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In re El Paso Corp. Shareholder Litigation

Delaware Court of Chancery
41 A.3d 432 (2012)


Facts

Doug Foshee, chief executive officer (CEO) of El Paso Corporation (El Paso), was solely responsible for negotiating the sale of El Paso to Kinder Morgan, Inc. (Kinder). Foshee did not disclose to the El Paso board that he had an interest in purchasing a portion of the El Paso business back from Kinder. El Paso used Goldman, Sachs & Co. (Goldman) as its financial advisor for the transaction. Goldman owned 19 percent ($4 billion) of Kinder stock and had two principals on the Kinder board, who owed fiduciary duties to Kinder. The lead Goldman banker advising El Paso personally owned $340,000 worth of Kinder stock. Although Morgan Stanley, an investment bank, was brought in to wall off Goldman from the transaction in an effort to avoid Goldman’s conflicts, Goldman continued to advise El Paso on the merger. Goldman also persuaded El Paso to agree to pay Morgan Stanley’s $35 million advising fee only if El Paso adopted the strategy for selling to Kinder that Goldman was proposing. El Paso’s board did not seek any other bidders or attempt to make Kinder bid publicly. The board also allowed Kinder to back out of an agreement to pay a certain price and eventually agreed to a deal at a lower price. Under the merger agreement entered into by the parties, El Paso could not solicit higher bids and was required to pay a $650 million termination fee to Kinder if El Paso accepted a better proposal from another party. Some of El Paso’s stockholders (plaintiffs) sought a preliminary injunction to enjoin a stockholder vote on the merger.

Rule of Law

Issue

Holding and Reasoning (Strine, J.)

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