Last week, The Carlyle Group L.P. filed a registration statement with the Securities and Exchange Commission in which it stated that all shareholder disputes must be settled by individual, confidential arbitrations conducted in Delaware. The company filed the Jan. 10 amended registration statement, which you can read here, as part of its plan to raise roughly $1 billion in a public offering this spring. The news of this arbitration provision was first reported by Bloomberg.
Since the Supreme Court issued its landmark arbitration ruling in AT&T Mobility v. Concepcion, companies and plaintiffs have been testing the scope of that ruling. In Concepcion the high court held that a court could not refuse to enforce a mandatory arbitration provision in a consumer agreement on the grounds that California law barred such agreements as unconscionable, and that the Federal Arbitration Act, which favors arbitration, preempts California law.
While this ruling could be applied to consumer and employment disputes where plaintiffs have a contractual relationship with defendants, it’s not clear how it might apply to shareholder litigation. But we figured that some smart lawyers would figure a way to try to import Concepcion to the world of shareholder class actions. One of those smart lawyers appears to be Simpson, Thacher & Barlett partner Joshua Ford Bonnie, who is the lead lawyer for the company in this IPO, according to the SEC filing. Carlyle’s general counsel is Jeffrey Ferguson. We contacted both, as well as the company’s spokesperson, but did not hear back.
The Carlyle IPO is unusual in that the company is actually a partnership, and it’s offering for sale limited partner interests. The rights of the common unitholders, as they’re called, are already more limited than those of normal shareholders because of this partnership structure. The registration document states that all unitholder disputes must be settled by individual arbitrations conducted by three arbitrators in Wilmington, Del., under the Rules of Arbitration of the International Chamber of Commerce. (If the amount at issue is less than $3 million, then only one arbitrator is needed.) Any actions to enforce the arbitration agreement must be brought in Delaware Chancery Court.
At least one foreign company, Royal Dutch Shell, requires that shareholder disputes be settled through arbitration, but we’re not aware of any other U.S. company that has attempted to ban class actions. It will be interesting to see if the SEC, which reviews all IPO filings, has any response to this unusual provision. We contacted the agency but did not hear back.
We talked to Andrew Pincus of Mayer Brown, who argued the Concepcion case before the high court on behalf of AT&T. He noted that the idea of compelled shareholder arbitration had been discussed even before the Supreme Court issued its Concepcion decision. “There will be a threshold question of whether the corporate documents create an arbitration agreement between Carlyle and the investors that is a contract protected by the Federal Arbitration Act,” he said. He also notes that Concepcion is not dispositive because that case dealt with the FAA’s preemption of a state law, while shareholder rights are governed by federal law.
Plaintiffs lawyer Darren Robbins of Robbins Geller Rudman & Dowd LLP said he’s not surprised by Carlyle’s move, but he doesn’t think a provision like this would be enforceable. “Fortunately, the federal securities laws do not allow companies to self-immunize themselves from investors who are defrauded in connection with the purchase of securities in our public markets” he said. (Robbins has a securities case pending against Carlyle affiliates.)
Some court have resisted using Concepcion as a blanket ban on class actions. In a ruling on Tuesday, Manhattan federal district court judge Kimba Wood refused to enforce an arbitration agreement that would have barred a wage and hour class action against Ernst & Young, finding that the plaintiff would not be able to pursue her statutory rights outside of a class action. (Here’s our article today about that decision.) But other judges have rejected that line of reasoning. The Eleventh Circuit, for example, compelled arbitration in another consumer case against AT&T in August, even if it meant that consumers would be unlikely to pursue claims on an individual basis.