In re Rural Metro Corp.

• Decision Date: 07 March 2014
• Docket Number: C.A. No. 6350–VCL.
• Parties: In re RURAL METRO CORPORATION Stockholders Litigation.
• Court: Court of Chancery of Delaware

88 A.3d 54

In re RURAL METRO CORPORATION Stockholders Litigation.

C.A. No. 6350–VCL.

Court of Chancery of Delaware.

Submitted: Dec. 17, 2013.

Decided: March 7, 2014.

Joel Friedlander, Jeffrey M. Gorris, Jaclyn Levy, Bouchard, Margules & Friedlander, P.A., Wilmington, Delaware; Randall J. Baron, David Knotts, Robbins Geller Rudman & Dowd LLP, San Diego, California; for Plaintiffs.

Patricia R. Uhlenbrock, Seton C. Mangine, Pinckney, Weidinger, Urban & Joyce LLC, Wilmington, Delaware; Alan J. Stone, Daniel M. Perry, Milbank, Tweed, Hadley & McCloy LLP; for Defendant RBC Capital Markets, LLC.

OPINION

LASTER, Vice Chancellor.

On June 30, 2011, Rural/Metro Corporation (“Rural” or the “Company”) merged with an affiliate of Warburg Pincus LLC (“Warburg” or “WP”). Each publicly held share of Rural common stock was converted into the right to receive $17.25 in cash. The plaintiffs contend that the members of the Rural board of directors (the “Board”) breached their fiduciary duties by approving the merger and by failing to disclose material information in the Company's definitive proxy statement (the “Proxy Statement”). The plaintiffs further contend that defendant RBC Capital Markets, LLC (“RBC”) aided and abetted the directors' breaches of fiduciary duty. The directors settled before trial. So did Moelis & Company LLC (“Moelis”), a financial advisor that played a secondary role in advising the Board. The case proceeded to trial against RBC.

This post-trial decision holds RBC liable for aiding and abetting breaches of fiduciary duty by the Board. It does not specify a damages award against RBC or address the plaintiffs' application for fee shifting. The parties will submit further briefing on those issues in accordance with this opinion.

I. FACTUAL BACKGROUND

Trial took place over four days. The plaintiffs proved the following facts by a preponderance of the evidence. In resolving factual disputes and drawing inferences, this decision has placed the greatest weight on the contemporaneous documents. This decision has placed the least weight on the testimony of the two RBC managing directors who appeared at trial. Their accounts at times strained credulity, and the plaintiffs successfully impeached their testimony on multiple occasions.

A. Rural And Its Board

Rural is a Delaware corporation headquartered in Scottsdale, Arizona. Founded in 1948, the Company is a leading national provider of ambulance and fire protection services in more than 400 communities across 22 states. Rural's shares traded on NASDAQ from July 1993 until the merger closed.

Before the merger, the Board had seven members. Robert Wilson, Eugene Davis, Earl Holland, Conrad Conrad, Henry Walker, and Christopher Shackelton were facially independent, disinterested, outside directors. Michael DiMino was Rural's President and CEO. Wilson did not vote on the merger.

Among the outside directors, Shackelton played the most significant role in the events leading up to the merger. Davis and Walker did more than the other outside directors but generally deferred to Shackelton. These individuals stood out because they were the members of a special committee (the “Special Committee”) that took the lead on three M & A alternatives between August 2010 and March 2011. Shackelton served as Chair of the Special Committee on each occasion.

The Board first formed the Special Committee in August 2010. Some weeks earlier, RBC had pitched Shackelton and DiMino on the possibility of Rural acquiring American Medical Response (“AMR”), Rural's lone national competitor in the ambulance business. AMR was a subsidiary of Emergency Medical Services Corporation (“EMS”), a publicly traded entity that seemed more interested in its higher margin medical services subsidiary. The Board created the Special Committee to oversee an approach to AMR. Shackelton contacted EMS, but EMS was not interested in selling AMR at Rural's price.

In October, the Board reformed the Special Committee to respond to an approach by Macquarie Capital and Irving Place Capital (jointly, the “Consortium”). In late September, the Consortium expressed interest in acquiring Rural for $10.50 to $11.50 per share. The Board regarded that price as too low to justify engagement, but after talking with Shackelton, the Consortium suggested it could raise the high end of its range to $15.00 per share. The Board reaffirmed its position that “the Company was not for sale,” but authorized the Special Committee to engage with the Consortium. Rural entered into a confidentiality agreement with them and provided them with due diligence. Discussions ended when Irving Place withdrew and Macquarie declined to proceed alone.

The plaintiffs do not contend that any director breached his duty of loyalty, but Shackelton, Davis, and DiMino each had personal circumstances that inclined them towards a near-term sale. Shackelton was a managing director of Coliseum Capital Partners, L.P. (“Coliseum”), a hedge fund he co-founded in 2006. Coliseum generates returns by taking concentrated positions in small-cap companies, obtaining influence, and then facilitating an exit within approximately three to five years. In 2007 and 2008, Coliseum accumulated approximately 12.43% of Rural's stock at an average cost of around $4 per share. Shackelton became a director in April 2008. By 2010, Rural had grown to 22% of Coliseum's portfolio—twice the target size for a core position—and the unrealized capital gain represented Coliseum's most successful investment. Shackelton saw an M & A event as the next logical step for Coliseum's involvement with Rural.

Shackelton's interest in an M & A event was also a reaction to DiMino's business plan. The Board hired DiMino with a mandate to grow the Company. When he arrived, DiMino discovered that Rural did not have a growth plan or a culture of growth. Predecessor management focused exclusively—and successfully—on operational improvements. To DiMino's amazement, the Company did not have a single sales person. To carry out his mandate, DiMino created a three part strategy: (i) acquire local and regional providers in the highly fragmented ambulance transport industry, (ii) enter new markets by securing contracts with hospitals for non-emergency, general transportation services, and (iii) secure new government contracts through the request-for-proposal process. DiMino developed and the Board approved a detailed growth plan that contemplated spending $50 million per year on acquisitions over the next five years. The evidence at trial proved that the growth plan was reasonable and achievable.

DiMino's growth plan conflicted with Coliseum's investment strategy, which favored companies with predictable cash flows. The fund told its investors that it avoided companies whose valuations relied on exceptional growth, was reluctant to buy into sizable growth initiatives, preferred a margin for safety based on modest organic growth assumptions, and often penalized companies for acquisitions.

In late 2010, Coliseum had yet another reason to favor an M & A event involving Rural. The fund was seeking to raise $150–$200 million of new capital, more than ever before. A Rural transaction would be a coup for the young, activist hedge fund and could be used to market the fund to new investors.

Davis had different reasons for favoring a sale. In fall 2010, Davis served on a dozen public company boards, which brought him into conflict with an ISS policy against “over-boarded” directors. Davis Dep. at 318. Davis was particularly concerned about avoiding a recommendation against his re-election as the Chairman of the Board of Atlas Air Worldwide Holdings, Inc. Id. at 319. Atlas Air facilitated a meeting between Davis and ISS, and Davis agreed to reduce his number of directorships to six by April 2011. Id. at 319–21. As President and CEO of PIRINATE Consulting Group LLC, Davis often joined boards as a hedge fund nominee or as an outside director acceptable to stockholder activists. A sale of Rural would reduce his number of board seats, while letting him exit on a professional high note. It also would let Davis keep over $200,000 of Rural equity that would vest on a change of control, but which he would lose if he resigned voluntarily. Davis set a personal deadline of April 1 for Rural to announce a sale; otherwise, he would resign from the Board.

DiMino was a late convert to the idea of a sale. During most of 2010, he favored keeping Rural independent. In September 2010, while Shackelton talked up the Company with private equity firms, DiMino politely resisted, arguing that the company was “on a clear growth plan” to increase revenue and EBITDA. JX 96. In the midst of the Special Committee's discussions with the Consortium, DiMino emailed Walker and Conrad, the Chairman of the Board at the time, and explained he “would wait to sell this business until after we are actually serving Santa Clara and after Stingray is purchased. Sometime after June of next year.” JX 135. DiMino testified that waiting would allow the Company to demonstrate success executing its growth strategies:

I believed that the company would be much more valuable ...—[The Santa Clara contract and the Stingray acquisition] are two of our growth planks, part of our strategic plan that we already had implemented.... [E]ach one of those represented a success or a point of success ... on that plan that would, I think, have delivered more value to the shareholders once they saw that we actually accomplished that, and more valuable to outsiders as they looked at the business.

DiMino Dep. at 36–37 (June 10, 2011). DiMino contrasted his assessment with what Shackelton and RBC thought, namely that “now is the time to sell.” JX 135.

DiMino changed his mind after his six month performance review. Shackelton and Davis believed that during his presentations to the Consortium, DiMino's body language conveyed his preference that the Company remain independent. They were...