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Malone on the Ropes?

Looking back on the Battle of the Moguls in Delaware Chancery Court, Liberty Media may have failed to make its case.
Last Trade:Change:
Primary executive:
Gregory B. Maffei,
Summary:
The Company, through its ownership of interests in subsidiaries and other companies, is engaged in the video and on-line … View More
Last Trade:Change:
Industry:
Retail
Primary executive:
Barry Diller,
Summary:
The Company's operating businesses provide products and services through a portfolio of global brands and are organized into … View More
Barry Diller
Industry:
Retail
Biography:
Mr. Diller, age 65, has been Chairman of the Board and Chief Executive Officer of IAC/InterActiveCorp (an information, entertainment … View More
John C. Malone
Industry:
Media and Publishing
Biography:
John C. Malone, Chairman of the Board and a director of our company since March 2006. Chairman of the Board and a director … View More
John Malone and Barry Diller did not disappoint as they played out a soap opera of sorts in Delaware Chancery Court last week.

Their lawyers were at work on final briefs due today at the chambers of Vice Chancellor Stephen Lamb. He has asked for information on two matters:

Did Diller violate his contract with Malone's Liberty Media in his plan to spin off four IAC/Interactive business units into separate companies?

And was Liberty too hasty in suing, given that the board at Diller's IAC has not yet voted on the spinoffs?

At a hearing last Friday, Lamb said he would rule on the contract claims by March 28.

IAC Share Price

It's a fair bet that Liberty Media will have an uphill battle in winning the judge on the claims: For all the star power of Diller and Malone offering their own versions of the disintegration of their business marriage, the case may come down to how their lawyers interpreted a single clause in the governance agreement for their arrangement.

The two moguls, who have worked together for 13 years, each had a star turn at the trial.

Malone, appearing icy and aloof, called Diller's spinoff plan—which would, coincidentally, dilute Liberty Media's voting stake in the various businesses from about 62 percent to 30 percent—a "breach of faith" under a proxy agreement. (That agreement, by the way, does explicitly allow Diller to vote the Liberty Media shares—even against Liberty's own best interest, apparently.)

For his part, Diller, as method actor, "projected" during his time on the stand, at one point recounting an icy meeting with his fellow mogul after the Wall Street Journal published a front-page story in which Malone criticized Diller at great length.

But how did each executive score on the key contract point: What kind of latitude does Diller have to vote Liberty Media's shares in IAC after Liberty gave him its proxy?

Since 1995, Liberty Media has had a veto right over Diller's voting proxy on certain matters. Diller and his legal team from Wachtell, Lipton, Rosen & Katz have portrayed this provision as bowing to Liberty's concerns about Federal Communications Commission rules against cross-ownership of broadcasters.

Liberty, on the other hand, has characterized the veto power much more broadly.

The case could come down to a "he said/she said" match between two key lawyers for Liberty Media and IAC over how the veto provision has evolved over the years. It was last revised in 2001, when IAC merged the USA Network with Vivendi Universal.

Testimony from the lawyers who negotiated that deal differed on what kind of veto power Liberty Media retained.

Frederick "Buzz" McGrath, a partner with the New York office of Baker & Botts, who has represented Malone since 1992, testified that the veto clause was a "catchall protection" for Liberty.

But he could not provide evidence to support that recollection when pressed by Lamb.

"Is there anything in the writing from 1995 that confirms that testimony?" the judge asked.

"No, I don't believe so," McGrath responded.

"Did you communicate it to anyone at Wachtell, Lipton in 1995?" the judge then asked, referring to the law firm representing Diller's IAC.

"Not that I recall," McGrath replied. In fact, McGrath repeatedly admitted that there was no written communication confirming the catchall nature of Liberty's right to veto Diller's proxy.

The Diller response to Liberty is that the veto related only to "regulatory" matters, fundamentally the Federal Communications Commission's cross-ownership restrictions.

On this point, Liberty's lawyer, Pamela Seymon of Wachtell, was quite forceful. She testified that "alarm bells would have gone off in my head" had the "contingent matters" provision been a catchall in the 2001 negotiations.

Seymon also agreed that it was "fair" to characterize the veto provision as one that related to regulatory matters. "It's my interpretation," she said.

On Diller's right to exercise the proxy to vote in favor of spinoffs with a single-tier voting structure, Seymon was clear: "As a contractual matter, he can," she testified. "Remember that there is a board of directors here as well."

Seymon has a point: The IAC board last considered the spinoff at a January 16 meeting. Diller gave a speech at the time and Martin Lipton of Wachtell explained the board's liability, or lack thereof, if they voted in favor of the plan. The board has yet to act.

Malone testified that he left the legal details to his lawyers, while Diller was adamant that a veto provision that would have given Liberty Media a catchall would have set off "alarm bells" for him because "a fundamental purpose" of the Vivendi transaction was to "remove the consent rights" that Liberty previously held.

Stay tuned.


 



 
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