   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE


HIGH RIVER LIMITED                         )
PARTNERSHIP, ICAHN PARTNERS                )
MASTER FUND LP, and ICAHN                  )
PARTNERS LP,                               )
                                           )
                         Plaintiffs,       )
                                           )
               v.                          )    C.A. No. 2019-0403-JRS
                                           )
OCCIDENTAL PETROLEUM                       )
CORPORATION,                               )
                                           )
                         Defendant.        )



                         MEMORANDUM OPINION

                      Date Submitted: September 20, 2019
                       Date Decided: November 14, 2019



Stephen E. Jenkins, Esquire, Richard D. Heins, Esquire and Aaron P. Sayers, Esquire
of Ashby & Geddes, Wilmington, Delaware, Attorneys for Plaintiffs.

Gregory P. Williams, Esquire, John D. Hendershot, Esquire, Kevin M. Regan,
Esquire and Andrew Milam, Esquire of Richards, Layton & Finger, P.A.,
Wilmington, Delaware and Kevin J. Orsini, Esquire and Benjamin Gruenstein,
Esquire of Cravath, Swaine & Moore LLP, New York, New York, Attorneys for
Defendant.




SLIGHTS, Vice Chancellor
      On May 9, 2019, Defendant, Occidental Petroleum Corporation (or the

“Company”), entered into a merger agreement with Anadarko Petroleum

Corporation. As the transaction essentially involved a merger of equals, Occidental

had to fund a substantial portion of the $55 billion acquisition price with outside

financing. Occidental raised approximately $10 billion through a sale of preferred

stock to Berkshire Hathaway, Inc., and another $8.8 billion through a presale of

Anadarko’s African assets to Total S.A. (“Total”).

      Plaintiffs, High River Limited Partnership, Icahn Partners Master Fund LP

and Icahn Partners LP (collectively “the Icahn Parties”), are all affiliates of Carl C.

Icahn (“Icahn”), a prominent activist investor. They began buying Occidental stock

on May 2, 2019, after Occidental’s offer to buy Anadarko and its sale of preferred

stock to Berkshire were announced. The Icahn Parties eventually invested upwards

of $1.5 billion in Occidental stock. They are currently mounting a proxy fight to

replace members of Occidental’s board of directors (the “Board”) with a new slate

of directors they have proposed to Occidental’s stockholders.

      Plaintiffs sent a demand letter to Occidental on May 21, 2019 (the “Demand”),

seeking to inspect books and records related to: (1) the Occidental-Anadarko merger;

(2) Occidental’s decision to be a buyer, not a seller, when market conditions for a

sale of the Company appeared to be favorable; and (3) provisions of Occidental’s

governance documents detailing the threshold for calling a special meeting of the

                                          1
stockholders. On May 28, Occidental replied that it was “considering the demand.”

Two days later, Plaintiffs filed this action under 8 Del. C. § 220 (“Section 220”)

seeking to inspect the same documents it had requested in its Demand.

      Although they make a cursory argument about the need to investigate

corporate wrongdoing or mismanagement, Plaintiffs freely admit their primary

purpose for demanding to inspect books and records is to aid them in their proxy

contest. They urge the Court to recognize a new, or at least expanded, rule that

would allow a stockholder to inspect books and records relating to targeted, board-

level business decisions that are questionable, but not actionable, when the

stockholder states and then demonstrates that his purpose is to communicate with

other stockholders in furtherance of a potential, bona fide proxy contest.

      The law regarding whether a stockholder’s desire to communicate with other

stockholders is a proper purpose to justify inspection is, at best, murky. It may well

be that, in the right case, this court might endorse a rule that would allow a

stockholder to receive books and records relating to questionable, but not actionable,

board-level decisions so that he can communicate with other stockholders in aid of

a potential proxy contest.     After carefully considering the evidence and the

arguments of counsel, however, I am satisfied this is not that “right case.”

Accordingly, judgment will be entered for Defendant.




                                          2
                                   I. BACKGROUND

         I have drawn the facts from the parties’ pre-trial stipulation, evidence admitted

at trial and those matters of which the Court may take judicial notice.1 A half-day

trial was held on September 20, 2019, and oral argument followed the closing of the

evidence. The trial record consists of 53 joint trial exhibits, 72 pages of trial

testimony and one lodged deposition. The following facts were proven by a

preponderance of the competent evidence.2

      A. The Parties and Relevant Non-Parties

         Plaintiffs, High River, Icahn Partners Master Fund LP and Icahn Partners LP

are all affiliates of Carl Icahn.3 They collectively own approximately 26 million

shares of Occidental stock with a market value of $1.16 billion.4




1
 I cite to the Joint Pre-Trial Stipulation and Order as “PTO ¶ __,” the joint trial exhibits as
“JX __,” and the trial transcript as “Tr. __ (witness name).”
2
 Kosinski v. GGP, Inc., 214 A.3d 944, 950 (Del. Ch. 2019) (confirming that a stockholder
must prove by a preponderance of the evidence all of the requisite elements of a
Section 220 claim, including proper purpose).
3
    JX 2 at 7.
4
    See Tr. 12:12–22 (Graziano).

                                              3
           Defendant, Occidental, is a Delaware Corporation with headquarters in

Houston, Texas.5 It is a large petroleum and chemicals corporation with extensive

operations in the Permian Basin in West Texas and Eastern New Mexico.6

           Non-party, Anadarko, was a petroleum and chemicals corporation that had

extensive drilling operations in the Permian Basin.7

           Non-party, Nicholas Graziano, is a portfolio manager at Icahn Capital, an

Icahn controlled entity.8      The Icahn Parties began investing in Occidental at

Graziano’s suggestion.9 Graziano was the sole witness at trial.

           Non-party, Berkshire, is a conglomerate controlled by its Chairman and CEO

Warren Buffet.10 Berkshire operates as a holding company whose primary business

is making major capital investments in other companies.11




5
    PTO ¶ 1.
6
    PTO ¶ 2.
7
    PTO ¶ 4.
8
    Tr. 6:10–17 (Graziano).
9
    Tr. 11:7–13 (Graziano).
10
     See Berkshire Hathaway Annual Report (10-K) Feb. 25, 2019.
11
     Id.

                                            4
         Non-party, Total, is a French oil and gas producer with significant investments

in Africa.12

         Non-party, Chevron Corporation, is a “major” American oil and gas

producer.13 In 2018, its operating revenues were $158.9 billion.14

      B. Occidental Acquires Anadarko

         On April 12, 2019, Chevron announced it had reached an agreement to acquire

Anadarko for approximately $65 per share.15 Prior to Chevron’s bid, Anadarko’s

stock was trading in the mid-$40s.16 Most of the merger consideration was to be

paid in Chevron stock.17 As a much larger company, Chevron was able to structure

its offer with a heavy dose of its stock without triggering fears that the bid would

significantly depress its stock price.18


12
   See Press Release, Total, Total Closes the Acquisition of Anadarko’s Shareholding in
Mozambique LNG (Sept. 30, 2019) https://www.total.com/en/media/news/press-
releases/total-closes-acquisition-anadarkos-shareholding-mozambique-lng.
13
     Tr. 22:15–16 (Graziano).
14
     Chevron Annual Report (10-K) Feb. 22, 2019 at 28.
15
     PTO ¶ 9.
16
     Tr. 14:2–7 (Graziano).
17
     PTO ¶ 9.
18
   Chevron’s market capitalization was approximately $200 billion immediately before the
proposed merger, with the merger price being $33 billion. Y CHARTS
https://ycharts.com/companies/CVX/market_cap (last visited Oct. 18, 2019). Stock-only
transactions often risk depressing the value of the acquiring company’s stock, but this risk
is lessened when the acquiring company is significantly larger than the target. See Avi
                                             5
           Occidental had previously made a bid for Anadarko at a higher price, but the

bid was rejected.19 On April 24, 2019, Occidental proposed to acquire Anadarko for

$76 per share.20 Anadarko stockholders would receive $38 cash and 0.6094 shares

of Occidental stock for each share of Anadarko stock.21 On May 5, Occidental

revised its proposal to $59 per share cash and 0.2939 shares of Occidental stock

per share of Anadarko.22

           After Chevron did not exercise its matching rights, on May 9, Anadarko

terminated the Chevron Merger Agreement and paid the $1 billion termination fee

owed to Chevron under that agreement.23 Occidental and Anadarko then entered

into a Merger Agreement whereby Occidental would acquire Anadarko for a

notional price of $76 per share on the terms of Occidental’s May 5 offer. The final




Salzman, Chevron Actually Wins by ‘Losing’ the Contest to Buy Anadarko Petroleum,
BARRON’S (May 9, 2019), https://www.barrons.com/articles/chevron-anadarko-
occidental-mergers-51557430645; Alfred Rappaport and Mark L. Sirower, Stock or Cash?
The Trade-Offs for Buyers and Sellers in Mergers and Acquisitions, HARV. BUS. REV.
https://hbr.org/1999/11/stock-or-cash-the-trade-offs-for-buyers-and-sellers-in-mergers-
and-acquisitions (last visited Oct. 18, 2019) (noting in stock transactions the selling
shareholders take more risk than in cash transactions).
19
     Tr. 10:15–19 (Graziano).
20
     PTO ¶ 10.
21
     Id.
22
     PTO ¶ 17.
23
     PTO ¶ 19.

                                             6
$38 billion deal price at closing reflected a $72.34 per share value.24 Before

Occidental’s bid was made public, Occidental’s market capitalization was only

slightly larger than Anadarko’s.25       Because shares issued as part of the offer

constituted less than 20% of Occidental’s float, a vote of the Occidental stockholders

was not required to approve the transaction.26

      C. Occidental Finances the Acquisition

         As noted, a significant portion of the merger consideration was to be in cash.

Accordingly, Occidental needed financing to fund the transaction. On April 30,

2019, Occidental announced it had raised $10 billion in an offering of preferred

shares to Berkshire.27 The preferred shares pay an annual cash dividend of 8% and

are senior to Occidental’s common stock, but junior to its debt securities.28 Rather

than paying a cash dividend, Occidental has the option to make dividend payments




24
  Jennifer Hiller, Anadarko shareholders go for the cash in $38 billion Occidental buyout,
REUTERS (Aug. 8, 2019), https://www.reuters.com/article/us-anadarko-petrol-m-a-
vote/anadarko-shareholders-go-for-the-cash-in-38-billion-occidental-buyout-
idUSKCN1UY22M.
25
     JX 17 at 3; JX 2 at 2.
26
     JX 7 at 13; PTO ¶ 18.
27
     JX 7 at 14.
28
  JX 8 at 90; Tr. 30:9–17 (Graziano). Because the preferred shares are structured as equity,
the dividends paid to Berkshire are not tax deductible, unlike interest payments on debt.
Tr. 30:2–6.

                                             7
in additional preferred shares at a rate of 9%.29 At the time the sale to Berkshire was

announced, Occidental’s debt was yielding between 3% and 4% and its common

stock was yielding approximately 5%.30

         Berkshire also acquired warrants to purchase 80 million common shares of

Occidental stock with an exercise price of $62.50 per share.31 If converted, these

shares would represent approximately 10% of Occidental’s outstanding stock.32

Using the Black-Scholes option pricing method, Plaintiffs value these warrants at

$1.2 billion.33 Plaintiffs argue Berkshire fleeced Occidental because Occidental

could have found much cheaper financing elsewhere had it bothered to look.34

In response, Occidental points to evidence that very few, if any, other lenders could

have promptly agreed to provide such a large block of financing with no syndication

contingencies or demand risks.35




29
     Tr. 31:12–15 (Graziano).
30
     Tr. 30:9–17 (Graziano).
31
     JX 8 at 90.
32
     Tr. 30:22–24 (Graziano).
33
     Tr. 31:16–32:9 (Graziano).
34
     Tr. 32:21–35:8 (Graziano).
35
     JX 40 at 1.

                                          8
           Five days after the preferred stock sale, Occidental agreed to pre-sell

Anadarko’s Africa assets to Total for $8.8 billion.36 The proceeds of the sale were

applied to cover a part of the cash consideration for the Anadarko acquisition and to

“fast-track[ ] the divestiture plan previously described by Occidental, delivering on

the majority of the $10 to $15 billion of planned asset sales.”37 Plaintiffs contend

the fire sale price of $8.8 billion was woefully inadequate.38 Occidental later issued

$13 billion of new debt yielding 3% as further financing for the Anadarko

purchase.39

      D. Plaintiffs’ Consent Solicitation

           On June 26, 2019, Plaintiffs and other Icahn associated entities filed

preliminary proxy materials. They attempted to obtain requests from the record

holders of 20% of Occidental’s common stock—the threshold by which they could

require the Occidental Board to set a record date for a consent solicitation. 40 The

Icahn Parties intend to solicit written consents to elect four directors nominated by

Icahn entities, change Occidental’s bylaws and effect other changes to Occidental’s



36
     JX 42 at 1.
37
     Id.
38
     Tr. 55:13–58:8 (Graziano).
39
     JX 19 at 7.
40
     Tr. 39:3–13 (Graziano).

                                            9
consent solicitation process.41 Occidental is vigorously contesting all of the Icahn

Parties’ proposals.42

      E. Procedural History

         On May 21, 2019, Plaintiffs sent their Demand to Occidental seeking to

inspect certain books and records related to the Anadarko merger and provisions of

Occidental’s governance documents.43 On May 28, Occidental responded that it was

“considering the demand.”44 Plaintiffs filed their Verified Complaint two days

later.45

         Plaintiffs demand to inspect any documents: (1) provided to the Board about

the Berkshire preferred stock transaction; (2) provided to the Board about the sale of

Anadarko’s assets to Total; (3) provided to the Board regarding the effect fluctuating

oil and gas prices would have on Occidental, including projections and forecasts;

(4) provided to the Board concerning any consideration given to selling Occidental’s

assets, or the Company as a whole; and (5) concerning whether the Board intends to

comply with the stockholder proposal, adopted at Occidental’s annual meeting, that



41
     JX 28 at 2–5, 9.
42
     JX 32.
43
     JX 2, Ex. A.
44
     JX 3 at 1
45
     JX 2.

                                          10
seeks to lower the threshold to call a special meeting from 25% stockholder approval

to 15%.46

                                      II. ANALYSIS

         Section 220 is an “important part of the corporate governance landscape in

Delaware[,]” but “it would invite mischief to open corporate management to

indiscriminate fishing expeditions.”47 In order to inspect books and records under

Section 220, therefore, a plaintiff must have a proper purpose.48 In the typical case

where a stockholder seeks to inspect books and records to investigate corporate

wrongdoing, the stockholder must demonstrate a credible basis to suspect that

mismanagement or wrongdoing has occurred before the corporation will be

compelled to allow inspection.49 When a plaintiff has demonstrated a credible basis

to suspect wrongdoing, this court has allowed the plaintiff to use acquired books and




46
   JX 2 at 23–24. Defendants have already provided Plaintiffs with the documents in
request (5), leaving only the first four as live requests. See JX 52–53.
47
  Sec. First Corp. v. U.S. Die Casting and Dev. Co., 687 A.2d 563, 571 (Del. 1997).
See also Melzer v. CNET Networks, Inc., 934 A.2d 912, 917 (Del. Ch. 2007) (noting that
Section 220 “does not permit unfettered access” to books and records).
48
     Sec. First Corp., 687 A.2d at 566–67.
49
   See Seinfeld v. Verizon Commc’ns, Inc., 909 A.2d 117, 118 (Del. 2006) (“We reaffirm
the well-established law of Delaware that stockholders seeking inspection under
section 220 must present some evidence to suggest a credible basis from which a court can
infer that mismanagement, waste or wrongdoing may have occurred.”) (quotations
omitted).

                                             11
records to mount a proxy contest.50 But neither the parties nor the Court have found

any Delaware decision where Chancery has compelled a company to allow

inspection of books and records when the stockholder’s only stated purpose for

inspection is a desire to communicate with other stockholders in furtherance of a

potential proxy contest.51

     A. Proper Purpose

        By the time of trial, Plaintiffs had proffered two purposes in support of their

inspection demand. First, they maintained that their intent to mount a proxy contest

following the Anadarko acquisition, and related Berkshire preferred stock offering

and Total asset sale, is a proper purpose that justifies inspection of board-level

documents relating to those transactions in order to enhance the quality of their

communications with fellow stockholders.52 Recognizing this presents a novel

application of Section 220, they argue in the alternative that they have established a




50
  See id. at 119–20 (“Stockholders may use information about corporate mismanagement,
waste or wrongdoing in several ways. For example, they may . . . mount a proxy fight to
elect new directors.”) (quoting Saito v. McKesson HBOC, Inc., 806 A.2d 113, 117
(Del. 2002)).
51
   See Post-Trial Oral Arg. (“OA”) 81–87, 104; Pls.’ Opening Pre-Trial Br. (“OB”) 37
(noting “stare decisis might prevent this Court from focusing on materiality [to a proxy
fight] rather than mismanagement . . .”); Def.’s Answering Pre-Trial Br. (“AB”) 14–18
(discussing cases suggesting a stockholder seeking to investigate management decision-
making must always articulate a credible basis to infer wrongdoing).
52
     OB 34–35.

                                           12
credible basis to infer corporate mismanagement or wrongdoing.53 I address the

proffered mismanagement/wrongdoing purpose first since that purpose fits crisply

within existing Section 220 jurisprudence. Finding that purpose unsupported by the

trial record, I turn to Plaintiffs’ argument that their desire to communicate with

stockholders regarding the Anadarko transaction (and related transactions) justifies

an order compelling the Company to allow inspection of substantial transaction-

related documents.

         1. Plaintiffs Have Failed to Demonstrate a Credible Basis to Infer
            Mismanagement

         While “credible basis” is the lowest burden of proof recognized in our law, it

still requires a plaintiff to provide some evidence of wrongdoing.54                     Mere

disagreement with a business decision is not enough.55 Plaintiffs have not met that

low burden here. They have not alleged, much less proven, that the Occidental

Board was conflicted, disloyal or in some way interested in the transactions at issue.

They also do not allege, nor have they proven, that the Occidental Board acted in

bad faith.56


53
     OB 37.
54
     Hoeller v. Tempur Sealy Int’l, Inc., 2019 WL 551318, at *7 (Del. Ch. Feb. 12, 2019).
55
  Deephaven Risk Arb. Trading Ltd. v. UnitedGlobalCom, Inc., 2005 WL 1713067, at *8
(Del. Ch. July 13, 2005).
56
  In a letter sent after trial, Plaintiffs suggest the Occidental directors engaged in “knowing
intentional breaches of fiduciary duty.” D.I. 35. No such allegations appear in the
                                              13
       Instead, Plaintiffs’ allegations of mismanagement appear to be nothing more

than disagreements with how Occidental’s directors exercised their business

judgment. They think the Anadarko purchase, Berkshire preferred stock sale and

Total asset sale were bad deals.57 But disagreeing with a board’s business judgment,

without more, is not enough to provide a credible basis to infer mismanagement.58

Plaintiffs’ disagreements with the Board’s deal making prowess do not establish a

credible basis to infer mismanagement or wrongdoing.59




operative Complaint. In fact, Plaintiffs explicitly denied making such allegations in their
pre-trial brief. OB 7. Plaintiffs’ abrupt, unexplained change in position, after the case has
been submitted, will not be countenanced.
57
   See Tr. 13:21–15:14; 21:11–29:14 (Graziano) (objecting to the terms and process of the
Anadarko purchase); Tr. 29:15–37:5 (detailing problems with the Berkshire preferred
financing); Tr. 37:6–38:12; 45:1–17 (describing concerns with the sale of Anadarko’s
Africa assets to Total);
58
  See Marathon P’rs, L.P. v. M&F Worldwide Corp., 2004 WL 1728604, at *4 (Del. Ch.
July 30, 2004) (“When a business judgment forms the basis of a request for books and
records, a stockholder must show a credible basis for an inference that management
suffered from some self-interest or failed to exercise due care in a particular decision.”).
59
  This is especially so when a company, like Occidental, has a provision in its charter per
8 Del. C. § 102(b)(7) exculpating directors for duty of care violations. See Se. Pa. Trans.
Auth. v. Abbvie, Inc., 2015 WL 1753033, at *13 (Del. Ch. Apr. 15, 2015) (holding that
when a company’s “Section 102(b)(7) exculpatory provision serves as a bar to stockholders
recovering for certain director liability in litigation,” a stockholder’s inspection demand
under Section 220 must “target non-exculpated corporate wrongdoing”).

                                             14
         2. Plaintiffs’ Proposed Proxy Fight Standard

         Perhaps recognizing the weakness of their mismanagement argument,

Plaintiffs ask this Court to recognize a new rule entitling stockholders to inspect

documents under Section 220 if they can show a credible basis that the information

sought would be material in the prosecution of a proxy contest.60 According to

Plaintiffs, our case law focuses on the contours of the inspection right in the context

of investigating mismanagement because those are the cases where Section 220 is

most frequently invoked.61 They point to a number of additional “proper purposes”

Delaware courts have identified, and urge this Court to add their proposed proxy

contest rule to the list.62


60
     OB 35; OA 86.
61
     Pls.’ Reply Pre-Trial Br. (“RB”) 8.
62
  See RB 9. The Folk treatise provides an excellent summary of the various proper
purposes a stockholder might proffer in support of an inspection demand:

         A stockholder may state a “proper purpose” when he seeks to investigate
         allegedly improper transactions or mismanagement; to clarify an
         unexplained discrepancy in the corporation's financial statements regarding
         assets; to investigate the possibility of an improper transfer of assets out of
         the corporation; to ascertain the value of his stock; to aid litigation he has
         instituted and to contact other stockholders regarding litigation and invite
         their association with him in the case; “[t]o inform fellow shareholders of
         one’s view concerning the wisdom or fairness, from the point of view of the
         shareholders, of a proposed recapitalization and to encourage fellow
         shareholders to seek appraisal”; “to discuss corporate finances and
         management’s inadequacies, and then, depending on the responses,
         determine stockholder sentiment for either a change in management or a sale
         pursuant to a tender offer”; to inquire into the independence, good faith, and
         due care of a special committee formed to consider a demand to institute
                                               15
          Plaintiffs rely on two cases to support the propriety of their proffered purpose.

The first, Tactron, Inc. v. KDI Corporation,63 involved an inspection demand where

stockholders sought books and records that would provide logistical assistance in

mounting a proxy contest, specifically:

          information relating to record dates, quorums, number of directors,
          amendments, procedures for the solicitation of written consents of
          stockholders and other provisions in connection with the solicitation of
          written consents or proxies for the execution of written consents from
          the holders of the outstanding voting securities of KDI to be used to
          remove at least a majority of the present members of the board of
          directors of KDI. . . .64




          derivative litigation; to communicate with other stockholders regarding a
          tender offer; to communicate with other shareholders in order to effectuate
          changes in management policies; to investigate the stockholder’s possible
          entitlement to oversubscription privileges in connection with a rights
          offering; to determine an individual’s suitability to serve as a director; to
          obtain names and addresses of stockholders for a contemplated proxy
          solicitation; to inspect documents related to a “market check” on the terms
          of financing that may have been influenced by an interested party; to obtain
          particularized facts needed to adequately allege demand futility after the
          corporation had admitted engaging in backdating stock options; or to
          investigate a private corporation’s “serial failure to convene annual
          stockholder meetings.”

Edward P. Welch, Robert S. Saunders, and Jennifer C. Voss, Folk on the Delaware General
Corporation Law, § 220.05[A] (Wolters Kluwer Law & Business, 2019 ed.) (citations
omitted).
63
     1985 WL 44694 (Del. Ch. Jan. 10, 1985).
64
     Id. at *1.

                                               16
Then-Vice Chancellor Berger granted plaintiffs’ request for documents, noting that

the demand implicated considerations similar to when a stockholder seeks to inspect

books and records to value stock:

           “[b]y statute, a proper purpose is one reasonably related to such
           person’s interest as a stockholder. It seems clear that Tactron’s purpose
           satisfies this requirement . . . . In cases where inspection is sought to
           value one’s stock, our courts consistently have limited the extent of that
           inspection to those records which are essential and sufficient to
           accomplish the stated purpose. I see no reason why that standard should
           not apply here, where the demand is not related to any allegation of
           mismanagement.65

           While Plaintiffs read Tactron as supporting their broad inspection demand, it

is difficult to miss that the court there was addressing a very narrow demand for

purely logistical information. The plaintiffs in Tactron were not seeking information

to sway the votes of stockholders in a proxy contest; they were seeking information

about how to reach stockholders to share information they already had in their

possession.66 As the Tactron court correctly noted, plaintiffs’ request was much

more like a Section 220(b)(1) request to inspect a stock list than a Section 220(b)(2)

request to inspect a broader set of books and records to investigate suspected




65
     Id. (quotations and citations omitted).
66
     Id.

                                               17
wrongdoing.67 Indeed, the Tactron plaintiffs also sought board minutes in their

demand and that request was denied.68

           The documents Plaintiffs seek here are not merely logistical; they are, instead,

the journal of the Board’s decision-making with respect to all aspects of the

Anadarko transaction.69 Plaintiffs hope to use these documents to show Occidental’s

stockholders that the Board botched multiple decisions in connection with the

Anadarko merger not just to conduct, but to win, a proxy contest. In this sense, it is

difficult to distinguish Plaintiffs’ purpose from a more typical purpose to investigate

suspected mismanagement or wrongdoing. Tactron does not help Plaintiffs, at least

not with respect to their demand to inspect books and records regarding board-level

decision making.

           Plaintiffs next cite then-Master LeGrow’s report in High River Ltd.

Partnership v. Forest Labs., Inc.70 as support for their proffered purpose. Forest



67
     Id.
68
     Id. at *2.
69
   JX 2 at 23. As noted, the purely “logistical” documents in request Number 5 have
already been provided to Plaintiffs.
70
  C.A. No. 7663-ML (Del. Ch. July 27, 2012) (TRANSCRIPT). Forest Labs involved six
categories of document requests. One request related to “logistics,” analogous to the
Tactron documents, and three exclusively related to alleged mismanagement. Id. at 20–
26, 35–36. Two other categories allegedly implicated plaintiff’s purposes both to
investigate mismanagement and mount a proxy contest, but the request to inspect those
documents was denied. Id. at 26–32.

                                              18
Labs also involved Icahn affiliates running a proxy contest.71 As part of a proxy

contest run the year before, plaintiffs had negotiated corporate governance

concessions from the incumbent directors.72 As they prepared for a new proxy

contest, the plaintiffs sought documents that would reveal whether those concessions

had been fulfilled.73 They argued Section 220 was a proper tool to secure documents

under the circumstances since, without documents, plaintiffs and stockholders would

have no means to confirm that the Company had made governance reforms as

promised.74

           The court directed the company to produce the requested documents and, in

doing so, stated, “[a] stockholder states a proper purpose by demonstrating that they

are engaged or are imminently about to be engaged in a proxy contest.”75 Apparently

conscious of the need to identify a limiting principle, the court looked to “the case

law that animates Section 220[]” and determined that any documents requested must

be “essential and sufficient” to the stated purpose of mounting the proxy contest.76



71
     Id. at 6–8.
72
     Id. at 33–35.
73
     Id.
74
     Id. at 11.
75
     Id. at 14.
76
     Id.

                                           19
       Forest Labs presented a distinct factual context, and the court there was

careful to limit its ruling to the case sub judice.77 In doing so, the court observed

that the law in this area is unsettled and could use some clarity. I agree. But this

case is not the vehicle to provide that clarity. Where, as here, the documents sought

by Plaintiffs relate to a dispute with management about substantive business

decisions, pleading an imminent proxy contest is not enough to earn access to broad

sets of books and records relating to the details of questionable transactions,

particularly when the board’s decision-making is subject to the business judgment

rule, and the facts of record reveal that Plaintiffs already have what they need to

fulfill their stated purpose.

     B. The Documents Sought are Not “Necessary and Essential” to the Proxy
        Fight

       When the court in Forest Labs decided that the plaintiffs there had articulated

a proper purpose, it turned to the well-settled limiting principle embedded within

Section 220 that stockholders are entitled to inspect only those documents that are


77
   Id. at 3 (“Frankly, I think this case presents some—some interesting issues . . . . And I
think that the law could use some development in this area outside of transcript rulings.
But the nature of proxy contests is such that the parties deserve a prompt ruling. And—
and so I’ve—I’ve let that interest outweigh whatever interest I might have in saying, you
know, for a larger audience what I think the law is here . . . .”). The fact the court offered
its ruling from the Bench further reflects that the court intended to decide a particular
dispute, not to advance a new, definitive Section 220 standard. See, e.g., In re Columbia
Pipeline Gp., Inc., 2018 WL 4182207, at * 4 (Del. Ch. Aug. 30, 2018) (noting the generally
fact-specific nature of transcript rulings) Kalisman v. Friedman, 2013 WL 1668205, at *7
(Del. Ch. Apr. 17, 2013) (same).

                                             20
“necessary, essential and sufficient” to their stated purpose.78 Applying that limiting

principle here, I am satisfied that Plaintiffs have failed to demonstrate that the broad

set of books and records they have requested are necessary and essential.

         Plaintiffs’ inspection demand relates to a series of closely-tied transactions

that were widely publicized.79 Occidental stockholders know the transactions well.80

It is difficult to discern how a fishing expedition into the boardroom is necessary and

essential to advance Plaintiffs’ purpose to raise concerns with their fellow

shareholders about the wisdom of the Board’s decisions to engage in these

transactions.81 Indeed, Plaintiffs have already made their assessment of the Board’s

decision-making and have found it wanting.82

         Likewise, if Plaintiffs think the Board should have considered in the past, or

should consider in the future, a sale of the Company, they do not need records from




78
  Forest Labs, C.A. No. 7663-ML at 14; BBC Acquisition Corp. v. Durr-Fillauer Med.
Inc., 623 A.2d 85, 88 (Del. Ch. 1992).
79
  See generally JX 18; JX 20; JX 22; JX 24–27; JX 34–35 (news articles in prominent
publications describing the transactions surrounding and including the merger).
80
     The merger was front-page news in the business press. Id.
81
   See Seinfeld, 909 A.2d at 122 (noting that fishing expeditions do not benefit the
corporation).
82
  See Tr. 29:15–35:22 (Graziano) (comparing the terms of the Berkshire preferred sale to
a later public sale of Occidental debt); Tr. 55:5–58:18 (discussing how the Plaintiffs
believed the process leading to the sale to Total was faulty).

                                             21
the Company to make that case.83 Simply stated, Plaintiffs have not demonstrated

in this record how documents reflecting whether the Board has or has not considered

a sale of the Company are necessary and essential to advance their proxy contest.

                                III. CONCLUSION

      For the foregoing reasons, judgment is entered in favor of Defendant,

Occidental.

      IT IS SO ORDERED.




83
  See Tr.47:9–48:19; JX 4 (“Graziano Dep.”) 123:24–128:7 (expressing why, in Plaintiffs’
view, the Company should have been (and perhaps still should be) put up for sale).

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