ATTORNEY: MICHAEL GRUNFELD
POMERANTZ MONITOR; MARCH/APRIL 2019
In Jaroslawicz v. M&T Bank Corporation, the Third Circuit Court of Appeals recently held that allegations that defendants failed to disclose M&T Bank Corporation’s (“M&T”) compliance violations in a proxy statement issued in connection with M&T’s merger with Hudson City Bancorp (“Hudson”) could be a violation of Section 14(a) of the Exchange Act, which prohibits proxy fraud. The Court explained that the omission of information from a proxy statement violates Section 14(a) and the Securities and Exchange Commission (“SEC”) Rule 14a-9 if, among other reasons, “the SEC regulations specifically require disclosure of the omitted information.” The parties therefore agreed that Section 14(a) required the Joint Proxy to comply with Item 503(c) of SEC Regulation S-K. Item 503(c), in turn, requires issuers to “provide under the caption ‘Risk Factors’ a discussion of the most significant factors that make the offering speculative or risky.”
The parties disagreed, however, over whether M&T’s alleged past consumer violations posed a risk to regulatory approval of the merger and whether M&T had adequately disclosed the risk of M&T’s Bank Secrecy Act/Anti-Money Laundering (“BSA/AML”) deficiencies. The Third Circuit concluded that the complaint plausibly alleged that M&T’s consumer violations “made the upcoming merger vulnerable to regulatory delay” and that the defendants did not adequately disclose the risk of M&T’s BSA/AML compliance violations. The Court’s decision thus emphasizes the breadth of factors that must be disclosed under Item 503(c) and the highly specific level at which defendants must disclose that information or be subject to liability under the federal securities laws.
According to the District Court, Item 503(c) did not require the defendants to disclose M&T’s consumer violations because the complaint did not adequately allege that those past violations posed a significant risk to the merger at the time the Joint Proxy was issued. In addition, the District Court held that M&T adequately disclosed the risk that its BSA/AML deficiencies posed to the merger by describing the general risk of regulatory oversight related to BSA/AML compliance issues. The Third Circuit disagreed with both of these conclusions.
First, the Third Circuit held that Item 503(c) required disclosure of M&T’s consumer rights violations because “[d]espite the fact that M&T had ceased [those violations], it is plausible that the allegedly high volume of past violations made the upcoming merger vulnerable to regulatory delay.” The Court then assessed whether the proxy materials adequately disclosed this risk factor as required by Item 503(c). As the Third Circuit explained, “generic disclosures which could apply across an industry are insufficient. Rather, adequate disclosures are companyspecific. They include facts particular to a company, such as its financial status, its products, any ongoing investigations, and its relationships with other entities.” The Court concluded that the plaintiffs plausibly alleged that the Joint Proxy’s disclosures concerning consumer violations, which “discussed the regulatory framework facing consumer banks” in general—but did not mention M&T’s fraudulent practices or the Consumer Financial Protection Bureau’s investigation into them—“were too generic to be adequate.”
As for M&T’s BSA/AML deficiencies, the Court held that “it is plausible that the boilerplate disclosures were too generic to communicate anything meaningful about this specific risk to the merger.” For example, although the Joint Proxy mentioned AML compliance requirements at a general level, it did not describe M&T’s “Know Your Customer” program, the bank’s alleged deficiencies, or the Federal Reserve Board’s investigation into them. Fur - thermore, because M&T’s supplemental disclosure of the Federal Reserve Board’s identification of these deficien - cies, which M&T noted would likely delay the merger, was made, at most, six days before the shareholder vote on the merger, the adequacy of these supplemental disclosures “raise[d] a fact issue, which preclude[d] dismissal of the BSA/AML allegations.”
The Court therefore concluded that the complaint ad - equately alleged a violation of Item 503(c)—and, by ex - tension, Section 14(a)—and vacated the District Court’s dismissal of the mandatory-disclosure claims relating to M&T’s consumer rights violations and its BSA/AML deficiencies.
The Court, however, rejected claims that the defendants had failed to disclose information that might have con - tradicted their expressed opinions of confidence that the merger would be approved expeditiously. Plaintiffs alleged that defendants violated their duty to disclose facts that allegedly would have shown that they had little or no ba -sis for these opinions. In its decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, the Supreme Court held that defendants have a duty to disclose information that forms the basis for their opinions when the omission of that information makes the opinion statements at issue misleading to a reasonable person. The Court here determined that the complaint did not allege specific undisclosed facts about the defendants’ knowledge of, or investigation into, M&T’s compliance violations that would have belied their stated opinion that the merger should obtain regulatory approvals in a timely manner.
Although this case dealt specifically with a claim brought under Section 14(a) of the Exchange Act, the Court ap - plied the same standard that other circuits have applied to determine what disclosures Item 503(c) requires under the Securities Act. While these separate statutory provi - sions might cover different securities filings or participants, the Court explained that those distinctions are immaterial for purposes of determining the content of the disclosures required by Item 503(c). The Third Circuit’s decision in M&T helpfully sets out the standard for the duty to dis - close risk factors under Item 503(c), the violation of which gives rise to liability in connection with covered securities filings, including under Section 14(a) of the Exchange Act and Sections 11 and 12 of the Securities Act. In particular, the Court made clear the SEC’s concern that “inadequate disclosure—particularly in the form of disclosing only generic risk factors—presents a persistent problem.” Defen - dants must therefore disclose all of the most significant risk factors in a company-specific way, rather than relying on the common—but insufficient—practice of providing generic warnings that could apply to any company or an industry as a whole.