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In re Investors Bancorp, Inc. Stockholder Litigation

Supreme Court of Delaware

December 13, 2017

IN RE INVESTORS BANCORP, INC. STOCKHOLDER LITIGATION

          Submitted: October 4, 2017

         Court Below - Court of Chancery of the State of Delaware C.A. No. 12327-VCS

         Upon appeal from the Court of Chancery: REVERSED and REMANDED.

          Steve J. Purcell, Esquire (Argued), Purcell Julie & Lefkowitz LLP, New York, New York; David A. Jenkins, Esquire, Neal C. Belgam, Esquire, and Clarissa R. Chenoweth, Esquire, Smith Katzenstein & Jenkins LLP, Wilmington, Delaware, for Plaintiffs-Below, Appellants Robert Elburn and Dieter Soehnel.

          Kenneth J. Nachbar, Esquire (Argued) and Zi-Xiang Shen, Esquire, Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware, for Defendants-Below, Appellees Robert C. Albanese, Dennis M. Bone, Doreen R. Byrnes, Domenick A. Cama, Robert M. Cashill, William V. Cosgrove, Kevin Cummings, Brian D. Dittenhafer, Brendan J. Dugan, James J. Garibaldi, Michele N. Siekerka, and James H. Ward III, and Nominal Defendant-Below, Appellee Investors Bancorp, Inc.

          Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices.

          SEITZ, JUSTICE

         In this appeal we consider the limits of the stockholder ratification defense when directors make equity awards to themselves under the general parameters of an equity incentive plan. In the absence of stockholder approval, if a stockholder properly challenges equity incentive plan awards the directors grant to themselves, the directors must prove that the awards are entirely fair to the corporation. But, when the stockholders have approved an equity incentive plan, the affirmative defense of stockholder ratification comes into play. Stated generally, stockholder ratification means a majority of fully informed, uncoerced, and disinterested stockholders approved board action, which, if challenged, typically leads to a deferential business judgment standard of review.

         For equity incentive plans in which the award terms are fixed and the directors have no discretion how they allocate the awards, the stockholders know exactly what they are being asked to approve. But, other plans-like the equity incentive plan in this appeal-create a pool of equity awards that the directors can later award to themselves in amounts and on terms they decide. The Court of Chancery has recognized a ratification defense for such discretionary plans as long as the plan has "meaningful limits" on the awards directors can make to themselves.[1] If the discretionary plan does not contain meaningful limits, the awards, if challenged, are subject to an entire fairness standard of review.

         Stockholder ratification serves an important purpose-directors can take self-interested action secure in the knowledge that the stockholders have expressed their approval. But, when directors make discretionary awards to themselves, that discretion must be exercised consistent with their fiduciary duties. Human nature being what it is, [2] self-interested discretionary acts by directors should in an appropriate case be subject to review by the Court of Chancery.

         We balance the competing concerns-utility of the ratification defense and the need for judicial scrutiny of certain self-interested discretionary acts by directors-by focusing on the specificity of the acts submitted to the stockholders for approval. When the directors submit their specific compensation decisions for approval by fully informed, uncoerced, and disinterested stockholders, ratification is properly asserted as a defense in support of a motion to dismiss. The same applies for self-executing plans, meaning plans that make awards over time based on fixed criteria, with the specific amounts and terms approved by the stockholders. But, when stockholders have approved an equity incentive plan that gives the directors discretion to grant themselves awards within general parameters, and a stockholder properly alleges that the directors inequitably exercised that discretion, then the ratification defense is unavailable to dismiss the suit, and the directors will be required to prove the fairness of the awards to the corporation.

         Here, the Equity Incentive Plan ("EIP") approved by the stockholders left it to the discretion of the directors to allocate up to 30% of all option or restricted stock shares available as awards to themselves. The plaintiffs have alleged facts leading to a pleading stage reasonable inference that the directors breached their fiduciary duties by awarding excessive equity awards to themselves under the EIP. Thus, a stockholder ratification defense is not available to dismiss the case, and the directors must demonstrate the fairness of the awards to the Company. We therefore reverse the Court of Chancery's decision dismissing the complaint and remand for further proceedings consistent with this opinion.

         I.

         According to the allegations of the complaint, which we must accept as true at this stage of the proceedings, [3] the plaintiffs are stockholders of Investors Bancorp, Inc. ("Investors Bancorp" or the "Company") and were stockholders at the time of the awards challenged in this case. The defendants fall into two groups-ten non-employee director defendants[4] and two executive director defendants.[5] Investors Bancorp, the nominal defendant, is a Delaware corporation with its principal place of business in Short Hills, New Jersey. Investors Bancorp is a holding company for Investors Bank, a New Jersey chartered savings bank with corporate headquarters in Short Hills, New Jersey. The Company operates 143 banking branches in New Jersey and New York. In 2014, after a mutual-to-stock conversion, [6] Investors Bancorp conducted a second-step offering to the public, which is when the plaintiffs acquired their shares. In this second-step offering, the Company sold 219, 580, 695 shares and raised about $2.15 billion.

         The board sets director compensation based on recommendations of the Compensation and Benefits Committee ("Committee"), composed of seven of the ten non-employee directors. In 2014, the non-employee directors were compensated by (i) a monthly cash retainer; (ii) cash awards for attending board and board committee meetings; and (iii) perquisites and personal benefits. The chairman of each committee received an additional annual retainer. As the Court of Chancery noted, the annual compensation for all non-employee directors ranged from $97, 200 to $207, 005, with $133, 340 as the average amount of compensation per director:

Name

Investors Bancorp Cash Fees

Bank Cash Fees

All Other Compensation

Total

Albanese

$56, 500

$73, 200

$343

$130, 043

Bone

$37, 500

$73, 200

$264

$110, 964

Byrnes

$59, 500

$73, 200

$9, 898

$142, 598

Cashill

$48, 000

$146, 400

$12, 605

$207, 005

Cosgrove

$24, 000

$73, 200

$32, 970

$130, 170

Dittenhafer

$59, 500

$73, 200

$13, 392

$146, 092

Dugan

$45, 000

$73, 200

-

$118, 200

Garibaldi

$24, 000

$73, 200

-

$97, 200

Siekerka

$45, 000

$73, 200

$230

$118, 430

Ward

$59, 500

$73, 200

-

$132, 700

Total

$1, 333, 402

         In 2014, Cummings, the Company's President and CEO, received (i) a $1, 000, 000 base salary; (ii) an Annual Cash Incentive Award of up to 150% of his base salary contingent on certain performance goals; and (iii) perquisites and benefits valued at $278, 400, which totaled $2, 778, 700. Cama, the Company's COO and Senior Executive Vice President, received annual compensation consisting of (i) a $675, 000 base salary; (ii) an Annual Cash Incentive Award of up to 120% of his base salary; and (iii) perquisites and benefits valued at $180, 794, which totaled $1, 665, 794.[7]

         At the end of 2014, following completion of the conversion plan, the Committee met to review 2014 director compensation and set compensation for 2015. Gregory Keshishian, a compensation consultant from GK Partners, Inc., presented to the board a study of director compensation for eighteen publicly held peer companies. According to the study, these companies paid their non-employee directors an average of $157, 350 in total compensation. The Company's $133, 340 average non-employee director compensation in 2014 fell close to the study average. Following the presentation, the Committee recommended to the board that the non-employee director compensation package remain the same for 2015. The only change was to increase the fees paid for attending committee meetings from $1, 500 to $2, 500.

         The Committee also reviewed the compensation package for executive officers. After GK Partners reviewed peer-average figures with the committee, the committee unanimously recommended no changes to Cummings' or Cama's annual salary, but recommended an increase in the 2015 Annual Cash Incentive Award from 150% to 200%, and 120% to 160% of their base salaries, respectively.[8] The Committee did not discuss any additional equity awards at the December or February meetings.

         Just a few months after setting the 2015 board compensation, in March, 2015, the board proposed the 2015 EIP. The EIP was intended to "provide additional incentives for [the Company's] officers, employees and directors to promote [the Company's] growth and performance and to further align their interests with those of [the Company's] stockholders . . . and give [the Company] the flexibility [needed] to continue to attract, motivate and retain highly qualified officers, employees and directors."[9]

         The Company reserved 30, 881, 296 common shares for restricted stock awards, restricted stock units, incentive stock options, and non-qualified stock options for the Company's 1, 800 officers, employees, non-employee directors, and service providers. The EIP has limits within each category. Of the total shares, a maximum of 17, 646, 455 can be issued for stock options or restricted stock awards and 13, 234, 841 for restricted stock units or performance shares. Those limits are further broken down for employee and non-employee directors:

. A maximum of 4, 411, 613 shares, in the aggregate (25% of the shares available for stock option awards), may be issued or delivered to any one employee pursuant to the exercise of stock options;
. A maximum of 3, 308, 710 shares, in the aggregate (25% of the shares available for restricted stock awards and restricted stock units), may be issued or delivered to any one employee as a restricted stock or restricted stock unit grant; and
. The maximum number of shares that may be issued or delivered to all non-employee directors, in the aggregate, pursuant to the exercise of stock options or grants of restricted stock or restricted stock units shall be 30% of all option or restricted stock shares available for awards, "all of which may be granted in any calendar year."[10]

         According to the proxy sent to stockholders, "[t]he number, types and terms of awards to be made pursuant to the [EIP] are subject to the discretion of the Committee and have not been determined at this time, and will not be determined until subsequent to stockholder approval."[11] At the Company's June 9, 2015 annual meeting, 96.25% of the voting shares approved the EIP (79.1% of the total shares outstanding)[12]

         Three days after stockholders approved the EIP, the Committee held the first of four meetings and eventually approved awards of restricted stock and stock options to all board members. According to the complaint, these awards were not part of the final 2015 compensation package nor discussed in any prior meetings.[13]The first meeting took place on June 12, 2015. The Committee met with Cummings, Cama, Keshishian (the compensation consultant), and representatives from Luse Gorman (outside counsel) "to begin the process of determining the allocation of shares."[14]

         At the second meeting on June 16, 2015, the Committee met with Keshishian, the Luse Gorman representatives, and the full board except Siekerka and Ward, to "gather input" from outside experts and Committee members.[15] They considered a list of the stock options and awards granted by the 164 companies that underwent mutual-to-stock conversions in the last twenty years.[16] Luse Gorman presented an analysis of these companies, selected "based on the size of the company and the size of the equity sold in the second step offering, and the size of the equity plan."[17] The complaint alleges that the first two are arbitrary and the third is "a textbook example of results driven by self-selection bias."[18] The plaintiffs also claim that Luse Gorman did not compare five other companies on the list that met the criteria and had more recently undergone conversions-each of which granted significantly lower awards.[19]

         At the third meeting on June 19, 2015, the Committee met with Cummings, Cama, Keshishian, and the representatives from Luse Gorman "to have a thorough discussion of all the major decisions" regarding the allocation of shares.[20] They analyzed the circumstances surrounding the peer companies' awards and discussed the EIP, noting the stockholders' authorization of director awards of up to 30% of the EIP's restricted stock options.[21] Cama proposed and the attendees approved the specific awards-including those to Cama and Cummings.[22] According to the plaintiffs, however, the 2016 Proxy disclosed that Cummings and Cama did not attend meetings when their "compensation is being determined."[23] The Committee held a fourth and final meeting on June 23, 2015 when the entire board, after hearing from Keshishian and the Luse Gorman representatives, "approve[d] all the components of the incentive stock and option grants for Directors and Management."[24]

         The board awarded themselves 7.8 million shares.[25] Non-employee directors each received 250, 000 stock options-valued at $780, 000-and 100, 000 restricted shares-valued at $1, 254, 000; Cashill and Dittenhafer received 150, 000 restricted shares-valued at $1, 881, 000-due to their years of service. The non-employee director awards totaled $21, 594, 000 and averaged $2, 159, 400. Peer companies' non-employee awards averaged $175, 817. Cummings received 1, 333, 333 stock options and 1, 000, 000 restricted shares, valued at $16, 699, 999 and alleged to be 1, 759% higher than the peer companies' average compensation for executive directors. Cama received 1, 066, 666 stock options and 600, 000 restricted shares, valued at $13, 359, 998 and alleged to be 2, 571% higher than the peer companies' average.

         According to the complaint, the total fair value of the awards was $51, 653, 997, broken down by board member as follows:[26]

Name

Restricted Stock

Stock Options

Total

Cummings

$12, 540, 000

$4, 159, 999

$16, 699, 999

Cama

$10, 032, 000

$3, 327, 998

$13, 359, 998

Albanese

$1, 254, 000

$780, 000

$2, 034, 000

Bone

$1, 254, 000

$780, 000

$2, 034, 000

Byrnes

$1, 254, 000

$780, 000

$2, 034, 000

Cashill

$1, 881, 000

$780, 000

$2, 661, 000

Cosgrove

$1, 254, 000

$780, 000

$2, 034, 000

Dittenhafer

$1, 881, 000

$780, 000

$2, 661, 000

Dugan

$1, 254, 000

$780, 000

$2, 034, 000

Garibaldi

$1, 254, 000

$780, 000

$2, 034, 000

Siekerka

$1, 254, 000

$780, 000

$2, 034, 000

Ward

$1, 254, 000

$780, 000

$2, 034, 000

Total

$51, 653, 997

         After the Company disclosed the awards, stockholders filed three separate complaints in the Court of Chancery alleging breaches of fiduciary duty by the directors for awarding themselves excessive compensation. Following the filing of a consolidated complaint, the defendants moved to dismiss under Court of Chancery Rule 12(b)(6) for failure to state a claim and under Court of Chancery Rule 23.1 for failure to make a demand before filing suit.

         The Court of Chancery granted both motions and dismissed the plaintiffs' complaint.[27] Relying on the court's earlier decisions in In re 3COM Corp.[28] and Calma on Behalf of Citrix Systems, Inc. v. Templeton, [29] the court dismissed the complaint against the non-employee directors because the EIP contained "meaningful, specific limits on awards to all director beneficiaries" like the 3COM plan, as opposed to the broad-based plan in Citrix that contained a generic limit covering director and non-director beneficiaries.[30] The court also dismissed the claims directed to the executive directors because the plaintiffs failed to make a pre-suit demand on the board.

         We review the Court of Chancery decision dismissing the complaint de novo.[31]

         II.

         Unless restricted by the certificate of incorporation or bylaws, Section 141(h) of Delaware General Corporation Law ("DGCL") authorizes the board "to fix the compensation of directors."[32] Although authorized to do so by statute, when the board fixes its compensation, it is self-interested in the decision because the directors are deciding how much they should reward themselves for board service.[33] If no other factors are involved, the board's decision will "lie outside the business judgment rule's presumptive protection, so that, where properly challenged, the receipt of self-determined benefits is subject to an affirmative showing that the compensation arrangements are fair to the corporation."[34] In other words, the entire fairness standard of review will apply.[35]

         Other factors do sometimes come into play. When a fully informed, uncoerced, and disinterested majority of stockholders approve the board's authorized corporate action, the stockholders are said to have ratified the corporate act. Stockholder ratification of corporate acts applies in different corporate law settings.[36] Here, we address the affirmative defense of stockholder ratification of director self-compensation decisions.

         A.

         Early Supreme Court cases recognized a ratification defense by directors when reviewing their self-compensation decisions. In the 1952 decision Kerbs v. California Eastern Airways, Inc., a stockholder filed suit against the directors attacking a stock option and profit sharing plan on a number of grounds.[37] As to the stock option plan, 250, 000 shares of the corporation's unissued stock were granted in specific amounts to named executives of the corporation at a $1 per share exercise price.[38] The profit sharing plan was based on a mathematical formula tied to the financial performance of the corporation.[39] Both plans were approved at a board meeting where five of the eight directors were beneficiaries of both plans.[40] The stockholders approved the plans.

         Addressing the effect of stockholder approval of the stock option plan, our Court held that "ratification cures any voidable defect in the action of the [b]oard. Stockholder ratification of voidable acts of directors is effective for all purposes unless the action of the directors constituted a gift of corporate assets to themselves or was ultra vires, illegal, or fraudulent."[41] As to the profit sharing plan, the Court viewed things differently because "the effectiveness of such ratification depends upon the type of notice sent to the stockholder and the explanation to them of the plan itself, "[42] and the record on appeal was insufficient to determine the adequacy of the disclosures.[43]

         The stock option plan approved by the stockholders in Kerbs was self-executing, meaning once approved by the stockholders, implementing the awards required no discretion by the directors.[44] The Court addressed a similar dispute in a case decided the following day. In Gottlieb v. Heyden Chemical Corp., [45] the restricted stock option plan granted specific company officers-six of whom were board members-present and future options to purchase fixed amounts of common stock at prices to be set by the board, subject to a price collar. The plan was contingent upon ratification by a majority of the stockholders.[46] In advance of the stockholder meeting, the board disclosed the names of the officers receiving the awards, the number of shares allocated to each, the price per share, and the schedule for future issuances.[47] The stockholders approved the plan.[48]

         After initially denying the stockholder's challenge to the plan, on reargument, the Court noted the effect of stockholder ratification. For the current awards specifically approved by the stockholders:

Where there is stockholder ratification, . . . the burden of proof is shifted to the objector. In such a case the objecting stockholder must convince the court that no person of ordinary sound business judgment would be expected to entertain the view that the consideration furnished by the individual directors is a fair exchange for the options conferred.[49]

         But, for the options subject to future awards, the court explained that they were not ratified because the 25, 500 shares had not been placed into any contracts prior to approval.[50] The stockholders only approved the allocation of shares "of a certain general pattern, " but "nobody [knew] what all of the terms of these future contracts [would] be."[51] The Court concluded that ratification "cannot be taken to have approved specific bargains not yet proposed."[52] Thus, after Kerbs and Gottlieb, directors could successfully assert the ratification defense when the stockholders were fully informed and approved stock option plans containing specific director awards. But the award of "specific bargains not yet proposed" could not be ratified by general stockholder approval of the compensation plan.[53]

         Our Court has not considered ratification of director self-compensation decisions since Kerbs and Gottlieb. The Court of Chancery has, however, continued to develop this area of the law.

         B.

         Following the Supreme Court's lead recognizing the ratification defense only when specific acts are presented to the stockholders for approval, the Court of Chancery in Steiner v. Meyerson[54] and Lewis v. Vogelstein[55] recognized the directors' ratification defense when awards made to directors under equity compensation plans were specific as to amounts and value. In Steiner, the stock option plan granted each non-employee director "an option to purchase 25, 000 shares upon election to the Telxon board, and an additional 10, 000 shares on the anniversary of his election while he remains on the board."[56] In Lewis, the plan provided for two categories of director compensation: (i) one-time grants of 15, 000 options per director; and (ii) annual grants of up to 10, 000 options per director depending on length of board service.[57] The plans were self-executing, meaning that no further director action was required to implement the awards as they were earned. In both cases, the Court of Chancery held that the stockholders validly ratified the awards, and the standard of review following ratification was waste.[58]

         Two Court of Chancery decisions following Steiner and Lewis addressed a twist in previous cases that bears directly on this appeal-the plans approved by the stockholders set upper limits on the amounts to be awarded, but allowed the directors to decide the specific awards or change the conditions of the awards after stockholder approval.[59] In In re 3COM Corp. Shareholders Litigation, the option grants were based on "specific ceilings on the awarding of options each year" which "differ based on specific categories of service, such as service on a committee, position as a lead director, and chairing the [b]oard."[60] The plaintiff alleged in conclusory fashion that grants made by the board were "lavish and excessive compensation tantamount to a waste of corporate assets."[61] Because the board exercised its discretion within the specific limits approved by the stockholders, the Court of Chancery determined that the stockholder approval of the plan parameters extended to the specific awards made after plan approval.[62] Thus, the directors' post-approval compensation decisions were subject to the business judgment rule standard of review, requiring the directors to show waste.[63]

         In Criden v. Steinberg, the Court of Chancery addressed a broad-based stock option plan that allowed the directors to re-price the options after stockholder approval of the plan.[64] The re-pricing decisions, although not submitted to the stockholders for approval, were subject to a business judgment standard of review.[65]According to the court, the stockholders approved a plan setting the re-pricing parameters, and the directors re-priced the options within those parameters.[66] Thus, the directors' decisions were reviewed under a business judgment rule standard of review.

         After 3COM and Criden, the Court of Chancery decided Sample v. Morgan.[67]In Sample, the Court addressed two non-employee directors on the compensation committee who awarded 200, 000 shares to the company's three employee directors under a management stock incentive plan.[68] A disinterested majority of Randall Bearings' stockholders had previously approved the plan, which authorized up to 200, 000 shares, with no parameters on how the shares should be awarded. The court rejected a ratification defense and stated:

[T]he Delaware doctrine of ratification does not embrace a "blank check" theory. When uncoerced, fully informed, and disinterested stockholders approve a specific corporate action, the doctrine of ratification, in most situations, precludes claims for breach of fiduciary duty attacking that action. But the mere approval by stockholders of a request by directors for the authority to take action within broad parameters does not insulate all future action by the directors within those parameters from attack. Although the fact of stockholder approval might have some bearing on consideration of a fiduciary duty claim in that context, it does not, by itself, preclude such a claim. An essential aspect of our form of corporate law is the balance between law (in the form of statute and contract, including the contracts governing the internal affairs of corporations, such as charters and bylaws) and equity (in the form of concepts of fiduciary duty). Stockholders can entrust directors with broad legal authority precisely because they know that that authority must be exercised consistently with equitable principles of fiduciary duty. Therefore, the entrustment to the [compensation committee] of the authority to issue up to 200, 000 shares to key employees under discretionary terms and conditions cannot reasonably be interpreted as a license for the [c]ommittee and other directors making proposals to it to do whatever they wished, unconstrained by equity. Rather, it is best understood as a decision by the stockholders to give the directors broad legal authority and to rely upon the policing of equity to ensure that that authority would be utilized properly. For this reason alone, the directors' ratification argument fails.[69]

         The court in Sample did not address either 3COM or Criden. But, in Seinfeld v. Slager, [70] the court addressed 3COM and a concern that recognizing ratification for plans approved by stockholders with only general parameters for making compensation awards provided insufficient protection from possible self-dealing. The plan in Seinfeld was a broad-based plan applying to directors, officers, and employees.[71] Unlike the plan in 3COM, where each category of beneficiaries had an upper limit on what they could receive, the Seinfeld plan contained a single generic limit on awards, with no restrictions on how the awards could be distributed to the different classes of beneficiaries.[72] Rather than essentially approve a blank check, or in the Vice Chancellor's words-give the directors carte blanche-to make awards as the directors saw fit, the court required "some meaningful limit imposed by the stockholders on the [b]oard for the plan to be consecrated by 3COM and receive the blessing of the business judgment ...


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