Granada Investments, Inc. v. DWG Corp.

962 F.2d 1203, 1992 U.S. App. LEXIS 8833, 1992 WL 85075
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 30, 1992
DocketNos. 91-3297, 91-3343, 91-3399, 91-3402 and 91-3407
StatusPublished
Cited by118 cases

This text of 962 F.2d 1203 (Granada Investments, Inc. v. DWG Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Granada Investments, Inc. v. DWG Corp., 962 F.2d 1203, 1992 U.S. App. LEXIS 8833, 1992 WL 85075 (6th Cir. 1992).

Opinion

SUHRHEINRICH, Circuit Judge.

Granada Investments, Inc. offered DWG Corporation $572 million in an effort to merge the two companies. DWG declined the offer. What followed reflects both the complexity of securities lawsuits and the appetite for litigation exhibited by the parties.

Granada, beneficial owner of more than 5% of DWG’s issued and outstanding common stock, brought a derivative suit against DWG and its directors, including Victor Posner. Posner is Chairman of the Board, President and Chief Executive Officer, and controlling shareholder of DWG. After Granada’s complaint was twice amended, DWG counterclaimed and filed a third-party action.

Thereafter the parties spent many months attempting to work out a settlement. A compromise agreement was finally reached, allowing the litigants to avoid the precarious outcome of a trial on the merits. The district court found the settlement fair and we see no basis for disturbing this judgment.

I

Granada’s initial barrage of claims included breach of fiduciary duties owed by [1205]*1205DWG directors to DWG shareholders, self-dealing by Posner, and manipulation by DWG directors of the stock market in violation of section 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10b-5.

DWG and Posner denied Granada’s allegations and filed a counterclaim and third-party complaint, asserting that Granada and its investors used insider information to acquire a large block of DWG stock. It was further claimed that Granada contravened a host of federal securities laws, rules, and regulations.

Following discovery the parties undertook prolonged and laborious settlement negotiations. A stipulated settlement was reached on August 30, 1990 and approved preliminarily by the district court on September 18, 1990. A key element of the settlement was the dismissal with prejudice of all claims asserted or that could have been asserted by any of the settling parties. Another component of the settlement concerned changes in corporate governance. The agreement called for the district court to designate three new directors to DWG’s board of directors. The new directors must have no business or familial relationship with any party to this action and shall serve on the audit and compensation committees of DWG. .

The settlement also created a .special committee consisting of the three new directors and two incumbent directors. The tasks of the special committee include review and approval of a) any incentive or bonus compensation payable to Victor Pos-ner or his family, b) all intercorporate transactions of more than $500,000 involving DWG or its subsidiaries and any entity controlled directly or indirectly by Victor Posner, and c) rent- increases authorized by DWG’s lessor, a Posner-controlled trust.

The settlement further provided that DWG will hold annual shareholder meetings during each year that the stipulated agreement is in effect. Finally, under the terms of the, settlement Granada may make application to the court for reimbursement of its legal costs and expenses up to $5.5 million.

A fairness hearing pursuant to Fed. R.Civ.P. 23.1 was scheduled for November 14, 1990 to provide a forum to any objecting shareholder. Notice of the proposed settlement was sent to shareholders of DWG on October 1, 1990. In addition, on October 15, 1990 summary notice appeared in the national edition of the Wall Street Journal and in the Cleveland Plain Dealer.

Thirty-one investors filed objections at the fairness hearing. Among the objections was that DWG received no monetary benefit from the settlement, the release of claims term was unduly broad and effaced the legitimate claims of DWG shareholders, Granada was not an adequate representative of DWG shareholders, and Granada’s attempt to receive reimbursement costs was unfair. Undaunted by these and other objections, the district court concluded that the settlement was “fair, reasonable, adequate and in the best interests of DWG Corporation.”

II

We review the approval of settlements in shareholder derivative actions for abuse of discretion. In re General Tire & Rubber Co., 726 F.2d 1075 (6th Cir.), cert. denied, 469 U.S. 858, 105 S.Ct. 187, 83 L.Ed.2d 120 (1984); Priddy v. Edelman, 883 F.2d 438 (6th Cir.1989). Settlements are welcome in cases such as this because litigation is “notoriously difficult and unpredictable.” Maher v. Zapata Corp., 714 F.2d 436, 455 (5th Cir.1983) (quoting Schimmel v. Goldman, 57 F.R.D. 481, 487 (S.D.N.Y.1973)). Absent evidence of fraud or collusion, such settlements are not to be trifled with. Priddy, 883 F.2d at 447.

Relevant factors framing our inquiry include the likelihood of success on the merits, the risk associated with the expense and. complexity of litigation, and the objections raised by class members. See Officers for Justice v. Civil Service Commission of San Francisco, 688 F.2d 615, 625 (9th Cir.), cert. denied, 459 U.S. 1217, 103 S.Ct. 1219, 75 L.Ed.2d 456 (1983). The district court enjoys wide discretion in as[1206]*1206sessing the weight and applicability of these factors. Maher, 714 F.2d 436 at 455.

This appeal boils down to a claim by objecting shareholders that the settlement was not sufficiently beneficial to them. The shareholders pursue this argument along two paths. One, they charge Granada and DWG’s directors with impropriety and self-interested action. Two, the objectors challenge the district court’s computation of Granada’s costs.

A

The objecting DWG shareholders assert that Granada, Posner, and other defendants are afflicted by conflicts of interest fatal to the fairness of the settlement. They claim that the settling parties were so busy tending to their own interests that nobody protected DWG’s shareholders. The result is described as a “parody of a settlement” providing no real benefit to DWG or to its shareholders.

As we observed in Priddy, the fact that one of the parties “might have received more if the case had been fully litigated is no reason not to approve the settlement.” Priddy, 883 F.2d at 447. A settlement is after all a compromise, reflecting real concessions on all sides. The pursuit of self-interest by Granada or Posner does not preclude additional benefit to DWG’s shareholders.

In fact, the terms of the settlement offer substantial benefit to DWG and its shareholders. Admittedly, the fairness of a settlement is more difficult to determine when nonpecuniary benefits are provided to the corporation. Nonetheless, DWG was released from all liability based on claims that might have been asserted by Granada.

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962 F.2d 1203, 1992 U.S. App. LEXIS 8833, 1992 WL 85075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/granada-investments-inc-v-dwg-corp-ca6-1992.