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Company threat: Change state law or we'll leave

Del. legislators want to help Dole; powerful lawyers wary

"Dole Food Co., the fruit producer and the Port of Wilmington's largest tenant, has urged (Delaware state) lawmakers to limit shareholder lawsuits," and legislators say company reps have threatened that Dole may pull its fruit-shipping business and hundreds of dependent jobs out of the state if the legislators don't cave in and limit hedge fund investors' powers to file lawsuits, Jonathan Starkey in the Wilmington News-Journal reports here.

"Dole, like other companies incorporated in Delaware, has been spending millions of dollars in defense costs due to appraisal litigation initiated by hedge funds," C. Michael Carter, president of Dole, wrote in a December letter to state lawmakers, the News Journal reported. He called the litigation "abusive" and sent the lawmakers draft legislation that would restrict such suits.

Shareholder disputes are big business in Delaware, which is home to more corporations and other business entities than people, and is the legal home to many big U.S. companies and subsidiaries with offices elsewhere, thanks to its lack of taxes on intellectual property income, its business-friendly Chancery Court of appointed judges who speed shareholder disputes to resolution, and its infrastucture of local, New York and Philadelphia law firms and other services to accomodate corporate clients. Corporate fees help Delaware afford its status as one of just four states without a sales tax, though Gov. Jack Markell wants to levy one.

Starkey writes that under Delaware law, "shareholders can challenge the price of corporate buyouts in court and – win or lose – they are entitled to 5.75 percent interest" on their shares in the company for the duration of the suit, which critics say gives investors more incentive to sue.

"Dole was sued by hedge fund investors in Delaware Chancery Court over its chief executive's $1.2 billion (management-led buyout of the company) in 2013. The trial ended Monday. Appraisal claims have surged in recent years, reaching $1.5 billion in 2013, a tenfold increase from 2004, according to a study from researchers at Brooklyn Law School and Case Western Reserve University School of Law." The Dole proposals would lower that statutory interest payout, and limit appraisal challenges to investors who held shares before a takeover announcement.

The powerful corporate-law section of the Delaware state bar association, which all but dictates to Delaware legislators an annual list of corporate-law updates to be passed in Dover and signed by the governor, has proposed giving companies the option to buy out dissident shares up front, so interest doesn't pile up. But Dole wants more sweeping restrictions. The company wouldn't comment to the newspaper.

"Dole is a big, big deal to Delaware and to middle class jobs. It's something we need to pay attention to," state Rep. Byron Short, D-suburban Wilmington, told the News Journal. He and another legislator added that they expect Dole will eventually leave the port, ending up to 850 jobs, if the company doesn't get its way.