Another source of litigation risk for fund sponsors are claims brought by portfolio company employees.  Sponsors should be aware of these risks, particularly when the portfolio company is in distress or is considering a sale or other transaction affecting the disposition of shares in the company.  We have set forth below just a few examples of litigation that can be brought against the fund, sponsor, and board designees by portfolio company employees, likely triggering at least indemnity considerations (which need to be evaluated in connection with insurance and indemnity at the portfolio company level), and might also affect the value of the portfolio company and in turn the value of the fund’s assets.

Employee Shareholder Claims

As discussed in prior posts, a fund sponsor’s designation of its own partners as portfolio company board directors provides some measure of control over the company, but also creates potential exposure for the sponsor.  For example, in a major company transaction, there may be a divergence of the fund’s interests (as a shareholder) from certain of its fellow shareholders (such as employees who hold a different class of equity interests) and even the company itself.  That divergence of interests may be particularly acute between common shareholders and preferred shareholders, whose preference shares may give them priority in the distribution of any proceeds of a sale.  Often, a fund will hold some combination of preferred shares and common shares, particularly if the investment was made at a later stage in the life of the portfolio company, whereas employees often hold common shares.

Examples of unequal rights and restrictions between share classes include voting preferences, liquidation preferences, and anti-dilution preferences.  These preferences can produce wildly divergent outcomes between shareholders, leading to disputes.  Employees holding common shares may claim that a director – and particularly a fund designee – breached their duties to the company and the shareholders by voting for a transaction that produced a disproportionately favorable outcome for the fund.

Given this background, fund sponsors should consider the risk of an employee shareholder lawsuit against the company, its directors, and even the sponsor entities, in the dissolution or sale of a portfolio company.  Employees holding common shares may be inclined to sue if they believe the value of their shares was impaired disproportionately and unfairly relative to other share classes in the dissolution or sale.    Additionally, if a director is also a representative of a fund that owns preferred shares, the employees may allege that the director was conflicted and favored the preferred shareholders over common shareholders in the sale to maximize the fund’s investment.  With increasing frequency, fund sponsors (along with the share-holding fund(s)) are named directly as defendants, and accused of aiding these alleged breaches of fiduciary duties.  At a minimum, the fund is indirectly at risk because of its indemnification obligations to the board designee and through the financial risk.

Conflicts can also arise when employee shareholders feel aggrieved (whether warranted or not) by the differential treatment of their common shares as compared to shares of preferred shareholders.  For example, preference shareholders of a portfolio company may be able to sell in a secondary market stock transaction, while employee common shareholders are often blocked from these transactions.  Similarly, when a portfolio company faces liquidity issues, it may seek convertible debt or equity financing.  Cram-down financing may disproportionately dilute the value of employees’ common shares and cause employees to seek to recover their lost value through litigation.

WARN Act Claims

Delaware courts have allowed WARN Act class action suits against fund sponsors, in addition to the portfolio company’s management.  Again, this is a situation where increased control by a fund sponsor equates to increased litigation exposure.  Both federal and state  WARN Acts obligate companies to warn employees if the company can reasonably foresee that it will not be able to meet payroll.  The key consideration in determining potential direct liability of a fund sponsor is how much control the sponsor exercised over decisions and operations at the company.  Even if the fund sponsor is not involved sufficiently to be named as a defendant itself, it can still face indirect risk in a Warn Act case through its indemnity obligations to board designees who are often named as defendants in WARN Act lawsuits.

Whistleblower Claims

We have seen more whistleblower activity, in increasingly high-profile cases with high rewards, where employee whistleblowers are exposing inconsistencies and financial impropriety relating to valuations, including 409A option valuations and impairments to goodwill, particularly for acquisitive portfolio companies.  Additionally, a flag raised on how a portfolio company is valuing itself could trigger an interest in how the fund sponsor is valuing the company for purposes of its own accounting and reporting, particularly when the sponsor has one of its own members on portfolio company board.

ERISA Stock-Drop Claims

Boards and board committees with responsibility for administering employee retirement plans that contain the option to buy company stock are under the obligation to ensure that maintaining the stock fund option is prudent—i.e.,  for the benefit of the employee participants of the plan.  Directors with fiduciary responsibility for the plan run the risk of litigation of claims under ERISA if an employee elects to invest some of his/her plan holdings in the stock, yet the board knows something about the health of the company that would make it imprudent for the stock to be available for plan investment.  Plaintiffs in these cases face a high pleading standard, but history guides that employees will still pursue claims when there has been an impairment in the value of the company affecting their retirement.

For further information regarding how to mitigate risks, such as those above, contact us regarding The Portfolio Company Playbook: A Fund Sponsor’s Guide to Risks and Liability.

Keep an eye out for Chapter 4 of the playbook, which will cover navigating additional sources of direct liability risks to the fund.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Timothy W. Mungovan Timothy W. Mungovan

Tim Mungovan is the Chair of Proskauer.  He is also the immediate past chair of the Firm’s Litigation Department and head of the Securities Litigation practice.

His practice is focused on securities, commercial litigation, governance, and bankruptcy-related matters. He has a national reputation…

Tim Mungovan is the Chair of Proskauer.  He is also the immediate past chair of the Firm’s Litigation Department and head of the Securities Litigation practice.

His practice is focused on securities, commercial litigation, governance, and bankruptcy-related matters. He has a national reputation for advising sponsors of private investment funds (hedge, private equity, private credit and venture capital) in a wide variety of matters, including litigation, governance, securities, fiduciary obligations, and regulatory enforcement.

Chambers USA describes Tim as “an extraordinary lawyer who is a fierce and very talented litigator. He is extremely knowledgeable, responsive and client-oriented.” Best Lawyers in America lauds Tim’s experience, integrity, work ethic, communications and courtroom skills. Tim has been listed in the “Top 100 Lawyers” in Massachusetts, and Benchmark Litigation has continually recognized Tim as a Litigation Star in Massachusetts.

Over the last six years, Tim has been the lead litigator representing the Financial Oversight and Management Board for Puerto Rico in the historic restructuring of Puerto Rico’s debts. The scale and complexity of this restructuring has resulted in one of the most active litigation dockets in the U.S. Almost every aspect of the litigation involved matters of first impression in part because the restructuring is governed by the Puerto Rico Oversight, Management, and Economic Stability Act, which was enacted for Puerto Rico in 2016.  The track record of success speaks for itself:  in the more than 150 lawsuits filed, Tim and the Proskauer team have prevailed in almost 95% of the cases.

Tim is recognized nationally for his experience in private fund litigation and disputes, having focused on the industry for more than 25 years.  As part of that focus, Tim created and is the lead editor of Proskauer’s blog on Private Equity litigation, The Capital Commitment.

Photo of Jonathan M. Weiss Jonathan M. Weiss

Jonathan Weiss is a partner in the Litigation Department. Jonathan represents both plaintiffs and defendants in a wide range of high-stakes litigation, including antitrust, class action, financial services, securities and other complex commercial litigation. Jonathan has won multiple noteworthy jury verdicts, including the…

Jonathan Weiss is a partner in the Litigation Department. Jonathan represents both plaintiffs and defendants in a wide range of high-stakes litigation, including antitrust, class action, financial services, securities and other complex commercial litigation. Jonathan has won multiple noteworthy jury verdicts, including the fourth largest jury award in the history of the State of Arizona (over $110 million), and has significant appellate experience briefing and arguing appeals in both state and federal courts across the nation.

Jonathan has been recognized as a “Rising Star” by Southern California Super Lawyers every year since 2011, and was recognized by Legal 500 U.S. in their 2015 leading lawyers in appellate litigation edition, noting his “incredibly dedicated” advocacy on behalf of his clients. Jonathan has also spent considerable time on pro bono matters, for which he has been honored by Public Counsel among other organizations.

In addition to his busy practice, Jonathan has taught courses on Ninth Circuit appellate advocacy throughout Southern California and has lectured at several universities nationally, including Harvard Law School, UCLA Law School, the University of Illinois and the University of Pittsburgh. Jonathan is also a member of the Pacific Council on International Policy.

Photo of Michael R. Hackett Michael R. Hackett

Mike Hackett is a partner in the Litigation Department and Co-Head of the Asset Management Litigation practice. An experienced litigator and trial lawyer, Mike’s practice focuses on complex commercial litigation, with a particular emphasis on asset management, financial services, M&A, shareholder, and life…

Mike Hackett is a partner in the Litigation Department and Co-Head of the Asset Management Litigation practice. An experienced litigator and trial lawyer, Mike’s practice focuses on complex commercial litigation, with a particular emphasis on asset management, financial services, M&A, shareholder, and life sciences disputes.

A significant portion of Mike’s practice concerns disputes and regulation involving private funds, including private equity, venture capital, hedge, real estate and private credit funds, as well as their sponsors, partners, investors, portfolio companies, and officers and directors. Mike’s experience representing private fund clients runs the gamut, from control contests within advisers, to disputes between limited partners and general partners, to representation of investment advisers in connection with regulatory examinations, investigations and enforcement matters. Mike routinely represents funds, fund sponsors, portfolio companies, and their officers and directors, including in significant post-closing M&A disputes.

Mike also litigates high-stakes commercial disputes in the life sciences and financial services areas, including for established pharmaceutical and biotechnology companies, emerging and innovative start-ups, asset managers, and other private capital investors, in areas such as M&A, breach of contract, indemnification, fraud, contested earnouts and royalties, securities and capital markets, and corporate governance.

Mike has been recognized by Chambers USA and was named a “Rising Star” by Massachusetts Super Lawyers.

Photo of Adam L. Deming Adam L. Deming

Adam Deming is an associate in the Litigation Department and a member of the firm’s Appellate and Product Liability groups, and Asset Management Litigation team. He focuses on complex commercial litigation in federal and state courts, covering a broad spectrum of business disputes…

Adam Deming is an associate in the Litigation Department and a member of the firm’s Appellate and Product Liability groups, and Asset Management Litigation team. He focuses on complex commercial litigation in federal and state courts, covering a broad spectrum of business disputes touching on corporate governance, fiduciary obligations, financial services, securities and insolvency. Adam has also represented clients in appeals spanning various areas, including consumer products, life sciences, bankruptcy, labor relations, patent and constitutional law.

Prior to joining Proskauer, Adam served as a law clerk to the Honorable Patty Shwartz on the United States Court of Appeals for the Third Circuit. Adam was also an associate in the New York office of an international law firm. Adam graduated cum laude from the University of Pennsylvania Law School, where he was the managing editor of the Journal of Constitutional Law and an Arthur C. Littleton Fellow instructor in legal writing.  Before law school, Adam was a Teach for America Corps Member in New Orleans, Louisiana, where he taught middle school English for three years.