CBS Corporation v. National Amusements, Inc.

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
ANDRE G. BOUCHARD LEONARD L. WILLIAMS JUSTICE CENTER
CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734
Date Submitted: May 16, 2018
Date Decided: May 17, 2018
David E. Ross, Esquire Myron T. Steele, Esquire
Bradley R. Aronstam, Esquire Matthew E. Fischer, Esquire
Ross Aronstam & Moritz LLP Potter Anderson & Corroon LLP
100 S. West Street, Suite 400 Hercules Plaza, 6th Floor
Wilmington, DE 19801 1313 N. Market Street
Wilmington, DE 19899
RE: CBS Corporation, et al. v. National Amusements, Inc., et al.
Civil Action No. 2018-0342-AGB
Dear Counsel:
This letter constitutes the court’s ruling on plaintiffs’ motion for a temporary
restraining order that was argued yesterday afternoon. Although a more extensive
discussion of the issues would be desirable, the need for an immediate decision
necessitates brevity. For the reasons explained below, the motion is denied, and
the order that was entered at the conclusion of yesterday’s hearing to protect the
court’s jurisdiction pending this ruling is hereby rescinded.
CBS Corporation, et al. v. National Amusements, Inc., et al.
C.A. No. 2018-0342-AGB
May 17, 2018
I. Background1
Plaintiffs consist of CBS Corporation and five independent members of its
Board of Directors (the “Board”) who serve on a Special Committee of the Board
that was formed to consider a potential merger of CBS and Viacom, Inc.
Defendants consist of Shari Redstone, her father Sumner Redstone, National
Amusements, Inc. (“NAI”), NAI Entertainment Holdings LLC, and the Sumner M.
Redstone National Amusements Trust. Ms. Redstone, through her control of NAI,
effectively controls approximately 79.6% of the voting power of CBS, although
NAI owns only approximately 10.3% of the economic stake in CBS.2
Before 2005, CBS and Viacom were part of one company, which also was
called Viacom. In 2005, CBS and Viacom were split into the standalone entities
they are today. CBS has two classes of stock, both of which are publicly traded on
the New York Stock Exchange. The Class A common stock has voting power; the
Class B common stock does not. Viacom has a similar dual class structure that
gives NAI a similar level of voting control.3
1
The factual recitation herein comes largely from plaintiffs’ complaint, which was
verified by each member of the Special Committee and a representative of CBS, as the
court’s rules require. Ct. Ch. R. 3(aa). Ms. Redstone declined to submit an affidavit even
though defendants make a number of representations in a 25-page responsive brief about
NAI’s intentions as a controlling stockholder.
2
Verified Compl. ¶ 4.
3
See Feuer v. Dauman, 2017 WL 4817427, at *1 (Del. Ch. Oct. 25, 2017).
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C.A. No. 2018-0342-AGB
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According to the complaint, Ms. Redstone began to pursue a merger of CBS
and Viacom in 2016 on the heels of removing Viacom’s then-CEO and replacing a
number of directors on Viacom’s board. The proposed deal allegedly foundered
because Ms. Redstone would not agree to “the combined CBS/Viacom entity
[being] managed as a non-controlled public company with a majority-independent
board for at least the next five years.”4
Over the next two years, Ms. Redstone took various actions, some of which
are discussed below, that “have led the Special Committee to conclude that she
presents a significant threat of irreparable and irreversible harm to the Company
and its stockholders.”5 By early January 2018, Ms. Redstone again formally
approached the boards of CBS and Viacom and pressed for a combination of the
two companies.6 In response, the CBS and Viacom boards each formed special
committees to evaluate and negotiate a potential combination.7 During
negotiations, Ms. Redstone allegedly “refused to agree to typical public company
4
Verified Compl. ¶ 43.
5
Verified Compl. ¶ 2.
6
Verified Compl. ¶ 46.
7
Verified Compl. ¶ 49.
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governance or submit any potential transaction to a vote of all of the unaffiliated
public stockholders of CBS.”8
On Sunday, May 13, 2018, the Special Committee determined that a
CBS/Viacom merger is not in the best interests of CBS stockholders, other than
NAI.9 The Special Committee contends that, in response to this decision, Ms.
Redstone may “immediately replace members of the Board and use the new
directors to force through the merger . . . and make other changes to the CBS
organizational documents” to impede the Board.10
At the request of the Special Committee, CBS scheduled a special board
meeting to begin at 5 p.m. on May 17, 2018 to consider potential responses to Ms.
Redstone’s conduct.11 At that meeting, the Special Committee intends to
recommend that the Board approve a stock dividend of Class A voting shares to all
holders of Class A voting and Class B non-voting shares (the “Dividend
Proposal”).12 If approved, the dividend would dilute NAI’s voting power from
approximately 80% to 17%, but would not dilute its economic stake or the
8
Verified Compl. ¶ 2.
9
Verified Compl. ¶ 62.
10
Verified Compl. ¶ 62.
11
Verified Compl. ¶ 7.
12
Verified Compl. ¶ 71.
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economic stake of any other CBS stockholder.13 By any reckoning, the Dividend
Proposal is an extraordinary measure, presumably reflective of the depth of
concern the independent members of the Special Committee have about Ms.
Redstone’s intentions.
Importantly, if approved by the Board, “CBS will not issue any Class A
shares distributable in the stock dividend, or otherwise cause that dividend to
become effective, pending further order of the Court.”14 In other words, the stock
dividend would be conditional “unless and until the Delaware courts decide on a
record whether it is legally and equitably permissible.”15
On Monday, May 14, 2018, plaintiffs filed their complaint and a motion for
a temporary restraining order. The complaint contains three claims. Count I
asserts that NAI, Mr. Redstone, and Ms. Redstone have breached their fiduciary
duties as the controlling stockholder of CBS. Count II asserts a claim for estoppel
against these same defendants. Count III asserts a claim for aiding and abetting
against the remaining two defendants. In their motion, plaintiffs request that the
court temporarily restrain defendants and their agents from:
13
Verified Compl. ¶¶ 7, 72.
14
Verified Compl. ¶ 9.
15
Tr. 13 (May 16, 2018).
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(a) interfering with the composition of CBS’s Board (other than electing
the slate currently nominated for election at CBS’s May 18 annual meeting
of stockholders) or modifying CBS’s governance documents until any
actions approved at the special board meeting called for May 17 become
effective;
(b) taking any other actions to interfere with any decisions to be taken by
CBS’s Board at the May 17 special board meeting; and
(c) interfering with the issuance of any shares payable in a stock
dividend.
No precedent has been cited in which this (or any other court) has granted such
relief.
Approximately two hours after the complaint was filed on May 14, the court
scheduled a hearing on the motion for a temporary restraining order to begin on
Wednesday, May 16 at 2 p.m. Approximately one hour before the hearing,
defendants filed a letter informing the court that NAI had executed and delivered
consents to amend CBS’s bylaws to, among other things, require approval by 90%
of the directors then in office at two separate meetings held at least twenty business
days apart in order to declare a dividend (the “90% Bylaw”). Given that CBS’s
Board currently consists of fourteen members, three of which are NAI-designees,
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the 90% Bylaw (if valid) would allow NAI to block enactment of the Dividend
Proposal.
In light of NAI’s act of self-help before the court could hear plaintiffs’
motion for a temporary restraining order, the court entered the form of order
submitted by plaintiffs in support of their motion at the conclusion of yesterday’s
hearing as an interim measure to protect the court’s jurisdiction until it could rule
on the motion (the “Interim Order”).16
II. Analysis
A temporary restraining order may be issued when the movant demonstrates
that: “[1] it has a colorable claim, [2] faces a likelihood of imminent, irreparable
harm if relief is not granted, and [3] will suffer greater hardships if the TRO is not
granted than the defendants would if the relief were granted.”17 The “colorable
claim” requirement means that a plaintiff must state “essentially a non-frivolous
cause of action.”18
Defendants make a threshold argument that a stronger showing should be
required on the merits of plaintiffs’ motion for two reasons. First, defendants
contend that plaintiffs should be required to establish actual success on the merits
16
Dkt. 37.
17
Arkema Inc. v. Dow Chem. Co., 2010 WL 2334386, at *1 (Del. Ch. May 25, 2010).
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on the theory that a temporary restraining order would not just maintain the status
quo. Rather, according to defendants, a temporary restraining order would
effectively provide plaintiffs with “final, irreversible relief” because, if the
temporary restraining order were granted, defendants would lose forever the right
to take corporate action before the Board votes on the Dividend Proposal.19 A flaw
in this argument is that the Dividend Proposal would not be “irreversible” if
approved by the Board. To the contrary, as noted above, it is structured not to
become effective until the resolution of any judicial challenge. The real issue
underlying defendants’ argument is who—a controller or a board of directors—
should have “first-mover” advantage to take action and define the contours of a
fight between them. I touch upon this issue briefly in my consideration of the
balance of the equities.
Second, defendants contend that plaintiffs at least should have to satisfy the
reasonable likelihood of success standard necessary to obtain a preliminary
injunction on the theory that plaintiffs delayed in seeking relief. I disagree with
this contention. On the record before me, it appears that plaintiffs acted in a
sensible and timely manner by filing their motion promptly after the Special
18
Reserves Dev. Corp. v. Wilmington Tr. Co., 2008 WL 4951057, at *2 (Del. Ch. Nov. 7,
2008).
19
Defs.’ Answering Br. at 12.
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Committee concluded on May 13 that a CBS/Viacom merger was not in the best
interests of the Company, when the prospect of retributive action by the controlling
stockholder became acute.
A. Colorability of Plaintiffs’ Claims
The key premise of the complaint is that, since its separation from Viacom
in 2005, CBS has held itself out as a company committed to independent board
governance in order to assuage stockholder concerns about investing in a company
controlled by the Redstones—the so-called “Redstone discount.” To that end, CBS
publicly has “touted the independence of its Board” and “represented that CBS
was—and would be—governed by an independent Board despite being a
‘controlled company.’”20 For example, CBS stated in its registration statement in
2005, and repeated materially identical representations in its proxy statements
every year between 2006 and 2018, that “a majority of the CBS Corp. directors
must be independent, as ‘independence’ is defined in the NYSE listing standard
and in the CBS Corp. Guidelines.”21
Indeed, according to plaintiffs, the fact that the certificate of incorporation of
CBS (and Viacom), unlike those of some other controlled companies, authorizes
the Board to approve a stock dividend that would dilute NAI’s voting power is
20
Compl. ¶ 30.
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itself evidence of CBS’s commitment to independent board governance.
Defendants vigorously dispute this interpretation of CBS’s certificate of
incorporation, on which the court expresses no opinion.
According to the complaint, Ms. Redstone has taken various actions casting
significant doubt over the genuineness of CBS’s public promises of independent
board governance that are detrimental to the interests of the stockholders who hold
approximately 90% of the economic stake in the Company.22 These actions
include the following:
o In 2017, Ms. Redstone “interfered with the Nomination and Governance
Committee process”23 by filling Mr. Redstone’s “newly vacant board seat
with the Redstones’ personal lawyer who has since been instructing
management and other directors on Ms. Redstone’s/NAI’s wishes—
including the desire to replace certain directors.”
21
Compl. ¶¶ 31-32, 32 n.2.
22
Compl. ¶ 2.
23
In its 2005 registration statement, CBS represented that “despite being a ‘controlled
company,’ CBS Corp. . . . will have . . . an independent nominating and governance
committee,” which, according to CBS’s Corporate Governance Guidelines, “will
recommend director candidates to the Board in accordance with the criteria, policies and
principles set forth in its Charter and in these Guidelines.” Compl. ¶¶ 31, 33.
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o “Ms. Redstone has acted to undermine the management team, including,
without board authority, talking to potential CEO replacements, deriding
the Chief Operating Officer and threatening to change the Board.”
o “During the course of the Special Committee’s negotiations with respect
to a possible merger, Ms. Redstone refused to agree to typical public
company governance or submit any potential transaction to a vote of all
of the unaffiliated public stockholders of CBS.”
o “Ms. Redstone told the CEO of a potential acquirer of CBS that he
should not make such an offer, thereby depriving CBS stockholders of a
potentially value-enhancing opportunity that the Board or the Special
Committee should have been free to evaluate.”
o “It has been reported that Ms. Redstone is prepared to replace directors at
CBS, including members of the Special Committee, in order to compel a
merger [with Viacom] regardless of the determination of the Special
Committee and the other independent directors of CBS.”
In my opinion, particularly given CBS’s proclaimed commitment to
independent board governance, these allegations are sufficient to state a colorable
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claim for breach of fiduciary duty against Ms. Redstone and NAI as CBS’s
controlling stockholder.24
B. Irreparable Harm
“To demonstrate irreparable harm, a plaintiff must present an injury of such
a nature that no fair and reasonable redress may be had in a court of law and must
show that to refuse the injunction would be a denial of justice. The alleged
injury must be imminent and genuine, as opposed to speculative.”25
Plaintiffs’ theory of irreparable harm has been somewhat elusive. As I
understand it, plaintiffs’ basic contention is that, if the court does not grant the
unprecedented relief they are seeking in order to prevent Ms. Redstone from
interfering with the Board’s consideration of the Dividend Proposal (or other
matters that may arise) during the special board meeting scheduled for later today,
Ms. Redstone would have “the unfettered ability to replace the Board and cram
24
See, e.g., Shamrock Hldgs. v. Iger, 2005 WL 1377490, at *6 (Del. Ch. June 6, 2005)
(refusing to dismiss under Rule 12(b)(6) breach of fiduciary duty and equitable fraud
claims where the process Disney ran to select a new CEO was alleged to be inconsistent
with how the company publicly announced the process to stockholders.); Dousman v.
Kobus, 2002 WL 1335621, at *5-7 (Del. Ch. June 6, 2002) (holding that defendants were
estopped from enforcing a supermajority voting bylaw in a way that was inconsistent
with prior public disclosures).
25
Aquila, Inc. v. Quanta Servs., Inc., 805 A.2d 196, 208 (Del. Ch. 2002) (internal
citations omitted).
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down a merger with Viacom, or otherwise take action that is detrimental to the
public stockholders who hold 90% of CBS’s equity.”26
Although NAI’s execution of consents to implement the 90% Bylaw within
hours of the court’s hearing on the instant motion belies defendants’ contention
that plaintiffs’ concerns about Ms. Redstone are hypothetical or speculative, I am
not convinced that the harm plaintiffs fear would be irreparable. To the contrary,
the court has extensive power to provide redress if Ms. Redstone takes action(s)
inconsistent with the fiduciary obligations owed by a controlling stockholder.27
Plaintiffs already committed during yesterday’s hearing to challenge the
validity of the 90% Bylaw, which this court will have the power to set aside if
indeed it is proven to be invalid or inequitable. As defendants acknowledge,
Section 225 of the Delaware Corporation Law is available to address an improper
removal of directors.28 Similarly, as defendants also acknowledge, recourse
always is available in this court for a merger that is the product of a fiduciary
26
Pls.’ Mot. for a Temp. Restraining Order ¶ 18.
27
See, e.g., Hollinger Int’l, Inc. v. Black, 844 A.2d 1022, 1029 (Del. Ch. 2004), aff’d, 872
A.2d 559 (Del. 2005) (granting injunctive relief to prevent Conrad Black from undoing
the independent process to which he had agreed to govern the sale of a publishing
company he controlled).
28
Defs.’ Answering Br. at 20 (“The availability of an action under Section 225 of the
DGCL precludes any holding that the purportedly threatened removal of directors
constitutes irreparable harm.”).
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breach.29 To be sure, litigation over these types of issues takes time, is expensive,
and can be distracting and messy. But that does not mean that full relief would not
be available if the present motion is denied.
C. Balance of the Equities
Finally, the court must “balance the plaintiff’s need for protection against
any harm that can reasonably be expected to befall the defendants if the injunction
is granted.”30 In making this determination, the court “must be cautious that its
injunctive order does not threaten more harm than good. That is, a court in
exercising its discretion to issue or deny such a . . . remedy must consider all of
the foreseeable consequences of its order and balance them. It cannot, in equity,
risk greater harm to defendants, the public or other identified interests, in granting
the injunction, than it seeks to prevent.”31
Balancing the relevant considerations here implicates an apparent tension in
our law between a controlling stockholder’s right to protect its control position and
the right of independent directors—empowered under 8 Del. C. § 141(a) with
29
Def’s Answering Br. at 21 (“If any subsequently announced transaction involving CBS
is believed by any CBS stockholders to have resulted from a breach of a controlling
stockholder’s fiduciary duties, those claims—and request for injunctive relief—can be
brought by an appropriate plaintiff at that time.”).
30
See, e.g. Mills Acq’n Co. v. Macmillan, Inc., 559 A.2d 1261, 1279 (Del. 1989).
31
In re Del Monte Foods Co. S’hlders Litig., 25 A.3d 813, 839 (Del. Ch. 2011) (quoting
Lennane v. ASK Computer Sys., Inc., 1990 WL 154150, at *6 (Del.Ch. Oct. 11, 1990)).
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broad authority to manage “the business and affairs” of the corporation—to
respond to a threat posed by a controller, including possible dilution of the
controller.
On the one hand, cases such as Frantz Mfg. Co. v. EAC Indus. and
Adlerstein v. Wertheimer recognize a controller’s right to address threats to its
control preemptively. In Frantz, for example, our Supreme Court found that a
controller’s preemptive enactment of bylaw amendments was “a permissible part
of [the controller’s] attempt to avoid its disenfranchisement as a majority
shareholder.”32 And in Adlerstein, this court noted that a board’s decision to keep
a controller “in the dark” about a plan to issue preferred stock destroying his voting
control was “significant” because the controller had the power to prevent the
issuance by unseating directors.33 The court explained that the controller “may or
may not have exercised this power had he been told about the plan in advance [b]ut
he was fully entitled to the opportunity to do so.”34
On the other hand, there is a line of authority emanating from Mendel v.
Carroll, where Chancellor Allen expressed an openness to “the possibility that a
situation might arise in which a board could, consistently with its fiduciary duties,
32
Frantz Mfg. Co. v. EAC Indus., 501 A.2d 401, 407 (Del. 1985).
33
Adlerstein v. Wertheimer, 2002 WL 205684, at *9 (Del. Ch. Jan. 25, 2002).
34
Id.15
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issue a dilutive option in order to protect the corporation or its minority
shareholders from exploitation by a controlling shareholder who was in the process
of threatening to violate his fiduciary duties to the corporation.”35 It could be
argued that, implicit in this reasoning, it would be reasonable in an appropriate
circumstance to afford a board “breathing space” to deliberate over such options
free from the preemptive power of a controller by affording temporary relief of the
type plaintiffs seek here. Otherwise, how would a board be able to take such
action as a practical matter if, as Adlerstein holds, the controller has a “right to
advance notice [that] derives from a basic requirement in our corporation law that
boards of directors conduct their affairs in a manner that satisfies minimum
standards of fairness”?36
No precedent has been identified, however, in which the court has ever
entertained, much less sanctioned, the type of request for relief that plaintiffs make
here. In and of itself, this suggests that a truly extraordinary set of circumstances
would be necessary to grant such a request.
35
651 A.2d 297, 306 (Del. Ch. 1994); see also Klaassen v. Allegro Dev. Corp., 2013 WL
5967028, at *11 (Del. Ch. Nov. 7, 2013) (“[A] board acting loyally may take action to
oppose, constrain, or even dilute a large or controlling stockholder.”) (citing, among other
cases, Mendel v. Carroll and Hollinger, 844 A.2d at 1088); Ford v. VMware, Inc., 2017
WL 1684089, at *11 (Del. Ch. May 2, 2017) (“Delaware decisions recognize that a board
can respond to a threat posed by a controlling stockholder.”).
36
Adlerstein, 2002 WL 205684, at *9.
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The exigency of plaintiffs’ application precludes further consideration of this
point of tension. Adlerstein, which expressly endorsed a controller’s right to make
the first move preemptively to protect its control interest, is the clearest precedent
and weighs heavily in defendants’ favor. Exercise of that right, of course, is
subject to judicial review, which can afford full relief in this circumstance in my
opinion to vindicate the interests of CBS and its stockholders, if appropriate.
Accordingly, the balance of the equities weighs in defendants’ favor.
*****
For the reasons explained above, plaintiffs’ motion for a temporary
restraining order is DENIED, and the Interim Order is hereby RESCINDED
effectively immediately.
IT IS SO ORDERED.
Sincerely,
/s/ Andre G. Bouchard
Chancellor
AGB/gm
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