Motion to Extend

AGREED JOINT MOTION FOR EXTENSION OF TIME

Plaintiffs Texas Pacific Land Trust and, solely in their respective capacities as trustees for Texas Pacific Land Trust, David E. Barry and John R. Norris III (collectively, “Plaintiffs”) and Defendant Eric L. Oliver (“Defendant”) hereby file this Agreed Joint Motion for Extension of Time.

On June 17, 2019, Defendant filed a Fed. R. Civ. P. 12(c) Motion for Judgment on the Pleadings [Dkt. 19], resulting in a deadline for Plaintiffs to respond on July 8, 2019 and a deadline for Defendant to file a reply on July 22, 2019. The Parties respectfully request a one- week extension of the deadline for Plaintiffs to respond to Defendant’s Motion, until July 15, 2019. The Parties likewise respectfully request a corresponding extension of the Defendant’s deadline to reply, to August 5, 2019.

These extensions are requested for good cause and not for the purpose of delay. Plaintiffs and Defendant agree to the requested extensions.

Texas Buildout (post modified and renamed)

U.S. refiner Phillips 66 enters offshore oil export race

The project, which is being developed with the Port of Corpus Christi, would compete with nearby shale export terminals proposed by investor Carlyle Group and commodities trader Trafigura AG. Its project would be at least the ninth project proposed for the Gulf Coast.

U.S. crude exports hit 3.12 million barrels per day (bpd) this month from zero before the U.S. lifted a ban on exports in late 2015. Shale oil from fields in Texas, Colorado, New Mexico and North Dakota is projected to push U.S. output to 12.32 million bpd this year, according to U.S. forecasts.

The facility could load up to 1.56 million bpd, nearly the capacity of a supertanker. If approved by the U.S. Maritime Administration, U.S. Coast Guard and Texas regulators, operations could begin in mid-2021, said a person familiar with its plans.

Exxon, Saudis Bet on Plastics Growth in Giant Gulf Coast Plant

Exxon Mobil Corp. and Saudi Arabia’s state-controlled petrochemicals company formally approved construction of a new chemical complex in Texas that will process production from the Permian Basin’s booming oil and natural gas wells.

The project near Corpus Christi will be the world’s largest steam cracker and create $50 billion of “economic output” in the first six years, Exxon and Saudi Basic Industries Corp., known as Sabic, said in a joint statement on Thursday. The facility will convert hydrocarbons such as ethane and propane to ethylene, a chemical used to make everything from plastics to antifreeze.

Amended Counterclaims: Barry’s Election Challenged

AMENDED COUNTERCLAIMS OF ERIC L. OLIVER, SOFTVEST, L.P., HORIZON KINETICS LLC, AND ART-FGT FAMILY PARTNERS LIMITED AGAINST DAVID E. BARRY AND JOHN R. NORRIS III

Posted to the HK TPL page today.   Thanks to a couple of blog readers for the heads up!  Looks like a big one.  As foreshadowed in White’s “Open the Books!” letter, the group is now officially contesting David Barry’s election.  See excerpt below.

In addition to newly stated facts (highlighted below), counts #2 (page 24) and #7 (page 30) appear to be new causes of action (forgive me if I’m butchering this).  #2 claims breach of Declaration of Trust for ghosting shareholders who came into Dallas to attend the 5/22 meeting.  #7 is a request to get Barry’s election OVERTURNED.

Do we need two new Trustees?

C. The SoftVest Plaintiffs Learn That One Of The Incumbent Trustees, David E.
Barry, Was Never Duly Elected

53. Following the May 22, 2019 special meeting at which Mr. Oliver was elected a TPL
trustee, the SoftVest Plaintiffs learned that one of the Incumbent Trustees, David E. Barry, had actually never been duly elected as a trustee of TPL in the first place.

54. Prior to September 27, 2016, TPL’s three trustees were James K. Norwood, Maurice
Meyer III, and John R. Norris III.

55. On September 27, 2016, Mr. Norwood passed away.

56. On November 4, 2016, Messrs. Meyer and Norris nominated Mr. Barry for election
as trustee.

57. On December 7, 2016, Messrs. Meyer and Norris formally noticed a special
shareholder meeting on January 12, 2017 to elect a new trustee and stated in the notice that only record holders of TPL shares as of December 6, 2016 would be eligible to vote. As of December 6, 2016, there were 7,929,780 TPL shares outstanding.

58. Mr. Barry was the only candidate for the new trustee position.

59. The Declaration of Trust provides that, “[i]n the event of the death . . . of any of the
trustees a successor shall be elected at a special meeting of the certificate holders by a majority in the amount of the certificate holders present in person or by proxy at such meeting whose names shall have been registered in the books of the trustees at least fifteen days before such meeting.”

60. After the meeting on January 12, 2017, TPL claimed that 6,905,319 shares were present in person or by proxy at the meeting, of which 4,421,776 (64%) voted for Mr. Barry and 2,483,543 (36%) voted against him. Horizon Kinetics was one of the shareholders to vote against the election of Mr. Barry. TPL announced that Mr. Barry was elected given that he purportedly received a majority of the votes cast in person or by proxy at the meeting.

61. As the SoftVest Plaintiffs recently learned, however, TPL’s vote count was based a
significant error and improperly included votes that were not legally cast.

62. The vast majority of beneficial owners of TPL hold their shares through brokers,
banks or custodians (“brokers”).

63. Proxy solicitations of beneficial owners are typically made through the broker, which
transmits the proxy statement to the beneficial owners. Instead of sending a proxy card, the broker sends the beneficial owners an instruction sheet that the beneficial owners can return to the broker with voting instructions.

64. Rule 452 of the NYSE, approved by the SEC, comes into play when the beneficial
owner does not instruct the broker how to vote the shares. The rule specifies the conditions under which the broker can vote the shares without having received voting instructions from the beneficial owner.

65. NYSE Rule 452 allows a broker to vote shares held in street name on “routine”
proposals if the broker’s customer, the beneficial owner of the shares, has not provided specific voting instructions to the broker at least ten days before a scheduled meeting. Shares for which no instructions are received are referred to as “uninstructed shares.”

66. But NYSE Rule 452 prohibits brokers from voting shares on “non-routine” proposals,
such as director elections, without specific voting instructions from the beneficial owner.

67. In June 2019, a representative of the New York Stock Exchange confirmed that the
2017 election in which Mr. Barry was a candidate was, at the time, erroneously classified as a “routine” proposal. That representative further confirmed that the election clearly should have been classified as a “non-routine” proposal under NYSE rules. TPL, its trustees, and its agents failed to take corrective action to notify the NYSE when they became aware prior to the scheduled meeting that such mistake had been made, and allowed the “special meeting” to invalidly proceed.

68. The “error” in how the 2017 election was classified greatly inflated the number of
votes cast for Mr. Barry in that election, because it permitted brokers to cast votes on behalf of shares that otherwise would not have voted. On information and belief, but for the error that TPL failed to correct, Mr. Barry would not have received the vote needed to claim an electoral win.

69. TPL has never taken any steps to correct this error. Upon information and belief,
because brokers typically vote in favor of uncontested company proposals, most if not all of the votes that were erroneously cast in 2017 were cast in favor of Mr. Barry; as a result, Mr. Barry did not receive a majority of the votes that were legally cast, and thus was never duly elected a TPL trustee.

Motion to Dismiss + More

HK just posted links to three recent court docs.

The first document is a motion to dismiss.

Looks like the other two are supporting docs.  One is a memorandum of law containing supporting materials to justify the dismissal.  The other is a request that the court reviews much the material we’ve linked to in the past.

The memorandum of law is a fun read.  Some highlights:

Plaintiffs’ contrived claims are nothing but a stalling tactic. Despite their claims of
irreparable harm arising out of alleged misstatements dating back to March 25, 2019, and demands for injunctive relief, Plaintiffs did not file suit until May 21, on the eve of the scheduled shareholder vote, and, to this day, have not moved for injunctive relief. Having lost the debate before TPL’s shareholders, Plaintiffs should not be permitted to frustrate the exercise of those shareholders’ rights through meritless and harassing litigation.

It’s rich that the questionnaire came from Kelley Drye.

On March 25, 2019, TPL announced that it was postponing the special shareholder
meeting, which had not yet been formally called and noticed, from May 8 to May 22. Although Incumbents had expressly declined to consider Mr. Oliver’s nomination just three weeks earlier, TPL’s March 25 press release claimed the postponement was needed to “provide the Trustees with sufficient time to consider [Mr. Oliver’s] nomination.”

Just three days later on March 28, TPL filed a preliminary proxy statement stating that“[t]he Trustees do not endorse Mr. Oliver” and “strongly recommend” that shareholders elect Mr. Young. Ex. 3. Earlier that same day, Kelley Drye—the law firm that promotes Mr. Barry as “a partner in the firm’s New York office,” sent Mr. Oliver for the first time a 66-page “Trustee Questionnaire.” Despite having already summarily rejected Mr. Oliver, Plaintiffs claim that the questionnaire was sent to Mr. Oliver in order to discharge their “duties pursuant to the Trust’s governing documents, to ensure that trustees are not disqualified, both with respect to capabilities and personal character and integrity.”  The questionnaire, however, stated that its “purpose” was to collect information for TPL to use in its proxy statement—i.e., in its campaign against Mr. Oliver.  Plaintiffs also claim that the questionnaire was needed “to secure a fully informed shareholder vote,” but have never publicly disclosed even their own candidate’s questionnaire, if it exists.

Did I say Trustee?  I meant concerned holder of 300 shares.

There is no express private right of action under Section 14(a) of the Exchange Act.
Rather than “open a Pandora’s box by extending” the judicially created private right of action under Section 14(a) to “any person potentially injured by a proxy statement,” the Fifth Circuit has made clear that only stockholders “with voting rights” have standing to pursue a Section 14(a) claim. 7547 Corp. v. Parker & Parsley Dev. Partners, L.P., 38 F.3d 211, 229–30 (5th Cir. 1994) (citing Virginia Bankshares, Inc., v. Sandberg, 501 U.S. 1083, 1106–08 (1991)).

Plaintiff TPL is an issuer, not a shareholder with voting rights. In dismissing a Section
14(a) claim at the pleading stage, Judge Godbey explained that a “corporation with no voting rights in its own stock . . . lacks standing to bring a claim under section 14(a)” because Section 14(a) “protect[s] only interest-holders with voting rights.” Ashford, 2017 WL 2955366, at *9. The Amended Complaint does not allege that Messrs. Barry or Norris are TPL shareholders, but expressly states that each “brings this suit solely in his capacity as a Trustee.” ¶¶ 11–12 (emphasis added). Plaintiffs do not, and cannot, allege that, Messrs. Barry or Norris had any voting rights in their capacities as trustees. See 7547 Corp., 38 F.3d at 229–30 (unit holders who were not entitled to vote at meeting did not have standing under Section 14(a)). Because “voting rights are critical to standing under section 14(a),” id., none of the three Plaintiffs in this action have standing to bring a Section 14(a) claim.

 

 

Let’s Talk

Investor Group Issues Open Letter To Texas Pacific Land Trustees David Barry And John Norris

The primary role of fiduciaries is to put the interests of beneficiaries above their own, yet you appear to not even acknowledge our right of inspection that is unambiguously included in the Declaration of Trust.  Accordingly, we call on you to state in an open letter to all TPL beneficiaries your conception of corporate governance and your conception of the rights of TPL beneficiaries, including the right to inspection.

We look forward to your response and sincerely hope it will lead to a more civilized and constructive discussion concerning corporate governance with the participation of all beneficiaries.

 

White Card Stays on Offense

Investor Group Demands Texas Pacific Land Trustees David Barry And John Norris Recognize Eric Oliver As Third Trustee

Strongly worded letter here. There is a material probability that this could all go very south for the Trustees. That said, Trustee actions have defied logic for months now. My guess is that these guys are far away from resolution.

Eric Oliver has been elected as TPL’s third Trustee, and you are required to recognize him as such.  Given your utter disregard of your basic contractual and fiduciary obligations as trustees under the TPL declaration of trust, and the excesses you have engaged in as it relates to your power and authority under such document, we intend to hold you personally liable for your actions.  

With each further action you take from this point on to prevent Eric Oliver from undertaking his responsibilities as Trustee, you are creating incremental personal liability for yourselves.  All the wasteful expenses you are incurring—purportedly on behalf of the Trust—will be reimbursed by you to TPL’s beneficiaries.