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Shareholder Lawsuits Mount Against A-B

July 2, 2008

By Gail Appleson, St. Louis Post-Dispatch

Jul. 1–In a move that could further pressure Anheuser-Busch Cos. to consider InBev’s $47.5 billion takeover offer, a growing number of pension funds are suing the giant brewer and its board to force them to negotiate a deal.

Although shareholder suits often are criticized as a way to line lawyers’ pockets, experts said these cases — particularly when pension funds sue — can play a significant role in forcing companies to make changes.

The lawsuits against A-B “are certainly something to be taken seriously. I don’t think these are frivolous suits,” said David Bradford, executive vice president of Advisen Ltd. of New York. Advisen provides research to the commercial insurance industry, including the area of director liability. “When you have this many cases, the pressure is obviously there.”

At least nine shareholder cases were filed in Delaware Chancery Court by the end of last week, with seven brought by pension funds, said Frank Reynolds, the senior editor who oversees corporate law coverage for Andrews Publications, a division of Thomson Reuters.

Among pension funds suing are Detroit’s General Retirement System, Government Employees and Judiciary Retirement System Administration of the Commonwealth of Puerto Rico and Insulators & Asbestos Workers Local No 14 in Philadelphia.

On Friday, the St. Louis-based brewer outlined its plan to fight InBev’s increasingly hostile $65-a-share takeover bid. It included a combination of cost cuts, price hikes and employee buyouts.

“Shareholders are mad because the board has just said ‘no’ and pulled up the drawbridge and said, ‘This Bud isn’t for anybody but us,’” Reynolds said.

The Delaware cases are known as derivative lawsuits because they are filed by shareholders on behalf of a company to protect it from being hurt.

“There will be a ton of these shareholder derivative suits over the next few days and weeks all alleging the directors rejected the bid for entrenchment to save their own jobs,” said Bradley Fogel, a professor at St. Louis University School of Law.

Although individual shareholder suits often have been seen as nuisance cases, the pension fund actions are more serious, Fogel said.

Indeed, pension funds have been much more aggressive about using derivative suits to protect their long-term interest in a company, rather than extracting damages, Bradford said.

“We’re really looking at something very immediate. They (pension funds) are looking for a response to a specific situation,” he said.

“In some cases,” Reynolds said, “shareholder suits do exert significant pressure that results in a higher price (from the original suitor) or the board getting a better price from somebody else.”

He cited a Delaware judge’s approval last year of a shareholder lawsuit led by a Louisiana pension fund involving a proposed purchase of Caremark Rx Inc. by drugstore chain CVS Corp. Investors won an extra $3.3 billion, or $7.50 a share, over CVS’ original offer for Caremark. The total deal was valued at about $27 billion. Express Scripts Inc., of north St. Louis County, was an unsuccessful bidder for Caremark.

The lead co-counsel for the pension fund in the Caremark case was New York’s Bernstein Litowitz Berger & Grossman, which is representing the Detroit General Retirement System in its suit against Anheuser-Busch.

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