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Einhorn case against Apple rests on unusual legal tactic

Hedge Fund Star of David Einhorn would force Apple Inc. to be a part of their huge cash reserves with investors to share, but his trial was based o...


Einhorn case against Apple rests on unusual legal tactic

Hedge Fund Star of David Einhorn would force Apple Inc. to be a part of their huge cash reserves with investors to share, but his trial was based on a U.S. securities rule that there is little jurisprudence.

Einhorn Greenlight Capital sued the manufacturer of the iPad and the iPhone in the U.S. District Court in Manhattan on Thursday to try to get Apple to prevent the elimination of preference shares in the charter. The suit is part of the offer Einhorn pressure on Apple to be a part of its $ 137 billion in cash to be used for perpetual preferred shares to the existing shareholders that dividends payable to spend.

The Crown argued

Apple violated the Securities and Exchange Commission rules that prohibit companies from “clustering” of unrelated subjects in a proposal for a shareholder vote.

setting that Apple has violated the rules can be tricky. Little or no case law exists on the issue and own SEC rule is relatively little general guidance, legal experts said.

Still, James Cox, a professor at Duke University School of Law, Einhorn thinks “is a hell of a good deal.”

“I think the Apple in sight,” he added, saying it “seems to be a case quite dramatic consolidation.”

The hedge fund manager for a ban on a vote of the shareholders on 27 February to block the proposal, saying Apple violated Article 14 of the Securities Exchange Act of 1934. arguments must be heard U.S. District Judge Richard Sullivan on 22 February. Apple until February 15 to file a response with the court.

proxy proposal, Proposition No. 2 is intended to amend the articles of the three Apple ways: by providing a majority of the directors, establishing a nominal value of stock of Apple and the elimination of the possibility to issue preference shares <. / P> Einhorn is represented by the firm of Akin Gump Strauss Hauer & lawyers Feld, Greenlight prolonged outside counsel. No lawyer Apple is not the role of the judge and a representative would not tell what to represent in the case of Apple.

On Friday, the California Public Employees Retirement System, the largest U.S. public pension fund and owns 2,700,000 shares of Apple, and the most influential proxy voting permanent ISS Proxy Advisory services repeatedly urged investors to vote in the benefit of the shareholder proposal in question.

“All shareholders should have the right to vote,” Anne Simpson, CalPERS Senior Portfolio Manager and Director of Corporate Governance said on CNBC. “We do not want the board to do a deal on the side with a hedge fund for fear of a lawsuit that the annual meeting will cancel.

” This is a major problem that must be carefully considered and We want the council to come to all shareholders and give them a chance to make their voices heard.

ISS, which makes recommendations on how shareholders should vote on the proposed proxy, usually believes the “clustering” of the proposals was not in the best interest of the shareholders, but supported the removal of the “blank check “preference shares because of their potential to be misused as a takeover defense.

“While many investors saw Apple cash as excessive and I wanted more of her return for shareholders to see, this view can not be universal: investors may prefer other money (or at least most of it) was used for investments and acquisitions, “said in a statement Friday.


It is not clear how Apple will respond to its official response to these lawsuits. On Thursday, Apple said Einhorn trial was incorrect and that the approval of Proposal No. 2 would not prevent the issuance of preference shares in the future.

“At this time, Apple statutes provide for the issuance of preferred shares” blank check “by the board of directors without shareholder approval,” said Apple. “If the proposal # 2 is adopted, our shareholders have the right to the issue of preference shares to approve.”

Einhorn, a famous short seller and the Apple gadget fan, said in an interview with CNBC now housed a “depression” mentality that led to the treasury cash and only invest in safer, lower interest rates.

Apple almost went bankrupt in the 1990s before Steve Jobs returned and created a sensational turnaround, with products like the iPhone and iPad has become a must for consumers around the world. Near-death experience, the company has led Apple to be particularly conservative with his money.


said in its complaint that two proposals support, but do not get rid of the preference shares. Judge Einhorn preference shares superior to dividends or share buybacks and a separate proposal for issuance of preference shares of Apple with a constant 4 percent dividend.

But Apple proxy proposal is structured, Greenlight said shareholders “no other choice than two votes in favor of an amendment that they oppose, or against an amendment they support.”

Few prosecutions

was never submitted proposals difficult in the rules, a situation that some legal experts normally attributed to the nature of passive shareholders.

“In most cases you will not have much to complain consolidation to get,” said Brian Slipakoff, special advisor to the firm Duane Morris in Philadelphia.

In a trial a few partners, the 2nd U.S. Circuit Court of Appeals in New York in 1999 approved an implicit claim of the shareholder litigation alleging violations of the anti-group.

This precedent would

Einhorn store in the legal status of the case to court. The decision of the Court of Appeal was quoted by Greenlight in court documents filed Thursday added.

Francis Vasquez, an attorney with the law firm White & Case is not involved in the case, said that Apple could argue that because shareholder proposals in the proposal are two changes to the charter, they are well connected.

The Californian company has five proposals for a vote which is not disputed by Einhorn and requires no modification of the Statutes of Apple. These measures focus on issues such as the election of directors and executive compensation.

“first argument Apple will probably be:” Look, these are all the amendments that we have in place, they do not have to deal with other things, “said Vasquez.

date anti-consolidation rules in 1992 . John Coffee, a professor at Columbia Law School, said the idea was “to prevent corrupt directions shareholders with a sweetener to vote for a proposal they would otherwise reject. “

case Greenlight Capital LP, et al. V. Apple Inc, U.S. District Court, Southern District of New York, 13-900.