Transcript MA Section 1a: Shareholding

Mergers & acquisitions
Section 1a:
Shareholding
Prof. Amitai Aviram
[email protected]
University of Illinois College of Law
Copyright © Amitai Aviram. All Rights Reserved
S16D
Shareholding
Overview of Section 1a
1. Share ownership
– Ownership structures
– Ownership mechanics (in public firms)
– Owner motivations
2. FD of controllers
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Ownership structures
Sole ownership
• Ownership in a firm means the control rights to direct its behavior
and the economic rights to its residual assets (either periodically as
dividends, or at the time the firm is liquidated)
1. Sole ownership: one person has all firm’s control & economic rights
– The most common situation of sole ownership is a wholly-owned subsidiary
– Managerial agency costs (cost/risk for owners to monitor corporate actors): low
relative to other firms – the sole owner has a strong incentive to monitor the
actors, and the ability to punish actors she doesn’t approve of
– Majoritarian agency costs (cost/risk that some owners will exploit other
owners): none, since there is just one owner
– Access to equity capital: none, because firm can’t raise capital by selling shares;
it can still finance itself from its profits, from the owner’s funding, and by
borrowing (but lenders don’t get to control the firm, so they’d be reluctant to
lend much or will demand high interest and collateral)
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Ownership structures
Concentrated ownership
2. Concentrated ownership: Firm has C (SH with enough control rights
to force a SH vote on an issue & then win the vote), as well as MSHs
– C may be 1 person, or group that effectively exercises direct control:
• Low cost to act collectively (e.g., clear hierarchy, easy for group to meet)
• Similar business interests
• Equal access to info/expertise
– Typically, >50%, but in many firms less than 50% is still enough to control (and if
SH voting requires a supermajority, 51% may not be enough)
– Sometimes concentrated ownership results from C owning a special class of
“supervoting shares” (more votes per share), or MSHs owning nonvoting shares
– Managerial agency costs: low to medium; C monitors corporate actors, but:
• C gets less than 100% of benefits of monitoring, so less effort monitoring;
• C may collude with corporate actors to extract value from firm at expense of MSHs
– Majoritarian agency costs: high; C has incentive & ability to tunnel
– Access to equity capital: limited; firm can issue shares, but:
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• Limited in # of voting shares it issues, because C won’t allow losing control
• Potential SHs deterred by risk of C’s tunneling
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Ownership structures
Dispersed ownership
3. Dispersed ownership: Firm does not have a C; only MSHs
– Example: firm in which largest SH has 4%; largest 10 SHs together have 15%
– Another example: Italian mutually-owned banks (Popolari) has a rule of one
vote per SH (rather than one vote per share) – result is that no one can control
the firm, since buying more shares does not increase one’s votes
– Managerial agency costs: high; MSHs unlikely to monitor corporate actors
• Each MSH only gets tiny portion of value of monitoring, but bears full cost
• Even if MSH did monitor & find a problem, MSH can’t do much to control the board
• Exception: activist SHs are MSHs who are willing & able to monitor corporate actors,
typically in the hopes of creating a large short-term profit (activism is expensive and
risky, so the ordinary returns of a good firm are likely not enough, and activist wants
to be able to cut losses quick and move on)
– Majoritarian agency costs: low to medium; no controller, but activist SHs may
force firm to act in their benefit, but not always in benefit of other MSHs
– Access to equity capital: broad; firm can issue shares
• MSHs don’t object to dilution of control rights (since they can’t/won’t exercise
control rights), as long as price of shares is fair
• No risk of C tunneling to deter potential SHs
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Ownership structures
Advantages & disadvantages
Ownership
Managerial
Agency Costs
Majoritarian
Agency Costs
Access to
equity capital
Sole (no MSHs)
Low
None
None
Concentrated (C + MSHs)
Low-Medium
High
Limited
Dispersed (no C)
High
Low-Medium
Broad
• Which factor matters most? This changes over time, place & industry
– Managerial agency costs matter more when corporate actor performance is
difficult for outsiders to assess
– Majoritarian agency costs matter more when SHs widely differ in their vision of,
benefit from, or knowledge about the firm
– Access to equity capital matters more when business has negative cashflow &
when equity markets are more efficient relative to debt markets
• Because optimal ownership structure changes over time, Law allows
firms to shift firm between sole, concentrated & dispersed ownership
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Ownership structures
Shifting from one ownership structure to another
• Sole to concentrated: firm issues new shares to MSHs
• Sole to dispersed: issue more shares to MSHs (or C sells some of her
shares to many different SHs), so no SH has enough shares to control
• Concentrated to dispersed: same as sole to dispersed
• Dispersed to concentrated: C buys shares from many MSHs, until she
has enough shares to control the firm
• Concentrated/dispersed to sole
– This is a challenge, because some MSHs are likely to hold-out and not sell to C,
in order to get more money
– Solution: freezeout (deal between C & firm that forces MSHs to sell their
interest in the firm to C; similar to eminent domain in property law)
– E.g., short form merger (“SFM”): if C owns ≥90% of shares, law allows C to
force MSHs to sell to her, but MSHs can petition court to determine fair price
– C can also freezeout without first owning 90% of shares – in that case
(illustrated on the next slide) transaction is called a long-form merger (“LFM”)
• LFMs require approval by majority of SHs (SFMs don’t require SH approval)
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Ownership structures
Freezeout: from concentrated to sole ownership
1. Before the merger
C
MSHs
60%
40%
Firm
2. C merges with Firm, paying $100 to SHs
C
MSHs
-$100
+$60
+$40
3. After the merger
C + Firm
MSHs
-$40
+$40
Firm
– In a freezeout, individual MSHs don’t get a choice (must sell)
• SH meeting approval required in LFM, but individual SHs can’t opt out
– Reason: if individual SHs can opt out, there’s a hold-out problem
• But we want MSHs to get fair price (or no one would want to become a MSH)
• Who negotiates with C on price? Why not the individual SHs?
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Ownership structures
Freezeout: ensuring a fair price
• One solution to the fair price problem is to have an independent
party (a judge) decide the fair price
• This is called an appraisal: SHs reject the price offered by C, and
petition the court to determine the fair price
– Delaware law gives SHs the option of appraisal
• This can result in some SHs (who accepted C’s offer) getting the price C offered,
while other SHs (who dissented) getting a different price determined by the court
– Why not have universal appraisal (all SHs get price determined by the court)?
– Indeed, Delaware’s appraisal rules intentionally impose procedural barriers &
don’t allow a class action, in order to limit the # of SHs demanding appraisal
(more about these rules in Section 2a3)
• Optional appraisal still leaves consenting SHs vulnerable
– Solution: Encourage C & firm to negotiate freezeout in a way that bypasses CoI
– Typically, this is done by creating a special board committee composed of
independent members, which negotiates with C on firm’s behalf
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Ownership structures
Freezeout: ensuring a fair price
•
•
–
–
–
–
Are there any independent directors? C voted them into position
Under Delaware law, this does not create CoI for the director
Yet there remains a taint of conflict
Can we delegate negotiations to SHs? No
SHs unsuited to act collectively in detailed negotiations (better at up/down votes)
Solution: Combine negotiation by special committee (step 1) with approval
by a majority of MSHs (excluding C) (step 2)
1. Transaction negotiated & approved by a special committee or an
independent board majority
–
–
–
–
Committee is independent
Committee satisfied its duty of care
Committee authorized to freely select its advisors (& they’re independent)
Committee authorized to use firm’s full bargaining power (e.g., implement
takeover defenses) & to consider all of the firm’s options
2. Transaction approved by majority of MSHs
–
–
–
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Approval is informed (all material info was disclosed to MSHs)
There is no coercion of the minority (specifically, MSH approval must be
an unwaivable condition to the transaction)
Majority of all MSHs, not just those present at the meeting
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Ownership mechanics
Record SHs & beneficial SHs
• Many SHs acquire stock through brokers
– Every corporation has a SH list; SHs listed in it
are called record SHs (or record owners)
• Many record SHs are intermediaries called
“nominees” or “designees”: firms that hold shares
on behalf of someone else)
• Such stocks are said to be “held in street name”
• Depository Trust Company (DTC) is the most
commonly used nominee
• Why do people hold stocks in street name?
DTC
Record
SH
Citibank
Broker
Jane Doe
Beneficial
SH
– Investor who purchased the shares is the beneficial SH or beneficial owner
• Types of SH lists (relevant for SH inspection rights)
– “CEDE list”: list of record SHs
– NOBO (Non-Objecting Beneficial Owners) list: specifies beneficial SHs
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Ownership mechanics
Designee’s ability to vote shares
• Designee’s ability to vote the shares is limited by contract & stock
exchange rules
• Exchange Act §6(b) requires exchanges to prohibit designees from
voting shares in director elections, with respect to executive
compensation & any other significant matter as determined by SEC
rules
– NYSE rule 452 allows designees, who solicited but didn’t receive instructions
from beneficial SH, to vote the shares on “routine” matters
– Matters addressed by Exchange Act §6(b) would be “non-routine”
• On non-routine matters, these shares (called “broker non-votes”, see
Licht, FN 8) do not count as “voting power present”
• However, since these shares can still vote on routine matters, they
count for establishing a quorum if any routine matter was voted on in
the SH meeting
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Ownership mechanics
Support players in SH governance
• Custody & clearance of securities
– Acts as record SH, provides proxies to facilitate beneficial SH’s use of SH powers
(e.g., voting), settles securities deals
– Dominant player: Depository Trust Corporation (DTC)
• Proxy & voting services
– Distribute proxy materials to beneficial SHs, process proxies, tabulate votes
– Dominant player: Broadridge (spun-off from Automatic Data Processing (ADP))
• Policy analysis
– Investigate issues that SHs are asked to vote on, write reports recommending
to SHs how to vote on these issues
– Dominant player: Institutional Shareholder Services (ISS)
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Owner motivations
Types of owners
• Strategic owners: interested in owning the firm because of the impact
ownership has on their other assets
– E.g., Google buying YouTube to gain synergies (in selling ads, gaining user
information, improving search engine results) from owning both a search
engine and a video streaming service
– E.g., Halliburton (#2 oilfield services firm) buying Baker Hughes (#3) because
the larger firm can lower costs due to economies of scale, to better compete
with the #1 firm (Schlumberger)
• Financial owners: interested in owning the firm because of the
financial gains from that firm’s assets
– Growth (capital gains): gains in the share price (bought it for $5/share, now
share trades for $100); realized only when you sell the shares
• Growth more likely in risky, high-growth industries
– Income: dividends paid periodically by the firm
• Income more likely in mature, low-growth industries (because they don’t need
to reinvest their profits in the business, and they have predictable profits)
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Owner motivations
Typical controllers
• Strategic controller
– Most strategic owners like to control firm to maximize synergies/avoid CoI
• Financial controller
– Founders/active family: deep personal attachment to firm, usually work in firm
• Typically want growth, resist losing control of the firm
– Passive family: usually descendants of firm’s founder, but not involved with the
firm; ownership in firm is often a large part of their total wealth
• Typically want income, or want to sell and diversify
– Private equity: take controlling positions in firms (usually buying the whole
firm, sometimes with other investors if the PE firm can’t afford to buy it alone
• Clients of PE firms are locked-in for several years (e.g., 7 years), so PE firms have a
longer time horizon than hedge funds & other short-term players
• PE firms look for disfavored firms that require changes that take years to implement
• After the PE firm acquires a strategic firm, it makes those changes, and when they
are done the firm is either sold to a strategic firm or to the public
• PE firms use a lot of leverage in their acquisitions (borrow, issue junk bonds) & use
the target as collateral, so they like firms that generate stable, predictable income
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Owner motivations
Typical MSHs
• Strategic MSH
– Sometimes firm uses a minority investment to support an alliance with another
firm, gain influence on it/knowledge from it, or as “beachhead” to control stake
• Retail investors (financial MSH)
– Ordinary people owning stock; typically very small positions & very passive
(either buy & hold, or sell rather than fight if they’re unhappy)
• Institutional investors (financial MSH)
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– Organizations that pool money & invest it
– Tend to take non-controlling positions (allows to invest in more firms & diversify)
– Tend to be passive (i.e., can’t become experts on all their investments), so if
they don’t like the way firm is managed, they are more likely to sell their
investment than fight the management (however, occasionally they team up
with activist SHs to fight)
– Less likely to use leverage (sometimes prohibited from using leverage)
– Vary from very long-term investing to short-term investing
– Common types of institutional investors are: insurance companies,
endowments, sovereign wealth fund, pension funds, active mutual funds,
passive mutual funds (index funds)
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Owner motivations
Typical MSHs
• Hedge funds (financial MSH)
– Less-regulated mutual fund (only open to “sophisticated” investors), charge
higher fees than mutual funds
– Tend to take non-controlling positions in a firm (to diversity & move quickly)
– Tend to have short time horizons (their clients can often take out their money
once a quarter, so the funds need to show a good performance every three
months or risk that investors abandon them)
– Hedge funds differ widely in their strategies
• High frequency traders: use computers to capitalize on tiny market discrepancies
• Merger arbitrageurs (“arbs”): buy shares in potential T, betting it will be acquired
• Activists: pick underperforming firms, then fight a public campaign for firm to take
certain actions that are likely to cause a quick increase in share price (e.g., forcing a
company to sell itself or split itself into multiple firms). If they fail to persuade the
board, they may try to replace it in a proxy fight.
– Tend to use a lot of leverage
– Look for firms they can easily & secretly buy/sell large amounts of shares
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Owner motivations
Leverage and the junk bond market
• SHs can increase risk & return by using mostly borrowed money to
acquire shares; the borrowed money can come from a bank (loan) or
from the market (bonds)
– Lenders typically take a secured interest in the acquired assets (target firm)
• Lenders care mostly about three things:
– Amount of leverage used (how much of the borrowers own money is used
together with the borrowed money)
– Cash generation capacity of the acquired firm/element (it must generate
enough cash to pay the interest charges)
– Volatility of cash generation (the more stable the business, the more appealing
it is to the lenders, since it is less likely that at any given point insufficient cash
will be generated to pay the interest)
• So, significant amounts of money could be borrowed to acquire assets with low
earning volatility, but it is difficult to borrow much for assets with high volatility –
buyers would have to borrow less and use more of their own money
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Shareholding
Overview of Section 1a
1. Share ownership
2. FD of controllers
–
–
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C’s act (that does not involve the firm)
Firm’s act
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FD of controllers
Purpose of FD
• Why impose FD on controllers? (They don’t act on behalf of the firm)
– Similar to logic of apparent authority in agency: C can hide behind the directors
– hire judgment proof directors, have them divert value from MSHs to C, and
MSHs would not be able to collect that value from the directors
• So, C owes a FD if it can influence the board
– The board still owes a FD as well, and they would breach it if they give C
preferential treatment to the MSHs
• FD lets courts examine the fairness of deals between firm & C, as well
as other deals in which C may tunnel (deals in which C receive better
terms than the MSH)
– This is undesirable; courts are not good in allocating value among SHs
– Instead, the law tries to prevent CoI, by giving C & firm an incentive to
negotiate deals in a process that approximates arm’s-length negoitations
• Deal negotiated by a special committee of independent directors
• Deal approved by a majority of MSHs
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– Fairness review is used as a threat if this process is not followed
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FD of controllers
Analysis: Duty & SoR
• When does a SH owe a FD to MSHs?
– SH owes a FD “only if it owns a majority interest in or exercises control
over the business affairs of the corporation” (Ivanhoe Partners v. Newmont
Mining Corp. [Del. 1987])
– Control groups: Multiple SHs considered as a single control group when
connected in some legally meaningful way (e.g., contract to work
together towards a shared goal) (Frank v. Elgamal)
• Which SoR applies?
– When C acts without involving the firm, C’s FD is limited to a duty of care (no
negligence), a duty of disclosure, and a duty not to coerce MSHs (so, C is
allowed to self-deal); SoR is always BJR (Harris)
– When the firm acts:
• If C is on both sides of a transaction, SoR is entire fairness unless firm
implemented “robust procedural protections”, in which case SoR is BJR (MFW)
• Same if C is only on the MSHs’ side of the transaction, but C receives different
terms than MSHs (Frank)
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FD of controllers
C’s unilateral act: Policy
• This category usually involves:
–
–
–
–
C votes her shares
C sells her shares
C buys shares from MSHs
C executes a SFM
• Rule: C may act self-interestedly (no prohibition on self-dealing)
when the firm is not involved (since C’s influence on the firm is irrelevant)
• Selling shares
– When C offers to sell her shares, the buyer (new C) can be a looter (buyer who
plans to tunnel value from firm) or a non-looter (who shares value with MSHs)
– Looter would value firm higher than non-looter, so a looter is likely to offer C a
better price than a non-looter
– C has incentive to accept the looter’s offer (since she won’t be a SH anymore)
– To prevent this perverse incentive, a duty of care to MSHs is imposed on C
when she sells control of the firm to someone
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FD of controllers
C’s unilateral act: Harris v. Carter [Del. Ch. 1990]
• Carter sells control of Atlas to Mascolo
– The Carter group (owners of 52% of Atlas) sold their shares to Mascolo in
return for shares in ISA
– Mascolo falsely claimed that ISA owned two insurance companies
– Mascolo provided Carter with a draft financial statement of ISA that falsely
claimed ownership in another insurance co.
– Atlas CFO analyzed statement & raised questions about its accuracy, but Carter
did not demand explanations
• Mascolo loots Atlas
– Mascolo merges Atlas with ISA
• Result: Mascolo owns 75%; Carter group 13%; others 12%
• Why would Carter agree to drop from 52% to 13%?
– Mascolo makes Atlas buy shares of Hughes (which he owns)
• Harris alleges that price was unfair (too high)
• Does Carter lose something is Harris is correct?
– Presumably Carter wouldn’t do this deal if he suspected Mascolo was looting
• Can Carter be liable to MSHs if he didn’t know Mascolo was looting?
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FD of controllers
C’s unilateral act: Harris
• Is Carter liable to MSHs for the looting?
– Insuranshares [E.D.Pa. 1940]: C breaches DoC to MSHs when selling to a
looter, if C knew of looting plans or if a reasonably prudent person
would have suspected buyer is dishonest & C didn’t conduct a sufficient
investigation
– Levy [NY 1942]: DoC breached only if C knew of looting plans
(otherwise, no liability for negligence)
• Court follows Insuranshares (standard: gross negligence)
– Concerned that Levy standard encourages seller to have “head in the
sand”. What does the court mean?
– But dicta in Abraham [Del.Ch. 2006] suggests Levy more appropriate if
firm’s charter has a §102(b)(7) exculpatory provision
• On exam assume Abraham correctly states the law
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FD of controllers
Other unilateral acts
•
C votes her shares
–
•
C buys shares from MSHs
–
–
•
Solomon v. Pathe Comm. Corp. [Del. 1996]: no duty to offer a fair price; duty
only to provide full disclosure & not coerce the sellers
In re Siliconix Inc. Shareholders Litigation [Del.Ch. 2001]: court confirms entire
fairness does not apply to freeze-out via tender offer
C executes a SFM (freezes out MSHs)
–
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No duty to MSHs
Glassman [Del. 2001]: No duty to offer fair price in a SFM; only duty is to
provide full disclosure of facts required for MSHs to decide if they should opt
for appraisal
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FD of controllers
C’s unilateral act: Some related issues…
• Selling shares: Contractual protection for MSHs
– Common contractual techniques for MSHs to share control premium
• “Tag along” provision (C promises to sell only if MSHs also included in deal)
• MSHs receive a “put option” (option to sell to C), triggered if C sells to
someone else
– When is a C likely to agree to such terms?
• Selling shares: Mandatory “tag along” protection for MSHs
– Some non-US jurisdictions’ corporate laws require an acquirer who buys control
(e.g., over 40%) to offer to buy MSHs’ shares at same price
• Is “C’s unilateral act” a diminishing category?
– Board can, if it chooses, implement takeover defenses that block an acquirer
from buying C’s shares
– Because C’s “unilateral” sale of control depends on firm not imposing takeover
defenses, perhaps Frank should apply?
• Court may rule on this in future. On exam, assume Harris, not Frank, applies.
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FD of controllers
Firm’s act: When is C self-dealing?
• When the firm is involved in an act, C is not allowed to self-deal
– Transactions in which C is on both sides of the deal (Kahn v. MFW)
• E.g., Firm sells assets to/buys assets from C
• Most common cases in this category involve freezeouts
– Transactions in which C receives different terms than MSHs (Frank v. Elgamal)
• E.g., X’s board agrees to sell X to Y. Under the deal, Y pays $10/X share to MSHs,
and pays 1 Y share/X share to C
• In either of these cases:
– SoR is BJR if firm implemented “robust procedural protections” (deal negotiated
by independent special committee & approved by majority of MSHs);
– Otherwise, SoR is entire fairness
• In some cases a firm’s act isn’t a transaction in which C can be on the
other side or receive different terms than MSHs
– In such cases, when you can’t apply MFW or Frank, you can use an older precedent
as a backup: Under Sinclair Oil Corp. v. Levien (Del. 1971), SoR is entire fairness if C
receives something to the exclusion of & detriment to MSHs; otherwise SoR is BJR
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FD of controllers
Firm’s act: “Robust procedural protections”
1. Transaction negotiated & approved by a special committee or an
independent board majority
–
–
–
–
Committee is independent
Committee satisfied its duty of care
Committee authorized to freely select its advisors (& they’re independent)
Committee authorized to use firm’s full bargaining power (e.g., implement
takeover defenses) & to consider all of the firm’s options
2. Transaction approved by majority of MSHs
–
–
•
•
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–
–
Approval is informed (all material info was disclosed to MSHs)
There is no coercion of the minority (specifically, MSH approval must be an
unwaivable condition to the transaction)
Majority of all MSHs, not just those present at the meeting
What if firm implemented each of these protections imperfectly?
SoR is entire fairness; positive aspects of process play role in “fair process”
What if firm implemented only one of the two protections?
– Kahn v. Lynch [Del. 1994]: Normally when plaintiff proves C is self-dealing,
burden of proof is on C to show the challenged transaction’s fairness. However,
if transaction was approved by either the special committee or the majority of
MSHs, burden of proof to show fairness shifts to the plaintiff
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FD of controllers
Firm’s act: Frank v. Elgamal [Del. Ch. 2012]
• American Surgical’s control group
–
–
–
–
Elgamal – CEO, Chairman, director, owns 27.53% of shares
Olmo-Rivas – COO, director, owns 27.58% of shares
Chapa – surgical assistant, owns 8.04% of shares
Chamberlain – surgical assistant, owns 8.04% of shares
Together, control
group owns 71.19%;
has 2 of 5 directors
• Great Point acquires American Surgical for $2.87/share (in cash)
• At the same time it signed the merger agreement, Great Point also
signed three agreements with the control group
– Control group promises to vote their shares in favor of the merger
– After the vote & before the merger, Great Point will buy 17.4% of American
Surgical’s shares owned by the group, in return for 14.9% Great Point shares
(group gets cash for remaining shares, like the rest of American Surgical’s SHs)
– Specify post-merger terms of employment of each control group member
• Effect: MSHs are cashed out at $2.87/share; control group gets same
price for about ¾ of their shares, but get shares in Great Point for the
other ¼ of their shares
– Frank (a MSH) claims this allows C to divert value away from MSHs
– Is there a reason other than taking value from MSHs to give C (but not MSHs)
shares in Great Point?
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FD of controllers
Firm’s act: Frank
• Duty
– Probably none of the SHs is a C individually (since largest SH has 27.58% & at
least one more SH has about as much)
– Court: Multiple SHs considered as a single control group when connected in
some legally meaningful way (e.g., contract to work together towards a shared goal)
• Here, the four SHs were together parties in the three agreements with Great
Point that facilitated the merger – this makes them a single control group
• FN 57: Chapa & Chamberlain are part of the group, even though Elgamal &
Olmo-Rivas together had over 50% of the shares, because they too were part of
the voting, exchange & employment agreements
30
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FD of controllers
Firm’s act: Frank
• SoR
– Court follows In re John Q. Hammons Hotels Inc. Shareholder Litigation [Del.Ch.
2009]: When an acquirer who is not affiliated with C gives different terms to C
and to the MSHs, BJR will apply if the transaction was conditioned on “robust
procedural protections” – i.e., on receiving both special committee & MSH
approval. Otherwise, entire fairness applies.
• Application
– The merger was conditioned on the vote of all SHs, not just MSHs. Even though
in fact a majority of MSHs did vote in favor, this was not a non-waivable
condition in the merger agreement, and therefore this element of procedural
protection fails
– Frank court: If either special committee or MSH approval was implemented,
but not both, entire fairness applies but burden of proof on fairness shifts to
plaintiff
• So, if in trial C can show that the special committee element was satisfied, the
burden of proof to show fairness of deal will shift to Frank
31
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FD of controllers
Summary
C’s unilateral act (act doesn’t involve firm)
• Selling control in the firm
• Buying shares
• Executing a SFM
Firm’s act
• C is on both sides of firm’s transaction
• C receives different terms than MSHs
• C does not receive anything to exclusion
of & detriment to MSHs
32
BJR (duty: only DoC)
Harris
Duty: only disclosure & no coercion Siliconix
Duty: only disclosure
Glassman
Entire fairness (SC+MSH→BJR)
Entire fairness (SC+MSH→BJR)
MFW
Frank
BJR
Sinclair
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