‘Activist investor’ David Einhorn filed a brief with the court on Friday, claiming that
Apple’s attempt to get shareholders to vote on a measure that he believes could make it impossible for the company to return more money to investors, would cause “an actual and imminent injury” to investors.
He claims Apple is violating US Securities and Exchange Commission laws by combining a measure to limit preferred shares with two other proposals for vote at its annual shareholders’ meeting on 27 February.
In the filing, Einhorn’s firm Greenlight claims that shareholders: “Will have been irrevocably stripped of their right to fair corporate suffrage – the very right the unbundling rules were designed to vindicate,”
“These harms all can be prevented by an injunction before the vote, and none can be remedied after,” Greenlight’s filing said.
Einhorn wants the 27 February vote to be stopped unless Apple unbundles the measures and allows each to be considered separately.
In an earlier filing,
Apple said that it isn’t breaking SEC rules and that Greenlights interpretation is wrong and that “Proposal No. 2 gives common shareholders greater power – the right to approve issuance of preferred shares.”
Apple’s filing claims:
1) Proposal No. 2 does not present a question of ‘bundling’ as plaintiffs argue
2) Plaintiffs cannot show irreparable harm. The removal of the ‘blank check’ provision neither requires nor prohibits the issuance of preferred shares
3) Balance of hardships tilts in Apple’s favor, not plaintiffs. If the preliminary injunction is denied and Proposal No. 2 is approved but plaintiffs ultimately prevail on their claim, the Court could order Apple to ask shareholders to amend the Articles to restore the ‘blank check’ provision
4) The proposed injunction would harm the public interest. Proposal No. 2 gives common shareholders greater power—the right to approve issuance of preferred shares
The case will be heard on 19 February. The shareholder meeting is due to take place on 27 February.
What to do with $137 billion
At issue is the fact that Apple has $137 billion of cash in the bank. Einhorn wants the company to return more of that cash to shareholders.
However, others note that having significant funds in the bank may be a benefit for Apple in the current economic climate. As we wrote recently, Apple is one of the companies best able to weather any economic downturn precisely because they have so much money in the bank.
This sentiment is echoed by Real Clear Politics who
observed: “Apple is currently sitting on $137 billion of cash in the bank. There are many reasons Apple has not spent its cash horde, but I’ll bet anything that one of them is the uncertain economic and tax environment in this country.”
Others think that Apple should still return some of the money to investors. The Motely Fool Tech and Telecom Analyst for Fool.com, Andrew Tonner
said: “Apple should do something with its cash balance. I think the thing that makes most sense would be either a massive repurchase, probably even coupled with a substantial dividend hike.
“We are starting to see activist investors clamor for them to do something with their cash balance because it is really growing to the point now where it’s hard to justify,” he added.
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