July 5, 2011
Shareholders may state a derivative claim for insider trading without alleging injury to the company–so held the Delaware Supreme Court in an opinion it recently issued in Kahn v. Kohlberg Kravis Roberts & Co., L.P., No. 436, 2010 (June 20, 2011) ("In re Primedia"). Following the In re Primedia decision, plaintiffs can be expected to rely increasingly on derivative actions as a means of pursuing insider trading claims. Although they would be subject to the requirements for asserting derivative claims, plaintiffs may exploit state law to evade many limitations that Congress has imposed on claims under the federal securities laws, including the heightened standard for pleading scienter under the Private Securities Litigation Reform Act of 1995. Significantly, derivative actions may not be removed to federal court under the Securities Litigation Uniform Standards Act of 1998.
The facts of In re Primedia are straightforward. Two shareholders of Primedia, Inc. filed a derivative action on behalf of the company in the Delaware Court of Chancery. The plaintiffs alleged breaches of fiduciary duties by the company’s directors and majority shareholder. Primedia appointed a special litigation committee to review the claims and determine whether it was in the company’s best interest to pursue them. After the special litigation committee completed its investigation, the plaintiffs presented a new claim to the committee’s counsel: that Primedia’s majority shareholder purchased more than $75 million of Primedia’s preferred stock in reliance on material, nonpublic information that it obtained from its representatives on the company’s board of directors. The special litigation committee then reopened its investigation, thoroughly examined the claims, including the insider trading claim, and issued a 347-page report. As detailed in the report, the committee concluded that it was not in the company’s best interest to pursue the claims. Accordingly, the committee moved to dismiss the case.
The Court of Chancery granted that motion on July 14, 2010. In consideration of the special litigation committee’s motion, the Court of Chancery applied the two-part test set forth in Zapata Corp. v. Maldonado. The first step of the Zapata test examines the integrity of the committee’s investigation and conclusions. The second step of the Zapata test is discretionary and permits the court to apply its own business judgment to determine whether the company should pursue a claim that "may be sustainable" when its special litigation committee decides against pursuing that claim.
The Delaware Supreme Court reversed, even though it acknowledged that a pending acquisition would likely moot the issues presented on appeal. Regarding the first step of the Zapata test, the Delaware Supreme Court affirmed the Court of Chancery’s finding that dismissal was appropriate because there was no genuine issue of material fact about the independence and good faith of the special litigation committee, the thoroughness of its investigation, or the reasonableness of its conclusions.
The Delaware Supreme Court found fault-or at least potential fault-however, with the Court of Chancery’s application of the second step of the Zapata test. In particular, it expressed doubt about the Court of Chancery’s reasoning regarding duty of loyalty claims that are based on allegations of insider trading. As the Delaware Supreme Court noted, the Vice Chancellor had recently held in Pfeiffer v. Toll that "in most circumstances a corporation would only be able to recover for ‘actual harm causally related (in both the actual and proximate sense) to the breach of the duty of loyalty.’" The Vice Chancellor had recognized only two exceptions to that rule: he reasoned that disgorgement, as opposed to damages, could be available as a remedy to the corporation if (1) the fiduciary had engaged in "actual fraud" and benefited from "trading on the basis of the fraudulent information"; or (2) "the insider used confidential corporate information to compete directly with the corporation," such as by purchasing stock that the company sought to purchase. The Delaware Supreme Court rejected this reasoning.
In so doing, it explicitly adopted the rule of Brophy v. Cities Service Co. as the law of Delaware. More than six decades ago (long before Congress enacted numerous reforms to curb frivolous claims under the federal securities laws), Chancellor Harrington held that a Delaware corporation may sue its fiduciaries and even "mere employee[s]" who profit by trading in the corporation’s stock based on insider information. Chancellor Harrington squarely rejected the defendant’s contention that such claims must plead actual harm to the company; he reasoned that "[p]ublic policy will not permit an employee occupying a position of trust and confidence toward his employer to abuse that relation to his own profit, regardless of whether his employer suffers a loss." Characterizing Brophy as a "venerable" decision, the Delaware Supreme Court held that "actual harm to the corporation is not required" for a plaintiff to state a claim based on insider trading; a corporation may seek disgorgement of profits obtained through the use of such information even if it suffers no actual injury. Insofar as Pfeiffer v. Toll held otherwise, the court concluded, it "cannot be Delaware law."
Noting that it was uncertain whether the Vice Chancellor relied on Pfeiffer in dismissing the Primedia case, the Delaware Supreme Court remanded the case, instructing the Vice Chancellor to reanalyze the insider trading claim "without any assumption that an element of harm to the corporation must exist before a disgorgement equitable remedy is available." The court’s reasoning was unaffected by the "arguably parallel remedies grounded in federal securities law" or the limitations Congress has imposed on those remedies.
The Primedia decision counsels in favor of reinforcing efforts to manage insider trading liability, which can be particularly risky for several reasons. First, plaintiffs are likely to argue that the reasoning of Brophy, now expressly adopted by the Delaware Supreme Court, suggests that liability is not limited to directors and officers; it may extend even to rank-and-file employees. Second, plaintiffs routinely argue that defendants engage in insider trading by selling stock whenever their company has allegedly failed to disclose a misleading statement or omission. Therefore, plaintiffs can-and often do-re-characterize federal securities claims as insider trading claims in "tag-along" derivative actions. Third, the availability of insurance coverage can be less certain when plaintiffs seek disgorgement from individual defendants, rather than seeking damages for actual harm they may have caused to the company.
In light of these risks, corporations should be reminded of the following precautions:
It is unclear what effect, if any, the Primedia decision will have on the special litigation committee mechanism under Delaware law. As the Delaware Supreme Court acknowledged, the second step of the Zapata test remains discretionary, and on remand the Vice Chancellor may find that the derivative action was properly dismissed under the first step of Zapata.
 430 A.2d 779 (Del. 1981).
 Id. at 11.
 Before the appeal was decided, Primedia entered into an acquisition agreement with TPG Capital, providing that Primedia stock will be converted into the right to receive cash consideration. Since stock ownership is a prerequisite to asserting derivative claims, the plaintiffs will be stripped of standing to pursue their claims when the transaction with TPG closes. The Delaware Supreme Court nonetheless decided to review based on the "public importance" exception to the mootness doctrine, under which the court may decide a moot appeal that raises "matters of public importance that are capable of repetition yet may evade review." In re Primedia, slip op. at 9 (citing Gen. Motors Corp. v. New Castle County, 701 A.2d 819, 824 n.5 (Del. 1997)).
 In re Primedia, slip op. at 23.
 989 A.3d 683, 700 (Del. Ch. 2010).
 In re Primedia, slip op. at 18 (quoting Pfeiffer, 989 A.3d at 700).
 Id. at 17 (quoting Pfeiffer, 989 A.3d at 700).
 70 A.2d 5 (Del. Ch. 1949).
 Id. at 8.
 In re Primedia, slip op. at 13.
 Id. at 12.
 Id. at 23-24.
 Id. at 20.
Gibson, Dunn & Crutcher lawyers are available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn lawyer with whom you work, the authors (Andrew S. Tulumello – Washington, D.C. (202-955-8657, firstname.lastname@example.org), Adam H. Offenhartz – New York (212-351-3808, email@example.com), or Jason J. Mendro – Washington, D.C. (202-887-3726, firstname.lastname@example.org)), or any of the following members of the Securities Litigation Practice Group Steering Committee:
Securities Litigation Group:
Jonathan C. Dickey – Practice Co-Chair, New York (212-351-2399, email@example.com)
Robert F. Serio – Practice Co-Chair, New York (212-351-3917, firstname.lastname@example.org)
Paul J. Collins – Palo Alto (650-849-5309, email@example.com)
George B. Curtis – Denver (303-298-5743, firstname.lastname@example.org)
Ethan Dettmer – San Francisco (415-393-8292, email@example.com)
Gareth T. Evans – Los Angeles (213-229-7734, firstname.lastname@example.org)
Joel A. Feuer – Los Angeles (310-551-8808, email@example.com)
Daniel S. Floyd – Los Angeles (213-229-7148, firstname.lastname@example.org)
Barry R. Goldsmith – New York (212-351-2440, email@example.com)
Mark A. Kirsch – New York (212-351-2662, firstname.lastname@example.org)
John C. Millian – Washington, D.C. (202-955-8213, email@example.com)
Wayne W. Smith – Orange County (949-451-4108, firstname.lastname@example.org)
John H. Sturc – Washington, D.C. (202-955-8243, email@example.com)
M. Byron Wilder – Dallas (214-698-3231, firstname.lastname@example.org)
Meryl L. Young – Orange County (949-451-4229, email@example.com)
Please also feel free to contact any of the Securities Litigation Partners for further information about the topics covered in this alert.
© 2011 Gibson, Dunn & Crutcher LLP
Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.