In Sanders v. Ohmite Holding, LLC, C. A. No. 5145-VCL (Del. Ch. Feb. 21, 2011), read opinion here, the Delaware Court of Chancery clarified the rights of a member of an LLC to demand certain books and records of an LLC.

Issue Addressed

 Whether the member was entitled to books and records, pursuant to Section 18-305 of the Delaware LLC Act ( 6 Del. C. Section 18-305), for a period prior to him becoming a member of the LLC? Answer: Yes.

Short Factual Background

Max Sanders loaned $2 million to a member of an LLC and received a security interest in the member’s units as collateral. That member later transferred his interests back to Sanders. In the interim, the member’s units were diluted and instead of having the 7.75% stake that he thought he had, the LLC told Sanders that he only had what the Court described as a "nigh microscopic"  stake of merely 0.000775%. Sanders made a formal demand for 8 categories of books and records relating to why his units were diluted and the value of his interest as well as the performance of the LLC’s management. The LLC denied the request in total. After this action was filed, the LLC did provide tax returns and financial statements but not all the documents requested. Based on that information, the Court found that Sanders had a reasonable basis to believe that additional units were issued to an affiliated party at a deep discount, and thus, questioned whether the LLC received proper consideration for the additional units that were issued.

Holding

The Court determined that Sanders had a proper purpose for inspecting the books and records and that the documents he requested were necessary for him to fulfill that purpose, regardless of whether they pre-date when he formally acquired member status. Thus, summary judgment was granted for Sanders.

Procedural Posture

Both parties filed cross motions for summary judgment which the Court treated as the equivalent of a stipulation for decision on the merits based on the record submitted with the motions, pursuant to Chancery Rule 56(h).

Brief Overview of Key Legal Principles Discussed

As the Court observed:

Section 18-305(a) of the LLC Act provides a member of an LLC with the right,
“upon reasonable demand for any purpose reasonably related to the member’s interest as
a member” of the LLC, to obtain the following records:

(1) True and full information regarding the status of the
business and financial condition of the limited liability
company;

(2) Promptly after becoming available, a copy of the
limited liability company’s federal, state and local income tax
returns for each year;
. . . .
(5) True and full information regarding the amount of cash
and a description and statement of the agreed value of any
other property or services contributed by each member and
which each member has agreed to contribute in the future,
and the date on which each became a member; and

(6) Other information regarding the affairs of the limited
liability company as is just and reasonable.

 6 Del. C. § 18-305(a). The inspection right is subject to “such reasonable standards(including standards governing what information and documents are to be furnished . . . ) as may be set forth in a limited liability company agreement or otherwise established by
the manager.” Id.

The rights of Sanders were co-extensive with Section 18-305 of the LLC Act because the LLC Agreement did not limit those rights. The Court observed that the extensive case law surrounding the rights of a shareholder to books and records of a corporation under DGCL Section 220 are often considered by analogy in the LLC context. Likewise, the following basic rules apply:

  • There must be a "proper purpose" for the inspection;
  • That proper purpose must be reasonably related to such person’s interest as a member;
  • The requested books and records must be reasonably required to fulfill the stated purpose.

Delaware cases have established several proper purposes in this context, including:

  • valuation of one’s ownership interest
  • investigation of potential wrongdoing and mismanagement. Note that in order to satisfy this proper purpose, one need not prove wrongdoing. Rather, it suffices in this context to merely present a "credible basis" to suspect wrongdoing and from which the court may "infer" wrongdoing that would warrant further investigation.

In this case, the Court explained that wrongful dilution that benefits a majority holder establishes a credible basis from which the Court can infer that further investigation is warranted.

The Court also remarked that the data received need not be used to file a derivative suit and that it may also be used, for example, to "communicate with … management" and to determine whether to retain or dispose of one’s interest.

A core inquiry in these types of cases is whether the documents requested are "essential and sufficient" to satisfy the party’s stated purpose. See footnote 2 and related text that comments on the lack of precision in these words that are used by the courts in these types of matters, and what the Court calls the "strange" choice of  "bi-partite phrasing".

Among the documents that the Court determined were reasonable to request in order to advance the stated purpose, were minutes of meetings that discussed the number and pricing of the units issued, and records relating to any opportunity that Sanders had to buy the units at the same price. The Court cited to cases in the Section 220 context to support its decision to allow the records requested for a period prior to the date that Sanders became a member because the records from that earlier period obviously had an impact, for example, on the value of the fully diluted units he currently owned.

Postscript

Although the result of this case may be a positive one for the member seeking the books and records, it may also be described in some ways as a Pyrrhic victory, for several reasons. First, the opinion describes the litigation that was initiated in Illinois by the member way back in November 2007 in his first attempt to address the issues involved. Now, over three (3) years later he obtains some judicial relief–but the story does not end there. The member still does not have the documents. I suspect that there is a good chance that the LLC will not be forthcoming in a prompt and complete manner with all the documents they are required to produce pursuant to this opinion. To the extent that the opinion requires "categories of documents" there is plenty of opportunity for the company to engage in Fabian tactics. I’m not in any way suggesting that the company in this case will do so. I’m simply commenting based on my experience that if the company did so, it would not be unprecedented.

The takeaway, in my view, about these cases, is that requests by members or shareholders for books and records are not for the faint-hearted and are not for those who do not have the financial stamina, or the financial tenacity to spend considerable sums in legal fees to pursue litigation if the company is determined to make the process as expensive as possible, especially in light of the American Rule pursuant to which each party pays its own fees, regardless of who wins the case.

Whittington  v. Dragon Group LLC, C.A. No. 2291-VCP (Del. Ch. Feb. 11, 2011).

Issue Addressed:

Should the Court of Chancery grant a Motion for a Second Amendment to an Answer and Counterclaim in this almost decade-long saga involving many court decisions and a tortuous procedural history with appeals to the Delaware Supreme Court and back twice.  See many prior summaries of decisions in this long-running internecine battle, which provide the backstory,  here.

Overview of Court’s Reasoning

Based on Chancery Rule 15(a), the Court denied the motion for three main reasons:

i)    Too late.  They could have argued in the alternative at beginning of this case, but are just raising a new issue for the first time now.

ii)    Futile:  The Supreme Court’s latest decision in this case creates a “bright line test” that creates “a contract under seal” simply by placing the word “seal” next to a signature on a contract, regardless of any contrary intent to form contract under seal. Thus, their new argument would fail if allowed.

iii)    Prejudice – Plaintiff has been waiting five years to have the Court hear this specific case on the merits.
 

Grunstein v. Silva, C.A. No. 3932-VCN (Del. Ch. Jan. 31, 2011). The several prior decisions in this matter where highlighted on this blog here. 

Issue Presented:  This 40-page Court of Chancery decision addressed whether defendant’s motion for summary judgment on the alleged breach of oral partnership agreement regarding a $2.2. billion acquisition of a company, as amended, should be granted. The motion was denied.

Legal Principles Addressed: 

Res judicata.  The Delaware Supreme Court recognizes “the transactional view” of res judicata which prohibits litigation between the same parties “if the claims in the later litigation arose from the same transaction that formed the basis for the prior adjudication”.  See footnote 72.  Res Judicata is related to the public policy against “claim splitting” which may bar a subsequent claim “if a Plaintiff was able to present it, in its entirety, in the prior forum.” See footnote 73.

The Court rejected argument that unclean hands barred claims for promissory estoppel or unjust enrichment.  That is, claims that Plaintiff, as a New York attorney, violated legal ethics rules by not getting a waiver before taking an interest in a client transaction, was not a basis for the trial court to impose a penalty.  Only the Delaware Supreme Court has power to enforce legal ethics rules unless, unlike this case, “the challenged conduct prejudices the fairness of the proceedings, such that it adversely affects the fair and efficient administration of justice.”  See footnote 81. This holding is consistent with many Chancery decisions that reject efforts to inject claims for a breach of legal ethics into a case as a means of impacting the substantive legal analysis or as a means to influence the result of a case, unless a rather high threshold is met as referenced above.

The Court also discussed the amorphous standard that allows for the creation of a partnership under DRUPA without any written agreements; and based on, for example, the parties’ actions, dealings, conduct and admissions. See footnote 87. But, there must be material terms to have enforceable partnership agreement.  See footnote 89. Multiple unsigned draft agreements do not prevent a finding of an oral agreement.  Due to issues of material facts, summary judgment motion was denied. In essence, this allowed the claims to proceed to trial

The motion was also denied on the promissory estoppel claim due to issues of material fact.  Notably, the Court previously denied a motion to dismiss this same claim.  See footnotes 100 to 104.  Compare the doctrine of “Sham Affidavit” that conflicts with prior sworn testimony.  See footnotes 97 and 98 and 110.

Moreover, a fraud claim was allowed to proceed due to the same factual issues that led to denial of motion to dismiss this claim. An unjust enrichment claim was allowed to proceed despite an alleged contract, due to factual issues and based on the validity of the contract being in doubt.  See footnote 130.

Reid v. Siniscalchi, et al., C.A. No. 2874-VCN (Del. Ch. Jan. 31, 2011). See summary of prior decision of the Delaware Supreme Court in this case here, before the remand which led to the instant opinion by the Court of Chancery.

Issue:  The broader issue was whether Court of Chancery Rule 12(b)(2) required dismissal due to lack of personal jurisdiction because the “Entity Defendants” are all organized under the laws of Italy, but the more limited issue in this 35-page decision was the scope of permissible jurisdictional discovery needed in order for the Court to address the issues.

Procedural History:  The Delaware Supreme Court reversed a prior dismissal of this suit based on the “sixth prong” of the Delaware Savings Statute, and held that it was error to dismiss based on laches.  See 10 Del. C. § 8118(a). On remand, the Chancery Court allowed jurisdictional discovery before it addressed the issue of personal jurisdiction. That was the prelude to the current discovery issue.

Holding:  Because Plaintiff has the burden in reply to a Rule 12(b)(2) motion, Plaintiff is entitled to “reasonable discovery in aid of mounting such proof” to support its argument that personal jurisdiction is apt.  See footnote 19.  But contrasting the authority in footnote 19 are cases cited in footnotes 20 and 22 that limit jurisdictional discovery to issues presented–and to the factual allegations made in the complaint, as well as ultimately the question of personal jurisdiction, as opposed to the proverbial “fishing expedition.”

Overview of the Legal Principles Discussed:  The Court discussed the “specific” and the “general” categories of personal jurisdiction analysis, based on the Delaware Long-Arm Statute.  See 10 Del. C. § 3104(c).  The Court also discusses conspiracy as basis for establishing personal jurisdiction. As described below, this opinion includes basic jurisdictional principles and analysis that would be useful additions to the toolbox of any lawyer engaged in Chancery litigation.

Next, the Court reviewed each contested Request for Production and Interrogatory at issue regarding the scope allowed, compared to the data requested, and observed that where the dividing line cannot be neatly separated, some discovery on the merits is inevitable.

Notably, the Court did not require translations of documents that only existed in their original Italian, unless the translations already had been performed. See footnote 38. To that, I am sure the Italian parties said "grazie".

The Court observed that regular advertising in the state may suffice to establish jurisdiction.  The Court also discusses theories under which a court may ignore the separate corporate existence of a parent and subsidiary entity to impose jurisdiction over an affiliated subsidiary, but ownership of stock alone in a Delaware corporation is not enough, ipso facto, to establish personal jurisdiction.  See footnotes 64 to 71.

 

CNL-AB, LLC v. Eastern Property Fund I SPE (MS FEF) LLC, C.A. No. 6137-VCP (Del. Ch. Jan. 28, 2011), read opinion here.

Short Overview.

Motion for TRO or Injunction denied.  Investors were unsuccessful in their attempt to restrain a mezzanine creditor’s foreclosure proceeding on collateral securing its loan.  The emergency request for relief was barred by laches. Substantial space in the opinion was devoted to the “alphabet soup” of entities and overlapping ownership structures of the various parties involved.

Procedural History

Jan. 19, 2011 – Complaint filed seeking expedited trial on injunctive relief

Jan. 21, 2011 – Counterclaim filed seeking TRO and appointment of receiver pendente lite

Legal Issues Addressed

The opinion provides an excellent review of Delaware’s TRO standard and the nuances of timing, and how the TRO prerequisites compare to related criteria for a preliminary injunction.  See footnotes 67 to 72. The Court applied each of the TRO criteria to the facts in its thorough analysis.

There is a noteworthy discussion of the “irreparable harm” element for injunctive relief, may be found to have been satisfied “in cases where an after-the-fact attempt to quantify damages would involve a costly exercise in imprecision and would not provide full, fair and complete relief for the alleged wrong.”  See footnote 108.

However, a “lost opportunity” to “realize speculative gains sometime in the future is too ephemeral to serve as the basis for irreparable injury under Delaware law” [as in this case].  See footnote 119,

Laches was successfully asserted to bar a TRO request based on the facts of this case.  The elements for a TRO are juxtaposed in terms of how those elements relate to the reason why the Court found laches did bar a TRO in this case. See footnotes 51 to 55.

A mere two week delay in this matter constituted laches for purposes of seeking a TRO in this matter, and the exception for "settlement negotiations" did not apply to the facts of this case because the Court was not persuaded that despite “assertions” to the contrary, there was any realistic chance (in the Court’s view), of any earlier amicable resolution. See footnotes 62 to 65.

That delay left the parties and the Court only 6 days to prepare for a preliminary injunction hearing, and the Court found that delay prejudiced both the parties and the Court; and left “virtually no time for appeal" if one were to be taken.

Chartis Warrantyguard, Inc. v. National Electronics Warranty, LLC, C.A. No. 5764-VCP (Del. Ch. Jan. 28, 2011). 

Short Overview
This case involves the effort to obtain a preliminary injunction in aid of arbitration.  The 32-page decision is noteworthy for purposes of this blog primarily for its useful recitation of the prerequisites for a preliminary injunction, especially one sought in aid of arbitration.

In granting the motion for a preliminary injunction, because there was no special urgency involved, it is notable that the complaint was filed on Aug. 26, 2010 and the Court heard oral argument on October 20, 2010 and this opinion issued in January reflected the ruling on that motion.  Notably, the Court required a bond, pursuant to Court of Chancery Rule 65(c), secured in the amount of $500,000 to cover the possible damages projected to be incurred by the party who was enjoined, to “cover the risk” if it was later determined that the injunction was improvidently granted.
 

Air Products and Chemicals, Inc. v. Airgas, Inc., C.A. No. 5249 (Del. Ch. Feb. 15, 2011), read Delaware Court of Chancery opinion here. This much-anticipated 158-page opinion (153 pages of which is text), upheld the use of the poison pill by Airgas to rebuff the efforts of Air Products to acquire it for the last year or so. Kevin F. Brady plans to provide a fuller summary of this epic decision, but for the meantime, the shortest summary is the one provided by the Court in the introduction to the opinion as follows:

This case poses the following fundamental question: Can a board of directors, acting in good faith and with a reasonable factual basis for its decision, when faced with a structurally non-coercive, all-cash, fully financed tender offer directed to the stockholders of the corporation, keep a poison pill in place so as to prevent the stockholders from making their own decision about whether they want to tender their shares—even after the incumbent board has lost one election contest, a full year has gone by since the offer was first made public, and the stockholders are fully informed as to the target board’s views on the inadequacy of the offer? If so, does that effectively mean that a board can “just say never” to a hostile tender offer? The answer to the latter question is “no.” A board cannot “just say no” to a tender offer. Under Delaware law, it must first pass through two prongs of exacting judicial scrutiny by a judge who will evaluate the actions taken by, and the motives of, the board. Only a board of directors found to be acting in good faith, after reasonable investigation and reliance on the advice of outside advisors, which articulates and convinces the Court that a hostile tender offer poses a legitimate threat to the corporate enterprise, may address that perceived threat by blocking the tender offer and forcing the
bidder to elect a board majority that supports its bid.

In essence, this case brings to the fore one of the most basic questions animating all of corporate law, which relates to the allocation of power between directors and stockholders. That is, “when, if ever, will a board’s duty to ‘the corporation and its shareholders’ require [the board] to abandon concerns for ‘long term’ values (and other constituencies) and enter a current share value maximizing mode?”[1]  More to the point, in the context of a hostile tender offer, who gets to decide when and if the corporation is for sale?

Since the Shareholder Rights Plan (more commonly known as the “poison pill”) was first conceived and throughout the development of Delaware corporate takeover jurisprudence during the twenty-five-plus years that followed, the debate over who ultimately decides whether a tender offer is adequate and should be accepted—the shareholders of the corporation or its board of directors—has raged on. Starting with Moran v. Household International, Inc.[2] in 1985, when the Delaware Supreme Court first upheld the adoption of the poison pill as a valid takeover defense, through the hostile takeover years of the 1980s, and in several recent decisions of the Court of Chancery and the Delaware Supreme Court,[3]  this fundamental question has engaged practitioners, academics, and members of the judiciary, but it has yet to be confronted head on.

For the reasons much more fully described in the remainder of this Opinion, I conclude that, as Delaware law currently stands, the answer must be that the power to defeat an inadequate hostile tender offer ultimately lies with the board of directors. As such, I find that the Airgas board has met its burden under Unocal to articulate a legally cognizable threat (the allegedly inadequate price of Air Products’ offer, coupled with the fact that a majority of Airgas’s stockholders would likely tender into that inadequate offer) and has taken defensive measures that fall within a range of reasonable responses proportionate to that threat. I thus rule in favor of defendants. Air Products’ and the Shareholder Plaintiffs’ requests for relief are denied, and all claims asserted against defendants are dismissed with prejudice.[4]

—————

1. TW Servs., Inc. v. SWT Acquisition Corp., 1989 WL 20290, at *8 (Del. Ch. Mar. 2,1989).
2. 490 A.2d 1059 (Del. 1985).
3. See, e.g.,Yucaipa Am. Alliance Fund II, L.P. v. Riggio, 1 A.3d 310, 351 n.229 (Del.Ch.2010); eBay Domestic Holdings, Inc. v. Newmark, 2010 WL 3516473 (Del. Ch. Sept. 9, 2010); Versata Enters., Inc. v. Selectica, Inc., 5 A.3d 586 (Del. 2010).
4. Defendants have also asked the Court to order Air Products to pay the witness fees and expenses incurred by defendants in connection with the expert report and testimony of David E. Gordon in defense against Count I of Air Products’ Amended Complaint, alleging breach of fiduciary duties in connection with Peter McCausland’s January 5, 2010 exercise of Airgas stock options. That request is denied. The parties shall bear all of their own fees and expenses.

Supplement: The Wall Street Journal’s Deal Journal Blog links to this post here in its treatment of the case, as does Professor Bainbridge here. Prof. Steven Davidoff reports here that in light of this decision, Air Products has decided not to appeal and not to go forward with its hostile bid for Airgas. Professor Bainbridge compiles commentary on the decision here, and prior to the decision he analyzed the issues here. Also noteworthy is an ongoing case by Airgas against the Cravath firm, in federal court in Pennsylvania, alleging a conflict of interest in Cravath’s representation of Air Products in the litigation in Delaware, as reported here. We previously discussed here on this blog the Delaware Chancery Court’s refusal to grant a motion to disqualify in this case. Finally, in an article about the case shortly before the opinion was released, Harold Brubaker of The Philadelphia Inquirer, here, made my daughter proud by quoting me along with Professors Stephen Bainbridge and Charles Elson, and calling all of us "corporate governance experts".

Professor Stephen Bainbridge has published an article called: Insider Trading Inside the Beltway, 36 Journal of Corporation Law 281 (2011).

The article is about insider trading among members of Congress, and the good professor introduces the article with the following overview:

A 2004 study of the results of stock trading by United States Senators during the 1990s found that that Senators on average beat the market by 12% a year. In sharp contrast, U.S. households on average underperformed the market by 1.4% a year and even corporate insiders on average beat the market by only about 6% a year during that period. A reasonable inference is that some Senators had access to – and were using – material nonpublic information about the companies in whose stock they trade.

Under current law, it is unlikely that Members of Congress can be held liable for insider trading. The proposed Stop Trading on Congressional Knowledge Act addresses that problem by instructing the Securities and Exchange Commission to adopt rules intended to prohibit such trading.

This article analyzes present law to determine whether Members of Congress, Congressional employees, and other federal government employees can be held liable for trading on the basis of material nonpublic information. It argues that there is no public policy rationale for permitting such trading and that doing so creates perverse legislative incentives and opens the door to corruption. The article explains that the Speech or Debate Clause of the U.S. Constitution is no barrier to legislative and regulatory restrictions on Congressional insider trading. Finally, the article critiques the current version of the STOCK Act, proposing several improvements.

 

 

The Delaware Court of Chancery this week enjoined both the shareholder vote on a premium LBO transaction and the buyers’ “deal protection” devices in the case of In re Del Monte Foods Co. S’holders Litig., C.A. No. 6027-VCL (Del. Ch. Feb. 14, 2011). The Court held that the advice the target’s board received from its financial advisor (who also did work for the deal with the bidder), was so conflicted as to give rise to a likelihood of a breach of fiduciary duty and indicated that the bidding buyout firm may face monetary damages as an “aider and abettor” of the potential breach. Read 65-page opinion here.

Ted Mirvis of the Wachtell firm provides a short overview of the case on the Harvard Corporate Governance Blog along with his colleagues here. The Wall Street Journal’s Law Blog provides a short overview of the case here.

The recent decision by the Delaware Court of Chancery in Air Products and Chemicals, Inc. v. Airgas, Inc., C.A. No. 5249 (Del. Ch. Feb. 15, 2011), has generated copious commentary from many sectors, some of which has been compiled here. We are fortunate to be able to add to the learned analysis of this epic decision by posting the following expert perspective of the Airgas ruling by Professor Paul L. Regan, a nationally-recognized expert on Delaware corporate law. He is an Associate Professor of Law and Acting Director of the Institute of Delaware Corporate and Business Law at the Widener University School of Law.

The Chancellor’s decision on the poison pill in the Airgas case is in. And what have we learned? For starters, it seems for now there will be no renaissance for Interco – the Court of Chancery’s famous, or perhaps infamous, 1988 decision ordering the directors of Interco Incorporated to dismantle the company’s poison pill to allow an all-cash, all shares tender offer to proceed. In that exciting era of hostile tender offers, there was a notion hanging in the air — after the Delaware Supreme Court in Moran had upheld the basic validity of poison pills but otherwise left it to the Court of Chancery to assess the reasonableness of a board’s refusal to remove a pill in response to a specific offer — that a board’s power to use of a poison pill might in some sense be time limited.

With front-loaded structurally coercive tender offers as passé as Members Only jackets, the thinking among many in the run-up to the Interco case was that a board confronted with a structurally non-coercive, all-cash, all-shares tender offer could only use the pill for a season, as such, to compel the bidder to improve its price to a level that the shareholders might reasonably prefer. Interco so ruled and the clamor among corporate practitioners and commentators was immediate and spirited. (Full disclosure: this writer worked on the Interco case as a litigator at Skadden, Arps, Slate, Meagher & Flom, the firm representing the bidder.) Many seasoned corporate handicappers prophesized a swift and decisive reversal by the Supremes, but the bidder stunned observers by pulling the offer, leaving the Chancellor with the last word. About one year later in the Time-Warner case, the Delaware Supreme Court made a point of criticizing the Court of Chancery’s analysis in Interco and unequivocally emphasized the board’s central role as corporate managers who are charged with the role of determining whether change of control transactions should proceed.

Airgas offered the possibility of a fresh look at Interco’s time-limiting principle for poison pills. Air Products’ all-cash, all-shares offer had been pending for a year during which the Airgas board had made extensive disclosure to the stockholders. Air Products had won a proxy contest along the way, but with Airgas having a staggered board, it won only a minority of seats and even those nominees turned state’s evidence by joining the rest of the board in rejecting the Air Products bid. The epic battle also appeared to have reached its end stage, as Air Products had successively increased its bid to an announced “ final” price of $70 per share, a substantial premium over the unaffected market price but well south of a price that the Airgas board, with the advice of financial advisors, concluded would be adequate.

Unfortunately for Air Products, at the end of the day the target board does not have to win the valuation argument mathematically by showing that their $78 valuation conclusion is inherently correct and that the bidder’s at $70 is wrong. The board need only show, albeit in a setting of enhanced judicial scrutiny, that they acted reasonably. In this context, this means they only need to show that in good faith and after a reasonable investigation (i.e., after receiving the valuation opinion of an investment banker) they concluded that the $70 tender offer was for an inadequate price. With a board centric model of corporate governance, that’s pretty much game, set and match. The reasonably perceived threat of inadequate price justifies as substantively reasonable the board’s defensive response of refusing to remove the pill.

In Airgas Chancellor Chandler thoughtfully explored the development of Interco’s time-limiting principle for target boards wielding the extraordinary power of the poison pill. But in the end the Chancellor adhered to the dictum in Time-Warner by which the Supreme Court rejected the analysis of Interco. Until the Supreme Court weighs in further on the subject, the dictum of Time-Warner remains the lore, if not the law, of the land. That level of Supreme clarity will have to wait until another day and another takeover because after losing this key litigation battle, Air Products immediately announced it was withdrawing its offer and ending its year-long fight to acquire Airgas. Game over – thanks for playing.