In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00070-CV ____________________
MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS L.P., MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS (BERMUDA) L.P. AND MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS B, L.P., Appellants
V.
DEUTSCHE BANK SECURITIES, INC. AND CREDIT SUISSE SECURITIES (USA) LLC, Appellees _______________________________________________________ ______________
On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 12-06-06544-CV ________________________________________________________ _____________
MEMORANDUM OPINION
This appeal by MatlinPatterson Global Opportunities Partners L.P.,
MatlinPatterson Global Opportunities Partners (Bermuda) L.P., and
MatlinPatterson Global Opportunities Partners B, L.P., (collectively
“MatlinPatterson”) from an order granting the plea to the jurisdiction filed by the
appellees, Deutsche Bank Securities Inc. and Credit Suisse Securities (USA) LLC
(collectively “Banks”), presents two issues. First, we must decide whether
MatlinPatterson may pursue a fraud claim against the Banks for making material
misrepresentations concerning the financing of a failed merger between Hexion
Specialty Chemicals, Inc. (a subsidiary of Apollo Management Holdings, L.P.)
(“Hexion”) and Huntsman Corporation (“Huntsman”). Second, we must decide
whether the trial court erred in dismissing the suit with prejudice. We hold that
MatlinPatterson presented a derivative claim that it lacks standing to pursue and
the jurisdictional defect cannot be cured by re-pleading. Accordingly, we affirm
the judgment.
Background
Two companies, Basell AF (“Basell”) and Hexion, sought to acquire
Huntsman, a publicly traded Delaware corporation. Each prospective buyer
proposed a “cash-out merger” in which all Huntsman shareholders would receive
the negotiated price per share of stock. Each merger proposal required the consent
of the holders of a majority of Huntsman’s shares. At the time, MatlinPatterson
was a major shareholder of Huntsman and its nominees held two positions on
Huntsman’s ten-member board of directors. MatlinPatterson and Huntsman Family
Holdings, who together held approximately 59% of the corporation’s stock under
control of the HMP [Huntsman MatlinPatterson] Equity Trust, entered into a
voting agreement in favor of the Basell merger. A party other than the Banks 2
would have financed the Basell merger. Huntsman signed a merger agreement with
Basell. The merger agreement expressly excluded third-party beneficiaries but
provided that Huntsman’s stockholders had a right to enforce their rights to receive
the merger consideration upon consummation of the merger in the event the
merger was consummated.
Hexion raised its bid and during negotiations communicated to Huntsman
the terms of the Banks’ commitment letter, which promised to lend the full merger
funds. The Hexion merger agreement expressly disclaimed the existence of third-
party beneficiaries. Huntsman’s board of directors unanimously determined that
the Hexion merger agreement and the merger were in the best interests of the
holders of Huntsman common stock. Huntsman’s definitive proxy statement
included a disclosure that a Huntsman stockholder was not a third-party
beneficiary of the merger agreement and could not enforce any of its terms. The
definitive proxy statement also disclosed that MatlinPatterson and the Huntsman
family entered into agreements with Hexion to vote an aggregate of approximately
32.2% of Huntsman’s common stock in favor of the merger with Hexion.
Huntsman terminated the Basell agreement and signed a merger agreement with
Hexion. In addition to the merger agreement, Huntsman entered into an amended
registration agreement with MatlinPatterson, and filed a shelf registration
statement registering for resale all of MatlinPatterson’s Huntsman shares.
MatlinPatterson sold 56,979,062 Huntsman shares on August 6, 2007.
On June 18, 2008, Hexion sued Huntsman for a declaration (1) that the
merger could not be closed because the combined company would be insolvent and
(2) that Hexion’s performance was excused because Huntsman suffered a material
adverse effect. See Hexion Specialty Chems., Inc. v. Huntsman Corp., 965 A.2d
715, 721-22, 736 (Del. Ch. 2008). Huntsman filed a counterclaim for breach of the
merger agreement and requested specific performance. Id. at 746, 759. The court
found that Hexion knowingly and intentionally breached the merger agreement in
part by providing the Banks with an insolvency opinion without Huntsman’s
consent. Id. at 746, 751-52, 756. The court declined to resolve the issue of whether
the combined entity would be solvent because the issue was not ripe for judicial
determination. Id. at 758. Finally, the court ruled that the contract excluded the
remedy of specific performance of Hexion’s obligation to consummate the merger,
but granted a judgment ordering Hexion to specifically perform its other
obligations under the contract. Id. at 761-63.
After obtaining the judgment against Hexion, Huntsman sued the Banks.
Huntsman alleged, inter alia, that the Banks fraudulently induced Huntsman to
terminate the Basell merger and enter into a merger agreement with Hexion. In its
petition, Huntsman alleged: (1) Apollo and the Banks knew Huntsman’s board had 4
a fiduciary duty to consider any bid likely to result in a superior value to its
shareholders; (2) Apollo’s commitment to close the merger at the higher price and
the Banks’ firm funding commitment was the critical issue in the Hexion merger
negotiations; (3) a successful syndication of the merger debt was not a condition to
the Banks’ commitment to fund the full amount of the merger consideration at
closing; (4) the Banks secretly demanded a dramatically reduced funding
commitment from Apollo; (5) Apollo, Hexion, and the Banks assured Huntsman
there were no undisclosed conditions to the funding commitment; (6) Huntsman’s
transaction committee supported the Hexion merger in part due to the absence of a
material adverse effect provision; (7) before signing the commitment letter, the
Banks extracted assurances from Apollo that the Banks would be protected against
losses on the financing; (8) Apollo and the Banks secretly agreed that the proceeds
of nearly $1 billion of planned asset sales and divestitures would be credited
against the committed financing in the form of a reduction in the amount that could
be drawn on the financing; (9) before signing the commitment letters, Apollo and
the Banks agreed the capped interest rates were illusory and they fully intended to
adjust the rates; (10) the Banks lacked the ability to fund the commitment without
violating their lending limits; (11) Hexion agreed to pay the Basell breakup fee and
a “ticking fee” that secretly created a funding gap; (12) Apollo secretly assured the
Banks that it would sell down the Banks’ exposure prior to closing; and (13) the 5
Banks knew Hexion’s representation that the committed financing was adequate to
fund the acquisition was materially false when it was made, that there were
multiple undisclosed material conditions to the financing, and that Hexion falsely
represented that it had no knowledge of any circumstances reasonably likely to
result in the funding not being made available. Huntsman alleged that Apollo, in
furtherance of its secret agreement to protect the Banks from losses and in order to
provide the Banks with a defense to enforcement of the financing commitment,
obtained an opinion that the merger would render the combined entity insolvent
and filed suit for declaratory judgment.
In a motion for summary judgment, the Banks argued that Huntsman could
not recover as fraud damages the benefit of the merger consideration that would
flow to the stockholders, not to Huntsman. In response, Huntsman noted that the
Banks had previously taken the position that Huntsman would have a claim for
money damages if the Hexion merger failed to close due to someone’s fault, and
argued that its shareholders lack standing to assert rights under the merger
agreement because they received no third-party rights. The trial court denied the
motion for summary judgment on Huntsman’s claim for common law fraud.
On or about June 23, 2009, Huntsman and the Banks settled the Huntsman
lawsuit in the midst of trial. The Banks paid Huntsman $620 million, agreed to
reimburse Huntsman for as much as $12 million in litigation costs, and agreed to 6
$1.1 billion in debt financing. Huntsman released the Banks on behalf of
Huntsman and its stockholders, and agreed to indemnify the Banks from the
released claims.
MatlinPatterson sold 1,265,602 shares of Huntsman common stock on
October 15, 2009, and no longer owns or controls any common stock in Huntsman.
MatlinPatterson filed this suit on June 18, 2012. MatlinPatterson makes the
following allegations in its petition: (1) the Banks made materially false
representations about the nature of the financing for the Huntsman merger for the
purpose of inducing MatlinPatterson to abandon the Basell merger and support the
Hexion merger; (2) the Banks knew MatlinPatterson would rely on the
misrepresentations given its significant ownership of Huntsman stock and its
employees’ positions on the Huntsman board; (3) MatlinPatterson relied on the
Banks’ representations in deciding to abandon the one merger for the other; (4) the
Banks were aware the misrepresentations were false when they were made; and (5)
MatlinPatterson was damaged by its reliance on the Banks’ false representations.
The Banks’ plea to the jurisdiction urged that any fraud claim belonged solely to
Huntsman. The trial court granted the plea to the jurisdiction.
Plea to the Jurisdiction
We review de novo a trial court’s ruling on a plea to the jurisdiction because
the dismissal of a case for lack of subject matter jurisdiction is a question of law. 7
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
“[W]hether undisputed evidence of jurisdictional facts establishes a trial court’s
jurisdiction is also a question of law.” Id. “[I]f a plea to the jurisdiction challenges
the existence of jurisdictional facts, we consider relevant evidence submitted by
the parties when necessary to resolve the jurisdictional issues raised, as the trial
court is required to do.” Id. at 227. “When the consideration of a trial court’s
subject matter jurisdiction requires the examination of evidence, the trial court
exercises its discretion in deciding whether the jurisdictional determination should
be made at a preliminary hearing or await a fuller development of the case[.]” Id.
In situations where the jurisdictional challenge implicated the merits of the
plaintiffs’ cause of action and the plea to the jurisdiction included evidence, in
reviewing the trial court’s ruling on a plea to the jurisdiction, we construe the
pleadings liberally in favor of the plaintiff and determine if the plaintiff alleged
facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Id. at
226-27.
Direct or Derivative Action
MatlinPatterson argues Texas law determines who owns the fraud claims
alleged by MatlinPatterson. Texas law provides that the law of the state of
incorporation governs the internal affairs of a corporation. See Tex. Bus. Orgs.
Code Ann. § 1.102 (West 2012). Internal affairs of a corporation include (1) the 8
rights, powers, and duties of the corporation’s governing authority, governing
persons, officers, owners, and members; and (2) matters relating to the
corporation’s membership or ownership interests. See id. § 1.105. MatlinPatterson
contends the false representations in the commitment letter caused MatlinPatterson
to commit its voting and sale rights to the Hexion merger, without which the deal
would not have gone forward. As a result, MatlinPatterson gave up the price it
would have otherwise received for the disposition of its own assets, namely, its
Huntsman shares. The voting rights and the sale rights are incidents of
MatlinPatterson’s status as a shareholder of Huntsman. Because the rights and
powers of a corporation’s shareholders are determined by the law of the state of
incorporation, we apply Delaware law to determine whether MatlinPatterson’s
fraud claim is a derivative claim. See id. §§ 1.102, 1.105.
Delaware law uses a two-part analysis to distinguish between direct and
derivative actions. Tooley v. Donaldson, Lufkin, & Jenrette, Inc., 845 A.2d 1031,
1035 (Del. 2004). In making this determination, the court first considers who
suffered the alleged harm—the corporation, or the suing stockholders, individually.
Id. Second, the court considers who would receive the benefit of any recovery—
the corporation, or the stockholders, individually. Id. “The stockholder’s claimed
direct injury must be independent of any alleged injury to the corporation.” Id. at
1039. We must determine whether the stockholder demonstrated “the duty 9
breached was owed to the stockholder” and whether the stockholder “can prevail
without showing an injury to the corporation.” Id. “Where all of a corporation’s
stockholders are harmed and would recover pro rata in proportion with their
ownership of the corporation’s stock solely because they are stockholders, then the
claim is derivative in nature.” Feldman v. Cutaia, 951 A.2d 727, 733 (Del. 2008).
This rule applies even where the alleged harm is ultimately suffered by the
stockholders. Id. “In order to state a direct claim, the plaintiff must have suffered
some individualized harm not suffered by all of the stockholders at large.” Id.
MatlinPatterson argues the Banks’ false assurances that they would fund
Hexion’s merger with Huntsman harmed MatlinPatterson in its individual capacity
because MatlinPatterson voted to have Huntsman abandon the Basell merger and
execute the Hexion merger. As a result, MatlinPatterson argues, it gave up the
price it would have received for its Huntsman stock and suffered expectancy
damages in the form of the proceeds that Hexion would have paid to
MatlinPatterson if the merger had closed.
After review of the record, we conclude that as a result of its reliance on the
commitment letter that failed to disclose the material terms of the merger
financing, MatlinPatterson suffered the harm suffered by all Huntsman
stockholders in proportion to their common stock ownership. Additionally,
MatlinPatterson’s support for the merger affected all of Huntsman’s stockholders 10
in proportion to their common stock ownership. The harm suffered by
MatlinPatterson was also suffered by Huntsman—Huntsman’s board of directors
relied on the commitment letter when it abandoned the Basell transaction, agreed
to pay the termination fee in the Basell merger agreement, agreed to reimburse
MatlinPatterson for certain fees MatlinPatterson would owe upon the closing of the
Hexion merger, recommended that all Huntsman shareholders vote for the Hexion
merger, and agreed to merge with Hexion.
MatlinPatterson contends it seeks to vindicate its own voting and sale rights,
but every Huntsman stockholder possessed voting and sale rights in connection
with the adoption of the merger agreement by Huntsman. MatlinPatterson alleged
it was unique among Huntsman’s shareholders because its position was sufficiently
large enough to veto the proposed merger, but any injury resulting from
MatlinPatterson’s decision to support the merger affected all of Huntsman’s
stockholders similarly in proportion to their common stock ownership, and
Huntsman absorbed MatlinPatterson’s liability for its lack of performance of
MatlinPatterson’s voting agreement with Basell. Because MatlinPatterson has not
alleged individualized harm not suffered by the corporation or by the stockholders
at large, the claim is derivative under Delaware law. See id.
We reach the same result under Texas law. MatlinPatterson contends it has a
claim for injury to its own legal rights under Texas law because its complaint 11
concerns a fraud directed against it personally, as a powerful shareholder whose
support was critical to the success of the Banks’ scheme. A corporate stockholder
cannot recover damages personally for a wrong done solely to the corporation,
even though it may be injured by that wrong, but it may recover damages for a
wrong done to it personally for a duty owed directly by a wrongdoer to the
stockholder. Wingate v. Hajdik, 795 S.W.2d 717, 719 (Tex. 1990).
A corporate shareholder may have an action for personal damages where the
wrongdoer violates a duty owing directly to the stockholder, provided the
stockholder personally is the beneficiary of the contract or other liability. See In re
Enron Corp., 292 B.R. 507, 511-12 (Bankr. S.D.N.Y. 2002) (applying Texas law
and holding that third-party beneficiaries, including stockholders, could directly
sue breaching buyer to enforce third-party beneficiary rights provided for in the
merger agreement). Where “each shareholder suffers relatively in proportion to the
number of shares he owns,” however, “each will be made whole if the corporation
obtains restitution or compensation from the wrongdoer.” Massachusetts v. Davis,
168 S.W.2d 216, 221 (Tex. 1942); see also Schoellkopf v. Pledger, 739 S.W.2d
914, 918-20 (Tex. App.—Dallas 1987), rev’d on other grounds, 762 S.W.2d 145
(Tex. 1988) (noting stockholder had a personal defense for being fraudulently
induced into signing guaranty but he could not sue to recover the value of his stock
from the co-guarantor because the tortious interference claim belonged only to the
corporation).
MatlinPatterson argues it seeks to pursue a personal claim because its voting
rights in Huntsman were affected by the voting agreement MatlinPatterson made
with Hexion in reliance on the misrepresentations in the Banks’ commitment letter.
The Banks’ false representation, that they would fully fund the Hexion merger if a
majority of Huntsman’s shares were voted to support the Hexion merger, damaged
MatlinPatterson by adversely affecting the price it received for Huntsman’s
common stock. The harm was not to MatlinPatterson’s voting rights, which it
exercised; rather, the wrong was directed toward the corporation, which by the
cumulative vote of all its shareholders abandoned the Basell merger for the Hexion
merger, and was suffered by the corporation and all of its shareholders in
proportion to their ownership of Huntsman’s common stock.
To recover individually under Texas law, “a stockholder must prove a
personal cause of action and personal injury.” Wingate, 795 S.W.2d at 719. The
Banks allegedly made misrepresentations the Banks knew would be relied upon by
MatlinPatterson, but the fraud was obtaining Huntsman’s agreement to merge with
Hexion under terms that in reality were less advantageous than the Banks
represented they were. That was conduct directed towards Huntsman, through its
stockholders who each had the right to vote for or against the competing merger 13
agreements, not MatlinPatterson. Accordingly, we conclude MatlinPatterson’s
claim is not only a derivative claim under Delaware law, but is also a derivative
claim under Texas law. We overrule issue one.
Dismissal with Prejudice
MatlinPatterson contends that the trial court erred in dismissing the suit with
prejudice. If the pleadings affirmatively negate the existence of jurisdiction, a plea
to the jurisdiction may be granted without allowing the plaintiffs an opportunity to
amend. Miranda, 133 S.W.3d at 227. MatlinPatterson’s post-submission brief
contends that if we remand the case it would disclaim any recovery based on harm
to Huntsman assets—including corporate accounts, operations, reputation, and
creditworthiness—and asserts what it argues are claims for its direct injuries: (1)
the lost opportunity to obtain the Basell merger consideration; (2) the lost
opportunity to sell the Huntsman stock that was committed through the Hexion
voting agreement; (3) the lost opportunity to obtain the Hexion merger
consideration; (4) the lost opportunity to obtain a premium for control of
Huntsman; and (5) the time-value of the money from its lost opportunities. These
injuries necessarily derive from wrongful acts of the Banks that caused Huntsman
to fail to complete a merger, which harmed Huntsman’s stockholders relatively in
proportion to the number of shares owned, and not from the Banks’ breach of an
independent duty to MatlinPatterson. See Feldman, 951 A.2d at 733; Wingate, 795 14
S.W.2d at 719. If allowed to replead, MatlinPatterson’s complaints remain
complaints that do not concern an individualized harm not suffered by all of the
stockholders at large. Feldman, 951 A.2d at 733. Because MatlinPatterson’s
pleadings and the undisputed evidence of jurisdictional facts affirmatively negate
jurisdiction, the trial court did not err in dismissing the suit with prejudice without
first allowing MatlinPatterson to amend its pleadings. Miranda, 133 S.W.3d at
227. We overrule issue two and affirm the trial court’s judgment.
AFFIRMED.
________________________________ CHARLES KREGER Justice
Submitted on November 7, 2013 Opinion Delivered May 15, 2014
Before McKeithen, C.J., Kreger and Horton, JJ.