Cravath Faces Claim of Leading ‘Sham’ Auction in Grocery Store Sale to Apollo

Cravath, Swaine & Moore in New York. (Photo: Mike Scarcella/ALM)

Cravath Swaine & Moore is facing a shareholder lawsuit alleging it helped a publicly traded grocery chain conduct a “sham auction” that ensured it would be sold to private equity giant Apollo Global Management.

The allegation against one of the best-known law firm brands in M&A work was made in a complaint filed late last week in Delaware Chancery Court. Cravath was paid a $5.5 million flat fee for its representation of The Fresh Market board of directors in the company’s nearly $1.4 billion cash sale to Apollo in late 2016, the suit says.

The broad allegations laid out in last week’s lawsuit are not entirely new; the transaction had already been the focus of a shareholder lawsuit that was dismissed by a Delaware trial court in 2017. But the suit was revived by a Delaware appeals court ruling in July that said the company had failed to disclose facts suggesting The Fresh Market’s founder preferred a sale to Apollo. Following discovery in that case, Cravath, The Fresh Market’s general counsel Scott Duggan and JP Morgan Securities LLC were named as defendants in the case for the first time last week in an amended complaint.

The suit said The Fresh Market’s founder, Ray Berry, preferred a sale to Apollo that his son, Brett, had estimated could net the Berrys a profit ranging from $136 million to $930 million. The Berrys owned roughly 10 percent of the company before its sale to Apollo and grew that equity stake to roughly 22 percent through Apollo’s buyout, the suit says.

The suit says Cravath was hired to conduct an auction that was designed for the Berrys and Apollo to win. Damien Zoubek was the Cravath partner working on the acquisition, the suit said.

“Cravath’s task was to lend a patina of integrity to a sham auction,” the lawsuit claims.

The suit alleges Cravath aided and abetted The Fresh Market's board in its breach of fiduciary duty to shareholders. Cravath helped The Fresh Market board compose a regulatory disclosure form that the suit claims omitted key facts about the Berrys’ lack of interest in deals with suitors other than Apollo.

More specifically, the suit alleges Ray Berry had told Cravath that he would be reluctant to “roll over” his equity into a deal with a private equity firm other than Apollo. Without Berry's equity going toward its purchase, a competitor's bid would be more expensive than Apollo's plan. The disclosure form, known as a 14D-9, did not contain Berry’s reluctance to put his equity on the line with another private equity bidder, the suit said.

Those aspects of the lawsuit were referenced in the Delaware Supreme Court’s opinion that kept the case alive.

“The 14D-9 omits that, when asked by the Board’s counsel at Cravath about an equity rollover with a party other than Apollo, Ray Berry’s comments indicated that only Apollo would suffice,” the Delaware Supreme Court ruling said. “Such omission is material because, if disclosed, a reasonable stockholder might infer that Berry’s expression of a clear preference for Apollo and reluctance to engage with other bidders hindered the openness of the sale process.”

In a statement, an Apollo spokesman said, “We believe the claims against Apollo have no merit, and we intend to defend the case vigorously."

Zoubek, the Cravath partner, didn't immediately respond to a message seeking comment, neither did spokespeople for the law firm and The Fresh Market. David Clarke, a partner at DLA Piper representing Ray Berry, did not immediately return a message seeking comment. The suit against Cravath was first reported by the Financial Times.

The shareholder class is represented by Joel Friedlander, Jeffrey Gorris and Christopher Quinn of Friedlander & Gorris in Wilmington. Plaintiffs' counsel also includes Randall Baron and Christopher Lyons of Robbins Geller Rudman & Dowd.