ILNews

Behind the News: Lawsuit over Simon’s bonus may expose board’s mindset

Greg Andrews
March 27, 2013
Keywords
Back to TopCommentsE-mailPrintBookmark and Share

BTN-andrewsThe $120 million retention bonus that Simon Property Group Inc.’s board awarded David Simon two years ago has spawned a bitter legal battle in Delaware that promises to shed fascinating light on the inner workings of the board.

The huge stock bonus, which David Simon will collect if he stays with the company through July 2019, received harsh criticism from corporate governance watchdogs, as rich pay packages usually do.

But what was more surprising was that, in a non-binding vote at Simon’s annual meeting last spring, shareholders representing a whopping 73 percent of shares opposed the bonus.

That’s remarkable because, during Simon’s 18 years of running the business, owning Simon shares has almost been like holding a winning lottery ticket. Simon Property Group has ballooned into the largest real estate company in the world, and the stock price has chugged higher and higher.

As you would expect, Simon’s board has argued that it’s worth spending a hefty sum to ensure he stays at the helm for many more years.

What’s never been clear – but almost surely will come to light as the discovery process gains momentum in the Delaware lawsuit – is what led the board to suddenly conclude that it needed to take dramatic steps to ensure Simon wouldn’t quit or jump to another company.

Family business

From the outside, neither scenario looks likely. After all, Simon is the son of company co-founder Melvin Simon and the nephew of co-founder Herb Simon. So he’s essentially leading the family business. How would taking the reins at, say, Home Depot be a better gig?

It seemed out of the blue when, in the company’s April 2011 proxy statement, the board’s compensation committee said it had believed for several years that Simon’s compensation “was not commensurate with his contributions” and that it was working on a long-term contract that would be more generous.

Without offering specifics, the board in the company’s April 2012 proxy raised the specter of David Simon’s getting recruited away.

Stepping in to sue in August were the Louisiana Municipal Police Employees Retirement System and the Delaware County Employees’ Retirement Fund. In court filings, they call Simon’s new compensation package “outlandish on its face” because it doesn’t stipulate that the company achieve any performance benchmarks for Simon to get the $120 million.

Legal issues

The plaintiffs allege board members breached their fiduciary duty to shareholders and violated the law by amending the company’s 1998 incentive-compensation plan without putting it to a shareholder vote.

The plan had to be changed, the plaintiffs argue, because it tied pay to performance goals and clearly barred “a retention award payable to an employee simply for sitting at his or her desk for a designated period.”

Simon argues the amendment did not constitute a “material change” requiring shareholder approval – a position buttressed by a 2011 e-mail exchange between the company and a New York Stock Exchange official.

The NYSE mandates that its listed companies put material revisions to incentive plans to shareholder votes. After the company explained to the exchange why it didn’t think the changes triggered that requirement, John Carey, chief counsel for NYSE Regulation, followed up with an e-mail saying, “We have discussed your question and we have concluded that we agree with your analysis.”

The plaintiffs dismiss the exchange, arguing that Carey’s e-mail fell far short of providing an official legal interpretation. They also argue that taking the position that the changes weren’t material “strains credulity.”

Such legal issues could decide which side prevails in the case. But more interesting will be the e-mails and other documents Simon will turn over during discovery. Perhaps we’ll finally learn the full story behind the board’s lofty, no-strings-attached payout.•

__________

This “Behind the News” column originally appeared in the Indianapolis Business Journal.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Oh my lordy Therapist Oniha of the winexbackspell@gmail.com I GOT Briggs BACK. Im so excited, It only took 2days for him to come home. bless divinity and bless god. i must be dreaming as i never thoughts he would be back to me after all this time. I am so much shock and just cant believe my eyes. thank you thank you thank you from the bottom of my heart,he always kiss and hug me now at all times,am so happy my heart is back to me with your help Therapist Oniha.

  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

ADVERTISEMENT