James Hays v. John Berlau ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3799
IN RE: WALGREEN CO. STOCKHOLDER LITIGATION (HAYS, et al. v.
WALGREEN CO., et al.)
APPEAL OF: JOHN BERLAU, Objector.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 9786 — Joan B. Gottschall, Judge.
____________________
ARGUED JUNE 2, 2016 — DECIDED AUGUST 10, 2016
____________________
Before POSNER and SYKES, Circuit Judges, and YANDLE,
District Judge. *
POSNER, Circuit Judge. In merger litigation the terms
“strike suit” and “deal litigation” refer disapprovingly to
cases in which a large public company announces an agree-
ment that requires shareholder approval to acquire another
*Of the Southern District of Illinois, sitting by designation. Judge Yandle
dissents from the panel’s decision. Her dissent will be issued separately
in due course.
2 No. 15-3799
large company, and a suit, often a class action, is filed on be-
half of shareholders of one of the companies for the sole
purpose of obtaining fees for the plaintiffs’ counsel. Often
the suit asks primarily or even exclusively for disclosure of
details of the proposed transaction that could, in principle at
least, affect shareholder approval of the transaction. But al-
most all such suits are designed to end—and very quickly
too—in a settlement in which class counsel receive fees and
the shareholders receive additional disclosures concerning
the proposed transaction. The disclosures may be largely or
even entirely worthless to the shareholders, in which event
even a modest award of attorneys’ fees ($370,000 in this case)
is excessive and the settlement should therefore be disap-
proved by the district judge. In this case, however, the dis-
trict judge approved the settlement, including a narrow re-
lease of claims and the fee for the plaintiff’s lawyers that the
company had agreed not to oppose. A shareholder named
Berlau, having objected unsuccessfully to the settlement in
the district court, has appealed.
In 2012 Walgreen Co. (usually referred to as
“Walgreens”) acquired a 45 percent equity stake in a Swiss
company named Alliance Boots GmbH, plus an option to
acquire the rest of Alliance’s equity, beginning in February
2015, for a mixture of cash and Walgreens stock. In 2014 the
two companies altered the deal to allow the option to be ex-
ercised earlier. Walgreens announced its intent to purchase
the remainder of Alliance Boots and then engineer a reor-
ganization whereby Walgreens (having swallowed Alliance
Boots) would become a wholly owned subsidiary of a new
Delaware corporation to be called Walgreens Boots Alliance,
Inc. Within two weeks after Walgreens filed a proxy state-
ment seeking shareholder approval of the reorganization,
No. 15-3799 3
the inevitable class action was filed, and 18 days later—less
than a week before the shareholder vote—the parties agreed
to settle the suit.
The suit sought additional disclosures to the sharehold-
ers, disclosures alleged to be likely to affect the shareholder
vote. The settlement required Walgreens to issue several of
the disclosures to the shareholders—that was the entire ben-
efit of the settlement to the class—and released the company
from liability for the other disclosure-related claims made in
the suit. It also authorized class counsel to ask the district
judge to award them $370,000 in attorneys’ fees, without op-
position from Walgreens.
The disclosures agreed to in the settlement (the parties
call these the supplemental disclosures, as shall we) repre-
sented only a trivial addition to the extensive disclosures al-
ready made in the proxy statement: fewer than 800 new
words—resulting in less than a 1 percent increase—spread
over six disclosures.
The supplemental disclosure deemed most significant by
class counsel concerned the nomination to the board of di-
rectors of Walgreens of Barry Rosenstein, who was involved
in a hedge fund that had a 1.5 percent interest in Walgreens
stock. The disclosure states that before his nomination he
had “engaged in preliminary discussions [with Walgreens]
during which [he had] expressed his views regarding
Walgreens and its strategic direction and prospects,” that
Walgreens had entered into a confidentiality agreement with
Rosenstein’s firm, and that there had been further consulta-
tions ending in Walgreens’ concluding “that Mr. Rosenstein
would be a valuable addition to the Board” of Walgreens
Boots Alliance.
4 No. 15-3799
The new disclosure was worthless because it was and is
obvious that Walgreens would not nominate a person for
election to its board of directors without discussing with the
prospective nominee the company’s strategic direction and
prospects. The only new thing to be gleaned from the disclo-
sure related to the timing of the conversations. Rosenstein
had been nominated on September 5, 2014, and the disclo-
sure indicated that there had been conversations stretching
back at least a month. But even without that revelation, the
shareholders would have assumed that Rosenstein’s ap-
pointment to the board had not happened overnight, and the
disclosure revealed no further details about the period or
content of the pre-nomination consultations.
A second supplemental disclosure concerned the alloca-
tion of stock in Walgreens Boots Alliance to two investment
groups, SP Investors and KKR Investors, after the merger.
The disclosure estimated that SP Investors would have about
11.3 percent of the shares and KKR Investors about 4.6 per-
cent. But as these estimates could be derived by simple
arithmetic from data in the proxy statement, the disclosure
added nothing. See, e.g., Werner v. Werner, 267 F.3d 288, 299–
300 (3d Cir. 2001).
Supplemental disclosure number three: in 2014, shortly
before Walgreens and Alliance decided to merge,
Walgreens’ executive vice president and chief financial of-
ficer and president of its international division, Wade D. Mi-
quelon, had resigned from the company and sued it for def-
amation. The proxy statement did not mention Miquelon’s
resignation or his suit; the supplemental disclosure listed the
claims made in his suit and said that Walgreens had denied
them. There was no suggestion that the suit (seven of the
No. 15-3799 5
nine counts of which were dismissed in 2015) could have
had a significant impact on the formation or operation of
Walgreens Boots Alliance, or that it was even related to the
formation of the new company.
Supplemental disclosure number four: The proxy state-
ment included a bullet-point list of risk factors that the
Walgreens board had considered in deciding whether to
merge with Alliance Boots. The supplemental disclosure
added four to the list—but all were based on language found
in the proxy statement. The additional disclosure provided
no new information to shareholders.
Supplemental disclosure five: The proxy statement noted
that Stefano Pessina, who was designated to become CEO of
Walgreens Boots Alliance and had interests in Alliance Boots
resulting from his affiliation with SP Investors had, along
with one other member of Walgreens’ board, not voted on
whether to approve the merger. The supplemental disclo-
sure explained that “as a result of their interest in the pro-
posed transaction” the two had recused themselves from the
Board’s decision to exercise Walgreens’ option to buy the
rest of Alliance Boots. The supplemental disclosure merely
stated the reason they’d not voted, and there is nothing to
suggest that the disclosure of that reason could have upend-
ed the merger. And their recusal from voting on the reorgan-
ization because of their financial interest in it had been high-
lighted elsewhere in the proxy statement. Class counsel ar-
gues that the disclosure revealed that the two board mem-
bers also had not participated in discussions leading up to
the shareholder vote, but the disclosure does not say that.
Supplemental disclosure number six, the last supple-
mental disclosure, also concerns Pessina. According to a
6 No. 15-3799
public filing, he had been appointed acting CEO of the new
entity because of his “extensive leadership experience and
knowledge of Walgreens and Alliance Boots.” The statement
went on to list previous positions he’d held, and boards he’d
sat on. The supplemental disclosure embroidered the enu-
meration of Pessina’s qualifications by remarking that
among the “factors” that the board had considered were his
“considerable knowledge of the industries in which both
Walgreens and Alliance Boots operate, his familiarity with
both … businesses and leadership teams and his interna-
tional experience and background in managing global busi-
nesses.” This was frosting on the cake—the cake consisting
of the detailed enumeration in the public filing of his busi-
ness history. And to be told that the board considered “a
number of factors” was to be told nothing.
The reorganization that ratified Walgreens Boots Alliance
was approved by 97 percent of the Walgreens shareholders
who voted. It is inconceivable that the six disclosures added
by the settlement agreement either reduced support for the
merger by frightening the shareholders or increased that
support by giving the shareholders a sense that now they
knew everything. This conclusion is supported by recent
empirical work which shows that there is little reason to be-
lieve that disclosure-only settlements ever affect shareholder
voting. Jill E. Fisch, Sean J. Griffith & Steven Davidoff Solo-
mon, “Confronting the Peppercorn Settlement in Merger Lit-
igation: An Empirical Analysis and a Proposal for Reform,”
93 Tex. L. Rev. 557, 561, 582–91 (2015). The value of the dis-
closures in this case appears to have been nil. The $370,000
paid class counsel—pennies to Walgreens, amounting to
0.039 cents per share at the time of the merger—bought
nothing of value for the shareholders, though it spared the
No. 15-3799 7
new company having to defend itself against a meritless suit
to void the shareholder vote.
In deciding whether to approve a class settlement, a
court must consider whether the agreement benefits class
members. See Crawford v. Equifax Payment Services, Inc., 201
F.3d 877, 882 (7th Cir. 2000). Disclosures are meaningful only
if they can be expected to affect the votes of a nontrivial frac-
tion of the shareholders, implying that shareholders found
the disclosures informative. As explained by the Supreme
Court in TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438,
449 (1976), “an omitted fact is material if there is a substan-
tial likelihood that a reasonable shareholder would consider
it important in deciding how to vote. … What th[is] standard
… contemplate[s] is a showing of a substantial likelihood
that, under all the circumstances, the omitted fact would have
assumed actual significance in the deliberations of the reasonable
shareholder." Id. (emphasis added). Cf. Thomas Hazen, 2 Law
of Securities Regulation § 9:19 (7th ed. 2016). The supple-
mental disclosures in this case did not do that; they con-
tained no new information that a reasonable investor would
have found significant. It is not to be believed that had it not
been for those disclosures, not 97 percent of the shareholders
would have voted for the reorganization but 100 percent or
99 percent or 98 percent.
In Eubank v. Pella Corp., 753 F.3d 718, 720 (7th Cir. 2014),
we “remarked the incentive of class counsel, in complicity
with the defendant’s counsel, to sell out the class by agreeing
with the defendant to recommend that the judge approve a
settlement involving a meager recovery for the class but
generous compensation for the lawyers—the deal that pro-
motes the self-interest of both class counsel and the defend-
8 No. 15-3799
ant and is therefore optimal from the standpoint of their pri-
vate interests.” Except that in this case the benefit for the
class was not meager; it was nonexistent. The type of class
action illustrated by this case—the class action that yields
fees for class counsel and nothing for the class—is no better
than a racket. It must end. No class action settlement that
yields zero benefits for the class should be approved, and a
class action that seeks only worthless benefits for the class
should be dismissed out of hand. See, e.g., Robert F. Booth
Trust v. Crowley, 687 F.3d 314, 319 (7th Cir. 2012).
The district judge approved the settlement agreement—
but with misgivings. She remarked that “in the future, espe-
cially if there are issues like this [financial issues concerning
a $15 billion transaction], hearing from someone who’s not a
lawyer who could explain to me that it [she meant the sup-
plemental disclosures] mattered would have been very, very
helpful.” She could of course have appointed her own expert
to explain the significance (or rather lack thereof) of the sup-
plemental disclosures, see Fed. R. Evid. 706, and she should
have done that given her doubts about the lawyers’ explana-
tions.
She went on to say that she’d “been persuaded that at
least the following supplemental disclosures may have mat-
tered to a reasonable investor” (emphasis added). “May
have” is not good enough. Possibility is not actuality or even
probability. The question the judge had to answer was not
whether the disclosures may have mattered, but whether
they would be likely to matter to a reasonable investor. She
did list the supplemental disclosures that she thought “may
have mattered,” but it was a bare list, devoid of meaningful
explanation of why they may have mattered (let alone why
No. 15-3799 9
they did matter)—with just one exception. Regarding the
supplemental disclosure concerning Miquelon’s lawsuit, the
judge said that although “somewhat skeptical” of its im-
portance she had been convinced by class counsel that “it
isn’t a frivolous point and may well have alerted investors to
issues they would have otherwise ignored about turmoil in
the company.” But keeping in mind the size of the transac-
tion to which the disclosures were supposed to pertain, a
bare assumption that Miquelon’s lawsuit would cause or
signal “turmoil” that would deter the stockholders from vot-
ing for the creation of Walgreens Boots Alliance was too
farfetched to be credited on the basis of the lawyers’ self-
interested say so, with no inquiry into the likely effect of the
suit on the transaction.
The district judge was handicapped by lack of guidance
for judging the significance of the disclosures to which the
parties had agreed in order to settle the class action at nomi-
nal cost to the defendant (because class counsel’s fees were
small potatoes to the giant new company and the disclosures
irrelevant to the shareholders and thus incapable of prevent-
ing the reorganization) and sweet fees for class counsel, who
devoted less than a month to the litigation, a month’s activi-
ty that produced no value.
Delaware’s Court of Chancery sees many more cases in-
volving large transactions by public companies than the fed-
eral courts of our circuit do, and so we should heed the re-
cent retraction by a judge of that court of the court’s “will-
ingness in the past to approve disclosure settlements of mar-
ginal value and to routinely grant broad releases to defend-
ants and six-figure fees to plaintiffs’ counsel in the process.”
The result has been to “cause[] deal litigation to explode in
10 No. 15-3799
the United States beyond the realm of reason. In just the past
decade, the percentage of transactions of $100 million or
more that have triggered stockholder litigation in this coun-
try has more than doubled, from 39.3% in 2005 to a peak of
94.9% in 2014.” In re Trulia, Inc. Stockholder Litigation, 129
A.3d 884, 894 (Del. Ch. 2016).
And so Trulia adopted a clearer standard for the approv-
al of such settlements, id. at 898–99 (footnotes omitted, em-
phasis added), which we endorse, and apply in this case:
Returning to the historically trodden but
suboptimal path of seeking to resolve disclo-
sure claims in deal litigation through a Court-
approved settlement, practitioners should ex-
pect that the Court will continue to be increas-
ingly vigilant in applying its independent
judgment to its case-by-case assessment of the
reasonableness of the “give” and “get” of such
settlements in light of the concerns discussed
above. To be more specific, practitioners
should expect that disclosure settlements are
likely to be met with continued disfavor in the
future unless the supplemental disclosures ad-
dress a plainly material misrepresentation or omis-
sion, and the subject matter of the proposed re-
lease is narrowly circumscribed to encompass
nothing more than disclosure claims and fidu-
ciary duty claims concerning the sale process,
if the record shows that such claims have been
investigated sufficiently. In using the term
“plainly material,” I mean that it should not be
a close call that the supplemental information
No. 15-3799 11
is material as that term is defined under Dela-
ware law. Where the supplemental information
is not plainly material, it may be appropriate
for the Court to appoint an amicus curiae to as-
sist the Court in its evaluation of the alleged
benefits of the supplemental disclosures, given
the challenges posed by the non-adversarial
nature of the typical disclosure settlement
hearing.
We’ve italicized the key term in the quoted passage: the
misrepresentation or omission that the supplemental disclo-
sures correct must be “plainly material,” cf. Appert v. Morgan
Stanley Dean Witter, Inc., 673 F.3d 609, 616–17 (7th Cir. 2012),
as they were not in this case. If immaterial their correction
does nothing for the shareholders. And we add that it’s not
enough that the disclosures address the misrepresentation or
omissions: they must correct them. Neither requirement was
satisfied in this case.
A class “representative who proposes that high transac-
tion costs (notice and attorneys’ fees) be incurred at the class
members’ expense to obtain [no benefit] … is not adequately
protecting the class members’ interests.” In re Aqua Dots
Products Liability Litigation, 654 F.3d 748, 752 (7th Cir. 2011).
Courts also have “a continuing duty in a class action case to
scrutinize the class attorney to see that he or she is adequate-
ly protecting the interests of the class, and if at any time the
trial court realizes that class counsel should be disqualified,
the court is required to take appropriate action.” In re Revlon,
Inc. Shareholders Litigation, 990 A.2d 940, 955 (Del. Ch. 2010)
(quoting 4 Newberg on Class Actions § 13:22, at 417 (2002)).
12 No. 15-3799
The oddity of this case is the absence of any indication
that members of the class have an interest in challenging the
reorganization that has created Walgreens Boots Alliance.
The only concrete interest suggested by this litigation is an
interest in attorneys’ fees, which of course accrue solely to
class counsel and not to any class members. Certainly class
counsel, if one may judge from their performance in this liti-
gation, can’t be trusted to represent the interests of the class.
Because the settlement can’t be approved, we reverse the
district court’s judgment. And since class counsel has failed
to represent the class fairly and adequately, as required by
Federal Rule of Civil Procedure 23(g)(1)(B) and (g)(4), the
district court on remand should give serious consideration to
either appointing new class counsel, cf. Fed. R. Civ. P.
23(g)(1), or dismissing the suit. Cf. Robert F. Booth Trust v.
Crowley, supra, 687 F.3d at 319.
REVERSED AND REMANDED, WITH DIRECTIONS.