In re El Paso Corp. Shareholder Litigation
Delaware Court of Chancery
41 A.3d 432 (2012)
El Paso Corporation's (El Paso) CEO Doug Foshee, who alone negotiated El Paso's sale to Kinder Morgan (Kinder), never disclosed to the board his own personal interest in later buying back part of El Paso's business from Kinder; El Paso's financial advisor Goldman Sachs owned 19% ($4 billion) of Kinder stock, had two principals on Kinder's board, and its lead banker on the deal personally owned $340,000 of Kinder stock, yet Goldman continued advising El Paso even after Morgan Stanley was brought in to supposedly wall it off, with Goldman also conditioning Morgan Stanley's $35 million fee on El Paso adopting Goldman's own preferred sale strategy. El Paso's board never sought other bidders, let Kinder abandon an earlier agreed price for a lower one, and agreed to a $650 million termination fee barring El Paso from soliciting better offers; some El Paso stockholders (plaintiffs) sought a preliminary injunction against the merger vote.
Whether stockholders are entitled to a preliminary injunction blocking a merger vote, based on a reasonable likelihood of success on a claim that the corporation's fiduciaries were motivated by personal or financial self-interest rather than shareholders' interests, when no alternative bid exists and the stockholders retain the ability to vote down the merger themselves.