WILMINGTON, Del. (CN) – Asking a federal judge to block Tribune Media Co.’s planned $3.9 billion sale to Sinclair Broadcast Group, a class of shareholders says the deal is fundamentally unfair.
Lead plaintiff Scott Duffy says the sale process was flawed among others by conflicting interests and confidentiality agreements that might have scared off other offers.
“Moreover, the merger consideration represents a paltry 8% premium over Tribune’s closing share price on May 5, 2017,” the complaint states, filed on July 7 in Delaware, where Chicago-based Tribune is incorporated.
Announced on May 8, on the heels of regulatory changes that removed a 39 percent market-share cap on ultra-high frequency broadcasters like Tribune, the deal calls for each outstanding share of Tribune common stock to be exchanged for $35 cash and 0.23 Sinclair shares.
Sinclair shares rose by more than 7 percent as the market opened the Monday after the announcement. Prior to a 2014 spinoff, Tribune was the nation’s second-largest newspaper publisher, behind the Gannet Co.
Duffy says Tribune’s board filed a materially incomplete and misleading Form S-4 Registration Statement with the Securities and Exchange Commission on June 30, 2017, to push them merger through.
Alleging a failure to provide all material information that shareholders need to assess the fairness of the deal, Duffy says “the S-4 fails to disclose: (1) certain material information regarding Tribune’s financial projections, including a reconciliation of the non-GAAP (generally accepted accounting principles) projections to the most directly comparable GAAP measures and the line items used to calculate the non-GAAP measures.”
The SEC has been cracking down on non-GAAP projections as they can be “inherently misleading,” according to the complaint.
One of the SEC’s new rules as of May 2016 “explicitly requires companies to provide any reconciling metrics that are available without unreasonable efforts,” the complaint states.
Duffy says Tribune even “acknowledged the materially incomplete and misleading nature of said non-GAAP measures by disclosing: ‘These non-GAAP financial measures should not be considered a substitute for, or superior to, financial measures determined or calculated in accordance with U.S. GAAP.’”
“Despite disclosing the misleading and materially incomplete nature of non-GAAP financial measures, defendants fail to reconcile the non-GAAP measures disclosed in the S-4,” the complaint continues.
Duffy also complains about a dearth of information about how Tribune’s financial advisers, Moelis & Co. and Guggenheim Securities LLC, have earned from Tribune and Sinclair.
Seeking an injunction or damages if the merger goes through, the class is suing on two counts of Exchange Act. Duffy is represented by Faruqi and Faruqi attorney Michael Van Gorder. Neither he nor representatives from Sinclair and Tribune have responded to calls requesting comment.