Dole Food Company CEO David Murdock and a former executive must pay $148.19 million to shareholders for perpetrating a fraud that enabled the billionaire Murdock to take over the business on the cheap in 2013, a Delaware judge ruled Thursday following a nine-day trial in February.
The damages award against Murdock and former president and chief operating officer C. Michael Carter implies that Dole was worth $16.24 per share, not the $13.50 per share that Murdock paid to buy the remaining interest in the company two years ago, the judge held.
“Although facially large, the award is conservative relative to what the evidence could support," wrote Vice Chancellor Travis Laster of the Delaware Court of Chancery in his 106-page decision.
Murdock, who Forbes calculates is worth $3.4 billion, already owned 40 percent of Dole’s shares at the time he moved to take the company private. Murdock’s initial offer of $12.00 per share was contingent on approval by a committee that was comprised of independent directors, and an affirmative vote of the holders of the majority of unaffiliated shares.
The committee negotiated an agreement to raise the price to $13.50 per share and “carried out its task with integrity," according to Laster. The stockholders narrowly voted in favor of the deal by a 50.9 percent majority.
“But what the Committee could not overcome, what the stockholder vote could not cleanse, and what even an arguably fair price does not immunize, is fraud," Laster wrote in his decision.
“Before Murdock made his proposal, Carter made false disclosures about the savings Dole could realize after selling approximately half of its business in 2012," Laster continued. “He also cancelled a recently adopted stock repurchase program for pretextual reasons. These actions primed the market for the freeze-out by driving down Dole’s stock price and undermining its validity as a measure of value."
Carter provided the committee “lowball management projections" after Murdock made his proposal, and the following day Carter gave more accurate and positive data to Murdock’s advisors and financing banks during a secret meeting that violated procedures the committee had established, according to the judge. Even though the committee “recognized that Carter’s projections were unreliable and engaged in Herculean efforts to overcome the informational deficit," it was never able to acquire accurate information concerning “Dole’s ability to improve its income by cutting costs and acquiring farms," Laster wrote.
The $2.74-per-share incremental value that correlates to the damages award suggests the defendants’ behavior reduced the value of the agreement by approximately 17 percent, the judge noted.
The plaintiffs also sought to hold Deutsche Bank liable for shareholders’ losses. Although Deutsche Bank “acted improperly by favoring Murdock," the judge found the institution did not participate in the breaches of duty and was not liable.
Dole, the Westlake Village, California-based marketer of fruits and vegetables that was founded in 1851, declined to comment to national media on the ruling. The Associated Press said lawyers for Carter and Murdoch did not immediately respond to requests for comment.
“We are extremely pleased not only with the large financial recovery, but the forceful way in which the court excoriated the defendants for the brazen way they tried to hijack Dole for their own advantage in taking the company private," said Stuart Grant of the law firm Grant & Eisenhofer, plaintiffs’ co-counsel, in a statement.
The ruling follows a nine-day trial that was held in February in which more than 1,800 exhibits were introduced. Murdock was among several witnesses who testified, and it was clear the judge did not find his testimony credible.
“By dint of his prodigious wealth and power, he has grown accustomed to deference and fallen into the habit of characterizing events however he wants," Laster wrote. “That habit serves a witness poorly when he faces a skilled cross-examiner who has contrary documents and testimony at his disposal."