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LEXSEE 488 A.2d 858
ALDEN SMITH and JOHN W. GOSSELIN, Plaintiffs Below,
Appellants, v. JEROME W. VAN GORKOM, BRUCE S.
CHELBERG, WILLIAM B. JOHNSON, JOSEPH B. LANTERMAN,
GRAHAM J. MORGAN, THOMAS P. O'BOYLE, W. ALLEN
WALLIS, SIDNEY H. BONSER, WILLIAM D. BROWDER, TRANS
UNION CORPORATION, a Delaware corporation, MARMON
GROUP, INC., a Delaware corporation, GL CORPORATION, a
Delaware corporation, and NEW T. CO., a Delaware corporation,
Defendants Below, Appellees
No. 255, 1982
Supreme Court of Delaware
488 A.2d 858; 1985 Del. LEXIS 421; 46 A.L.R.4th 821; Fed. Sec. L.
Rep. (CCH) P91,921
June 11, 1984, Submitted
January 29, 1985, Decided
JUDGES: into the defendant New T Company ("New T"),
Horsey, Justice (for the majority). a wholly-owned subsidiary of the defendant,
Herrmann, C.J., and McNeilly, Moore and Marmon Group, Inc. ("Marmon"). Alternate
Christie, JJ., constituting the Court En Banc. relief in the form of damages is sought against
McNeilly, Justice, dissenting. Christie, Justice, the defendant members of the Board of
dissenting. Directors of Trans Union, [*864] New T, and
Jay A. Pritzker and Robert A. Pritzker, owners
OPINIONBY: of Marmon. n1
HORSEY
n1 The plaintiff, Alden Smith,
OPINION: originally sought to enjoin the merger;
but, following extensive discovery, the
[*863] This appeal from the Court of Trial Court denied the plaintiff's motion
Chancery involves a class action brought by for preliminary injunction by unreported
shareholders of the defendant Trans Union letter opinion dated February 3, 1981.
Corporation ("Trans Union" or "the On February 10, 1981, the proposed
Company"), [**2] originally seeking merger was approved by Trans Union's
rescission of a cash-out merger of Trans Union stockholders at a special meeting and the
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merger became effective on that date. plaintiffs' stockholdings in Trans Union, in
Thereafter, John W. Gosselin was accordance with Weinberger v. UOP, Inc.,
permitted to intervene as an additional Del.Supr., 457 A.2d 701 (1983). n3
plaintiff; and Smith and Gosselin were
certified as representing a class
consisting of all persons, other than n3 It has been stipulated that
defendants, who held shares of Trans plaintiffs sue on behalf of a class
Union common stock on all relevant consisting of 10,537 shareholders (out of
dates. At the time of the merger, Smith a total of 12,844) and that the class
owned 54,000 shares of Trans Union owned 12,734,404 out of 13,357,758
stock, Gosselin owned 23,600 shares, shares of Trans Union outstanding.
and members of Gosselin's family owned
20,000 shares.
We hold: (1) that the Board's decision,
reached September 20, 1980, to approve the
[**3] proposed cash-out merger was not the product
Following trial, the former Chancellor of an informed business judgment; (2) that the
granted judgment for the defendant directors by Board's subsequent efforts to amend the Merger
unreported letter opinion dated July 6, 1982. n2 Agreement and take other curative action were
Judgment was based on two findings: (1) that ineffectual, both legally and factually; and (3)
the Board of Directors had acted in an informed that the Board did not deal with complete
manner so as to be entitled to protection of the candor with the stockholders by failing to
business judgment rule in approving the cash- disclose all material facts, which they knew or
out merger; and (2) that the shareholder vote should have known, before securing the
approving the merger should not be set aside stockholders' approval of the merger.
because the stockholders had been "fairly I.
informed" by the Board of Directors before
voting thereon. The plaintiffs appeal. The nature of this case requires a detailed
factual statement. The following facts are
[**5] essentially uncontradicted: n4
n2 Following trial, and before
decision by the Trial Court, the parties
stipulated to the dismissal, with n4 More detailed statements of facts,
prejudice, of the Messrs. Pritzker as consistent with this factual outline,
parties defendant. However, all appear in related portions of this
references to defendants hereinafter are Opinion.
to the defendant directors of Trans
Union, unless otherwise noted.
A
Trans Union was a publicly-traded,
Speaking for the majority of the Court, we diversified holding company, the principal
conclude that both rulings of the Court of earnings of which were generated by its railcar
Chancery are clearly erroneous. Therefore, we leasing business. During the period here
reverse and direct that judgment be entered in involved, the Company had a cash flow of
favor of the plaintiffs [**4] and against the hundreds of millions of dollars annually.
defendant directors for the fair value of the However, the Company had difficulty in
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generating sufficient taxable income to offset among the alternatives. The report emphasized
increasingly large investment tax credits that, despite the overall surplus, the operation
(ITCs). Accelerated depreciation deductions of the Company would consume all available
had decreased available taxable income against equity for the next several years, and
which to offset accumulating ITCs. The concluded: "As a result, we have sufficient time
Company took these deductions, despite their to fully develop our course of action."
effect on usable ITCs, because the rental price B
in the railcar leasing market had already
impounded the purported tax savings. On August 27, 1980, Van Gorkom met with
Senior Management of Trans Union. Van
In the late 1970's, together with other Gorkom reported on his lobbying efforts in
capital-intensive firms, Trans Union lobbied in Washington and his desire to find a solution to
Congress to have ITCs refundable in cash to the tax credit problem more permanent than a
firms which could not fully utilize the credit. continued program of acquisitions. Various
During [**6] the summer of 1980, defendant alternatives were suggested and discussed
Jerome W. Van Gorkom, Trans Union's preliminarily, including the sale of Trans Union
Chairman and Chief Executive Officer, [*865] to a company with a large amount of taxable
testified and lobbied in Congress for income.
refundability of ITCs and against further
accelerated depreciation. By the end of Donald Romans, Chief Financial Officer of
August, Van Gorkom was convinced that Trans Union, stated that his department had
Congress would neither accept the refundability done a "very brief bit of work on the possibility
concept nor curtail further accelerated of a leveraged buy-out." This work had been
depreciation. prompted by a media article which Romans had
seen regarding a leveraged buy-out by
Beginning in the late 1960's, and continuing management. The work consisted of a
through the 1970's, Trans Union pursued a "preliminary study" of the cash which could be
program of acquiring small companies in order generated by the Company [**8] if it
to increase available taxable income. In July participated in a leveraged buy-out. As Romans
1980, Trans Union Management prepared the stated, this analysis "was very first and rough
annual revision of the Company's Five Year cut at seeing whether a cash flow would
Forecast. This report was presented to the support what might be considered a high price
Board of Directors at its July, 1980 meeting. for this type of transaction."
The report projected an annual income growth
of about 20%. The report also concluded that On September 5, at another Senior
Trans Union would have about $195 million in Management meeting which Van Gorkom
spare cash between 1980 and 1985, "with the attended, Romans again brought up the idea of
surplus growing rapidly from 1982 onward." a leveraged buy-out as a "possible strategic
The report referred to the ITC situation as a alternative" to the Company's acquisition
"nagging problem" and, given that problem, the program. Romans and Bruce S. Chelberg,
leasing company "would still appear to be President and Chief Operating Officer of Trans
constrained to a tax breakeven." The report Union, had been working on the matter in
then listed four alternative uses of the projected preparation for the meeting. According to
1982-1985 equity [**7] surplus: (1) stock Romans: They did not "come up" with a price
repurchase; (2) dividend increases; (3) a major for the Company. They merely "ran the
acquisition program; and (4) combinations of numbers" at $50 a share and at $60 a share with
the above. The sale of Trans Union was not the "rough form" of their cash figures at the
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time. Their "figures indicated that $50 would without consulting either his Board or any
be very easy to do but $60 would be very members of Senior Management except one:
difficult to do under those figures." This work Carl Peterson, Trans Union's Controller.
did not purport to establish a fair price for Telling Peterson that he wanted no other person
either the Company or 100% of the stock. It on his staff to know what he was doing, but
was intended to determine the cash flow needed without telling him why, Van Gorkom directed
to service the debt that would "probably" be Peterson to calculate the feasibility of a
incurred in a leveraged buy-out, based on leveraged buy-out at an assumed price per
"rough calculations" without "any benefit of share of $55. Apart from the Company's
experts to identify what [**9] the limits were historic stock market price, n5 and Van
to that, and so forth." These computations were Gorkom's long association with Trans Union,
not considered extensive and no conclusion the record is devoid of any competent evidence
was reached. that $55 represented the per share intrinsic
At this meeting, Van Gorkom stated that he value of the Company.
would be willing to take $55 per share for his
own 75,000 shares. He vetoed the suggestion n5 The common stock of Trans
of a leveraged buy-out by Management, Union was traded on the New York
however, as involving a potential conflict of Stock Exchange. Over the five year
interest for Management. Van Gorkom, a period from 1975 through 1979, Trans
certified public accountant and lawyer, had Union's stock had traded within a range
been an officer of Trans Union [*866] for 24 of a high of $39 1/2 and a low of $24 1/4.
years, its Chief Executive Officer for more than Its high and low range for 1980 through
17 years, and Chairman of its Board for 2 September 19 (the last trading day before
years. It is noteworthy in this connection that announcement of the merger) was $38
he was then approaching 65 years of age and 1/4 - $29 1/2.
mandatory retirement.
For several days following the September 5
[**11]
meeting, Van Gorkom pondered the idea of a
sale. He had participated in many acquisitions Having thus chosen the $55 figure, based
as a manager and director of Trans Union and solely on the availability of a leveraged buy-
as a director of other companies. He was out, Van Gorkom multiplied the price per share
familiar with acquisition procedures, valuation by the number of shares outstanding to reach a
methods, and negotiations; and he privately total value of the Company of $690 million.
considered the pros and cons of whether Trans Van Gorkom told Peterson to use this $690
Union should seek a privately or publicly-held million figure and to assume a $200 million
purchaser. equity contribution by the buyer. Based on
these assumptions, Van Gorkom directed
Van Gorkom decided to meet with Jay A. Peterson to determine whether the debt portion
Pritzker, a well-known corporate takeover of the purchase price could be paid off in five
specialist and a social [**10] acquaintance. years or less if financed by Trans Union's cash
However, rather than approaching Pritzker flow as projected in the Five Year Forecast, and
simply to determine his interest in acquiring by the sale of certain weaker divisions
Trans Union, Van Gorkom assembled a identified in a study done for Trans Union by
proposed per share price for sale of the the Boston Consulting Group ("BCG study").
Company and a financing structure by which to Peterson reported that, of the purchase price,
accomplish the sale. Van Gorkom did so
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approximately $50-80 million would remain Gorkom knew that Pritzker intended to make a
outstanding after five years. Van Gorkom was cash-out merger offer at Van Gorkom's
disappointed, but decided to meet with Pritzker proposed $55 per share. Pritzker instructed his
nevertheless. attorney, a merger and acquisition specialist, to
begin drafting merger documents. There was
Van Gorkom arranged a meeting with
no further discussion of the $55 price.
Pritzker at the latter's home on Saturday,
However, the number of shares of Trans
September 13, 1980. Van Gorkom prefaced his
Union's treasury stock to be offered to Pritzker
presentation by stating to Pritzker: "Now as far
was negotiated down to one million shares; the
as you are concerned, I can, I think, show how
price was set at $38 -- 75 cents above the per
you can pay a substantial premium over the
share price at the close of the market on
present stock price and [**12] pay off most of
September 19. At this point, Pritzker insisted
the loan in the first five years. *** If you could
that the Trans Union Board act on his merger
pay $55 for this Company, here is a way in
which I think it can be financed." proposal within the next three days, stating to
Van Gorkom: "We have to have a decision by
Van Gorkom then reviewed with Pritzker no later than Sunday [evening, September 21]
his calculations based upon his proposed price before the opening of the English stock
of $55 per share. Although Pritzker mentioned exchange on Monday morning." Pritzker's
$50 as a more attractive figure, no other price lawyer was then instructed to draft the merger
was mentioned. However, Van Gorkom stated documents, to be reviewed by Van Gorkom's
that to be sure that $55 was the best price lawyer, "sometimes with discussion and
obtainable, Trans Union should be free to sometimes not, in the haste to get it finished."
accept any better offer. Pritzker demurred, [**14]
stating that his organization would serve as a
On Friday, September 19, Van Gorkom,
"stalking horse" for an "auction contest" only if
Chelberg, and Pritzker consulted with Trans
Trans Union would permit Pritzker to buy
Union's lead bank regarding the financing of
1,750,000 shares of Trans Union stock at
Pritzker's purchase of Trans Union. The bank
market price which Pritzker could then sell to
indicated that it could form a syndicate of
any higher bidder. After further discussion on
banks that would finance the transaction. On
this point, Pritzker told Van Gorkom that he
the same day, Van Gorkom retained James
would give him a more definite reaction soon.
Brennan, Esquire, to advise Trans Union on the
[*867] On Monday, September 15, legal aspects of the merger. Van Gorkom did
Pritzker advised Van Gorkom that he was not consult with William Browder, a Vice-
interested in the $55 cash-out merger proposal President and director of Trans Union and
and requested more information on Trans former head of its legal department, or with
Union. Van Gorkom agreed to meet privately William Moore, then the head of Trans Union's
with Pritzker, accompanied by Peterson, legal staff.
Chelberg, and Michael Carpenter, Trans
On Friday, September 19, Van Gorkom
Union's consultant from the Boston Consulting
called a special meeting of the Trans Union
[**13] Group. The meetings took place on
Board for noon the following day. He also
September 16 and 17. Van Gorkom was
called a meeting of the Company's Senior
"astounded that events were moving with such
Management to convene at 11:00 a.m., prior to
amazing rapidity."
the meeting of the Board. No one, except
On Thursday, September 18, Van Gorkom Chelberg and Peterson, was told the purpose of
met again with Pritzker. At that time, Van the meetings. Van Gorkom did not invite Trans
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Union's investment banker, Salomon Brothers [**16]
or its Chicago-based partner, to attend. Ten directors served on the Trans Union
Of those present at the Senior Management Board, five inside (defendants Bonser, O'Boyle,
meeting on September 20, only Chelberg and Browder, Chelberg, and Van Gorkom) and five
Peterson had prior knowledge of Pritzker's outside (defendants Wallis, Johnson,
offer. Van Gorkom disclosed the offer and Lanterman, Morgan and Reneker). All
described its [**15] terms, but he furnished no directors were present at the meeting, except
copies of the proposed Merger Agreement. O'Boyle who was ill. Of the outside directors,
Romans announced that his department had four were corporate chief executive officers
done a second study which showed that, for a and one was the former Dean of the University
leveraged buy-out, the price range for Trans of Chicago Business School. None was an
Union stock was between $55 and $65 per investment banker or trained financial analyst.
share. Van Gorkom neither saw the study nor All members of the Board were well informed
asked Romans to make it available for the about the Company and its operations as a
Board meeting. going concern. They were familiar with the
current financial condition of the Company, as
Senior Management's reaction to the
well as operating and earnings projections
Pritzker proposal was completely negative. No
reported in the recent Five Year Forecast. The
member of Management, except Chelberg and
Board generally received regular and detailed
Peterson, supported the proposal. Romans
reports and was kept abreast of the accumulated
objected to the price as being too low; n6 he
investment tax credit and accelerated
was critical of the timing and suggested that
depreciation problem.
consideration should be given to the adverse
tax consequences of an all-cash deal for low- Van Gorkom began the Special Meeting of
basis shareholders; and he took the position that the Board with a twenty-minute oral
the agreement to sell Pritzker one million presentation. Copies of the proposed Merger
newly-issued shares at market price would Agreement were delivered too late for study
inhibit other offers, as would the prohibitions before or during the meeting. n7 He reviewed
against soliciting bids and furnishing inside the Company's ITC and depreciation problems
information [*868] to other bidders. Romans and the efforts theretofore made to solve [**17]
argued that the Pritzker proposal was a "lock them. He discussed his initial meeting with
up" and amounted to "an agreed merger as Pritzker and his motivation in arranging that
opposed to an offer." Nevertheless, Van meeting. Van Gorkom did not disclose to the
Gorkom proceeded to the Board meeting as Board, however, the methodology by which he
scheduled without further delay. alone had arrived at the $55 figure, or the fact
that he first proposed the $55 price in his
negotiations with Pritzker.
n6 Van Gorkom asked Romans to
express his opinion as to the $55 price.
Romans stated that he "thought the price n7 The record is not clear as to the
was too low in relation to what he could terms of the Merger Agreement. The
derive for the company in a cash sale, Agreement, as originally presented to the
particularly one which enabled us to Board on September 20, was never
realize the values of certain subsidiaries produced by defendants despite demands
and independent entities." by the plaintiffs. Nor is it clear that the
directors were given an opportunity to
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study the Merger Agreement before Attorney Brennan advised the members of
voting on it. All that can be said is that the Board that they might be sued if they failed
Brennan had the Agreement before him to accept the offer and that a fairness opinion
during the meeting. was not required as a matter of law.
Romans attended the meeting as chief
financial officer of the Company. He told the
Van Gorkom outlined the terms of the
Board that he had not been involved in the
Pritzker offer as follows: Pritzker would pay
negotiations with Pritzker and knew nothing
$55 in cash for all outstanding shares of Trans
about the merger proposal until [*869] the
Union stock upon completion of which Trans
morning of the meeting; that his studies did not
Union would be merged into New T Company,
indicate either a fair price for the stock or a
a subsidiary wholly-owned by Pritzker and
valuation of the Company; that he did not see
formed to implement the merger; for a period
his role as directly addressing the fairness
of 90 days, Trans [**18] Union could receive,
issue; and that he and his people "were trying
but could not actively solicit, competing offers;
to search for ways to justify a price in
the offer had to be acted on by the next
connection with such a [leveraged buy-out]
evening, Sunday, September 21; Trans Union
transaction, rather than to say what the shares
could only furnish to competing bidders
are worth." Romans testified:
published information, and not proprietary
information; the offer was subject to Pritzker I told the Board that the study ran the
obtaining the necessary financing by October numbers at 50 and 60, and then the subsequent
10, 1980; if the financing contingency were study at 55 and 65, and that was not the same
met or waived by Pritzker, Trans Union was thing as saying that I have a valuation of the
required to sell to Pritzker one million newly- company at X dollars. But it was a way -- a
issued shares of Trans Union at $38 per share. first step towards reaching that conclusion.
Van Gorkom took the position that putting
Trans Union "up for auction" through a 90-day Romans told the Board that, in his opinion, $55
market test would validate a decision by the was "in the range of a fair price," but "at the
Board that $55 was a fair price. He told the beginning of the range."
Board that the "free market will have an Chelberg, [**20] Trans Union's President,
opportunity to judge whether $55 is a fair supported Van Gorkom's presentation and
price." Van Gorkom framed the decision before representations. He testified that he
the Board not as whether $55 per share was the "participated to make sure that the Board
highest price that could be obtained, but as members collectively were clear on the details
whether the $55 price was a fair price that the of the agreement or offer from Pritzker;" that
stockholders should be given the opportunity to
he "participated in the discussion with Mr.
accept or reject. n8 Brennan, inquiring of him about the necessity
for valuation opinions in spite of the way in
which this particular offer was couched;" and
n8 In Van Gorkom's words: The "real
that he was otherwise actively involved in
decision" is whether to "let the
supporting the positions being taken by Van
stockholders decide it" which is "all you
Gorkom before the Board about "the necessity
are being asked to decide today."
to act immediately on this offer," and about
"the adequacy of the $55 and the question of
[**19] how that would be tested."
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The Board meeting of September 20 lasted the agreement prior to its signing and delivery
about two hours. Based solely upon Van to Pritzker.
Gorkom's oral presentation, Chelberg's ***On Monday, September 22, the
supporting representations, Romans' oral Company issued a press release announcing
statement, Brennan's legal advice, and their that Trans Union had entered into a "definitive"
knowledge of the market history of the Merger Agreement with an affiliate of the
Company's stock, n9 the directors approved the Marmon Group, Inc., a Pritzker holding
proposed Merger Agreement. However, the company. Within 10 days of the public
Board later claimed to have attached two announcement, dissent among Senior
conditions to its acceptance: (1) that Trans Management over the merger had become
Union reserved the right to accept any better widespread. Faced with threatened
offer that was made during the market test
resignations of key officers, Van Gorkom met
period; and (2) that [**21] Trans Union could with Pritzker who agreed to several
share its proprietary information with any other modifications of the Agreement. Pritzker was
potential bidders. While the Board now claims willing to do so provided that Van Gorkom
to have reserved the right to accept any better could persuade the dissidents to remain on the
offer received after the announcement of the Company payroll for at least six months after
Pritzker agreement (even though the minutes of consummation of the merger.
the meeting do not reflect this), it is undisputed
that the Board did not reserve the right to Van Gorkom reconvened the Board on
actively solicit alternate offers. October 8 and secured the directors' approval
of the proposed amendments -- sight unseen.
The Board also authorized the employment of
n9 The Trial Court stated the Salomon Brothers, its investment [*870]
premium relationship of the $55 price to banker, to solicit other offers for Trans Union
the market history of the Company's during the proposed "market test" period.
stock as follows: The next day, October 9, Trans Union
issued a press release announcing: (1) that
*** the merger price offered to the Pritzker had obtained "the financing
stockholders of Trans Union represented commitments [**23] necessary to
a premium of 62% over the average of consummate" the merger with Trans Union; (2)
the high and low prices at which Trans that Pritzker had acquired one million shares of
Union stock had traded in 1980, a Trans Union common stock at $38 per share;
premium of 48% over the last closing (3) that Trans Union was now permitted to
price, and a premium of 39% over the actively seek other offers and had retained
highest price at which the stock of Trans Salomon Brothers for that purpose; and (4) that
Union had traded any time during the if a more favorable offer were not received
prior six years. before February 1, 1981, Trans Union's
shareholders would thereafter meet to vote on
the Pritzker proposal.
The Merger Agreement was executed by
Van Gorkom during the evening of September It was not until the following day, October
20 at a formal social event that he hosted for 10, that the actual amendments to the Merger
the opening of the [**22] Chicago Lyric Agreement were prepared by Pritzker and
Opera. Neither he nor any other director read delivered to Van Gorkom for execution. As
will be seen, the amendments were
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considerably at variance with Van Gorkom's ***On February 10, the stockholders of
representations of the amendments to the Board Trans Union approved the Pritzker merger
on October 8; and the amendments placed proposal. Of the outstanding shares, 69.9%
serious constraints on Trans Union's ability to were voted in favor of the merger; 7.25% were
negotiate a better deal and withdraw from the voted against the merger; and 22.85% were not
Pritzker agreement. Nevertheless, Van voted.
Gorkom proceeded to execute what became the II.
October 10 amendments to the Merger
Agreement without conferring further with the …
Board members and apparently without [HN2] Under Delaware law, the business
comprehending the actual implications of the judgment rule is the offspring of the
amendments. fundamental principle, codified in 8 Del.C. §
***Salomon Brothers' efforts over a three- 141 (a), that the business and affairs of a
month period from October 21 [**24] to Delaware corporation are managed by or under
January 21 produced only one serious suitor for its board of directors. n11 Pogostin v. Rice,
Trans Union -- General Electric Credit Del. Supr., 480 A.2d 619, 624 (1984); Aronson
Corporation ("GE Credit"), a subsidiary of the v. Lewis, Del.Supr., 473 A.2d 805, 811 (1984);
General Electric Company. However, GE Zapata Corp. v. Maldonado, Del. Supr., 430
Credit was unwilling to make an offer for Trans A.2d 779, 782 (1981). In carrying out their
Union unless Trans Union first rescinded its managerial roles, directors are charged with an
Merger Agreement with Pritzker. When unyielding fiduciary duty to the corporation
Pritzker refused, GE Credit terminated further [**30] and its shareholders. Loft, Inc. v. Guth,
discussions with Trans Union in early January. Del. Ch., 23 Del. Ch. 138, 2 A.2d 225 (1938),
aff'd, Del. Supr., 23 Del. Ch. 255, 5 A.2d 503
In the meantime, in early December, the (1939). The business judgment rule exists to
investment firm of Kohlberg, Kravis, Roberts protect and promote the full and free exercise
& Co. ("KKR"), the only other concern to of the managerial power granted to Delaware
make a firm offer for Trans Union, withdrew its directors. [HN3] Zapata Corp. v. Maldonado,
offer under circumstances hereinafter detailed. supra at 782. The rule itself "is a presumption
On December 19, this litigation was that in making a business decision, the directors
commenced and, within four weeks, the of a corporation acted on an informed basis, in
plaintiffs had deposed eight of the ten directors good faith and in the honest belief that the
of Trans Union, including Van Gorkom, action taken was in the best interests of the
Chelberg and Romans, its Chief Financial company." Aronson, supra at 812. Thus, the
Officer. On January 21, Management's Proxy party attacking a board decision as uninformed
Statement for the February 10 shareholder must rebut the presumption that its business
meeting was mailed to Trans Union's judgment was an informed one. Id.
stockholders. On January 26, Trans Union's
Board met and, after a lengthy meeting, voted
to proceed with the Pritzker merger. The Board n11 [HN4] 8 Del.C. § 141 provides,
also approved for mailing, "on or about January in pertinent part:
27," a Supplement to its Proxy Statement. The (a) The business and affairs of every
Supplement purportedly [**25] set forth all corporation organized under this chapter
information relevant to the Pritzker Merger shall be managed by or under the
Agreement, which had not been divulged in the direction of a board of directors, except
first Proxy Statement.
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as may be otherwise provided in this preparation for a decision derives from the
chapter or in its certificate of fiduciary capacity in which he serves the
incorporation. If any such provision is corporation and its stockholders. Lutz v. Boas,
made in the certificate of incorporation, Del. Ch., 39 Del. Ch. 585, 171 A.2d 381
the powers and duties conferred or (1961). See Weinberger v. UOP, Inc., supra;
imposed upon the board of directors by Guth v. Loft, supra. Since a director is vested
this chapter shall be exercised or with the responsibility for the management of
performed to such extent and by such the affairs of the corporation, he must execute
person or persons as shall be provided in that duty with the recognition that he acts on
the certificate of incorporation. behalf of others. Such obligation does not
tolerate faithlessness or self-dealing. But
fulfillment of the fiduciary function requires
[**31]
more than the mere absence of bad faith or
[HN5] The determination of whether a fraud. Representation of the financial interests
business judgment is an informed one turns on of others imposes on a director an affirmative
whether the directors have informed themselves duty to protect those interests and to proceed
"prior to making a business decision, of all with a critical eye in assessing information of
material information reasonably available to the type and under the circumstances present
them." Id. n12 here. See Lutz v. Boas, supra; Guth v. Loft,
supra at 510. Compare Donovan v.
Cunningham, 5th Cir., 716 F.2d 1455, 1467
n12 See Kaplan v. Centex (1983); Doyle v. Union Insurance Company,
Corporation, Del. Ch., 284 A.2d 119, Neb. Supr., 202 Neb. 599, 277 N.W.2d 36
124 (1971), where the Court stated: (1979); Continental Securities Co. v. Belmont,
N.Y. App., 206 N.Y. 7, 99 N.E. 138, [**33]
Application of the [business judgment] 141 (1912).
rule of necessity depends upon a showing Thus, [HN7] a director's duty to exercise an
that informed directors did in fact make a informed business judgment is in [*873] the
business judgment authorizing the nature of a duty of care, as distinguished from a
transaction under review. And, as the duty of loyalty. Here, there were no allegations
plaintiff argues, the difficulty here is that of fraud, bad faith, or self-dealing, or proof
the evidence does not show that this was thereof. Hence, it is presumed that the
done. There were director-committee- directors reached their business judgment in
officer references to the realignment but good faith, Allaun v. Consolidated Oil Co., Del.
none of these singly or cumulative Ch., 16 Del. Ch. 318, 147 A. 257 (1929), and
showed that the director judgment was considerations of motive are irrelevant to the
brought to bear with specificity on the issue before us.
transactions.
The standard of care applicable to a
director's duty of care has also been recently
[HN6] Under the business judgment rule restated by this Court. In Aronson, supra, we
there is no protection for directors who have stated:
made "an unintelligent or unadvised judgment."
Mitchell v. Highland-Western Glass, Del. Ch.,
19 Del. Ch. [**32] 326, 167 A. 831, 833 While the Delaware cases use a variety of
(1933). A director's duty to inform himself in terms to describe the applicable standard of
care, our analysis satisfies us that [HN8] under
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the business judgment rule director liability is determining whether their decision to accept
predicated upon concepts of gross negligence. the Pritzker proposal was an informed one.
(footnote omitted) Thus, the defendants contend that what the
directors did and learned subsequent to
473 A.2d at 812. September 20 and through January 26, 1981,
was properly taken into account by the Trial
We again confirm that view. We think the
Court in determining whether the Board's
concept of gross negligence is also the proper
judgment was an informed one. We disagree
standard for determining whether a business
with this post hoc approach.
judgment reached by a board of directors was
an informed one. n13 The issue of whether the directors [**36]
reached an informed decision to "sell" the
Company on September 20, 1980 must be
n13 Compare Mitchell v. Highland- determined only upon the basis of the
Western Glass, supra, where the Court information then reasonably available to the
posed the question as whether the board directors and relevant to their decision to accept
acted "so far without information that the Pritzker merger proposal. This is not to say
they can be said to have passed an that the directors were precluded from altering
unintelligent and unadvised judgment." their original plan of action, had they done so
167 A. at 833. Compare also Gimbel v. in an informed manner. What we do say is that
Signal Companies, Inc., 316 A.2d 599, the question of whether the directors reached an
aff'd per curiam Del.Supr., 316 A.2d 619 informed business judgment in agreeing to sell
(1974), where the Chancellor, after the Company, pursuant to the terms of the
expressly reiterating the Highland- September 20 Agreement presents, in reality,
Western Glass standard, framed the two questions: (A) whether the directors
question, "Or to put the question in its reached an informed business judgment on
legal context, did the Signal directors act September 20, 1980; and (B) if they did not,
without the bounds of reason and whether the directors' actions taken subsequent
recklessly in approving the price offer of to September 20 were adequate to cure any
Burmah?" Id. infirmity in their action taken on September 20.
We first consider the directors' September 20
… action in terms of their reaching an informed
business judgment.
III.
A
The defendants argue that the determination
of whether their decision to accept $55 per On the record before us, we must conclude
share for Trans Union represented an informed that the Board of Directors did not reach an
business judgment requires consideration, not informed business judgment on September 20,
only of that which they knew and learned on 1980 in voting to "sell" the Company for $55
September 20, but also of that which they per share pursuant to the Pritzker cash-out
subsequently learned and did over the merger [**37] proposal. Our reasons, in
following four-month [*874] period before the summary, are as follows:
shareholders met to vote on the proposal in The directors (1) did not adequately inform
February, 1981. The defendants thereby seek themselves as to Van Gorkom's role in forcing
to reduce the significance of their action on the "sale" of the Company and in establishing
September 20 and to widen the time frame for the per share purchase price; (2) were
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uninformed as to the intrinsic value of the been liberally construed to include reports of
Company; and (3) given these circumstances, at informal personal investigations by corporate
a minimum, were grossly negligent in officers, Cheff v. Mathes, Del. Supr., 41 Del.
approving the "sale" of the Company upon two Ch. 494, 199 A.2d 548, 556 (1964). However,
hours' consideration, without prior notice, and there is no evidence that any [**39] "report,"
without the exigency of a crisis or emergency. as defined under § 141 (e), concerning the
Pritzker proposal, was presented to the Board
As has been noted, the Board based its
on September 20. n16 Van Gorkom's oral
September 20 decision to approve the cash-out
presentation of his understanding of the terms
merger primarily on Van Gorkom's
of the proposed Merger Agreement, which he
representations. None of the directors, other
had not seen, and Romans' brief oral statement
than Van Gorkom and Chelberg, had any prior
of his preliminary study regarding the
knowledge that the purpose of the meeting was
feasibility of a leveraged buy-out of Trans
to propose a cash-out merger of Trans Union.
No members of Senior Management were Union do not qualify as § 141 (e) "reports" for
these reasons: The former lacked substance
present, other than Chelberg, Romans and
because Van Gorkom was basically uninformed
Peterson; and the latter two had only learned of
as to the essential provisions of the very
the proposed sale an hour earlier. Both general
document about which he was talking.
counsel Moore and former general counsel
Romans' statement was irrelevant to the issues
Browder attended the meeting, but were
before the Board since it did not purport to be a
equally uninformed as to the purpose of the
valuation study. [HN12] At a minimum for a
meeting and the documents to be acted upon.
report to enjoy the status conferred by § 141
Without any documents before them (e), it must be pertinent to the subject matter
concerning the proposed [**38] transaction, upon which a board is called to act, and
the members of the Board were required to rely otherwise be entitled to good faith, not blind,
entirely upon Van Gorkom's 20-minute oral reliance. Considering all of the surrounding
presentation of the proposal. No written circumstances -- hastily calling the meeting
summary of the terms of the merger was without prior notice of its subject matter, the
presented; the directors were given no proposed sale of the Company without any
documentation to support the adequacy of $55 prior consideration of the issue or necessity
price per share for sale of the Company; and therefor, the urgent time constraints imposed by
the Board had before it nothing more than Van Pritzker, and the total absence [**40] of any
Gorkom's statement of his understanding of the documentation whatsoever -- the directors were
substance of an agreement which he admittedly duty bound to make reasonable inquiry of Van
had never read, nor which any member of the Gorkom and Romans, and if they had done so,
Board had ever seen. the inadequacy of that upon which they now
[HN11] Under 8 Del.C. § 141 (e), n15 claim to have relied would have been apparent.
"directors are fully protected in relying in
[*875] good faith on reports made by officers."
n15 [HN13] Section 141 (e) provides
Michelson v. Duncan, Del. Ch., 386 A.2d 1144,
in pertinent part:
1156 (1978); aff'd in part and rev'd in part on
other grounds, Del. Supr., 407 A.2d 211 A member of the board of directors ...
(1979). See also Graham v. Allis-Chalmers shall, in the performance of his duties, be
Mfg. Co., Del.Supr., 41 Del. Ch. 78, 188 A.2d fully protected in relying in good faith
125, 130 (1963); Prince v. Bensinger, Del. Ch., upon the books of accounts or reports
244 A.2d 89, 94 (1968). The term "report" has made to the corporation by any of its
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officers, or by an independent certified became informed by virtue of their
public accountant, or by an appraiser "review" of the Agreement on October 8
selected with reasonable care by the and January 26.
board of directors ..., or in relying in
good faith upon other records of the
corporation. (1)
[HN14] A substantial premium may
provide one reason to recommend a merger, but
n16 In support of the defendants' in the absence of other sound [**42] valuation
argument that their judgment as to the information, the fact of a premium alone does
adequacy of $55 per share was an not provide an adequate basis upon which to
informed one, the directors rely on the
assess the fairness of an offering price. Here,
BCG study and the Five Year Forecast. the judgment reached as to the adequacy of the
However, no one even referred to either premium was based on a comparison between
of these studies at the September 20 the historically depressed Trans Union market
meeting; and it is conceded that these price and the amount of the Pritzker offer.
materials do not represent valuation Using market price as a basis for concluding
studies. Hence, these documents do not that the premium adequately reflected the true
constitute evidence as to whether the value [*876] of the Company was a clearly
directors reached an informed judgment faulty, indeed fallacious, premise, as the
on September 20 that $55 per share was a defendants' own evidence demonstrates.
fair value for sale of the Company.
The record is clear that before September
20, Van Gorkom and other members of Trans
[**41] Union's Board knew that the market had
The defendants rely on the following consistently undervalued the worth of Trans
factors to sustain the Trial Court's finding that Union's stock, despite steady increases in the
the Board's decision was an informed one: (1) Company's operating income in the seven years
the magnitude of the premium or spread preceding the merger. The Board related this
between the $55 Pritzker offering price and occurrence in large part to Trans Union's
Trans Union's current market price of $38 per inability to use its ITCs as previously noted.
share; (2) the amendment of the Agreement as Van Gorkom testified that he did not believe
submitted on September 20 to permit the Board the market price accurately reflected Trans
to accept any better offer during the "market Union's true worth; and several of the directors
test" period; (3) the collective experience and testified that, as a general rule, most chief
expertise of the Board's "inside" and "outside" executives think that the market undervalues
directors; n17 and (4) their reliance on their companies' stock. [**43] Yet, on
Brennan's legal advice that the directors might September 20, Trans Union's Board apparently
be sued if they rejected the Pritzker proposal. believed that the market stock price accurately
We discuss each of these grounds seriatim: reflected the value of the Company for the
purpose of determining the adequacy of the
premium for its sale.
n17 We reserve for discussion under
In the Proxy Statement, however, the
Part III hereof, the defendants' contention
directors reversed their position. There, they
that their judgment, reached on
stated that, although the earnings prospects for
September 20, if not then informed
Trans Union were "excellent," they found no
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basis for believing that this would be reflected Despite the foregoing facts and
in future stock prices. With regard to past circumstances, there was no call by the Board,
trading, the Board stated that the prices at either on September 20 or thereafter, for any
which the Company's common stock had traded [**45] valuation study or documentation of the
in recent years did not reflect the "inherent" $55 price per share as a measure of the fair
value of the Company. But having referred to value of the Company in a cash-out context. It
the "inherent" value of Trans Union, the is undisputed that the major asset of Trans
directors ascribed no number to it. Moreover, Union was its cash flow. Yet, at no time did
nowhere did they disclose that they had no the Board call for a valuation study taking into
basis on which to fix "inherent" worth beyond account that highly significant element of the
an impressionistic reaction to the premium over Company's assets.
market and an unsubstantiated belief that the
We do not imply that an outside valuation
value of the assets was "significantly greater" study is essential to support an informed
than book value. By their own admission they business judgment; nor do we state that fairness
could not rely on the stock price as an accurate opinions by independent investment bankers
measure of value. Yet, also by their own are required as a matter of law. Often insiders
admission, the Board members assumed that familiar with the business of a going concern
Trans Union's market price was adequate are in a better position than are outsiders to
[**44] to serve as a basis upon which to assess gather relevant information; and under
the adequacy of the premium for purposes of appropriate circumstances, such directors may
the September 20 meeting. be fully protected in relying in good faith upon
The parties do not dispute that a publicly- the valuation reports of their management.
traded stock price is solely a measure of the [*877] See 8 Del.C. § 141 (e). See also Cheff
value of a minority position and, thus, market v. Mathes, supra.
price represents only the value of a single Here, the record establishes that the Board
share. Nevertheless, on September 20, the did not request its Chief Financial Officer,
Board assessed the adequacy of the premium Romans, to make any valuation study or review
over market, offered by Pritzker, solely by of the proposal to determine the adequacy of
comparing it with Trans Union's current and $55 per share for sale of the Company. On the
historical stock price. (See supra note 5 at p. record before us: The Board rested on Romans'
866.) elicited [**46] response that the $55 figure
Indeed, as of September 20, the Board had was within a "fair price range" within the
no other information on which to base a context of a leveraged buy-out. No director
determination of the intrinsic value of Trans sought any further information from Romans.
Union as a going concern. As of September 20, No director asked him why he put $55 at the
the Board had made no evaluation of the bottom of his range. No director asked Romans
Company designed to value the entire for any details as to his study, the reason why it
enterprise, nor had the Board ever previously had been undertaken or its depth. No director
considered selling the Company or consenting asked to see the study; and no director asked
to a buy-out merger. Thus, the adequacy of a Romans whether Trans Union's finance
premium is indeterminate unless it is assessed department could do a fairness study within the
in terms of other competent and sound remaining 36-hour n18 period available under
valuation information that reflects the value of the Pritzker offer.
the particular business.
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n18 Romans' department study was Controller Peterson in creating a feasible
not made available to the Board until structure for a leveraged buy-out by a
circulation of Trans Union's prospective purchaser; that Van Gorkom
Supplementary Proxy Statement and the had not sought advice, information or
Board's meeting of January 26, 1981, on assistance from either inside or outside
the eve of the shareholder meeting; and, Trans Union directors as to the value of
as has been noted, the study has never the Company as an entity or the fair price
been produced for inclusion in the record per share for 100% of its stock; that Van
in this case. Gorkom had not consulted with the
Company's investment bankers or other
financial analysts; that Van Gorkom had
Had the Board, or any member, made an not consulted with or confided in any
inquiry of Romans, he presumably would have officer or director of the Company except
responded as he testified: that his calculations Chelberg; and that Van Gorkom had
were rough and preliminary; and, [**47] that deliberately chosen to ignore the advice
the study was not designed to determine the fair and opinion of the members of his Senior
value of the Company, but rather to assess the Management group regarding the
feasibility of a leveraged buy-out financed by adequacy of the $55 price.
the Company's projected cash flow, making
certain assumptions as to the purchaser's
borrowing needs. Romans would have [**48]
presumably also informed the Board of his We do not say that the Board of Directors
view, and the widespread view of Senior was not entitled to give some credence to Van
Management, that the timing of the offer was Gorkom's representation that $55 was an
wrong and the offer inadequate. adequate or fair price. Under § 141 (e), the
directors were entitled to rely upon their
The record also establishes that the Board
chairman's opinion of value and adequacy,
accepted without scrutiny Van Gorkom's
provided that such opinion was reached on a
representation as to the fairness of the $55 price
sound basis. Here, the issue is whether the
per share for sale of the Company -- a subject
directors informed themselves as to all
that the Board had never previously considered.
information that was reasonably available to
The Board thereby failed to discover that Van
them. Had they done so, they would have
Gorkom had suggested the $55 price to Pritzker
learned of the source and derivation of the $55
and, most crucially, that Van Gorkom had
price and could not reasonably have relied
arrived at the $55 figure based on calculations
thereupon in good faith.
designed solely to determine the feasibility of a
leveraged buy-out. n19 No questions were None of the directors, Management or
raised either as to the tax implications of a outside, were investment bankers or financial
cash-out merger or how the price for the one analysts. Yet the Board did not consider
million share option granted Pritzker was recessing the meeting until a later hour that day
calculated. (or requesting an extension of Pritzker's Sunday
evening deadline) to give it time to elicit more
information as to the sufficiency of the offer,
n19 As of September 20 the directors either from [*878] inside Management (in
did not know: that Van Gorkom had particular Romans) or from Trans Union's own
arrived at the $55 figure alone, and investment banker, Salomon Brothers, whose
subjectively, as the figure to be used by Chicago specialist in merger and acquisitions
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was known to the Board and familiar with Indeed, the record compels the conclusion that
Trans Union's affairs. the directors had no rational basis for expecting
that a market test was attainable, given the
Thus, the record compels the conclusion
terms of the Agreement as executed during the
that [**49] on September 20 the Board
evening of September 20. We rely upon the
lacked valuation information adequate to
following facts which are essentially
reach an informed business judgment as to
uncontradicted:
the fairness of $55 per share for sale of the
Company. n20 The Merger Agreement, specifically
identified as that originally presented to the
Board on September 20, has never been
n20 For a far more careful and produced by the defendants, notwithstanding
reasoned approach taken by another the plaintiffs' several demands for production
board of directors faced with the before as well as during trial. No acceptable
pressures of a hostile tender offer, see explanation of this failure to produce
Pogostin v. Rice, supra at 623-627. documents has been given to either the Trial
Court or this Court. Significantly, [**51]
neither the defendants nor their counsel have
(2) made the affirmative representation that this
This brings us to the post-September 20 critical document has been produced. Thus, the
"market test" upon which the defendants Court is deprived of the best evidence on which
ultimately rely to confirm the reasonableness of to judge the merits of the defendants' position
their September 20 decision to accept the as to the care and attention which they gave to
Pritzker proposal. In this connection, the the terms of the Agreement on September 20.
directors present a two-part argument: (a) that Van Gorkom states that the Agreement as
by making a "market test" of Pritzker's $55 per submitted incorporated the ingredients for a
share offer a condition of their September 20 market test by authorizing Trans Union to
decision to accept his offer, they cannot be receive competing offers over the next 90-day
found to have acted impulsively or in an period. However, he concedes that the
uninformed manner on September 20; and (b) Agreement barred Trans Union from actively
that the adequacy of the $17 premium for sale soliciting such offers and from furnishing to
of the Company was conclusively established interested parties any information about the
over the following 90 to 120 days by the most Company other than that already in the public
reliable evidence available -- the marketplace. domain. Whether the original Agreement of
[**50] Thus, the defendants impliedly contend September 20 went so far as to authorize Trans
that the "market test" eliminated the need for Union to receive competitive proposals is
the Board to perform any other form of fairness arguable. The defendants' unexplained failure
test either on September 20, or thereafter. to produce and identify the original Merger
Again, the facts of record do not support the Agreement permits the logical inference that
defendants' argument. There is no evidence: the instrument would not support their
(a) that the Merger Agreement was effectively assertions in this regard. Wilmington Trust Co.
amended to give the Board freedom to put v. General Motors Corp., Del. Supr., 29 Del.
Trans Union up for auction sale to the highest Ch. 572, 51 A.2d 584, 593 (1947); II Wigmore
bidder; or (b) that a public auction was in fact on Evidence § 291 (3d ed. [**52] 1940). It is
permitted to occur. The minutes of the Board a well established principle that [HN15] the
meeting make no reference to any of this. production of weak evidence when strong is, or
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should have been, available can lead only to the GL acknowledges that Trans Union directors
conclusion that the strong would have been may have a competing fiduciary obligation to
adverse. Interstate Circuit v. United States, the shareholders under certain circumstances.
306 U.S. 208, 226, [*879] 59 S. Ct. 467, 83 L.
Ed. 610 (1939); Deberry v. State, Del.Supr., Clearly, this language on its face cannot be
457 A.2d 744, 754 (1983). Van Gorkom, construed as incorporating either of the two
conceding that he never read the Agreement, "conditions" described above: either the right to
stated that he was relying upon his accept a better offer or the right to distribute
understanding that, under corporate law, proprietary information to third parties. [**54]
directors always have an inherent right, as well The logical witness for the defendants to call to
as a fiduciary duty, to accept a better offer confirm their construction of this clause of the
notwithstanding an existing contractual Agreement would have been Trans Union's
commitment by the Board. (See the discussion outside attorney, James Brennan. The
infra, part III B (3) at p. 55.) defendants' failure, without explanation, to call
this witness again permits the logical inference
The defendant directors assert that they
that his testimony would not have been helpful
"insisted" upon including two amendments to
to them. The further fact that the directors
the Agreement, thereby permitting a market
adjourned, rather than recessed, the meeting
test: (1) to give Trans Union the right to accept
without incorporating in the Agreement these
a better offer; and (2) to reserve to Trans Union
important "conditions" further weakens the
the right to distribute proprietary information
defendants' position. As has been noted,
on the Company to alternative bidders. Yet,
nothing in the Board's Minutes supports these
the defendants concede that they did not seek to
claims. No reference to either of the so-called
amend the Agreement to permit Trans Union to
"conditions" or of Trans Union's reserved right
solicit competing offers.
to test the market appears in any notes of the
Several of Trans Union's outside directors Board meeting or in the Board Resolution
[**53] resolutely maintained that the accepting the Pritzker offer or in the Minutes of
Agreement as submitted was approved on the the meeting itself. That evening, in the midst
understanding that, "if we got a better deal, we of a formal party which he hosted for the
had a right to take it." Director Johnson so opening of the Chicago Lyric Opera, Van
testified; but he then added, "And if they didn't Gorkom executed the Merger Agreement
put that in the agreement, then the management without he or any other member of the Board
did not carry out the conclusion of the Board. having read the instruments.
And I just don't know whether they did or not."
The defendants attempt to downplay the
The only clause in the Agreement as finally
significance of the prohibition against Trans
executed to which the defendants can point as
Union's actively soliciting competing offers by
"keeping the door open" is the following
[**55] arguing that the directors "understood
underlined statement found in subparagraph (a)
that the entire financial community would
of section 2.03 of the Merger Agreement as
know that Trans Union was for sale upon the
executed:
announcement of the Pritzker offer, and anyone
desiring to make a better offer was free to do
The Board of Directors shall recommend to the so." Yet, the press release issued on September
stockholders of Trans Union that they approve 22, with the authorization of the Board, stated
and adopt the Merger Agreement ('the that Trans Union had entered into "definitive
stockholders' approval') and to use its best agreements" with the Pritzkers; and the press
efforts to obtain the requisite votes therefor. release did not even disclose Trans Union's
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limited right to receive and accept higher subsidiary's oil and gas interests. The Court
offers. Accompanying this press release was a [**57] found those factors denoting
further public announcement that Pritzker had competence to be outweighed by evidence of
been granted an option to purchase at any time gross negligence; that management in effect
one million shares of [*880] Trans Union's sprang the deal on the board by negotiating the
capital stock at 75 cents above the then-current asset sale without informing the board; that the
price per share. buyer intended to "force a quick decision" by
the board; that the board meeting was called on
Thus, notwithstanding what several of the
only one-and-a-half days' notice; that its
outside directors later claimed to have
outside directors were not notified of the
"thought" occurred at the meeting, the record
meeting's purpose; that during a meeting
compels the conclusion that Trans Union's
spanning "a couple of hours" a sale of assets
Board had no rational basis to conclude on
worth $480 million was approved; and that the
September 20 or in the days immediately
following, that the Board's acceptance of Board failed to obtain a current appraisal of its
oil and gas interests. The analogy of Signal to
Pritzker's offer was conditioned on (1) a
the case at bar is significant.
"market test" of the offer; and (2) the Board's
right to withdraw from the Pritzker Agreement
and accept any higher [**56] offer received n21 Trans Union's five "inside"
before the shareholder meeting. directors had backgrounds in law and
(3) accounting, 116 years of collective
employment by the Company and 68
The directors' unfounded reliance on both
years of combined experience on its
the premium and the market test as the basis for
Board. Trans Union's five "outside"
accepting the Pritzker proposal undermines the
directors included four chief executives
defendants' remaining contention that the
of major corporations and an economist
Board's collective experience and
who was a former dean of a major school
sophistication was a sufficient basis for finding
of business and chancellor of a
that it reached its September 20 decision with
university. The "outside" directors had
informed, reasonable deliberation. n21
78 years of combined experience as chief
Compare Gimbel v. Signal Companies, Inc.,
executive officers of major corporations
Del. Ch., 316 A.2d 599 (1974), aff'd per
and 50 years of cumulative experience as
curiam, Del. Supr., 316 A.2d 619 (1974).
directors of Trans Union. Thus,
There, the Court of Chancery preliminarily
defendants argue that the Board was
enjoined a board's sale of stock of its wholly-
eminently qualified to reach an informed
owned subsidiary for an alleged grossly
judgment on the proposed "sale" of Trans
inadequate price. It did so based on a finding
Union notwithstanding their lack of any
that the business judgment rule had been
advance notice of the proposal, the
pierced for failure of management to give its
shortness of their deliberation, and their
board "the opportunity to make a reasonable
determination not to consult with their
and reasoned decision." 316 A.2d at 615. The
investment banker or to obtain a fairness
Court there reached this result notwithstanding
opinion.
the board's sophistication and experience; the
company's need of immediate cash; and the
board's need to act promptly due to the impact [**58]
of an energy crisis on the value of the (4)
underlying assets being sold -- all of its
Page 19
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Part of the defense is based on a claim that officers, certain experts and books and
the directors relied on legal advice rendered at records of the company.
the September 20 meeting by James Brennan,
Esquire, who was present at Van Gorkom's
request. Unfortunately, Brennan did not appear ***We conclude that Trans Union's
and testify at trial even though his firm Board was grossly negligent in that it failed
participated in the defense of this action. There to act with informed reasonable deliberation
is no contemporaneous evidence of the advice in agreeing to the Pritzker merger proposal
given by Brennan on September 20, only the on September 20; and we further conclude
later deposition and trial testimony of certain that the Trial Court erred as a matter of law
directors as to their recollections or in failing [**60] to address that question
understanding of what was said at the meeting. before determining whether the directors'
Since counsel did not testify, and the advice later conduct was sufficient to cure its initial
attributed to Brennan is hearsay received by the error.
Trial Court over the plaintiffs' objections, we A second claim is that counsel advised the
consider it only in the context of the directors' Board it would be subject to lawsuits if it
present claims. In fairness to counsel, we make rejected the $55 per share offer. It is, of course,
no findings that the advice attributed to him a fact of corporate life that today when faced
was in fact given. We focus solely on the with difficult or sensitive issues, directors often
efficacy of the [*881] defendants' claims, are subject to suit, irrespective of the decisions
made months and years later, in an effort to they make. However, counsel's mere
extricate themselves from liability. acknowledgement of this circumstance cannot
Several defendants testified that Brennan be rationally translated into a justification for a
advised them that Delaware law did not require board permitting itself to be stampeded into a
a fairness opinion or an outside valuation of the patently unadvised act. While suit might result
Company before the Board could act on the from the rejection of a merger or tender offer,
Pritzker [**59] proposal. If given, the advice Delaware law makes clear that a board acting
was correct. However, that did not end the within the ambit of the business judgment rule
matter. Unless the directors had before them faces no ultimate liability. Pogostin v. Rice,
adequate information regarding the intrinsic supra. Thus, we cannot conclude that the mere
value of the Company, upon which a proper threat of litigation, acknowledged by counsel,
exercise of business judgment could be made, constitutes either legal advice or any valid basis
mere advice of this type is meaningless; and, upon which to pursue an uninformed course.
given this record of the defendants' failures, it Since we conclude that Brennan's purported
constitutes no defense here. n22 advice is of no consequence to the defense of
this case, it is unnecessary for us to invoke the
adverse inferences which may be attributable
n22 Nonetheless, we are satisfied that [**61] to one failing to appear at trial and
in an appropriate factual context a proper testify.
exercise of business judgment may
include, as one of its aspects, reasonable …
reliance upon the advice of counsel. This IV.
is wholly outside the statutory
protections of 8 Del.C. § 141 (e) Whether the directors of Trans Union
involving reliance upon reports of should be treated as one or individually in
terms of invoking the protection of the business
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46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921
judgment rule and the applicability of 8 Del.C. independent Board of Directors. There were no
§ 141 (c) are questions which were not allegations and no proof of fraud, bad faith, or
originally addressed by the parties in their self-dealing by the directors ....
briefing of this case. This resulted in a
supplemental briefing and a second rehearing The business judgment rule, which was
en banc on two basic questions: (a) whether properly applied by the Chancellor, allows
one or more of the directors were deprived of directors wide discretion in the matter of
the protection of the business judgment rule by valuation and affords room for honest
evidence of an absence of good faith; and (b) differences of opinion. [**86] In order to
whether one or more of the outside directors prevail, plaintiffs had the heavy burden of
were [*889] entitled to invoke the protection proving that the merger price was so grossly
of 8 Del.C. § 141 (e) by evidence of a inadequate as to display itself as a badge of
reasonable, good faith reliance on "reports," fraud. That is a burden which plaintiffs have
including legal advice, rendered the Board by not met.
certain inside directors and the Board's special
counsel, Brennan. However, plaintiffs have not claimed, nor did
the Trial Court decide, that $55 was a grossly
The parties' response, including
inadequate price per share for sale of the
reargument, has led the majority of the
Company. That being so, the presumption that
Court to conclude: (1) that since all of the
a board's judgment as to adequacy of price
defendant directors, outside as well as inside,
represents an honest exercise of business
take a unified position, we are required to
judgment (absent proof that the sale price was
treat all of the directors as one as to whether
grossly inadequate) is irrelevant to the
they are entitled [**85] to the protection of
threshold question of whether an informed
the business judgment rule; and (2) that
judgment was reached. Compare Sinclair Oil
considerations of good faith, including the
Corp. v. Levien, Del. Supr., 280 A.2d 717
presumption that the directors acted in good
(1971); Kelly v. Bell, Del. Supr., 266 A.2d 878,
faith, are irrelevant in determining the
879 (1970); Cole v. National Cash Credit
threshold issue of whether the directors as a
Association, Del. Ch., 18 Del. Ch. 47, 156 A.
Board exercised an informed business
183 (1931); Allaun v. Consolidated Oil Co.,
judgment. For the same reason, we must reject
defense counsel's ad hominem argument for supra; Allen Chemical & Dye Corp. v. Steel &
Tube Co. of America, Del. Ch., 14 Del. Ch. 1,
affirmance: that reversal may result in a multi-
120 A. 486 (1923).
million dollar class award against the
defendants for having made an allegedly V.
uninformed business judgment in a transaction The defendants ultimately rely on the
not involving any personal gain, self-dealing or stockholder vote of February 10 for
claim of bad faith. exoneration. The defendants contend that the
In their brief, the defendants similarly stockholders' "overwhelming" vote approving
mistake the business judgment rule's the Pritzker Merger Agreement had [**87] the
application to this case by erroneously invoking legal effect of curing any failure of the Board to
presumptions of good faith and "wide reach an informed business judgment in its
discretion": approval of the merger.
The parties tacitly agree that [HN16] a
This is a case in which plaintiff challenged the discovered failure of the Board to reach an
exercise of business judgment by an informed business judgment in approving the
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merger constitutes a voidable, rather than a to approve the merger. Thus, the defendants
void, act. Hence, the merger can be sustained, argue that when the Trial Court speaks of
notwithstanding the infirmity of the Board's finding the Company's shareholders to have
action, if its approval by majority vote of the been "fairly informed" by Management's proxy
shareholders is found to have been based on an materials, [**89] the Court is speaking in
informed electorate. Cf. Michelson v. Duncan, terms of "complete candor" as required under
Del. Supr., 407 A.2d 211 (1979), aff'g in part Lynch v. Vickers Energy Corp., Del. Supr., 383
and rev'g in part, Del. Ch., 386 A.2d 1144 A.2d 278 (1978).
(1978). The disagreement between the parties
The settled rule in Delaware is that
arises over: (1) the Board's burden of disclosing
[HN17] "where a majority of fully informed
to the shareholders all relevant and material
stockholders ratify action of even interested
information; and (2) the sufficiency of the
directors, an attack on the ratified
evidence as to whether the Board satisfied that transaction normally must fail." Gerlach v.
burden. Gillam, Del. Ch., 37 Del. Ch. 244, 139 A.2d
On this issue the Trial Court summarily 591, 593 (1958). The question of whether
concluded "that the stockholders of Trans shareholders have been fully informed such
Union were fairly informed as to the pending that their vote can be said to ratify director
merger. ..." The Court provided no [*890] action, "turns on the fairness and completeness
supportive reasoning nor did the Court make of the proxy materials submitted by the
any reference to the evidence of record. management to the ... shareholders." Michelson
v. Duncan, supra at 220. As this Court stated in
The plaintiffs contend that the Court
Gottlieb v. Heyden Chemical Corp., Del. Supr.,
committed error by applying an erroneous
33 Del. Ch. 177, 91 A.2d 57, 59 (1952):
[**88] disclosure standard of "adequacy"
rather than "completeness" in determining the
sufficiency of the Company's merger proxy The entire atmosphere is freshened and a new
materials. The plaintiffs also argue that the set of rules invoked where a formal approval
Board's proxy statements, both its original has been given by a majority of independent,
statement dated January 19 and its fully informed stockholders. ...
supplemental statement dated January 26, were
incomplete in various material respects. In Lynch v. Vickers Energy Corp., supra, this
Finally, the plaintiffs assert that Management's Court held that [HN18] corporate directors owe
supplemental statement (mailed "on or about" to their stockholders a fiduciary duty to
January 27) was untimely either as a matter of disclose all facts germane to the transaction at
law under 8 Del.C. § 251 (c), or untimely as a issue in an atmosphere of complete [**90]
matter of equity and the requirements of candor. We defined "germane" in the tender
complete candor and fair disclosure. offer context as all "information such as a
reasonable stockholder would consider
The defendants deny that the Court
important in deciding whether to sell or retain
committed legal or equitable error. On the
stock." Id. at 281. Accord Weinberger v. UOP,
question of the Board's burden of disclosure,
Inc., supra; Michelson v. Duncan, supra;
the defendants state that there was no dispute at
Schreiber v. Pennzoil Corp., Del. Ch., 419 A.2d
trial over the standard of disclosure required of
952 (1980). In reality, "germane" means
the Board; but the defendants concede that the
Board was required to disclose "all germane material facts.
facts" which a reasonable shareholder would Applying this standard to the record before
have considered important in deciding whether us, we find that Trans Union's stockholders
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were not fully informed of all facts material to the Company." What the Board failed to
their vote on the Pritzker Merger and that the disclose to its stockholders was that the [**92]
Trial Court's ruling to the contrary is clearly Board had not made any study of the intrinsic
erroneous. We list the material deficiencies in or inherent worth of the Company; nor had the
the proxy materials: Board even discussed the inherent value of the
Company prior to approving the merger on
(1) The fact that the Board had no
September 20, or at either of the subsequent
reasonably adequate information indicative of
meetings on October 8 or January 26. Neither
the intrinsic value of the Company, other than a
in its Original Proxy Statement nor in its
concededly depressed market price, was
Supplemental Proxy did the Board disclose that
without question material to the shareholders
it had no information before it, beyond the
voting on the merger. See Weinberger, supra at
premium-over-market and the price/earnings
709 (insiders' report that cash-out merger price
ratio, on which to determine the fair value of
up to $24 was good investment held material);
Michelson, supra at 224 (alleged terms and the Company as a whole.
intent of stock option plan held not germane); (2) We find false and misleading the
Schreiber, supra at 959 (management fee of Board's characterization of the Romans report
$650,000 held germane). [**91] in the Supplemental Proxy Statement. The
Supplemental Proxy stated:
Accordingly, the Board's lack of valuation
information should have been disclosed.
Instead, the directors cloaked the absence of At the September 20, 1980 meeting of the
such information in both the Proxy Statement Board of Directors of Trans Union, Mr.
and the Supplemental [*891] Proxy Romans indicated that while he could not say
Statement. Through artful drafting, noticeably that $55,00 per share was an unfair price, he
absent at the September 20 meeting, both had prepared a preliminary report which
documents create the impression that the Board reflected that the value of the Company was in
knew the intrinsic worth of the Company. In the range of $55.00 to $65.00 per share.
particular, the Original Proxy Statement
contained the following: Nowhere does the Board disclose that Romans
stated to the Board that his calculations were
made in a "search for ways to justify a price in
although the Board of Directors regards the
connection with" a leveraged buy-out
intrinsic value of the Company's assets to be
transaction, "rather than to say what [**93] the
significantly greater than their book value ...,
shares are worth," and that he stated to the
systematic liquidation of such a large and
Board that his conclusion thus arrived at "was
complex entity as Trans Union is simply not
not the same thing as saying that I have a
regarded as a feasible method of realizing its
valuation of the Company at X dollars." Such
inherent value. Therefore, a business
information would have been material to a
combination such as the merger would seem to
reasonable shareholder because it tended to
be the only practicable way in which the
invalidate the fairness of the merger price of
stockholders could realize the value of the
$55. Furthermore, defendants again failed to
Company.
disclose the absence of valuation information,
but still made repeated reference to the
The Proxy stated further that "in the view of the
Board of Directors ..., the prices at which the "substantial premium."
Company's common stock has traded in recent (3) We find misleading the Board's
years have not reflected the inherent value of references to the "substantial" premium offered.
Page 23
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The Board gave as their primary reason in Board on January 26; much was information
support of the merger the "substantial known or reasonably available before January
premium" shareholders would receive. But the 21 but not revealed in the Original Proxy
Board did not disclose its failure to assess the Statement. Yet, the stockholders were not
premium offered in terms of other relevant informed of these facts. Included in the "new"
valuation techniques, thereby rendering matter first disclosed in the Supplemental
questionable its determination as to the Proxy Statement were the following:
substantiality of the premium over an (a) The fact that prior to September 20,
admittedly depressed stock market price. 1980, no Board member or member of Senior
(4) We find the Board's recital in the Management, except Chelberg and Peterson,
Supplemental Proxy of certain events preceding knew that Van Gorkom had discussed a
the September 20 meeting to be incomplete and possible merger with Pritzker;
misleading. It is beyond dispute that a (b) The fact that the sale price of $55 per
reasonable stockholder would have considered share had been suggested initially to Pritzker by
material the fact that Van Gorkom not only Van Gorkom;
[**94] suggested the $55 price to Pritzker, but
also that he chose the figure because it made (c) The fact that the Board had not sought
feasible a leveraged buy-out. The directors an independent fairness opinion;
disclosed that Van Gorkom suggested the $55 (d) The fact that Romans and several
price to Pritzker. But the Board misled the members of Senior Management had indicated
shareholders when they described the basis of concern at the September 20 Senior
Van Gorkom's suggestion as follows: Management meeting that the $55 per share
price was inadequate and had stated that a
Such suggestion was based, at least in part, on higher price should and could be obtained; and
Mr. Van Gorkom's belief that loans could be (e) The fact that Romans had advised the
obtained from institutional lenders (together Board at its meeting on September 20 that he
with about a $200 million [*892] equity and his department had prepared a study which
contribution) which would justify the payment indicated that the Company had a value in the
of such price, ... range of $55 to $65 per share, and that he could
not advise the Board that the [**96] $55 per
Although by January 26, the directors knew the share offer which Pritzker made was unfair.
basis of the $55 figure, they did not disclose
that Van Gorkom chose the $55 price because ***The parties differ over whether the
that figure would enable Pritzker to both notice requirements of 8 Del.C. § 251 (c) apply
finance the purchase of Trans Union through a to the mailing date of supplemental proxy
leveraged buy-out and, within five years, material or that of the original proxy material.
substantially repay the loan out of the cash flow n33 The Trial Court summarily disposed of the
generated by the Company's operations. notice issue, stating it was "satisfied that the
proxy material furnished to Trans Union
(5) The Board's Supplemental Proxy stockholders ... fairly presented the question to
Statement, mailed on or after January 27, added be voted on at the February 10, 1981 meeting."
significant new matter, material to the proposal
to be voted on February 10, which was not
contained in the Original Proxy Statement. n33 The pertinent provisions of 8
Some of this new matter was information Del.C. § 251 (c) provide:
which had only been [**95] disclosed to the
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(c) The agreement required by Since we have concluded that
subsection (b) shall be submitted to the Management's Supplemental Proxy Statement
stockholders of each constituent does not meet the Delaware disclosure standard
corporation at an annual or special of "complete candor" under Lynch v. Vickers,
meeting thereof for the purpose of acting supra, it is unnecessary for us to address the
on the agreement. Due notice of the plaintiffs' legal argument as to the proper
time, place and purpose of the meeting construction of § 251 (c). However, we do
shall be mailed to each holder of stock, find it advisable to express the view that, in an
whether voting or non-voting, of the appropriate case, an otherwise candid proxy
corporation at his address as it appears on statement may be so untimely as to defeat its
the records of the corporation, at least 20 purpose of meeting the needs of a fully
days prior to the date of the meeting. ... informed electorate.
In this case, the Board's ultimate disclosure
as contained in the Supplemental Proxy
The defendants [**97] argue that the notice
Statement related either to information readily
provisions of § 251 (c) must be construed as
accessible to all of the directors if they had
requiring only that stockholders receive notice
asked the right questions, or was information
of the time, place, and purpose of a meeting to
already at their disposal. In short, the
consider a merger at least 20 days prior to such
information disclosed by the Supplemental
meeting; and since the Original Proxy
Proxy Statement was information which the
Statement was disseminated more than 20 days
defendant directors knew or should have
before the meeting, the defendants urge
known at the time the first Proxy Statement
affirmance of the Trial Court's ruling as correct
was issued. The defendants simply failed in
as a matter of statutory construction.
their original duty of knowing, sharing, and
Apparently, the question has not been
disclosing information [**99] that was
addressed by either the Court of Chancery or
material and reasonably available for their
this Court; and authority in other jurisdictions
discovery. They compounded that failure by
is limited. See Electronic Specialty Co. v. Int'l
their continued lack of candor in the
Controls Corp., 2d Cir., 409 F.2d 937, 944
Supplemental Proxy Statement. While we need
(1969) (holding that a tender offeror's
not decide the issue here, we are satisfied that,
September 16, 1968 correction of a previous
in an appropriate case, a completely candid but
misstatement, combined with an offer of
withdrawal running for eight days until belated disclosure of information long known
or readily available to a board could raise
September 24, 1968, was sufficient to cure past
serious issues of inequitable conduct. [HN19]
violations and eliminate any need for
Schnell v. Chris-Craft Industries, Inc., Del.
rescission); Nicholson File Co. v. H.K. Porter
Supr., 285 A.2d 437, 439 (1971).
Co., D.R.I., 341 F. Supp. 508, 513-14 (1972),
aff'd, 1st Cir., 482 F.2d 421 (1973) [*893] The burden must fall on defendants who
(permitting correction of a material claim ratification based on shareholder vote to
misstatement by a mailing to stockholders establish that the shareholder approval resulted
within seven days of a tender offer withdrawal from a fully informed electorate. On the record
date). Both Electronic [**98] and Nicholson before us, it is clear that the Board failed to
are federal security cases not arising under 8 meet that burden. Weinberger v. UOP, Inc.,
Del.C. § 251 (c) and they are otherwise supra at 703; Michelson v. Dunan, supra.
distinguishable from this case on their facts. ***For the foregoing reasons, we conclude
that the director defendants breached their
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fiduciary duty of candor by their failure to [*894] [**101] opinion great emphasis is
make true and correct disclosures of all directed only to the negative, with nothing
information they had, or should have had, more than lip service granted the positive
material to the transaction submitted for aspects of this case. In my opinion Chancellor
stockholder approval. Marvel (retired) should have been affirmed.
The Chancellor's opinion was the product of
VI.
well reasoned conclusions, based upon a sound
To summarize: we hold that the directors deductive process, clearly supported by the
of Trans Union breached their fiduciary evidence and entitled to deference in this
duty to their [**100] stockholders (1) by appeal. Because of my diametrical opposition
their failure to inform themselves of all to all evidentiary conclusions of the majority, I
information reasonably available to them respectfully dissent.
and relevant to their decision to recommend
It would serve no useful purpose,
the Pritzker merger; and (2) by their failure
particularly at this late date, for me to dissent at
to disclose all material information such as a
great length. I restrain myself from doing so,
reasonable stockholder would consider
but feel compelled to at least point out what I
important in deciding whether to approve
consider to be the most glaring deficiencies in
the Pritzker offer.
the majority opinion. The majority has spoken
We hold, therefore, that the Trial Court and has effectively said that Trans Union's
committed reversible error in applying the Directors have been the victims of a "fast
business judgment rule in favor of the director shuffle" by Van Gorkom and Pritzker. That is
defendants in this case. the beginning of the majority's comedy of
On remand, the Court of Chancery shall errors. The first and most important error made
conduct an evidentiary hearing to determine is the majority's assessment of the directors'
the fair value of the shares represented by knowledge of the affairs of Trans Union and
the plaintiffs' class, based on the intrinsic their combined ability to act in this situation
value of Trans Union on September 20, 1980. under the protection of the business judgment
Such valuation shall be made in accordance rule.
with Weinberger v. UOP, Inc., supra at 712- Trans [**102] Union's Board of Directors
715. Thereafter, an award of damages may be consisted of ten men, five of whom were
entered to the extent that the fair value of Trans "inside" directors and five of whom were
Union exceeds $55 per share. "outside" directors. The "inside" directors were
***REVERSED and REMANDED for Van Gorkom, Chelberg, Bonser, William B.
proceedings consistent herewith. Browder, Senior Vice-President-Law, and
Thomas P. O'Boyle, Senior Vice-President-
Administration. At the time the merger was
DISSENTBY: proposed the inside five directors had
McNEILLY; CHRISTIE collectively been employed by the Company
for 116 years and had 68 years of combined
DISSENT: experience as directors. The "outside" directors
were A. W. Wallis, William B. Johnson, Joseph
McNeilly, Justice, dissenting: B. Lanterman, Graham J. Morgan and Robert
The majority opinion reads like an W. Reneker. With the exception of Wallis,
advocate's closing address to a hostile jury. these were all chief executive officers of
And I say that not lightly. Throughout the Chicago based corporations that were at least as
Page 26
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46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921
large as Trans Union. The five "outside" Directors of this caliber are not ordinarily
directors had 78 years of combined experience taken in by a "fast shuffle". I submit they were
as chief executive officers, and 53 years not taken into this multi-million dollar
cumulative service as Trans Union directors. corporate transaction without being fully
informed and aware of the state of the art as it
The inside directors wear their badge of
pertained to the entire corporate panoroma of
expertise in the corporate affairs of Trans
Trans Union. True, even [*895] directors
Union on their sleeves. But what about the
such as these, with their business acumen,
outsiders? Dr. Wallis is or was an economist
interest and expertise, can go astray. I do not
and math statistician, a professor of economics
believe that to be the case here. These men
at Yale University, dean of the graduate school
knew Trans Union like the back of their hands
of business at the University of [**103]
and were more than well qualified to make on
Chicago, and Chancellor of the University of
the spot informed business judgments
Rochester. Dr. Wallis had been on the Board
of Trans Union since 1962. He also was on the concerning the affairs of Trans Union including
a 100% sale of the corporation. Lest we forget,
Board of Bausch & Lomb, Kodak,
the corporate world of then and now operates
Metropolitan Life Insurance Company,
on what is so aptly referred to as "the fast
Standard Oil and others.
track". These men were at the time an integral
William B. Johnson is a University of part of that world, all professional business
Pennsylvania law graduate, President of men, not intellectual figureheads.
Railway Express until 1966, Chairman and
The majority of this Court holds that the
Chief Executive of I.C. Industries Holding
Board's decision, reached on September 20,
Company, and member of Trans Union's Board
1980, to approve the merger was not the
since 1968.
product of an informed business judgment, that
Joseph Lanterman, a Certified Public the Board's subsequent efforts to amend the
Accountant, is or was President and Chief Merger Agreement and take other curative
Executive of American Steel, on the Board of action were legally and factually [**105]
International Harvester, Peoples Energy, ineffectual, and that the Board did not deal with
Illinois Bell Telephone, Harris Bank and Trust complete candor with the stockholders by
Company, Kemper Insurance Company and a failing to disclose all material facts, which they
director of Trans Union for four years. knew or should have known, before securing
Graham Morgan is a chemist, was the stockholders' approval of the merger. I
Chairman and Chief Executive Officer of U.S. disagree.
Gypsum, and in the 17 and 18 years prior to the At the time of the September 20, 1980
Trans Union transaction had been involved in meeting the Board was acutely aware of Trans
31 or 32 corporate takeovers. Union and its prospects. The problems created
Robert Reneker attended University of by accumulated investment tax credits and
Chicago and Harvard Business Schools. He accelerated depreciation were discussed
was President and Chief Executive of Swift and repeatedly at Board meetings, and all of the
Company, director of Trans Union since 1971, directors understood the problem thoroughly.
and member of the Boards of seven other Moreover, at the July, 1980 Board meeting the
corporations including U.S. Gypsum and the directors had reviewed Trans Union's newly
Chicago [**104] Tribune. prepared five-year forecast, and at the August,
1980 meeting Van Gorkom presented the
results of a comprehensive study of Trans
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46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921
Union made by The Boston Consulting Group. provided that Trans Union might unilaterally
This study was prepared over an 18 month terminate the proposed merger with the Pritzker
period and consisted of a detailed analysis of company in the event that prior to February 10,
all Trans Union subsidiaries, including 1981 there existed a definitive agreement
competitiveness, profitability, cash throw-off, [**108] with a third party for a merger,
cash consumption, technical competence and consolidation, sale of assets, or purchase or
future prospects for contribution to Trans exchange of Trans Union stock which was
Union's combined net income. more favorable for the stockholders of Trans
At the September 20 meeting Van Gorkom Union than the Pritzker offer and which was
reviewed all aspects of the proposed transaction conditioned upon receipt of stockholder
and repeated [**106] the explanation of the approval and the absence of an injunction
Pritzker offer he had earlier given to senior against its consummation.
management. Having heard Van Gorkom's Following the October 8 board meeting of
explanation of the Pritzker's offer, and Trans Union, the investment banking firm of
Brennan's explanation of the merger documents Salomon Brothers was retained by the
the directors discussed the matter. Out of this corporation to search for better offers than that
discussion arose an insistence on the part of the of the Pritzkers, Salomon Brothers being
directors that two modifications to the offer be charged with the responsibility of doing
made. First, they required that any potential "whatever possible to see if there is a superior
competing bidder be given access to the same bid in the marketplace over a bid that is on the
information concerning Trans Union that had table for Trans Union". In undertaking such
been provided to the Pritzkers. Second, the project, it was agreed that Salomon Brothers
merger documents were to be modified to would be paid the amount of $500,000 to cover
reflect the fact that the directors could accept a
its expenses as well as a fee equal to 3/8ths of
better offer and would not be required to 1% of the aggregate fair market value of the
recommend the Pritzker offer if a better offer consideration to be received by the company in
was made. the case of a merger or the like, which meant
that in the event Salomon Brothers should find
… the evidence is clear that the intention a buyer willing to pay a price of $56.00 a share
underlying that language was to make specific instead of $55.00, such firm would receive a
the right that the directors assumed they had, fee of roughly $2,650,000 plus disbursements.
that is, to accept any offer that they thought
was better, and not to recommend the Pritzker As the first step in [**109] proceeding to
offer in the face of a better one. At the carry out its commitment, Salomon Brothers
conclusion of the meeting, the proposed merger had a brochure prepared, which set forth Trans
was approved. Union's financial history, described the
company's business in detail and set forth
At a subsequent meeting on October 8, Trans Union's operating and financial
1981 the directors, with the consent of the projections. Salomon Brothers also prepared a
Pritzkers, amended the Merger Agreement so list of over 150 companies which it believed
as to establish the right of Trans Union to might be suitable merger partners, and while
solicit as well as to receive higher bids, [*896] four of such companies, namely, General
although the Pritzkers insisted that their merger Electric, Borg-Warner, Bendix, and Genstar,
proposal be presented to the stockholders at the Ltd. showed some interest in such a merger,
same time that the proposal of any third party none made a firm proposal to Trans Union and
was presented. A second amendment, which only General Electric showed a sustained
became effective on October 10, 1981, further
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488 A.2d 858, *; 1985 Del. LEXIS 421, **;
46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921
interest. n1 As matters transpired, no firm offer in which the merger would be voted. On
which bettered the Pritzker offer of $55 per January 26, 1981 the directors held their
share was ever made. regular meeting. At this meeting the Board
discussed the instant merger as well as all
events, including this litigation, surrounding it.
n1 Shortly after the announcement of At the conclusion of the meeting the Board
the proposed merger in September senior unanimously voted to recommend to the
members of Trans Union's management stockholders that they approve the merger.
got in touch with KKR to discuss their Additionally, the directors reviewed and
possible participation in a leverage approved a Supplemental Proxy Statement
buyout scheme. On December 2, 1980 which, among other things, advised the
KKR through Henry Kravis actually stockholders of what had occurred at the instant
made a bid of $60.00 per share for Trans meeting and of the fact that General Electric
Union stock on December 2, 1980 but had decided not to make an offer. On February
the offer was withdrawn three hours after 10, 1981 [*897] the stockholders of Trans
it was made because of complications Union met pursuant to notice and voted
arising out of negotiations with the overwhelmingly in favor of the Pritzker
Reichman family, extremely wealthy merger, 89% of the votes cast being in favor of
Canadians and a change of attitude it.
toward the leveraged buyout scheme, by
Jack Kruzenga, the member of senior I have no quarrel with the majority's
management of Trans Union who most analysis of the business judgment rule. It is
likely would have been President and the application of that rule to these facts
which is wrong. An overview of the entire
Chief Operating Officer of the new
record, rather than the limited view of bits and
company. Kruzenga was the President
pieces which the majority has exploded like
and Chief Operating Officer of the seven
popcorn, convinces me [**111] that the
subsidiaries of Trans Union which
directors made an informed business judgment
constituted the backbone of Trans Union
which was buttressed by their test of the
as shown through exhaustive studies and
market.
analysis of Trans Union's intrinsic value
on the market place by the respected At the time of the September 20 meeting
investment banking firm of Morgan the 10 members of Trans Union's Board of
Stanley. It is interesting to note that at Directors were highly qualified and well
no time during the market test period did informed about the affairs and prospects of
any of the 150 corporations contacted by Trans Union. These directors were acutely
Salomon Brothers complain of the time aware of the historical problems facing Trans
frame or availability of corporate records Union which were caused by the tax laws.
in order to make an independent They had discussed these problems ad
judgment of market value of 100% of nauseam. In fact, within two months of the
Trans Union. September 20 meeting the board had reviewed
and discussed an outside study of the company
done by The Boston Consulting Group and an
[**110]
internal five year fore-cast prepared by
On January 21, 1981 a proxy statement was management. At the September 20 meeting
sent to the shareholders of Trans Union Van Gorkom presented the Pritzker offer, and
advising them of a February 10, 1981 meeting the board then heard from James Brennan, the
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488 A.2d 858, *; 1985 Del. LEXIS 421, **;
46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921
company's counsel in this matter, who I respectfully dissent.
discussed the legal documents. Following this, Considering the standard and scope of our
the Board directed that certain changes be made review under Levitt v. Bouvier, Del. Supr., 287
in the merger documents. These changes made A.2d 671, 673 (1972), I believe that the record
it clear that the Board was free to accept a taken as a whole supports a conclusion that the
better offer than Pritzker's if one was made. actions of the defendants are protected by the
The above facts reveal that the Board did business judgment rule. Aronson v. Lewis, Del.
not act in a grossly negligent manner in Supr., 473 A.2d 805, 812 (1984); Pogostin v.
informing themselves of the relevant and Rice, Del. Supr., 480 A.2d 619, 627 (1984). I
available facts [**112] before passing on the also am satisfied that the record supports a
merger. To the contrary, this record reveals conclusion that the defendants acted with the
that the directors acted with the utmost care complete candor required by Lynch v. Vickers
in informing themselves of the relevant and Energy Corp., Del. Supr., 383 A.2d 278 (1978).
available facts before passing on the merger. Under the circumstances I would affirm the
CHRISTIE, Justice, dissenting: judgment of the Court of Chancery.
