
Lucia Passador, The Woeful Inadequacy of Section 13(D): Time for a Paradigm Shift?,
13 Va. L & Bus. Rev. 279, 295 (2019) (commenting that “shortening the reporting window
would affect the ability of investors to launch campaigns for corporate control, reducing
the staggering profits accumulated as a result of their toehold, and making the accumulation
of shares more expensive”).
367
Wolf at the Door at 602 (emphasis added).
80
can evaluate the ownership position of a substantial non-passive investor.” 368 As originally
conceived, the window-closing pill would have a “transitory five plus percent flip-in
trigger,” meaning that it is only triggered if a stockholder exceeds 5% ownership within
the ten-day window before disclosing the triggering acquisition. 369
The authors recognize that the window-closing pill too “would be subject to legal
challenge” and would “anger the proxy advisors (who would then recommend that
institutions withhold their votes for the directors of this corporation).” 370 Accordingly,
they identify a series of “compromises” designed to mitigate the impact of the window-
closing pill. 371 For example, the window-closing pill “might compensate for its short fuse
by allowing the bidder to accumulate a greater level of stock (say, 15 or 20%), so long as
it filed with the SEC immediately after crossing 5%.” 372 Alternatively, it “might permit a
100% bid to be made” upon the bidder’s disclosure. 373 In the authors’ view, “[e]ither
concession should lead the Delaware courts to accept such a pill because neither pill is
‘preclusive.’” 374
368
The Window Closing Pill.
369
Id.370
Wolf at the Door at 602.
371
Id.372
Id.373
Id.374
Id. (quoting Unitrin, 651 A.2d at 1387).
81
The Plan includes more aggressive features than any of the gap-filling pills. The
standing pill includes a higher trigger threshold of “either 15% or possibly 10%.” 375 The
window-closing pill contemplates a comparable threshold (“as little as 5.1%.”), but a less
inclusive acting-in-concert provision (an express-agreement provision). 376 To that
structure, the authors recommended a series of potential compromises. Even the most
extreme of the gap-filling pills, the advance-notice pill, contemplates an exemption for
“shareholders that disclosed their positions within two days of crossing the threshold.” 377
Had the Board desired to close some of the gaps in the federal disclosure regime,
the Board might have considered one of the less extreme options aimed at detection and
designed to compel stockholder disclosure. Instead, the Board selected a Plan with features
that went beyond those of gap-filling pills. Regardless of whether the Board intended to
gap fill federal disclosure regulations—and whether that intent is permissible—the Plan’s
combination of features created a response that was disproportionate to its stated
hypothetical threat.
The Plan’s features also raise concerns when evaluated independently and divorced
from comparisons. As Plaintiffs’ proxy solicitor testified at trial, the Plan’s combination
of features are likely to chill a wide range of anodyne stockholder communications.378
375
Id. at 601–02.
376
Id. at 602.
377
Corporate Governance 2.0 at 15.
378
See Trial Tr. at 209:7–23, 231:6–14, 233:4–11, 255:7–12 (Mills); see also Mills Report
¶¶ 55–56, 64–68, 73 (describing various forms of pre-proxy contest stockholder activism
that the Plan’s combination of features deters).
82
Although the 5% trigger is a marked departure from market norms, it is not the most
problematic aspect of the Plan, because a 5% ownership limit still permits an activist to
buy a larger dollar value toehold in Williams than the vast majority of other poison pills
with higher triggers. 379 The primary offender is the AIC Provision, whose broad language
sweeps up potentially benign stockholder communications “relating to changing or
influencing the control of the Company.” 380 The definition gives the Board discretion to
determine whether “plus” factors as innocuous as “exchanging information, attending
meetings, [or] conducting discussions” can trigger the Plan. 381 This language encompasses
routine activities such as attending investor conferences and advocating for the same
corporate action. 382 It gloms on to this broad scope the daisy-chain concept that operates
to aggregate stockholders even if members of the group have no idea that the other
stockholders exist. 383
In their 2019 doctrinal and policy analysis of anti-activist poison pills, Professors
Marcel Kahan and Edward Rock express concerns over the breadth of a nearly acting-in-
concert provision. 384 In their view, “wolf-pack provisions suffer from two fatal flaws, each
379
See Trial Tr. 369:15–371:20, 377:9–24 (Subramanian).
380
See JX-69 at 18 (emphasis added).
381
Id.
382
Trial Tr. at 190:8–14, 196:2–15, 266:8–267:5 (Mills); Mills Report ¶¶ 58–59.
383
See Trial Tr. 103:14–18 (Cogut) (agreeing that stockholders have no way to know with
any certainty with whom they are aggregated); id. 608:4–610:14 (Buese) (same); Fuller
Dep. Tr. at 139:24–140:6 (same).
384
See Anti-Activist Poison Pills at 962–66. In a blog posted at the beginning of the
pandemic and after Williams had adopted the Plan, Professor Rock wrote that the pandemic
presented “a time to put the ordinary debate [about rights plans] aside” and for stockholders
83
of which would on its own be sufficient to render them invalid.” 385 First, they “do not
clearly specify what activities would result in aggregation.” 386 Key terms like “parallel,”
“relating to,” and “influencing” are hard to apply, and “plus factors like ‘exchanging
information’ and ‘attending meetings’” are quite broad. 387 “Because triggering a pill would
have severe adverse consequences, such vague provisions would have a chilling effect on
an activist’s ability to communicate with other shareholders.” 388 Second, “the very purpose
of wolf-pack provisions—to make illicit parallel actions that are not the product of an
agreement—is based on a fundamental misconception of how shareholders ought to
interact.” 389 Expounding on this last criticism, the authors explain that “[t]hese sorts of
and proxy advisory firms “to provide boards with space to respond to the multiple
challenges of protecting firms, employees, consumers, and the country” without “worrying
that they will soon find an activist on their doorstep demanding answers.” JX-94 at 2–3.
Professor Rock then forwarded this blog to Cogut. Id. at 1. Defendants treat this exchange
as a recantation of the conclusions drawn by Professors Kahan and Rock in their 2019
article, but that is an exaggeration. Professor Rock’s blog is best understood as an appeal
to activists and boards alike to use common sense during a global emergency. See, e.g., id.
(cautioning that “boards shouldn’t take advantage of this crisis to erect entrenched
defensive measures like staggered boards that shareholders have clearly rejected”).
385
Anti-Activist Poison Pills at 964.
386
Id.
387
Id.
388
Id.; see also In re Versum Materials, Inc. S’holder Litig., C.A. No. 2019-0206-JTL, at
53–54 (Del. Ch. July 16, 2020) (TRANSCRIPT) (expressing concern over the breadth of
a nearly identical AIC provision and explaining: “What the act[ing]-in-concert provision
attempts to cut off, or at least threaten, is all of the activities that lead up to the giving of
the revocable proxy or the making of the revocable tender. So it nominally preserves the
end product . . . but . . . interdicts all of the preliminary steps that lead to the customary
rendering of that proxy . . . .”).
389
Anti-Activist Poison Pills at 964.
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provisions threaten to chill the sort of shareholder interaction upon which sound corporate
governance depends and that decades of reform have sought to encourage.” 390
To illustrate both fatal flaws and the effect of wolfpack provisions on stockholder
activity, the authors present a hypothetical about Remus and Lupin, which this decision
takes the liberty of altering to illustrate the same points. 391 Imagine that Remus and Lupin
each own 3% of Williams stock. Each is aware of the other’s activities solely from rumors
and public disclosures. Remus sends a letter to Williams asking for ESG initiatives and
threatening to buy up stock and run a proxy contest if the Board does not adopt his proposal.
Lupin has reviewed and agrees with Remus’s proposal.
Can Lupin meet with the Board, Remus, or other Williams stockholders to discuss
Remus’s ESG proposal without triggering the Plan? Probably not. Can Remus
communicate with other stockholders to determine whether there is support for his ESG
proposal before launching the proxy context without fear of triggering the Plan? Not
without risk of aggregating those stockholders under the AIC Provision.
Defendants have a few responses to these criticisms of the AIC Provision. First,
they say that the Plan does not preclude any stockholder from launching a proxy contest,
and that “[a]ny purported impact the Plan might have on routine activism, short of a proxy
contest, is irrelevant under Unocal.” 392 That argument misunderstands the proportionality
inquiry of Unocal, which is not limited to the analysis conducted in Moran; rather, the
390
Id. at 964–65.
391
See id. at 965.
392
Defs.’ Opening Br. at 43.
85
proportionality analysis is tied to a pill’s purpose, and with new purposes come new
considerations. 393 Moreover, as Plaintiffs’ expert opined, activity leading up to a proxy
contest can impede a stockholder’s ability to launch a proxy contest by cutting off private
communications in advance of proxy contests. 394 Mills explained that stockholders
frequently “take the temperature” of other stockholders in advance of launching a proxy
contest in light of the risk of financial and reputational damage resulting from a failed
contest. 395
Second, Defendants observe that the AIC Provision is limited to actions that
“relating to changing or influencing control” of Williams. 396 Defendants contend that most
routine forms of stockholder activism do not involve changing or influencing control of a
company. Defendants argue that the AIC Provision contains several other “guardrails”
limiting its applicability even when stockholders’ do act in ways “relating to changing or
393
See, e.g., eBay, 16 A.3d at 31 (stating that “[t]he intermediate standard of review is not
limited to the historic and now classic paradigm”).
See generally Trial Tr. at 190:3–14, 212:10–13, 276:9–277:10 (Mills); see also Mills
394
Report ¶¶ 64–66.
395
Mills Report ¶ 64. Defendants’ expert proxy solicitor disputes these conclusions. In
his view, the AIC Provision would not substantially impede a stockholders’ ability to
obtain information to assess the likelihood of success before launching a proxy contest.
Goldfarb Report ¶ 45. Goldfarb argues that proxy solicitors could aid in this effort, in part
by reaching out stockholders who fall within the definition of “passive investor.” Id.Goldfarb was a highly qualified and credible witness, but this aspect of his testimony
ignores the possibility that proxy solicitors would trigger the daisy chain provision, see
Trial Tr. 196:16–197:8 (Mills), and relies on a definition of “passive investor” that this
decision has rejected.
396
Defs.’ Opening Br. at 47, 51; Trial Tr. at 566:23–567:19 (Buese); id. 396:10–16
(Subramanian).
86
influencing control” of the Company. 397 To echo the concerns of Professors Kahan and
Rock, however, terms like “relating to” and “influencing,” along with the other broad
guardrails, are nebulous and broad. Moreover, Cogut conceded at trial that facts similar to
the above hypothetical would change or influence control of a company and be included
within the AIC Provision. 398
Third, Defendants argue that the Board would never trigger the Plan in response to
an activist play like the Remus Lupin hypothetical. 399 They describe such an outcome is
“farfetched,” and they say that the court should not presume that the Board would misuse
its power under the Plan. 400 But this line of logic would excuse nearly any combination of
poison pill terms and does not support a finding that the Plan’s terms were reasonable in
relation to the threat posed. 401 It also provides cold comfort to Remus and Lupin, and
397
Defs.’ Opening Br. at 52–54.
398
Trial Tr. 169:20–170:20 (Cogut).
399
See Defs.’ Opening Br. at 49–52.
400
Defs.’ Opening Br. at 49 (quoting Trial Tr. at 254:13–258:4 (Mills) (“[I]t might be
farfetched that they would trigger. But it’s not farfetched that they would call [an activist]
on their behavior and say, ‘look what our pill says and look what you’re
doing. . . . [Y]ou should shut up or bring your position below 5 percent.’”)).
401
Defendants’ argument overlooks the stifling impact the Plan has on stockholder
communications, a chilling effect that exists whether the Board triggers the Plan or not.
See, e.g., id.; Mills Report ¶¶ 68, 73 (concluding that the Plan is likely to stifle normal
stockholder communications); Mills Rebuttal Report ¶¶ 48–51 (concluding that the
“guardrails” in the AIC Provision place investors at the mercy of the Board’s broad
discretion, noting that Board discretion and after-the-fact litigious remedies don’t “address
or mitigate the current chilling effect of the Wolfpack Provisions on stockholder activism
and the free exercise of the stockholder franchise”).
87
stockholders like them, who cannot rely on the Board’s benevolence and must regulate
their behavior based on what the Board could do. 402
The Passive Investor Definition sets another easily activated tripwire. Mills cites to
a concrete example of this concern. On the day the Plan was announced, a representative
of BlackRock, which holds over 5% of Williams’ outstanding common stock [and a 13G
filer], criticized Williams for failing to be fully transparent concerning the adoption of the
Plan, stating “[t]his doesn’t look good from an ESG perspective.” 403 This email reflects
BlackRock “exercising the power to direct or cause the direction of the management and
policies of the Company” and thus excludes BlackRock from the Passive Investor
Definition. 404 While it is probably true that the Board would exempt Blackrock and not
risk angering a major stockholder player, other stockholders may not be so fortunate.
In the end, Defendants “bear the burden to show their actions were reasonable.” 405
They have failed to show that this extreme, unprecedented collection of features bears a
402
See, e.g., id.; Mills Report ¶¶ 68, 73 (concluding that the Plan is likely to stifle normal
stockholder communications); Mills Rebuttal Report ¶¶ 48–51 (concluding that the
“guardrails” in the AIC Provision place investors at the mercy of the Board’s broad
discretion, noting that Board discretion and after-the-fact litigious remedies don’t “address
or mitigate the current chilling effect of the Wolfpack Provisions on stockholder activism
and the free exercise of the stockholder franchise”).
403
JX-73 at 3.
404
See JX-69 at 22.
405
Mercier, 929 A.2d at 807 (citing Unocal, 493 A.2d at 955); eBay, 16 A.3d at 35 (holding
that where a rights plan “falls outside the range of reasonableness” the defendants fail “to
meet their burden of proof under the second prong of Unocal”); accord Air Prods., 16 A.3d
at 92, 113 (holding that “the target board must show . . . that any board action . . . is
‘reasonable in relation to the threat posed” and that the “Defendants bear the burden of
showing that their defenses . . . fall within a ‘range of reasonableness.’” (quoting Unitrin,
88
reasonable relationship to their stated corporate objective. Because Defendants failed to
prove that the Plan falls within the range of reasonable responses, the Plan is invalid.
III. CONCLUSION
For the foregoing reasons, judgment is entered in favor of the certified class
declaring the Plan unenforceable and permanently enjoining the continued operation of the
Plan. Having concluded that the Plan is unenforceable because the Director Defendants
breached their fiduciary duties under Unocal when adopting it, this decision need not
resolve whether the Director Defendants independently breached their fiduciary duties by
failing to redeem the Plan.
651 A.2d at 1388)); Yucaipa, 1 A.3d at 331 (“[T]he board bears the burden to show that
the pill is reasonable”).
89