13 thoughts on “Plaintiff Post Trial Brief”

  1. I have an app I built that let’s you do GenAI summarization of pdf documents and ran this through it. Here is what it spit out for this post trial brief:

    The principal issue in this case is whether Proposal 4 falls within either of the two carveouts in Section 2(b) of the SA. Defendants bear the burden to prove the applicability of these exceptions. Proposal 4 does not come within the Extraordinary Transaction Carveout. The parties knew how to refer to certificate amendments and did so expressly in the Standstill section. The carveout lacks such an express provision.

    Defendants offer conflicting rationales for Proposal 4, referencing unidentified past or future transactions. The carveout addresses a single, identifiable transaction. Most potential deals referenced ended without a proposal due to valuation or other issues.

    Defendants interpret “related to” as limitless, encompassing hypotheticals. This destroys their Voting Commitment, contrary to Delaware law. “Related to” is common in such carveouts but requires an identifiable transaction.

    Proposal 4 does not effect a “recapitalization.” That term’s meaning depends on context. Here, it requires more than a mere change in capitalization. Share authorization does not equal issuance or alter capital structure’s value. Subramanian’s work is flawed, relying on old articles, not addressing key issues. Haas used “recapitalization” and “capital structure” differently than Defendants.

    Proposal 4 is not “related to other matters involving a corporate transaction.” “Corporate transaction” limits the carveout; a certificate amendment does not qualify. References to “other transactions” or “certificate amendments” do not support Defendants. “Corporate transaction” was used but not analyzed in cases and by Haas.

    Proposal 4 does not come within the ESG Carveout. “Governance, environmental or social matters” refers to ESG. The order of terms is irrelevant; evidence shows interchangeability. ESG refers to sustainability, not what Defendants claim. “Governance” has a specific meaning, focused on stockholder rights and board composition. Defendants concede Proposal 4 is not ESG-related.

    The Proviso would apply if Defendants’ interpretations of “governance” and “related to” were credited. Proposal 4 changes a “term” of conversion—the inability to issue more shares. The Plan of Conversion and resolutions define terms to include Annexes A and B. Annex B addresses authorized shares, a mandatory provision. Defendants say Proposal 4 changes the 100% distribution but resist the Proviso’s applicability, misreading it as addressing only Annex B.

    Defendants ignore evidence contradicting their position, waiving arguments. Trade usage, properly considered, undermines them. “Governance” has a particular meaning in company-activist agreements. Weingarten and Goggin analyzed hundreds of agreements; Defendants’ interpretations are outliers. The drafting history, which Defendants put at issue, also undercuts them.

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  2. I’ll never forget this life lesson…..
    After graduating from law school and being admitted to the bar, I decided instead to follow my heart and enter the investment management business.
    On one occasion about two years in to my career I was obviously an innocuous “young kid” riding in an elevator with two older gentlemen. It didn’t take me long to realize that this duo were attorneys….and on opposite sides in some kind of case.
    Over the course of what was no more than a 30 second ride, they were in a discussion about how best to prolong their mutual case….at the expense of both of their clients—calling lots of witnesses, both on direct and redirect, filing motions, etc., etc.
    I got off my ride on the ground floor…just before them. As they exited into a somewhat more crowded space, their demeanor becamje more serious as they shook hands and I heard one of them say: “See you in court later this afternoon.”
    I now know why this whole episode involving TPL brought back that story.

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  3. The fact that many million dollars of shareholder money was wasted by TPL on these garbage arguments sickens me to the core. And the fact that ALL of this mess could have been avoided if the damn Stockholder Agreement had been worded more concisely to begin with about what specific proposals would and would not be covered by the carveouts. Lawyers laughing at us all the way to the bank (whether they win or lose).

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  4. has the lawyers actually thought it through when they put together this? the arguments are no where near as solid as the HK/SV ones….

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  5. I think that the simple use of a dictionary destroys the points TPL’s attorneys use in this brief. How did they ever pass the LSAT?

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  6. I am also biased, but this is weak beer of a closing answering brief on behalf of TPL management. They really don’t confront the fundamental flaws of their suit. Since it seems to be an uphill battle to prove its really not capitalization, or governance, or an extraordinary event, they instead go full word salad.

    Lots of legal buzzwords, weak cited cases, and as tap dancing its pretty good. But it fails to be convincing at the facts level. They make a few points, but they are few and hardly compelling. There is a lot of spin to distance themselves from unhelpful testimony.

    Some first level chutzpah on display, as seen by them trying to make a point the disclosures they got smacked with at trial as being “false and misleading” on the election proxy material were really the “unclean hands” of EO and MS for not objecting sooner. Thats the equivalent of a holdup at the bank, and saying its the fault of the teller for not raising the alarm faster.

    The burden is on the plaintiff to make their case in this matter, I don’t believe it comes anywhere near being strong enough to win on the evidence of the facts presented. If anything, the disclosures at trial significantly harmed their case, as seen by the reversal of the Glass Lewis voting recommendation and a variety of other missteps.

    Does anyone have any insight into the O/A hearing today? I believe it was for oral arguments. I have no knowledge if it was for final oral arguments of the closing briefs that were submitted, or of it was in regard to motions in front of the judge.

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      • Sixdecades,

        Was it just oral arguments following both sides submissions of post trial briefs?

        Two more questions. Could you tell by Judge Laster’s questions or comments anything? And any sense of when a decision is expected?

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        • It was oral arguments on the case merits. TPL claimed standstill breaches as a result of the assertion that Horizon and Sofvest solicited no votes on prop 4. Laster asked Duffy what would happen if he just decided to toss the case if he decided both sides were horrible people. Duffy indicated that would not be appropriate since there were fraudulent claims on the proposal when advanced and the plaintiff should not be rewarded on a fraud or words to that effect. The actual result of that, not discussed Friday, would of course be that the no vote on prop 4 would stand and be a win for stockholders. Seemed like he was looking for an off ramp for himself to me or maybe he is playing poker.

          Laster asked about the status of the proposal and was told it was left as a no vote May 18 pending his ruling, so timing is anybody’s guess but he knows if he tosses the case the fraud is not rewarded.

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  9. Downtrend broken…at long last….or so it appears.

    I’ve used semi-log charting since 1968—-yes I’m old but it works well for me.

    Yesterday’s close broke the longer-term downward movement going back into late last year and reconfirmed other comments about the bottom being put in.

    Another proprietary data set I use (which I created about a decade ago) is a volume/ price “plus/minus” metric in which a stock that declines from one day to the next on lower volume gets a plus whereas if it declines on higher volume than the prior day, in gets a minus; the reverse is also true—an advance on higher volume than the previous day gets a plus while an advance on lower volume gets a minus.

    TPL has shown plusses the last two days whereas the prior 10 days were all minuses….a 10 day stretch one way or the other is quite unusual….which, perversely, I took as a signal that a bottom confirmation was occurring.

    We’ll see how this all plays out but, after sitting on the sidelines for quite a while, I’ve taken a position during what I’ll call an orchestrated “head-fake.”

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