In Re Tyson Foods, Inc. Consolidated Shareholder Litigation

919 A.2d 563 (Del.Ch. 2007)

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Nature of the Case

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Facts

Meyer (P), a Tyson shareholder made a written demand for documents to the company pursuant to 8 Del. C. § 220 on August 26, 2004. Eventually, Tyson handed over an agreed upon set of documents on July 21, 2005. Meyer then filed his initial lawsuit on September 12, 2005. The action included derivative complaints for breaches of fiduciary duty and proxy disclosure violations. Tyson is a Delaware corporation. Tyson Limited Partnership (TLP) owns 99.9% of the class B shares which have 10 votes. Don Tyson (D) controls 99% of TLP. The complaint goes on to list 17 defendant board members. Prior litigation in 1997 against the board required them to create a Special Committee of outside directors to annually review the terms and fairness of all transactions between the company, on the one hand, and its directors, officers or their affiliates, on the other. The Special Committee was replaced by the Governance Committee with the same exact functions. The complaint alleges three particular types of board malfeasance: (1) approval of consulting contracts that provided lucrative and undisclosed benefits to corporate insiders; (2) grants of “spring-loaded” stock options to insiders; and (3) acceptance of related-party transactions that favored insiders at the expense of shareholders. P questions the consulting contract to Don Tyson ($800,000 per year) Robert Peterson ($400,000 per year) where they would make themselves available for up to twenty hours per month for an annual payment listed next to each name. The contracts also granted the right to personal perquisites and benefits, including “‘travel and entertainment costs…consistent with past practices.’” Peterson died in May 2004, and his rights to salary and perquisites passed to his wife. Defendants Tollett and Wray agreed to similar if smaller, consulting contracts in 1999 and 1998 respectively. Both receive health insurance and the vesting of stock options throughout the terms of their agreements, in addition to annual payments ranging from $100,000 to $350,000 over ten years. Tyson adopted a Stock Incentive Plan, and P alleges that the plan was spring loaded. Days before Tyson would issue press releases that were very likely to drive stock prices higher, the Compensation Committee would award options to key employees. Around 2.8 million shares of Tyson stock bounced from the corporate vaults to various defendants in this manner. P provided specific instances to back up its claims: Options of 150,000 shares, 125,000 shares, and 80,000 Class A shares, respectively, at $15 per share on September 28, 1999. The next day, Tyson informed the market that Smithfield Foods, Inc. had agreed to acquire Tyson’s Pork Group. The announcement propelled the price upwards to $16.53 per share in less than six days, and $17.50 per share by December 1, 1999. Options of 200,000 Class A shares, 100,000, and 50,000 at $11.50 per share on March 29, 2001. A day later, Tyson publicly canceled its $3.2 billion deal to acquire IBP, Inc. By the close of that day, the stock price had shot up to $13.47. Tyson ranted options on 200,000 Class A shares to John Tyson, 60,000 to Lee, and 15,000 to Hankins sometime in October 2001. Within two weeks, Tyson publicly announced its 2001 fourth-quarter earnings would be more than double those expected by analysts, catapulting the stock price to $11.90 by the end of November. Tyson granted stock options to a number of executives and directors, including 500,000 to John Tyson, 280,000 to Bond, and 160,000 to Lee, at $13.33 per share on September 19, 2003. On September 23, 2003, Tyson publicly announced that earnings were to exceed Wall Street’s expectations, propelling the price to $14.25. Proxy statements also reveal that Tyson engaged in a total of $163 million in related-party transactions between 1998 and 2004, over ten percent of Tyson’s $1.6 billion net earnings. Ps allege that the terms of these contracts have been consistently kept from minority shareholders, with defendants simply disclosing in each year’s proxy statement the aggregate amounts paid to related entities in the previous fiscal year and a cursory description of the nature of the transactions. According to plaintiffs, these transactions were unfair to the corporation, serving to enrich corporate insiders who made sure that the proxies were too misleading, incomplete, and cursory to constitute any real disclosure. Ps contend that the board violated its fiduciary duties. Ds moved to dismiss by the statute of limitations, demand was not excused and have not stated a claim for which relief can be granted.