* Unusual lawsuits take aim at Freeport board
* Suits similar to case that led to record judgment
* Deals are unlikely to be derailed
By Tom Hals
WILMINGTON, Del., Jan 24 (Reuters) - Copper miner Freeport-McMoRan Copper & Gold Inc’s $9 billion deal to buy two energy exploration companies has put the company and its directors in an unusual position.
A flurry of lawsuits in Delaware accuses Freeport and its directors of paying too little for McMoRan Exploration Co and Plains Exploration & Production Co, as well as paying too much.
Companies leading a takeover routinely face class actions from the shareholders of target companies who complain the purchase price is too low, and those lawsuits normally settle for little more than added information about how the deal was negotiated.
What is far more unusual - and potentially more uncomfortable for Freeport’s directors - is for shareholders of the acquiring company to go after their own directors for overpaying, something that has only occurred in a handful of deals.
At the center of the dispute are the overlapping boards of Freeport and McMoRan, which resulted from their shared origins as spin-offs from Freeport-McMoRan Inc in the mid 1990s, and the divergent impact Freeport’s acquisition of McMoRan has had on the stock of the two companies.
When Freeport announced the two acquisitions on Dec. 5, it agreed to pay a premium of 74 percent over McMoRan Exploration’s closing price the previous day.
Six Freeport directors are also on McMoRan’s board and they have big stakes in the target company. Thanks to the deal, the directors will reap $131 million for their stock in McMoRan, a company that is teetering on bankruptcy, according to the lawsuits by Freeport investors. Freeport Chairman James Moffett, who is also McMoRan’s chief executive, could collect $73 million cash for his McMoRan shares, according to Reuters data.
Freeport’s directors are not the only ones to benefit. Freeport is also buying Plains, which held 31.5 percent of McMoRan. As a result of that deal, James Flores, Plains’ chairman and a director of McMoRan, stands to gain more than $200 million due to the vesting of stock options, a change-in-control clause in his contract and his stockholdings, according to regulatory filings.
Freeport shareholders were less fortunate. The company’s stock plunged 16 percent when the two deals were announced, although the stock has since recovered nearly half of the decline.
Freeport declined to comment on the lawsuits, while Plains and McMoRan did not immediately respond to a request for comment. Neither company has answered the lawsuits, which were filed in the Court of Chancery in Delaware, where the three companies are incorporated.
The Freeport investors’ action is a derivative lawsuit in which the shareholders represent the corporation against its directors. Any judgment or settlement would be paid to the company, not directly to shareholders.
The majority of the lawsuits filed against all three companies were brought by individual investors, and a few were filed by union pension funds. More cases may be on the way.
Legal experts noted similarities between the Freeport case and a derivative lawsuit that was brought against the directors of mining company Southern Copper Corp over the purchase of Minera Mexico in 2005.
In that case, Chancellor Leo Strine in 2011 ordered the repayment of $1.3 billion that Southern Copper overpaid, one of the biggest judgments in the history of Delaware’s Court of Chancery.
But there is a big difference between the two situations. In the Southern Copper case, the parent company of both the acquirer and the target was Grupo Mexico. That meant Strine could order Grupo Mexico to return the overpayment.
In the Freeport case, it is less clear who, if anyone, would return money to Freeport if the Freeport shareholders are successful.
John Noble, the judge overseeing the Freeport lawsuits, could just decide the directors should surrender what they personally gained from any overpayment, legal experts said.
In another similar case, shareholders of Barnes & Noble Inc sued after the bookseller agreed in 2009 to a deal with its chairman, Leonard Riggio, to buy his chain of college bookstores. The lawsuit alleged Barnes & Noble overpaid and the case settled last year for $22.75 million.
Adding to pressure on the Freeport directors are allegations in the lawsuits that they violated their duty of loyalty to the corporation. Such allegations can be expensive to defend against because the burden of proof may fall on the board, according to Brian Quinn, a professor at the Boston College Law School.
“It’s a not a place you want to be as a director,” said Quinn.
As a result, the directors may be more eager to strike a settlement rather than fight for a dismissal, Quinn said.
Despite the lawsuits, legal experts said the deals are likely to close.
For one, the court could allow the deals to go ahead after determining that the allegations can be remedied by ordering the directors to pay damages.
In addition, Delaware law allows deals to proceed that involve conflicts of interest under certain conditions, which seem to have been met in this case. The deals have to be negotiated by special committees of independent directors with their own advisers, as these were, and all material information and conflicts have been disclosed.
In addition, the lawsuits brought by McMoRan and Plains investors can be neutralized because those investors will get a vote on the deal.
Still, if some hidden conflict of interest turns up as plaintiffs’ attorneys comb through evidence and take depositions from the directors and their advisors, it could derail the transactions.
Overall, the contradictory claims in the lawsuits, that Freeport both overpaid and underpaid, could work against all the plaintiffs, legal experts said.
“While both sides could theoretically win, rationally one of them has to be wrong,” said Jay Brown, a professor at the Sturm College of Law at the University of Denver. “Rather than pick sides, the Delaware courts are more prone to conclude that the matter was appropriately within the discretion of the board (particularly the special committee), without taking sides.”
There are approximately 20 cases in the Court of Chancery. Those brought by Plains investors have been grouped as In re: Plains Exploration & Production Co Shareholders Litigation, No. 8090.
The cases by the McMoRan investors have not yet been consolidated. The first filed case is Steven Kosoff IRA vs McMoRan Exploration Co et al, No. 8100.
The derivatives cases by Freeport investors have not yet been consolidated. The first filed is Jacksonville Police & Fire Pension Fund vs James R Moffett et al, No. 8110.