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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.
Barry Diller and John Malone
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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.

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?

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