about 10%
That’s when things got interesting, especially since Apollo was the only final bid the company received. According to a class action shareholder lawsuit that is still wending its way through the Delaware Court of Chancery, Apollo used its long-standing financial ties to JPMorgan Chase and Cravath to co-opt the process for the benefit of itself and the Berrys, allowing them to buy the company on the cheap.
JPMorgan Chase’s incentive was clear, according to the stockholder complaint: get the Fresh Market deal done with Apollo as the buyer. That made JPMorgan Chase a referee, but not necessarily the most objective one. In any event, Jhawar took Oberle’s information to the bank. The next day he emailed Apollo’s legal counsel on the deal, “[D]on’t call JPM anymore as I know how this will work.” On March 5, Jhawar got another tip from Oberle, and then emailed his lawyer that he wanted to have a call immediately, even though it was Saturday night. Oberle, Jhawar wrote, “just called back with a preferred path.” Apollo’s original bid to acquire Fresh Market, made on January 25, was for $31.25 per share.
a spokesman for the firm, wrote me. The board’s special committee, he continued, “ran a robust auction process and secured a substantial premium for the stockholders.” In its motion to dismiss the litigation, also filed in May, Apollo said that the plaintiff,failed “to construct a viable aiding-and-abetting claim through innuendo, speculation, and cherry-picking portions of the voluminous emails she obtained in discovery.
They’re worse than locusts
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