Corporations Keyed to Hamilton
Smith v. Van Gorkom
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Trans Union had large investment tax credits (ITCs) coupled with accelerated depreciation deductions with no offsetting taxable income. Their short term solution was to acquire companies that would offset the ITCs, but the Chief Financial Officer, Donald Romans, suggested that Trans Union should undergo a leveraged buyout to an entity that could offset the ITCs. The suggestion came without any substantial research, but Romans thought that a $50-60 share price (on stock currently valued at a high of $39 ½) would be acceptable. Van Gorkom did not demonstrate any interest in the suggestion, but shortly thereafter pursued the idea with a takeover specialist, Jay Pritzker. With only Romans’ unresearched numbers at his disposal, Van Gorkom set up an agreement with Pritzker to sell Pritzker Trans Union shares at $55 per share. Van Gorkom also agreed to sell Pritzker one million shares of Trans Union at $39 per share if Pritzker was outbid. Van Gorkom also agreed not to solicit other bids and agreed not to provide proprietary information to other bidders. Van Gorkom only included a couple people in the negotiations with Pritzker, and most of the senior management and the Board of Directors found out about the deal on the day they had to vote to approve the deal. Van Gorkom did not distribute any information at the voting, so the Board had only the word of Van Gorkom, the word of the President of Trans Union (who was privy to the earlier discussions with Pritzker), advice from an attorney who suggested that the Board might be sued if they voted against the merger, and vague advice from Romans who told them that the $55 was in the beginning end of the range he calculated. Van Gorkom did not disclose how he came to the $55 amount. On this advice, the Board approved the merger, and it was also later approved by shareholders.
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