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EXHIBIT 1
*REVISIONS ARE TO PAGES 6, 10,
37, 40, 42, 45, 46, 52 AND 54
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
WILLIAM M. STRASSBURGER, :
:
Plaintiff, :
:
v. : C.A No. 14267
:
MICHAEL M. EARLEY, LUTHER A. :
HENDERSON, JOHN C. STISKA, :
N. RUSSELL WALDEN, and :
TRITON GROUP, LTD., a :
Delaware corporation, :
:
Defendants, :
:
and :
:
RIDGEWOOD PROPERTIES, INC., :
a Delaware corporation, :
:
Nominal Defendant. :
O P I N I O N
Date Submitted: September 24, 1999
Date Issued: January 24, 2000
DATED REVISED: JANUARY 27, 2000*
Craig B. Smith and Charles E. Butler, Esquires, of SMITH, KATZENSTEIN & FURLOW
LLP, Wilmington, Delaware; Attorneys for Plaintiff
Stephen E. Jenkins, Esquire of ASHBY & GEDDES, Wilmington, Delaware; Phillip S.
McKinney, Esquire, or ROGERS & HARDIN, Atlanta, Georgia; Attorneys for
Defendant Luther Henderson and Nominal Defendant Ridgewood Properties, Inc.
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John T. Dorsey, Esquire, of RICHARDS, LAYTON & FINGER, Wilmington, Delaware;
Attorneys for Defendant N. Russ Walden
Michael D. Goldman, James F. Burnett and Matthew E. Fischer, Esquires, of
POTTER, ANDERSON & CORROON LLP, Wilmington, Delaware; Attorneys for Defendants
Michael M. Earley, John C. Stiska and Triton Group, Inc.
JACOBS, VICE CHANCELLOR
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In August, 1994, at a time when it was desperately short of cash,
Ridgewood Properties, Inc., a Delaware corporation ("Ridgewood" or "the
Company") repurchased 83% of its outstanding common stock from its two largest
stockholders -- Triton Group, Ltd. ("Triton") and Hesperus Limited Partners
("Hesperus"). To finance those repurchases, Ridgewood had to sell its principal
operating assets. At issue in this post-trial Opinion is whether those
repurchases constituted a breach of the fiduciary duty of loyalty owed by
Ridgewood's board of directors to the Company and its minority stockholders.
The plaintiff, who is a Ridgewood stockholder suing derivatively,(1)
claims that the repurchases constituted a breach of fiduciary duty because they
had no purpose other than to benefit one person -- N. Russell Walden ("Walden")
- -- Ridgewood's President, a director, and the Company's third large stockholder
- -- by increasing Walden's stock ownership interest from 6.9% to a 55% position
of absolute majority control. The plaintiff also claims that those transactions
were highly unfair to Ridgewood's remaining stockholders and also a waste of
corporate assets.
The case was tried on April 19-21, 1999. This is the Court's
post-trial
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(1) All counts of the complaint except one were derivative; the
remaining Count purported to assert a class action claim. A class was
certified, but the Court later granted the defendants' motion to dismiss the
class action count, leaving only the derivative claims.
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Opinion on the merits. For the reasons discussed below, the Court finds that
the repurchase transactions constituted breaches of fiduciary duty owed by the
directors to Ridgewood's minority shareholders, and that therefore, the
plaintiffs have established their entitlement to relief.
I. THE FACTS(2)
A. THE PARTIES
Ridgewood is a small publicly-held real estate company that was formed
in 1985 by a stock spin off of certain real estate interests of Pier 1, Inc.
("Pier 1"). At the time of the spin off, Intermark, Inc., Triton's corporate
predecessor, held 48% of Pier 1's stock. After the spin off, Intermark
(Triton)(3) ended up as Ridgewood's controlling stockholder. Share repurchases
that Ridgewood conducted between 1985 and 1992 enlarged Triton's stock
ownership to a 74.4% controlling interest.
Following the 1985 spin off, Walden became Ridgewood's President and a
member of its board of directors, and has served in both capacities ever since.
As of August 1994, the time of the challenged repurchase transactions,
Ridgewood's
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(2) Many underlying facts are undisputed, but where there are disputes
the facts are as found herein.
(3) Intermark changed its name to Triton Group, Ltd. in 1993. For ease
of reference, Intermark and Triton are referred to interchangeably as "Triton."
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other directors were Luther A. Henderson, Michael M. Earley and John C. Stiska,
who, together with Walden and Triton, are the defendants in this action. Earley
and Stiska were senior executives of Triton and served as Triton's designees to
the Ridgewood Board. Henderson, who was not affiliated with Triton, was a co-
founder and former Chairman and CEO of Pier 1, and had been a board member of
Ridgewood's predecessor since 1981.
As of August 1994 Ridgewood's three largest stockholders were Triton,
(which owned 74.4% of Ridgewood's outstanding shares), Hesperus (which owned
9%), and Walden (who owned 6.9%). The remaining 9.7% of Ridgewood's shares were
owned by members of the public. It is undisputed that Triton and Hesperus were
not affiliated or otherwise connected in any relevant way.
Ridgewood's business was developing and selling real estate, and its
assets consisted of raw land and "operating properties." Ridgewood would
develop vacant land and then sell it, realizing net profits only upon the
eventual sale of the developed land. After the 1985 spin off, an important
element of Ridgewood's business was to purchase partially developed mobile home
parks, complete their development (i.e., sell enough units to fill the parks),
and then sell the developed mobile home parks to an operator.
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By the beginning of 1994, many of Ridgewood's valuable real estate
assets had been sold. At that point the company had only two hotels, five
mobile parks, and several parcels of vacant land that had been for sale for
several years. Because of a scarcity of operating properties and adverse
developments in the mobile home market, Ridgewood could not sustain itself on
operating revenues alone, and had to sell its inventory of vacant land to meet
expenses.(4) In December, 1993 Ridgewood had borrowed $500,000 from Triton to
pay expenses. By February, 1994 Ridgewood's equity per share had declined to
$9.46 -- down from $10.51 in August, 1993. At that time Walden was reporting
to his fellow board members that:
Cash is a serious concern. Poor performance at the
hotels, combined with no home sales, has left us
nearly destitute. If we don't get the apartment sale
closed in early March, we may be in deep dog
droppings.(5)
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(4) As defendants explain it, although the business of developing and
selling mobile home parks was initially profitable, by the early 1990s changes
in the Florida real estate market had made it increasingly difficult to
complete the parks and operate the parks cost effectively. As a result,
defendants claim, in 1993 Ridgewood decided to exit the business.
(5) Joint Trial Exhibit ("JTX") 1 at 2.
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B. TRITON'S FINANCIAL DIFFICULTIES AND
ITS EVENTUAL DECISION TO LIQUIDATE
During the early 1990s, Ridgewood's controlling stockholder, Triton,
was also experiencing significant financial difficulty. In late 1992, Triton
filed for bankruptcy protection under Chapter 11 of the United States
Bankruptcy Code. In the reorganization that followed, Triton merged with a
subsidiary, and the bondholders of both entities became the equity owners of
the merged company. In 1993, two months after Triton emerged from bankruptcy,
Triton sent to its stockholders a letter advising them that management no
longer believed that the company had "reason to exist indefinitely as a
publicly traded vehicle," and that Triton would attempt to return "as much real
value to our stockholders over a short period of time."(6) Triton management
(which included Stiska and Earley) further advised that Triton's plan involved
delivering value to its shareholders in the form of cash and liquid securities,
and that it would take about two years to complete.
Triton began negotiating arrangements with the managements of its more
valuable holdings over how Triton would exit those investments. At a Triton
board of directors meeting held in October 1993, Stiska advised the board that
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(6) JTX 2 at 1.
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Triton would be giving increased attention to its Ridgewood investment, from
which Triton hoped to realize $13 million to $16 million in value over the next
two years.(7) Shortly thereafter, Stiska and Earley asked Walden to prepare a
plan that would "get Triton out of Ridgewood within two years -- by liquidation,
sale or whatever."(8)
None of these developments came as a surprise to Walden, who had been
closely following Triton's financial problems for some time. Walden had every
reason to be concerned about Triton's continued majority stock investment in
Ridgewood: Walden's Ridgewood stock represented 65% of his net worth.
Furthermore, he depended on Ridgewood for his livelihood. Walden's compensation
package included a $200,000 annual salary, company-financed insurance policy and
a private club membership, a post-employment contract that would pay his salary
for a specified period, and a supplemental retirement plan that would pay him
$100,000 annually for life, plus cash bonuses. As time went on, Walden became
concerned that Triton's financial problems would cause Triton either to
liquidate Ridgewood's assets or sell its controlling interest in Ridgewood to a
"bone picker" short term investor that would liquidate Ridgewood at "fire
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(7) JTX 3 at 7.
(8) JTX 5; Trial Transcript ("Tr.") at 313.
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sale" prices.
That concern prompted Walden to develop his own plan that would enable
Triton to exit its investment in Ridgewood yet also (in defendants' words)
protect "the long term interests of Ridgewood and its minority
stockholders."(9) As it turned out, however, the plan that Walden ultimately
negotiated, and that was eventually approved and carried out, did little to
protect or benefit any Ridgewood stockholders other than Triton, Hesperus, and
Walden.
C. THE RIDGEWOOD BOARD'S CONSIDERATION
OF ALTERNATIVES AND ITS RESPONSE TO TRITON
The eventual solution to the Triton problem was that Ridgewood
repurchased the 74.4% and 9% blocks of its stock held, respectively, by Triton
and Hesperus. The defendants claim that before adopting that solution they
considered and rejected several alternatives. Whether or not those alternatives
were in fact considered, and the reasons why they were rejected, are disputed
issues. To resolve those issues, I pause at this point to discuss the
"non-repurchase" alternatives.
The defendants claim that Walden first proposed that Triton distribute
its block of Ridgewood shares to its shareholders. That, according to Mr.
Walden,
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(9) Def. Answering Postrial Br. ("Def Br.") At 11.
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would increase the liquidity of Ridgewood's stock, which for years had not been
actively traded,(10) and would also eliminate Triton's control over Ridgewood's
destiny. According to defendants, this share distribution proposal was rejected
as unworkable because in any spin-off of Triton's Ridgewood shares, the much
larger Triton shareholder base would result in each Triton stockholder
receiving only a small number of Ridgewood shares.
This portrayal of the facts lacks persuasive support. No document of
record evidences that this proposal was in fact made (or when it was made) by
Ridgewood, or that the proposal was in fact considered and rejected by Triton.
Moreover, this "stock distribution" scenario was never mentioned during
discovery and surfaced for the first time in the defendants' trial testimony.
Also suspect is the defendants' stated reason for rejecting the share
distribution proposal. If in fact the only obstacle to a share distribution was
the small number of Ridgewood shares relative to the Triton shareholder base,
an obvious solution would have been to split the Ridgewood stock into whatever
number of shares would suffice to overcome that problem. Indeed, three months
after the
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(10) Ridgewood's stock was delisted from NASDAQ because of low trading
volume. After it was delisted, Ridgewood stock traded through the "pink
sheets." Defendants concede that at the time of the challenged transactions,
Ridgewood stock was not actively traded. Def. Br. at 9, n. 6.
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challenged repurchases closed, Ridgewood did precisely that -- in late October
1994, it effectuated a 3 for 1 stock split. No explanation is offered for why
that possible solution was never considered or proposed in late 1993. For these
reasons the defendants have not persuaded me that a share distribution was an
alternative that Ridgewood's board in fact considered or proposed.(11)
Similarly unpersuasive is the defendants claim that they also
considered liquidating Ridgewood, but that Walden rejected this alternative
because he believed a complete liquidation within a relatively short time frame
would force Ridgewood to accept "...'fire sale' prices" for many of its assets.
The only evidence cited in support of this rejected liquidation scenario is a
memorandum from Walden to Earley and Stiska, unilaterally communicating
Walden's point of view. There is no evidence that the full Ridgewood board ever
met, formally or informally, and collectively considered this alternative, and
the testimony of Earley and Henderson affirmatively shows that the board did
not.(12)
A third alternative the defendants claim to have considered was a pro
rata
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(11) The defendants concede that the Triton repurchase transaction is
subject to the entire fairness standard of review and that as a result the
defendants have the burden of persuasion. As discussed elsewhere in this
Opinion, the Court determines that the defendants must carry the burden of
proving the entire fairness of both the Triton and the Hesperus transactions.
(12) Earley testified that liquidation was never "actively proposed by
us or discussed as an alternative." JTX 56 at 82. Henderson testified that he
did not "recall that [the board] ever discussed liquidating [Ridgewood]." JTX
55 at 117.
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self-tender by Ridgewood for its own shares. That alternative does appear to
have been discussed, but whether it was formally considered by all the
directors meeting collectively as a board is not clear.(13) Be that as it may,
the evidence shows that Triton favored this form of transaction because it
would provide Triton with immediate cash yet still allow Triton to continue its
large equity participation in Ridgewood. A self-tender would, moreover, afford
liquidity to all shareholders on an equal (pro rata) basis. That alternative
was rejected, nonetheless, because in Walden's view, "such an approach ...
[would not] accomplish one of the goals that management had in mind, which was
eliminating the overhang of the 74 percent shareholder."(14)
The fourth and final alternative the Ridgewood board considered was a
cash dividend to all Ridgewood shareholders. That approach, like the self-
tender, would deliver cash to all shareholders on a pro rata basis. Triton also
favored this alternative because it would provide Triton with cash yet allow
Triton to maintain its controlling equity position in Ridgewood. This
alternative was also rejected because Walden was unwilling to approve any
transaction that did not eliminate
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(13) Although the defendants quote Earley's and Henderson's views on
that issue, they omit reference to Henderson's testimony that he did not
recall a specific discussion of this alternative with Walden, Stiska or Earley
about this subject. JTX 55 at 71-75, 79.
(14) Tr. at 257; see also, JTX 15; Tr. at 68, 210, 257, 282.
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Triton as a Ridgewood shareholder.(15) By this process of elimination Walden
and the other directors ultimately came to focus upon their final alternative
- -- a repurchase by Ridgewood of Triton's control block of Ridgewood shares.
D. EVENTS LEADING UP TO
THE STOCK REPURCHASES
1. THE SALE OF THE MOBILE HOME PARKS
From a financial perspective 1994 was the least propitious time for
Ridgewood to repurchase Triton's 74.4% control block. Ridgewood desperately
needed cash, but it lacked sufficient money to finance its own operations let
alone repurchase Triton's controlling interest. To raise cash of that
magnitude, Ridgewood would have to sell significant assets, which ultimately is
what it did. By January 1994, when Walden formally proposed a plan to "take
out" Triton for $10.2 million (approximately $7 per share), it had already
been decided that the purchase price would be raised by selling Ridgewood's
five mobile home parks. Indeed, by then Walden had received an offer from
Clayton Homes of Tennessee to buy the mobile home parks for $12.6 million.
Walden communicated his $7 per share proposal to Triton, which responded
negatively because (as Stiska and Earley told Walden) Triton wanted $12 million
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(15) JTX 56 at 60-61.
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for its Ridgewood stock. Walden told Stiska and Earley that he would not sell
Ridgewood's mobile home parks for $12.6 million, and then exhaust all but $.6
million of those proceeds to buy out Triton. By then, however, Walden knew that
to effect a repurchase of Triton's stock interest, the mobile home parks would
have to command a price higher than $12.6 million. Accordingly, the proposed
$12.6 million Clayton Homes deal soon fell by the wayside, and from January
1994 forward, Walden engaged in simultaneous efforts to sell the mobile home
parks at a higher price, and also to negotiate the repurchase of Triton's
control block of shares. By April, 1994, Walden had successfully negotiated a
sale of the mobile home parks to Sun Communities for $14.5 million -- $13
million in cash and a $1.45 million promissory note payable in two years. That
sale closed on June 16, 1994.
At trial Walden denied that the mobile home parks were sold to raise the
funds needed to finance the share repurchase.(16) In my view that denial lacks
credibility and is contrary to the weight of the evidence. In his deposition Mr.
Earley testified that Walden was willing to undertake the sale of the mobile
home parks "but at the same time only if he knew he could take out [Triton] at
$8 per
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(16) Tr. at 147.
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share."(17) And in a memorandum to his own attorneys, Walden stated that in
order to finance the stock repurchase..."[w]e set about to raise a substantial
pool of cash. That goal was accomplished by the sale of our mobile home
parks..."(18)
2. THE ISSUANCE OF STOCK OPTIONS TO WALDEN
During 1993, Walden had been granted options for 50,000 Ridgewood shares.
In January 1994 -- at the onset of his negotiations with Triton -- Walden was
granted, at his request, options for an additional 125,000 shares. Other
members of Ridgewood management received options as well. By the spring of
1994, the option grants had increased Ridgewood's total outstanding shares (on
a fully diluted basis) to 2,194,320, with Walden holding either stock or
options totaling 309,280 shares. The significance of the options -- as
plaintiff points out and defendants do not dispute -- is that if the Triton
repurchase had occurred in December, 1993 (before the January, 1994 options
were issued), Walden's ownership interest would have increased to only 33%. If
Hesperus' shares were also repurchased at that time, Walden's ownership
interest would have increased to 49.6% -- still short of an absolute majority.
But with the January stock options in place and the Hesperus shares being
repurchased as well, those combined
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(17) JTX 56 at 77.
(18) JTX 61.
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transactions would (and did) increase Walden's ownership interest to 55% -- a
position of absolute control.
3. THE HESPERUS REPURCHASE OPPORTUNITY
While Walden was negotiating to sell the mobile homes to Sun Communities,
Peter Foreman of Harrison Associates (which was the managing partner of
Hesperus) learned of Ridgewood's plans to buy out Triton. Foreman wanted
Ridgewood to repurchase Hesperus's 9% stock interest as well. Foreman had
previously expressed his interest in a buyout to Walden in 1993, but at that
time Walden was not interested. Now, however, when Foreman expressed interest
again in the spring of 1994, Walden was very receptive. He began negotiating
with Foreman (while also negotiating with Triton) for Ridgewood to buy back
Hesperus's stock interest.
The prospect of repurchasing Triton's shares influenced Walden's
negotiating strategy for the sale of the mobile parks to Sun Communities.
Initially, Sun Communities wanted Ridgewood to accept (in addition to cash) a
promissory note of $2.5 million. Walden was able to negotiate that amount down
to $1.45 million. That was no coincidence. Based on his earlier discussions
with Foreman, Walden believed that Hesperus might accept a Sun Communities
promissory note for $1.45 million as part of the consideration to repurchase
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Hesperus's Ridgewood stock at $8 per share. Walden's intuition was correct: on
May 11, 1994 Walden proposed those terms to Hesperus, and after some bargaining
and modifications of repurchase terms, Hesperus agreed to the proposal on or
about May 15, 1994.(19)
At the trial Walden testified that the concurrent repurchase of the
Hesperus and the Triton Ridgewood stock was coincidental. The defendants insist
that as long as Hesperus was willing to accept the Sun Communities note for its
shares, Ridgewood would have repurchased the Hesperus 9% block regardless of
what happened with Triton. The reason was Walden's belief that the Hesperus
block could be bought at a favorable price well below its book value, using
non-cash consideration.
It is true that the Hesperus block was available for repurchase at a
favorable price, but the claim that the Hesperus repurchase was independent of
and unrelated to the Triton transaction defies credulity. The only evidence
supporting the defendants' effort to "decouple" these two repurchases is
Walden's
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(19) To induce Hesperus to accept the Sun Communities promissory note
as part of the consideration, Walden agreed to have Ridgewood pay the interest
on the note for the first year. (The note carried interest only for the second
year.) Walden also agreed to allow Hesperus to "put" the note to Ridgewood in
the event of a default by Sun. JTX 62 at 27-30; JTX 18; Tr. at 173. In effect,
Ridgewood would become the guarantor of the note, and would also pay an
additional one year's interest that would not otherwise be payable.
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uncorroborated testimony, but the weight of the credible (non self-serving)
evidence points to the opposite conclusion. The opportunity for the Company to
repurchase Hesperus's Ridgewood stock had been presented the year before. At
that time, Walden could have pursued an equally valuable below-book-value
purchase price but chose not to do so. Only when forced to deal with the
"Triton issue" did the Hesperus opportunity suddenly become attractive. Mr.
Foreman, who was the only other person in a position to know of Walden's motive
and who had no stake in the outcome of this case, expressed the following view
about Walden's motive:
A. Well, I think there is no question he wanted to buy Triton out. My
only, the only reason he would want to buy them out is to protect his
position.
Q. Okay. So there came a time when you began to discuss the purchase,
buying you out?
A. Well, you see, if he buys Triton out, I own around 10 percent, all of
a sudden I'm his boss.
Q. Okay.
A. Because I don't remember how much Triton owned, but my percentage goes
up proportionately if theirs comes down, and so his, I think, view
was to get us both out.(20)
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(20) JTX 62 at 20-21.
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I find that the Triton and Hesperus repurchases, which closed within two
weeks of each other and were financed from the same source, were not
coincidental. They were inextricably connected parts of a single transaction.
4. NEGOTIATION OF THE FINAL TERMS
OF THE MOBILE HOME PARKS AND
OF THE REPURCHASE TRANSACTIONS
On May 12, 1994, Walden wrote Stiska and Early, proposing that Ridgewood
repurchase the blocks of its stock held by Triton and Hesperus. In those
transactions, (1) Hesperus would receive the Sun Communities promissory note
and (2) Triton would receive approximately $8 per share cash for slightly over
1 million of its Ridgewood shares, plus preferred stock for its remaining
450,000 shares.
Over the next three months Walden negotiated with representatives of Triton
to arrive at a mutually agreeable transaction terms. Ultimately, those parties
negotiated a stock repurchase agreement whereby Triton sold its 1,455,280 shares
to Ridgewood for (a) $8,042,240 cash plus (b) 450,000 shares of Ridgewood Series
A Convertible Preferred Stock. The Preferred Stock was non-voting, would have
an $8 redemption price, and would be convertible into common stock after two
years. The Preferred Stock would also pay dividends at the annual rate of 5% (a
total of $180,000 per year) for the first two years, and at
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10% (a total of $360,000 per year) for each year thereafter.
During this same time period Walden and Hesperus also negotiated their
agreement for Hesperus to sell its 179,880 Ridgewood shares to Ridgewood in
exchange for the $1.45 million Sun Communities promissory note. Although the
Sun Communities note did not pay interest for the first year, Ridgewood agreed
to pay interest for that year at the prime rate. Ridgewood also agreed to give
Hesperus a "put right" whereby Hesperus could require Ridgewood to repurchase
the note if Sun Communities defaulted on the obligation.
These two repurchases closed on August 15 and August 29, 1994,
respectively. They affected the relevant "players" in different ways, as
follows:
Ridgewood: As a result of buying out its two largest stockholders,
Ridgewood had repurchased (and retired) almost 84% of its stock. To accomplish
that, Ridgewood had to sell its primary business, leaving the Company with (as
operating properties) only two hotels plus several parcels of vacant land that
for many years had been for sale. Ridgewood also had approximately $5 million in
cash left over from the mobile home park sale, but those monies had to be used
to pay down pre-existing debt (including $500,000 borrowed from Triton), as well
as newly-created obligations. Ridgewood had now become obligated (a) to Hesperus
on its financial guarantee of the $1.45 million Sun Communities note (including
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the first year of interest), and (b) to Triton for $180,000 of annual dividends
on the Preferred Stock during the first two years and $360,000 annually
thereafter.
Ridgewood's Shareholders Other Than Walden: The repurchases enabled
Triton and Hesperus (Ridgewood's two largest shareholders who together held
almost 84% of its stock) to exit their investments for $8 per share. Also,
Triton has received its Preferred Stock dividends, which total over $1 million
since 1994.
The Ridgewood stockholders whose shares were not repurchased remained
holders of an illiquid minority interest. Although the below-book-value
repurchase price did cause the book value of the remaining stock to increase by
over $2 per share, the minority shareholders received no other benefit
(including any liquidity benefit) from those transactions.
Walden: The repurchases benefited Walden in a way significantly
different from all other post-repurchase Ridgewood shareholders. As a result of
the repurchases -- accomplished with no personal financial investment by Walden
- -- his 6.9% stock interest (including stock options) became enlarged to 55%.
That position of absolute control carried with it the unique right to a premium
if the controlling interest were later sold. Further, no one would be able to
dislodge Ridgewood's new controlling shareholder from his position as
Ridgewood's President or from his contractual entitlement to receive salaries,
bonuses, and
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other compensation worth hundreds of thousands of dollars per year.(21)
5. FORMATION OF THE ONE
MAN SPECIAL COMMITTEE
Recognizing that three of Ridgewood's four directors had conflicts of
interest in relation to the proposed Triton repurchase,(22) the Ridgewood board
formed a special committee authorized "to act with the full power and authority
of the Board and to determine the advisability and feasibility of the Proposed
Purchase [of Triton's Ridgewood shares]."(23) As the only unconflicted member of
the Ridgewood board, Henderson was appointed as an independent committee of one
on July 28, 1994. Both sides agree that Henderson was independent, unconflicted,
and an astute businessman, having founded several companies (including Pier 1)
and having served as a director of Ridgewood since its creation.
Henderson did not negotiate the Triton transaction, but as a Ridgewood
director he had been kept informed of the status of the Triton negotiations.
Between July 28 and August 13, 1994, Henderson reviewed the proposed
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(21) Since the 1994 repurchases, Walden has received approximately $1
million in salary, apart from other compensation components. Tr. at 187.
(22) Walden's percentage ownership of the outstanding shares would
increase to 42% after the Triton repurchase, without regard to the Hesperus
buy-back. If the Hesperus transaction were included, Walden's percentage
ownership would increase to 55%.
(23) JTX 39 at 3.
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transaction, including the terms of the Preferred Stock. He concluded that the
Triton repurchase was in the best interests of Ridgewood and its minority
stockholders, and on August 14, 1994, executed a written consent approving the
repurchase. At trial Henderson testified that he approved the transaction
because it would eliminate the controlling stockholder who "clearly wanted out"
and whose presence would interfere with the company's "long term progress."(24)
The infirmity in Henderson's independent committee role is that he was
not asked to, and therefore did not, consider all information highly relevant to
his assignment. Although the Hesperus repurchase would occur more or less
contemporaneously with the Triton repurchase, and although both transactions
(plus the sale of the mobile home parks) had been negotiated during the same
period as part of a single package, Henderson was not asked to (and did not)
consider the effect of the Hesperus transaction upon Ridgewood's minority
shareholders. That omission was significant, because the incremental effect of
the Hesperus repurchase would be to shift corporate control from Triton to
Walden. That shift posed potential problems of fairness to the minority
stockholders that Henderson would have had to confront, had he considered the
issue and been
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(24) Tr. at 209-10.
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advised by independent legal counsel or even an experienced investment banking
firm. But Mr. Henderson did not retain legal counsel, and he specifically
decided not to engage an investment bank, because in his view it was not worth
incurring significant financial expense to be told "something we already
knew."(25)
It further appears that Mr. Henderson was not provided accurate
information about the trading price of Ridgewood's stock. Mr. Henderson
testified that Walden told him that the sporadic trading in Ridgewood stock had
been in the range of $8 per share. In fact, the last recorded trading price was
$3 per share.(26) That error was significant because Henderson testified that if
Ridgewood had paid Triton more than the market price for its own stock, it would
have been "unfair to the company to overpay certain shareholders at the expense
of others."(27)
II. THE CONTENTIONS AND ISSUES
A. THE CONTENTIONS
The following summary of the parties' respective contentions is
abbreviated. A more detailed recital is set forth in the analysis of the
plaintiff's claims in Part III, infra of this Opinion.
- ------------
(25) Tr. at 109.
(26) JTX 55 at 144; JTX 8; JTX 58 at 77-78.
(27) JTX 55 at 143.
22
25
The plaintiff seeks the invalidation of the Triton and Hesperus stock
repurchases on the ground that they constituted three distinct breaches of the
Ridgewood directors' fiduciary duty of loyalty. The first claim is that because
the two repurchases were components of a unitary transaction approved by
self-interested directors, those directors must carry the burden of
demonstrating that the transaction was entirely fair to Ridgewood and its
minority public stockholders. The plaintiff contends that the directors have not
carried that burden, as the evidence shows that the repurchases were the product
of unfair dealing and an unfair purchase price. The second fiduciary claim is
that the share repurchases constituted an improper expenditure of corporate
funds for the purpose of placing and perpetuating Walden in a position of
corporate control. The third claim is that the repurchases were a waste of
corporate assets.
To remedy these breaches of duty, the plaintiff seeks rescission and
rescissory damages. Specifically, the plaintiff asks the Court to rescind the
Triton repurchase transaction by (a) directing Triton to return to Ridgewood the
$8,042,420 cash plus the Preferred Stock (and all dividends paid thereon) that
Triton received for its 74.4% interest; and (b) in exchange, directing Ridgewood
to convey back to Triton the repurchased Ridgewood shares.
The plaintiff concedes that the Hesperus transaction cannot be
rescinded
23
26
because Hesperus is not a party to this action and is not charged with
wrongdoing. Therefore, the plaintiff seeks rescissory damages against the
parties who he claims did commit actionable wrongdoing, namely, Ridgewood's
directors. Specifically, plaintiff requests a money judgment in Ridgewood's
favor against the directors for the $1,450,000 Hesperus repurchase price, plus
interest.(28)
* * *
The defendants assiduously dispute these claims, and resist the relief
that plaintiff seeks.
First, the defendants argue that the plaintiff's entire fairness claim
lacks merit for the following reasons:
- Although defendants concede that the Triton repurchase is
subject to entire fairness review, they contend that the
plaintiff has the burden of proving the Triton transaction was
unfair because that transaction was the result of vigorous
arms-length bargaining and was approved by a disinterested and
independent committee. On the other hand, defendants argue
that the Hesperus repurchase must be reviewed under the
business judgment standard, because the two transactions were
unrelated except for having occurred (coincidentally) within
the same time period.
- ------------
(28) Plaintiff suggests that in exchange for being required to pay
rescissory damages, the directors "may individually receive the Hesperus shares
in return or the Court may order those shares to remain in the Company as
treasury stock, as equity dictates." Pl. Opening Postrial Br. at 44.
24
27
- The defendants next argue that the plaintiff failed to prove
that the Triton repurchase involved unfair dealing, because
the negotiation process replicated true, arms-length
bargaining and the repurchase was fair in terms of initiation,
timing and structure. Nor, defendants argue, has the plaintiff
proved that the Triton repurchase price was unfair. As a
result of the Triton (and Hesperus) repurchase, book value per
share increased. Moreover, the defendants' expert, Chris
Battel of Legacy Securities, testified that under conventional
valuation methods $8 per share was a fair price for the
Ridgewood stock, particularly because a control premium had to
be paid. Battel's valuation is the only record evidence of
Ridgewood's value, since the plaintiff offered no evidence
that supports a different fair value.
- Lastly, the defendants urge that the plaintiff's challenge to
the Hesperus transaction must be reviewed under the business
judgment standard, and therefore must fail, because in
approving that transaction the directors acted in good faith
and were not motivated to entrench Walden in control. Rather,
they were taking advantage of a unique opportunity for the
company to repurchase a block of its shares at a highly
favorable price.(29)
Second, the defendants contend that the plaintiff's "entrenchment-
motivated repurchase" claim lacks merit, because Walden pursued the two
repurchases not to acquire corporate control, but because he believed the
transactions would serve the best interests of Ridgewood and its minority
stockholders. Defendant concede
- ------------
(29) The defendants argue, in the alternative, that even if the Triton
and Hesperus repurchases are viewed as a unitary transaction, they (the
defendants) have established that both repurchases were entirely fair both as to
process and price.
25
28
that the repurchases significantly increased Walden's proportionate ownership of
the company, but argue that that was the transactions' effect, not their intent.
Walden's ownership increase, they say, does not prove a motive to gain control
and the record evidence independently negates any such motive. Moreover, the
remaining stockholders' ownership interest increased in the same proportion.
Third, the defendants deny that the repurchases amounted to corporate
waste. Not only did Walden engage in vigorous arms length bargaining with Triton
and Hesperus over the repurchase terms, but also the resulting $8 per share
repurchase price ($2.65 on a fully diluted basis) was highly favorable to
Ridgewood. The only independent evidence of Ridgewood's intrinsic or fair value
in August 1994 was the valuation performed by Legacy's Mr. Battel, who based his
analysis upon the number of outstanding shares at the end of August, 1994,
adjusted for the 3:1 stock split that occurred in October, 1994.(30) Battel
testified that Ridgewood's value was $6.06 to $8.93 per share, using a
comparable companies method, was $4.29 per share using a comparable transaction
approach, and was $3 to $3.48 per share using a discounted cash flow analysis.
These valuations all compared favorably with the $2.65 per share (fully diluted
basis)
- ------------
(30) That approach was employed to maintain consistency with
Ridgewood's annual report, which adjusted all per-share information to reflect
the post-repurchase stock split.
26
29
purchase price that Ridgewood actually paid, and plaintiff introduced no
valuation evidence to show the contrary.
Fourth, the defendants argue that none of the relief that plaintiff
seeks is legally or equitably warranted.
B. THE ISSUES
These contentions frame five issues, which are:
1) Does the entire fairness standard of review govern both repurchase
transactions or only the Triton repurchase?
2) Assuming that both transactions are reviewable under the entire
fairness standard, are they invalid because the defendants failed to prove that
they were entirely fair to Ridgewood and its minority stockholders?
3) Are the repurchases invalid on the separate ground that their
primary or sole purpose was to entrench Mr. Walden in a position of control?
4) Are the repurchases invalid on the separate ground that they
constituted corporate waste?
5) If the transactions are invalid, should rescission and/or rescissory
damages be awarded, and if not, what remedy is appropriate?
I turn to these issues.
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30
III. ANALYSIS
A. THE STANDARD OF REVIEW
The parties' first dispute concerns the appropriate standard of review.
The defendants admit that in connection with the Triton repurchase, three of
Ridgewood's four directors had a conflict of interest, and that therefore the
Triton transaction must be scrutinized under the entire fairness standard. Under
that exacting standard, where the controlling shareholder and the directors
stand on both sides of the transaction, they bear the burden to demonstrate that
the transaction was entirely fair to the corporation and the minority
stockholders, both as to process and price.(31)
The defendants argue, however, that the entire fairness standard does
not govern the Hesperus repurchase. Because that transaction was separate and
unrelated, defendants claim that it must be reviewed under the business judgment
standard. Moreover, defendants say, even though the Triton repurchase is subject
to entire fairness review, the burden of proof does not rest upon them, but
shifts to the plaintiff, to show the transactions were unfair. The reason,
defendants argue, is that the Triton transaction was the product of arms length
negotiation, and
- -------------
(31) Weinberger v. UOP, Inc., Del. Supr., 457 A.2d 701, 703 (1983);
Kahn v. Lynch Communications Sys. Inc., Del. Supr., 638 A.2d 1110, 1115 (1994).
28
31
Triton did not set the terms of the transaction or cause its effectuation.
In my view, the defendants are wrong on both counts. As discussed on
pages 15-17, supra, the overwhelming weight of credible evidence shows that the
two repurchases and the sale of the mobile home were components of a single,
unified package.(32) Because the Triton repurchase is concededly subject to
entire fairness review, it follows that the Hesperus transaction -- which was
inextricably linked to it -- is also.
Nor is there merit to the defendants' argument that the burden of
persuasion must shift to the plaintiff. I agree, as a doctrinal matter, that
where the terms of a conflict transaction (specifically, a parent-subsidiary
merger) result from a process structured to replicate arm's-length negotiations,
the burden of proof will shift from the defendants to the plaintiff shareholder,
who must prove that the transaction is unfair. But that burden-shifting result
obtains only where minority stockholders effectively ratify the transaction or
where a committee of disinterested, independent directors effectively represents
the interests of the minority stockholders in the negotiations.(33) That did not
occur here.
- -----------------
(32) As Mr. Henderson testified, the Hesperus repurchase was part of
the "total plan that had been worked out." Tr. 228-29; JTX 55 at 81-82.
(33) See Kahn v. Lynch Communications, Inc., 638 A.2d at 1115;
Rosenblatt v. Getty Oil Co., Del. Supr., 493 A.2d 929 (1985); Citron v. E.I.
DuPont de Nemours & Co., Del. Ch., 584
29
32
Although arms length negotiations between Triton and Ridgewood did take
place, they were not conducted by an independent committee acting on behalf of
the Ridgewood minority. The negotiations were conducted by Walden, an interested
party, and Triton, another interested party on the "other side of the table."
Walden was serving his own personal interest in negotiating a transaction he
intended as part of a larger plan to confer control upon himself. His "vigorous
negotiation" focused only on one term -- the purchase price that Ridgewood would
pay. While that negotiation process did protect one of the minority
stockholder's interests, it did not protect them all, because Walden's interests
were antagonistic to the minority's other significant interests. As negotiated,
the repurchases would afford only two stockholders -- Triton and Hesperus -- an
opportunity to liquidate their investment, and they would give a third
stockholder (Walden) voting control -- all at corporate expense. The only
benefit the minority would receive from these transactions was an arithmetic
boost in the book value of their stock, but in all other respects they would be
worse off. The minority would end up holding illiquid investments in a company
now having no significant productive assets and now controlled by a
stockholder-executive with strong incentives to continue
- --------------
A.2d 490 (1990); Kahn v. Dairy Mart Convenience Stores, Inc., Del. Ch., C.A. No.
12489, Jacobs, V.C. (Mar. 29, 1996).
30
33
paying himself annual compensation at a six figure level, but with weak
incentives to part with control in any transaction (such as, for example, a sale
of the company) that would enable the minority to realize on their investment.
In these circumstances, the minority's predominate interest would be for these
transactions not to take place at all -- at least in the form of a
company-financed repurchase of control.
To be relieved of their exacting burden of proof, the defendants would
have to establish that the minority's true interests were adequately represented
by advocates committed to their cause. There were no such advocates and there
was no adequate representation.
Even the defendants cannot bring themselves to argue that Mr.
Henderson, acting as a one man independent committee, effectively performed that
advocacy function. Henderson conducted no negotiations, and although he did
conclude that the Triton repurchase was in the best interests of Ridgewood and
its minority stockholders, Henderson based that conclusion on an investigation
that he was required to conduct practically blindfolded. Henderson's assignment
and investigation was restricted solely to the Triton repurchase. It did not
include any assessment of the combined Triton-Hesperus transaction. The narrow
scope of Henderson's assignment was highly significant, because the effectuation
of the
31
34
Triton repurchase alone would not give Walden absolute control, but the combined
Triton and Hesperus repurchases would. Consequently, and with all due respect
for Henderson's acumen as a businessman and his good intentions, his independent
committee role could not and did not provide meaningful protection for the
Ridgewood minority.
For these reasons the Triton and Hesperus repurchase transactions must
be evaluated under the entire fairness standard with the burden of proof resting
upon the defendants.(34)
B. THE SUBSTANTIVE VALIDITY OF
THE REPURCHASE TRANSACTIONS
As earlier discussed, the plaintiff claims that the defendants breached
their fiduciary duty of loyalty to Ridgewood and its minority shareholders in
three
- ----------------
(34) I note that, in any event, the defendant directors have the burden
of proof on plaintiff's separate claim that the repurchases were an improper use
of corporate funds for the purpose of perpetuating Walden in control. In Bennett
v. Propp, Del. Supr., 187 A.2d 405, 409 (1962), a classic case involving such an
improper expenditure, the Supreme Court held:
"We must bear in mind the inherent danger in the purchase of shares
with corporate funds to remove a threat to corporate policy when a
threat to control is involved. The directors are of necessity
confronted with a conflict of interest, and an objective decision is
difficult... Hence, in our opinion, the burden should be on the
directors to justify such a purchase as one primarily in the corporate
interest. . ."
Accord, Crane Co. v. Harsco Corp., 511 F. Supp. 294, 305 (1981) (citing Bennett,
187 A.2d at 409).
32
35
separate respects: (a) effectuating a self-dealing transaction that was unfair
to the minority, (b) improperly expending corporate funds to repurchase stock to
perpetuate control in a single member of the board, and (c) wasting corporate
assets. I conclude that the plaintiffs have prevailed on their first two claims.
That is, the overwhelming weight of the evidence shows that the repurchase of
the Ridgewood shares held by Triton and Hesperus constituted an expenditure of
corporate funds for the primary purpose of conferring and perpetuating control
upon Walden, and the defendants have not persuaded me to the contrary.
Moreover, for that and other reasons, the defendants have not carried their
burden of proving that the repurchase transactions were entirely fair. Having so
concluded, I do not reach address the plaintiff's corporate waste claim.(35)
- -------------------
(35) Were the Court required to address the waste claim on its merits,
the claim would likely fail. The plaintiff's true grievance is not that
Ridgewood overpaid for its shares but that the corporation was caused to expend
funds at any price to repurchase the control block of its own shares in order to
shift control to Walden. Moreover, the plaintiff adduced no affirmative proof
that $8 per share was an unfair price. Plaintiff's case consisted of arguing
that it was inappropriate to require the corporation to pay a control premium
for its own shares since control has no value to the corporation, and caviling
with certain details of Mr. Battel's valuation analysis. Plaintiff's position
falls short of the mark. Mr. Battel's valuation analysis and his conclusion that
$8 per share was a fair repurchase price were well reasoned and credible, and
the plaintiff made no contrary showing. Nor would the inclusion of a control
premium in the repurchase price change that conclusion. As the Supreme Court
stated in Cheff v. Mathes, Del. Supr., 199 A.2d 548, 555 (1964):
"...[I]t is elementary that a holder of a substantial number
of shares would expect to receive the control premium as part of his
selling price, and if the corporation desired to obtain the stock, it
is
33
36
1. THE CLAIM THAT THE REPURCHASES
WERE ENTRENCHMENT-MOTIVATED
The legal principles that govern this claim are well-established and
undisputed. By statute, a Delaware corporation has the power to repurchase its
own shares.(36) The corporation may, moreover, lawfully repurchase shares of
particular stockholders selectively, without being required to offer to
repurchase the shares of all stockholders generally.(37) The exercise of this
power is constrained only by the board's fiduciary duties.
The limiting fiduciary principle upon which plaintiff relies is that it
is improper to cause the corporation to repurchase its stock for the sole or
primary
- ------------------
unreasonable to expect that the corporation could avoid paying what any
other purchaser would be required to pay for the stock..."
Although the defendant's expert's valuation testimony negates the waste
claim, it does raise an entire fairness issue. Specifically, if conventional
valuation techniques suggest a per share value that exceeds what the
shareholders could actually obtain in the marketplace, is it entirely fair for
management to authorize a stock repurchase from some shareholders at that
above-market level while leaving the remaining stockholders with no realistic
possibility of obtaining similar value? Because the plaintiff did not address
this issue, I have no record basis to consider this question.
(36) 8 Del.C. ss. 160; Crane Co. v. Harsco Corp., 511 F. Supp. at 305.
(37) Unocal Corp. v. Mesa Petroleum Co., Del. Supr., 493 A.2d 946,
953-54 (1985).
34
37
purpose of maintaining the board or management in control. In such a case the
purchase is deemed unlawful even if the purchase price is fair.(38) As the
Supreme Court held in Bennett v. Propp:
".... Sadacca's purchases [of the corporation's stock] were made to
preserve the control of the corporation in himself and his fellow
directors .... The use of corporate funds for such a purpose is
improper. The general principle has been recognized in Delaware
...."(39)
Similarly, in Cheff v. Mathes, the Supreme Court held that "...if the board has
acted solely or primarily because of the desire to maintain themselves in
office, the use of corporate funds for such purpose is improper."(40) Although
this case involves an alleged effort to shift control to a single director
rather than the entire board, that principle still applies and the defendants do
not contend otherwise.
In this case all elements of this claim but one are conceded. It is
undisputed that the Ridgewood stock held by Triton and Hesperus was repurchased
with corporate funds. It also is undisputed that the effect of the repurchase
was to put Walden into a position of absolute control. The only issue
- --------------------
(38) Bennett v. Propp, 187 A.2d at 411 (1962) (transaction illegal);
Potter v. Sanitary Co. of America, Del. Ch., 194 A. 87, 120 (1937) (fair price
no justification).
(39) Bennett, 187 A.2d at 408 (citations omitted).
(40) 199 A.2d at 554.
35
38
is whether the sole or primary purpose of those repurchases was to entrench
Walden into that control position. That issue is factual, and requires the Court
to resolve a conflict between the defendants' testimony and the objective
evidence.
The defendants' testimony incants a consistent choral refrain: they
caused the Company to repurchase Triton's Ridgewood stock because (a) some
solution was needed to protect against the potential threat implicit in
Triton's plan to liquidate its investment in Ridgewood, and (b) after
considering all available alternatives, the board determined that a repurchase
was the best solution. In addition to the reasons previously discussed, a
repurchase would be at an advantageous, below-book-value price that would
benefit all stockholders equally. The defendants further contend that the
Hesperus repurchase represented a second opportunity -- unrelated to Triton but
serendipitously timed -- to buy another significant block at the same equally
favorable price.
The defendants concede that the repurchases elevated Walden's stock
ownership level from 6.9% to absolute control, but insist that that was only the
transactions' incidental effect, not their purpose. Indeed, defendants assert
that Walden did not actually even obtain board control, because the newly issued
Preferred Stock entitled Triton to designate two of Ridgewood's four directors.
Moreover, defendants claim, if Walden's motive was to serve his personal
36
39
interests at Ridgewood's expense, he would have advocated a cash dividend, that
would have netted him $1.2 million personally while enabling him to continue on
as Ridgewood's CEO.(41)
If credible, that testimony would constitute a valid defense to the
entrenchment claim. The difficulty is that the testimony is not credible, not
only because it is self-serving but also because it does not square with the
objective facts.
First, the evidence does not support the contention that the board
seriously considered the alternatives to a repurchase, and to the extent
alternatives were (in fact) raised, they were quickly brushed aside because
Walden disfavored them. As previously discussed, the first alternative -- a spin
off of Triton's Ridgewood shares -- was supposedly considered by the Ridgewood
board and then proposed to Triton, which rejected it because the Triton
stockholder base was too large to allow a meaningful distribution of Triton's
Ridgewood shares. But that scenario is nowhere documented in the record, and
defendants do not explain why the board did not consider an immediately obvious
solution to this supposed problem:
- ------------------
(41) The defendants also argue that Walden's (brief) termination of
negotiations with Triton on May 18, 1994, and his consideration of other
possible uses of Ridgewood's cash, negates the argument that his objective was
to seek a transaction that would catapult him into a position of control.
37
40
a stock split. Nor is there evidence that the full board ever met and
considered the second alternative -- a liquidation of Ridgewood.(42) The third
and fourth alternatives -- a pro rata self-tender and a cash dividend -- were
considered but rejected because Walden would not approve any transaction that
did not eliminate Triton as a Ridgewood stockholder.
Thus, I remain unpersuaded that two of the defendants' four "alternatives"
were in fact considered. Moreover, the alternatives that were considered and
that would have benefited all shareholders equally if adopted, were vetoed by
Walden, who favored only one alternative -- a repurchase of the controlling
interest. That alternative, however, would benefit only Walden and the selling
shareholder(s). Finally, the evidence shows that the remaining directors
passively allowed Walden -- the fiduciary having the strongest conflicting
interest -- to dominate the decision making process with the result that the
outcome was favorable to him.
Second, the defendants' stated rationale for the Triton repurchase -- to
eliminate a controlling shareholder that might sell its stock to a third party
that would disserve the remaining shareholders' best interests -- is
inconsistent with the objective facts. If only Triton's shares were being
reacquired, that rationale
- ----------------
(42) The only documentary evidence touching on that subject is a memorandum
from Walden to Stiska and Earley opposing that approach.
38
41
might be credible, but the Triton repurchase was part of a larger package that
included the Hesperus transaction. The Hesperus repurchase, when included in
the total mix, fatally undercuts the professed rationale for the Triton
repurchase, because in terms of that rationale the Hesperus repurchase made no
sense.
In the Spring of 1994, Ridgewood was so desperately in need of cash that
it had to sell assets and also borrow $500,000 from Triton just to pay
expenses. In those straitened circumstances, for Ridgewood's board to sell off
the mobile home parks -- Ridgewood's then-crown jewel - - and then use a
significant part of the proceeds to repurchase the control block, would strike
any prudent businessman striving to serve the interests of all shareholders as
an extravagance. That would be not unlike an unemployed person whose savings
account is depleted, deciding to sell his family's only valuable asset (the
house) and use the proceeds to buy a luxury car.(43) From a business
standpoint, to sell Ridgewood's remaining productive assets (the mobile home
parks) to purchase a nonproductive asset (Ridgewood stock) even at below book
value, would diminish, not enhance, Ridgewood's prospects for future growth and
profit. In these circumstances, only
- ----------------
(43) Had Ridgewood used the mobile home proceeds to buy a fleet of luxury
vehicles, it might have been better off since that might at least position the
Company to go into the limousine transportation business. There is no evidence
that Ridgewood's management intended to go into the business of selling
Ridgewood's treasury stock to the public for a profit.
39
42
a crisis that threatened the ongoing viability of the Company, and that was so
grave as to outweigh these negative business concerns, might arguably justify a
repurchase of control.(44)
Had the board voted to repurchase only the Triton shares, that at least
would have been consistent with defendants' claim that they were motivated only
by a desire to protect the Company and its minority stockholders from "bone
pickers." But the repurchase of Hesperus's shares fatally undercuts this
rationale, because Hesperus held only 9% of Ridgewood's stock. It did not own
control and it did not pose any threat to the enterprise. There was no need to
buy back Hesperus's stock to eliminate a potentially threatening controlling
stockholder. The buyout of Triton's shares was sufficient to accomplish that.
Given Ridgewood's shaky financial condition, a prudent businessman-fiduciary
would spend not one penny more than was necessary to acquire Triton's
controlling interest. Once Triton's control block was acquired, a further
expenditure of $1.45 million to acquire Hesperus's 9% block would accomplish
nothing except to further deplete Ridgewood's badly needed working capital. I
conclude, for these reasons, that a repurchase of Hesperus's shares could
further only one purpose -- to confer
- ----------------
(44) Delaware case law would support a repurchase of control in such
circumstances. See Unocal, 493 A.2d at 954-55; Cheff, 199 A.2d at 555.
40
43
absolute control on Walden.
Third, the defendants' remaining factual arguments are also unpersuasive.
Although Triton (as the holder of newly issued Preferred Stock) retained the
power to appoint two directors, that power had a limited life span, and would
end when the Preferred Stock was converted or redeemed. In all events, Walden
would remain Ridgewood's controlling stockholder for as long as he chooses.
Unpersuasive also is defendants' argument that if Walden's true motive was to
serve his personal interests, he would have advocated a cash dividend that
would have paid him $1.2 million and allowed him to remain as CEO. The short
answer is that becoming Ridgewood's new controlling stockholder was worth far
more to Walden in the long run. Lastly, Walden's strategy to cease
(temporarily) negotiating with Triton does not change the fact that at the end
of the day, the Triton deal went forward and Walden had influenced the board to
approve the one course of action that was most beneficial to his interests and
least beneficial to the interests of the minority stockholders for whom the
directors were fiduciaries.
In short, I find that the defendants have not met their burden of proving
that the repurchase of the Ridgewood shares owned by Triton and Hesperus was
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44
"primarily in the corporate interest."(45)
That this finding properly flows from these adjudicated facts is most
graphically illustrated by Potter v. Sanitary Company of America.(46) In Potter
(as here), the corporation (Sanitary Company), was majority-owned by another
company (Consolidated), which had placed its designees on Sanitary's board. Two
of those board members, Keenan and Brewer, whose group also controlled
Consolidated, had accumulated substantial stock in Sanitary. Although Sanitary
(like Ridgewood) was in financially straitened circumstances and could ill
afford the expense, these directors caused Sanitary to repurchase
Consolidated's controlling stock interest. The effect was to enlarge the
Keenan-Brewer group's holdings to a "safe majority." There, as here, the
directors argued that the repurchase was done for non-control related
business reasons, namely, because the company needed to have common shares
available to pay a bonus on its preferred stock. Rejecting that argument, the
Chancellor observed:
"Why, in view of the reduced state of Sanitary's
business, the necessity of curtailment of expenses
all around..., and the daily progress of its losses,
did its officers reduce its cash position by another
twenty-five hundred dollars laid out in the purchase
- ----------------
(45) Bennett v. Propp, 187 A.2d at 409.
(46) Potter, 194 A.2d at 120.
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45
of its own stock? To be sure, twenty-five hundred
dollars is not a large sum. But it was a substantial
sum for this relatively small company with its
business running into the red, as the saying is, every
week...(47)
Finding that the repurchase constituted a breach of the directors'
fiduciary duties, the Court held:
"... [A]s officers of Sanitary... [the defendants]
caused that company to make purchases of its
own stock in such an amount that, by reason
of the stockholdings of their own group,
they were firmly in control of Sanitary's affairs in
their individual rights. That control was shifted
to themselves from Consolidated whose officers
and dominant directors they were. The property
of the two corporations which they dominated
was so used by them .... as to perpetuate their
control over the subsidiary in which they held
important stock interests. Before they were in a
minority; now, they are in a safe majority, in
that subsidiary....."
Concluding that "....officers in possession of corporate power [had] used
that power to advance their own individual ends," the Court found that the
repurchase transaction "cannot stand the test of close scrutiny," and declared
it invalid.(48) No different conclusion or result is justified in this case,
which is
- ----------------
(47) Id. at 117.
(48) Id. at 118, 121
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46
factually indistinguishable from Potter.
2. THE CLAIM THAT THE REPURCHASES
WERE UNFAIR TO THE MINORITY
The facts that invalidate the Triton/Hesperus repurchases under the
"entrenchment-motivated repurchase" doctrine are equally invalidating under
conventional "entire fairness" analysis. Indeed, any different result would be
hard to fathom, since it cannot be supposed that a stock repurchase paid for
with corporate assets to install a fiduciary-director in control would be a
breach of fiduciary duty under one well-settled doctrine, yet still be
"entirely fair" to minority shareholders under another doctrine that is closely
related. In this case the "entrenchment purpose" and "entire fairness" analyses
conflate, and for that reason alone the legal discussion could conclude at this
point. Nonetheless, I proceed to scrutinize the repurchases through the
separate and analytically different lens of "entire fairness," because that
perspective illuminates the analysis of the problematic issue of the
appropriate remedy.
For reasons previously discussed, this case implicates only the "fair
dealing" aspect of entire fairness.(49) The analysis of fair dealing "embraces
questions of when the transaction was timed, how it was initiated, structured,
- ----------------
(49) See n. 35 at pp. 33-34, supra.
44
47
negotiated, disclosed to the directors, and how the approvals of the directors
and the stockholders were obtained."(50)
Here, the board's decision to repurchase the Triton and Hesperus stock was
triggered by Triton's announcement of its plan to exit its investment. The
board's response to that announcement -- the repurchases -- was initiated by
Walden, whose intense self interest in making that happen guided his conduct.
To assure that the board would arrive at the specific outcome (structure) he
desired, Walden subtly assumed control of the decision making process -- a feat
that was not difficult to carry off because the remaining directors trusted
Walden and followed his lead. In that sense the three relevant fair dealing
factors -- initiation, structure and negotiation -- converged. The board, at
Walden's initiation and urging, approved a transaction structure that would
benefit only Walden and the two largest shareholders whose holdings were to be
repurchased. Walden then negotiated with those two shareholders to obtain
favorable price and other terms. Missing from the negotiating process and the
board decision making process, however, was any independent representation of
the interests of Ridgewood's minority public stockholders. In those
circumstances, there was no fair dealing,
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(50) Weinberger, 457 A.2d at 711.
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because there was no advocate committed to protect the minority's interests,
and because the players were either indifferent, or had objectives adverse, to
those interests.
This failure of process explains, at least in part, why the Ridgewood
board did not observe its duty to assure that the repurchases were fair to the
corporation and its minority shareholders. The transactions were the functional
equivalent of Ridgewood (a) purchasing the control block of its own stock for
$8 million and then (b) transferring the repurchased block to a single
shareholder without receiving any consideration in return. The fiduciary duty
implications of such a transaction should have been apparent had the board
members straightforwardly acknowledged that they were about to approve a gratis
transfer of corporate control to a single stockholder -- Walden -- and as a
result, leave the minority stockholders worse off than they were before.(51)
I therefore conclude that the repurchases are invalid for the additional
reason that the defendants have not demonstrated that those transactions were
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(51) The corporation in which the minority stockholders were investors
would have sold its only productive asset and would end up with $5 million in
cash, a substantial portion of which would be subject to creditors' and
dividend claims. Moreover, the likelihood that those shareholders would have an
opportunity to liquidate their investment would be markedly lessened, because
Ridgewood's new majority stockholder had strong financial incentives to remain
in his control position and not put the Company up for sale.
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entirely fair to Ridgewood or its minority stockholders. Having found the
repurchases invalid on fiduciary duty grounds, I address the final issue, which
is what should be the remedy?
C. THE APPROPRIATE REMEDY
As previously noted, the plaintiff seeks rescission of the Triton
transaction, and rescissory damages to remedy the Hesperus repurchase.
Specifically in connection with the Triton repurchase, the plaintiff asks the
Court (a) to order Triton to repay to Ridgewood the $8,042,420 cash and the
Preferred Stock, plus all dividends paid thereon, that Triton received for its
Ridgewood stock, and (b) to direct Ridgewood to reconvey the repurchased
Ridgewood shares to Triton. To remedy the Hesperus repurchase, the plaintiff
asks the Court to award rescissory damages in favor of Ridgewood and against the
defendant directors for the $1,450,000 repurchase price, plus interest; and
order Ridgewood to reconvey to those directors the shares repurchased from
Hesperus. From the corporation's standpoint that latter remedy would amount, in
functional terms, to a rescission of the Hesperus transaction except that it
would substitute Ridgewood's directors (who never owned the shares) for Hesperus
(which did own them but was never made a party to this lawsuit).
The defendants respond that the plaintiff has failed to establish any
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entitlement to that relief, because rescission and rescissory damages would be
factually and legally inappropriate in this case. Due to the passage of time,
it is no longer feasible to rescind the Triton repurchase, especially since the
plaintiff failed either to sue on a timely basis and request preliminary
injunctive relief to halt the repurchases, or seek to expedite the proceedings
to preserve rescission as a viable remedy. Moreover, defendants argue,
rescission would be inequitable because although Triton's successor still holds
the Ridgewood Preferred Stock issued to Triton in August 1994, a court-ordered
return of that stock to Ridgewood would not restore the parties to the position
they occupied at that time. The reason is that the cash paid to Triton in 1994
was distributed to Triton's stockholders in 1995, and Triton was acquired by
another company in 1997. Because Triton's successor never enjoyed the benefit
of the cash component of the stock repurchase price, defendants urge that it
would be inequitable to compel it to repay cash it never received.
The defendants urge that it would also be inequitable to award rescissory
damages on account of the Hesperus repurchase. Rescissory damages must
approximate as closely as possible the financial equivalent of rescission, and
may be recovered only for a breach of the duty of loyalty. Here, defendants
argue, the only person that financially benefited was Hesperus, which is not a
party to this
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action and is not charged with any wrongdoing. To subject Stiska, Earley and
Henderson to rescissory damages would be inequitable and inappropriate, because
those defendants derived no personal benefit from, and were not unjustly
enriched by, the repurchase transactions, and those gentlemen did not act in
bad faith or engage in self dealing. Nor (defendants urge) did Walden benefit
financially from the Hesperus repurchase or otherwise breach any duty of
loyalty, because he pursued that transaction in good faith and not for his
personal benefit.
These contentions are now addressed.
1. RESCISSION
If it were feasible, the remedy that would be most responsive to, and
curative of, the harm that was inflicted here is a complete rescission of the
Triton and Hesperus repurchase transactions. A complete rescission would (1)
undo the harm to the minority caused by Walden being installed in control and
thereby in a position to dictate what opportunity (if any) the minority would
have to realize on their investment, and (2) undo the harm done to Ridgewood by
restoring the millions of dollars the Company expended to finance the
repurchases. Thus, a total rescission would divest Walden of control and
restore him to his original (6.9%) minority position, and would also restore
the transaction purchase price to Ridgewood.
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Regrettably, however, complete rescission is not feasible in these
circumstances. The Hesperus transaction cannot be rescinded because Hesperus is
not a party to this lawsuit, nor is there any claim or evidence that Hesperus
engaged in culpable conduct that would make it equitable to subject it to the
rescission remedy.(52)
As for the Triton repurchase, only a partial rescission is feasible at
this time. Rescission requires that all parties to the transaction be restored
to the status quo ante, i.e., to the position they occupied before the
challenged transaction.(53) In this case, the only portion of the repurchase
consideration that Triton (actually, its corporate successor) presently holds
is the Ridgewood Series A Preferred Stock that was issued to Triton in 1994.
The cash component of the purchase price was distributed by Triton to its
shareholders in 1995, and thereafter Triton was acquired by the firm that now
holds the Ridgewood Preferred Stock but never enjoyed the cash component of the
total purchase price.
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(52) Hesperus owed no fiduciary or other duty to Ridgewood, and even
though Mr. Foreman expressed his view of Walden's motive for repurchasing
Hesperus's stock, there is no claim or evidence that Foreman (as Hesperus's
agent) knowingly aided and abetted Walden's breach of duty.
(53) Norton v. Poplos, Del. Supr., 443 A.2d 1, 4 (1982); In Re MAXXAM,
Inc., Del. Ch., 659 A.2d 760, 775 (1995).
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The plaintiff argues that Triton's distribution of the cash in 1995
ought not to defeat the required rescission, because Triton's successor was on
notice of plaintiff's rescission claim at the time it acquired Triton.
Therefore, plaintiff contends, because the acquiring company assumed that
potential liability, it is not unfair to hold the acquiring company liable to
restore to Ridgewood the cash paid to Triton.
I cannot agree, for two reasons. First, the record is bare of any
evidence of what potential liabilities Triton's successor actually assumed or
had notice of. The absence of such evidence leaves no solid foundation that
could support a conclusion that it would be appropriate to order Triton's
successor to repay to Ridgewood cash it never received. Moreover, any doubt on
that score, is dispelled by the plaintiff's delay in prosecuting this action in
a way that would have preserved a full rescission remedy. The Triton repurchase
took place in August, 1994. This lawsuit was not brought until May, 1995. No
effort was made to expedite the trial, which took place four years later, in an
effort to preserve complete rescission as a viable remedy. A significant delay
of that kind, without more, will normally make impractical any rescission of a
corporate transaction,
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particularly one involving publicly traded securities.(54)
For these reasons, the only Triton-related rescission remedy that can
be granted is partial. That remedy would involve restoring to Ridgewood the
Preferred Stock currently held by Triton's successor, which in turn would
receive from Ridgewood, newly issued Ridgewood shares in an amount that would
be equivalent in value to the Preferred Stock. The balance of the remedy must
take the form of rescissory damages and other forms of equitable relief, for
which reason I turn next to the rescissory damages question.
2. RESCISSORY DAMAGES
The plaintiff's request for a rescissory damages award against the
defendant directors is also problematic, although for different reasons. To
explain why, it becomes necessary to explore the troublesome character of
rescissory damages, and also the differing levels of culpability of the four
defendant directors.
The traditional measure of damages is that which is utilized in
connection with an award of compensatory damages, whose purpose is to
compensate a plaintiff for its proven, actual loss caused by the defendant's
wrongful conduct.
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(54) Ryan v. Tad's Enterprises, Inc., Del. Ch., 709 A.2d 682 (1996,
aff'd, Del. Supr., 693 A.2d 1082 (1997); Patents Management Corp. V. O'Conner,
Del. Ch., C.A. No. 7710, Walsh, V.C., Ltr. Op. At 6 (June 10, 1985)
(rescission of a merger that occurred three years before was "not a feasible
remedy given the length of time that has elapsed since the merger."); see
Gaffin v. Teledyne, Inc., Del. Ch., C.A. No. 5786, Hartnett, V.C., Mem. Op. At
49 (Dec. 4, 1990).
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To achieve that purpose, compensatory damages are measured by the plaintiff's
"out-of-pocket" actual loss. Thus, where a merger is found to have been
effected at an unfairly low price, the shareholders are normally entitled to
out-of-pocket (i.e., compensatory) money damages equal to the "fair" or
"intrinsic" value of their stock at the time of the merger, less the price per
share that they actually received.
Rescissory damages is an exception to the normal out-of-pocket
measure. They are exceptional, because such damages are measured as of a point
in time after the transaction, whereas compensatory damages are determined at
the time of the transaction. As a consequence, rescissory damages may be
significantly higher than the conventional out-of-pocket damages, because
rescissory damages could include post-transaction incremental value elements
that would not be captured in an "out-of-pocket" recovery.
In Lynch v. Vickers Energy Corp., a corporate majority stockholder
made a tender offer to acquire the minority interest in its subsidiary. Finding
that the tender offer was misleading and a breach of the parent corporation's
fiduciary duty of loyalty, the Supreme Court held that the shareholders would
be entitled to rescissory damages measured by the value of the tendered shares
as of the date of the trial on damages. In arriving at that result, the Court
characterized rescissory
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damages as "the monetary equivalent of rescission ... which will, in effect,
equal the increment in value that .... [the majority stockholder] enjoyed as a
result of acquiring and holding the ... stock in issue."(55)
Thereafter, in Weinberger v. UOP, Inc.,(56) and in Cede & Co. v.
Technicolor, Inc.,(57) the Supreme Court expanded the universe of defendants
against whom rescissory damages could be awarded, to include corporate
directors found to have breached their fiduciary duties in approving a self
dealing merger. That expansion generated several questions, which include: in
what specific circumstances will it be an appropriate exercise of discretion to
award rescissory damages? Should rescissory damages be awardable against
directors who vote to approve the transaction but who did not benefit from it?
If so, is the directors' state of mind relevant, i.e., does it matter if the
directors acted (a) in bad faith, or (b) in good faith but without appropriate
due care?
These issues arose because of the problematic character of this form
of money damage relief that potentially could include elements of value
causally unrelated to the wrongdoing. In an article discussing rescissory
damages in the
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(55) Lynch v. Vickers Energy Corp., Del. Supr., 429 A.2d 497, 501, 505
(1981).
(56) 457 A.2d at 714.
(57) Del. Supr., 634 A.2d 345, 372 (1993).
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context of the Lynch v. Vickers Energy case, Professor (now Dean) Daniel R.
Fischel made the following observations:
The Delaware Supreme Court...focused...
on the difference between the value of
TransOcean's stock at the time of the tender
offer in October 1974 and the time of the
trial on damages in July 1978. The rationale
...was to deprive defendant of any gains
obtained by its wrongful acquisition of the
additional TransOcean stock....
The obvious problem with attempting to
measure the gains obtained by comparing a
price in 1974 with one in 1978 is that any
changes that occur may be attributable to
events having nothing to do with the
challenged conduct. Inflation or falling
interest rates may be responsible, the
industry as a whole may have experienced an
increase in demand for its products. There
is simply no way to determine from
comparing two stock prices two years apart
what percentage, if any, of the gains
experienced over such period are
attributable to the event four years
previous.(58)
For this reason, and also because of the potentially devastating
effect (from the directors' standpoint) of a rescissory damage award, there was
a felt need to establish boundaries that would define more clearly the
circumstances where that
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(58) Daniel R. Fischel, The "Race to the Bottom" Revisited: Reflections
on Recent Developments in Delaware's Corporation Law, 76 Nw. L. Rev. 913, 917
(1982).
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remedy would be deemed equitably appropriate. Those boundaries have not yet
been fully formulated, which is an important reason why this Court has been
reluctant to award rescissory damages,(59) although in one recent case
involving egregious conduct by a director, the Court has done so.(60)
The most helpful boundary-defining decision to date is former
Chancellor Allen's opinion in Cinerama, Inc. v. Technicolor, Inc.(61) There, the
Chancellor located two theoretical foundations for the rescissory damages
remedy: (i) principles of restitution and (ii) principles of trust law that
permit a damage award against a trustee, to compensate the beneficiary for the
harm resulting from the trustee's breach of trust. Under the restitutionary
theory (of which Lynch v. Vickers is an example), rescissory damages may be
awarded against a fiduciary who becomes unjustly enriched as a result of his
wrongdoing. The measure of the damages, in those circumstances, is the amount of
the unjust enrichment. Under the trust theory, however, the Court held that only
where the fiduciary has engaged in self dealing (or, in the case of a trustee,
has violated an express term of the
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(59) Donald J. Wolfe, Jr. and Michael A. Pittenger, Commercial and
Corporate Practice in the Delaware Court of Chancery, 835-36 (LEXIS Law
Publishing 1998).
(60) Bomarko, Inc. et al v. International Telecharge, Inc. et al, Del.
Ch., C.A. Nos. 13052 and 14727, Lamb, V.C., Mem. Op. at 47, n.9 (Nov. 4, 1999).
(61) Del. Ch., 663 A.2d 1134 (1995), aff'd, Del. Supr., 663 A.2d 1156
(1995).
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trust) would it be "deemed equitable to impose upon the trustee the risk of
future fluctuations in the market value of the asset."(62)
Chancellor Allen's scholarly analysis of the conceptual roots of the
rescissory damages remedy, led him to conclude that rescissory damages should
never be awarded as a remedy solely for a breach of a corporate director's duty
of care. In order to be equitably appropriate, rescissory damages must redress
an adjudicated breach of the duty of loyalty, specifically, cases that involve
self dealing or where the board puts its conflicting personal interests ahead
of the interests of the shareholders.
The foregoing discussion is prologue to the next issue, which is:
against which defendants (if any) is it appropriate to award rescissory
damages? That question requires the Court to assess the levels of culpability
of the four defendant-directors -- Earley, Stiska, Walden and Henderson.
Rescissory damages are most clearly and appropriately awardable
against Walden, who, as a result of his wrongful conduct, personally obtained a
unique benefit paid for entirely with corporate assets. In terms of the
Technicolor criteria, Walden (a) was unjustly enriched, (b) engaged in
self-dealing, and (c) placed his
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(62) Lynch, 663 A.2d at 1146.
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personal interests ahead of the interests of the minority shareholders.
Therefore, on either restitutionary or trust/compensatory grounds, Walden is
properly subject to a rescissory damage award.
Two of the remaining three directors -- Stiska and Earley -- would
also be, but for different reasons. Unlike Walden, Messrs. Stiska and Earley,
were not unjustly enriched and they did not otherwise obtain a personal benefit
at the shareholders' expense, as a consequence of the repurchases. Nor is there
evidence that those two directors conspired with Walden, in the sense that they
acted intentionally and in bad faith to enable him wrongfully to benefit at the
corporation's expense. Nonetheless, in approving the repurchases, Earley and
Stiska did violate their fiduciary duty of loyalty. Their sin was not one of
venality, but, rather, of indifference to their duty to protect the interests
of the corporation and its minority shareholders. Stated differently, because
their primary loyalty was to the interest of their employer, Triton, in exiting
Ridgewood, Stiska and Earley were willing to subordinate those interests to
Walden's. The inevitable consequence was that Stiska and Earley gave priority
to Triton's interest, and ignored their fiduciary obligation as Ridgewood
directors to assure that all Ridgewood stockholders would be treated fairly.
The fourth director, Mr. Henderson, is differently situated from the
rest.
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Henderson received no personal benefit from the repurchases, and he had no
conflicting interest that would motivate him to act in other than what he
believed to be the corporation's best interests. Nor is there evidence that
Henderson acted in bad faith, i.e., deliberately to benefit Walden, Triton and
Hesperus at the expense of the Ridgewood minority. At best, Henderson's belief
that he was furthering the interests of all Ridgewood shareholders was
misguided, and at worst, it was misinformed, i.e., was not the product of due
care. But the absence of due care is not a legally sufficient ground to hold
Henderson liable for rescissory damages,(63) and a misguided decision cannot
subject Henderson to even compensatory damages. The business judgment rule
shields directors from liability for good faith business decisions, even those
that turn out to be mistaken.
Accordingly, rescissory damages will be awarded against Walden, Earley
and Stiska, but not Henderson. The final issue becomes: in what amount and what,
if any, further relief is required?
3. QUO VADIMUS?
The Court has held that the remedy must include two elements: (i) a
partial rescission of the Triton transaction, namely, the return of the
Preferred Stock to
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(63) Cinerama, 663 A.2d at 1134.
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Ridgewood in exchange for the issuance to Triton of whatever number of
Ridgewood shares that would be equivalent in value, and (ii) an award of
rescissory damages, payable to Ridgewood, for which Walden, Stiska and Earley
shall be jointly and severally liable.(64)
That remedy structure poses two issues that must be resolved, but
cannot on the present record. The first concerns the size of the rescissory
damages award. If the measure of the damages award is the full repurchase price
of Triton's and Hesperus's Ridgewood stock less the value of the
(to-be-returned) Preferred Stock, such an award could cause the Company to be
over-compensated, unless Walden, Stiska and Earley receive, in return,
equivalent value in the form of Ridgewood stock. If that is the approach taken,
the practical effect would be to order those three defendants to buy a large,
if not controlling, block of Ridgewood shares. That result would generate, in
turn, two additional problems: (1) determining what purchase price per share
the defendants should pay for the Ridgewood stock and (2) if the result would
be to leave Walden, Stiska and/or Earley in majority or working control of the
Company and thus in a position to dictate how the newly-recovered damages award
will be spent, assuring that the
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(64) Such a damages award may generate crossclaims for indemnity and/or
contribution among the individual defendants, as well as claims for
indemnification against Triton's successor. None of those potential claims is
addressed in this Opinion.
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minority stockholders will enjoy the benefit of the derivative recovery that
their legal counsel strived so hard to achieve.
To address these problems, and undo the harm caused the minority by
the defendants having installed Walden in control to begin with, the remedy
must therefore include elements that go beyond a rescissory damages award. A
mechanism that will limit Walden's (and the other defendants') ability to
exercise their voting control may be needed. Or, if it is decided to allow the
defendants to remain in control, it may be necessary and appropriate to impose
protective conditions, such as (for example) requiring the defendants to cause
Ridgewood to offer to repurchase the interest of the minority stockholders at a
price equal to the greater of the 1994 repurchase price ($8 per share) or the
current fair value of the Ridgewood stock.
Other solutions that come to mind may also be appropriate. The point
is that although the Court is able to determine some of the essential elements
of the remedy at this stage, on the present record it cannot determine them all
without further guidance from counsel. Accordingly, further proceedings will be
necessary to determine what precise form the final decree will take.
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IV. CONCLUSION
Counsel for the parties shall confer and submit an order providing for
such other proceedings, including supplemental briefing, that will be required
to determine the remedy that most appropriately implements the rulings made in
this Opinion, and also to settle a final order.
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