Case4:14-cv-01670-JSW Document41 Filed06/20/14 Page1 of 21

1 LATHAM & WATKINS LLP Patrick E. Gibbs (BarNo. 183174)

2 Allison S. Davidson (Bar No. 267964) Cara A. Gray (Bar No. 282865)

3 140 Scott Drive Menlo Park, California 94025

4 Telephone: + 1.650.328.4600 Facsimile: + 1.650.463.2600

5 Attorneys for Defendants

6 Safeway Inc. and the Individual Defendants

7

8

9

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

10

11

OAKLAND DIVISION

12 STEAMFITTERS LOCAL 449 PENSION FUND, on Behalf of Itself and All Others

13 Similarly Situated,

14

15 v.

Plaintiff,

16 SAFEWAY INC., ROBERT L. EDWARDS, T. GARY ROGERS, WILLIAM Y.

17 TAUSCHER, MOHAN GYANI, ARUN SARIN, JANET E. GROVE, FRANK C.

18 HERRINGER, KENNETH W. ODER, GEORGE J. MARROW, AB ACQUISITION

19 LLC, ALBERTSON'S HOLDINGS LLC, ALBERTSON'S LLC, SATURN

20 ACQUISITION MERGER SUB, INC., CERBERUS CAPITAL MANAGEMENT

21 L.P.,

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LATHAM&WATKINS'" ATTORNEYS AT LAW

SILICON VALLEY

Defendants.

Case No. 4:14-cv-01670-JSW

CLASS ACTION

SAFEWAY INC.'S AND THE INDIVIDUAL DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

Hearing Date: July 11, 2014 9:00am Time:

Courtroom: 5 Judge: Honorable JeffreyS. White

DEFENDANTS OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION Case No. 4:14-cv-01670-JSW

Case4:14-cv-01670-JSW Document41 Filed06/20/14 Page1 of 21

1 TABLE OF CONTENTS

2 Page

3 SUMMARY OF ARGUMENT ....................................................................................................... 1

4 I.

5 II.

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14 III.

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24 IV.

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INTRODUCTION ............................................................................................................... 1

STATEMENT OF FACTS .................................................................................................. 3

A. Safeway And Albertson's Announce the Proposed Merger .................................... 3

B. Safeway Provides Voluminous Disclosures To Its Stockholders ............................ 3

C. Various Plaintiffs File Nearly Identical Lawsuits In Delaware and California ................................................................................................................. 4

D. Plaintiff Seeks a Preliminary Injunction Based On the Preliminary Proxy ............. 5

E. Defendants Reach a Settlement Agreement In the Delaware Action ...................... 6

F. Safeway Files The Definitive Proxy, Which Includes Additional Disclosures ............................................................................................................... 6

PLAINTIFF HAS NOT MET ITS HEAVY BURDEN OF MAKING A "CLEAR SHOWING" THAT A PRELIMINARY INJUNCTION IS NECESSARY ....................... 6

A. Plaintiff Has Failed To Show A Strong Likelihood Of Success ............................. 7

1. The Proxy Adequately Describes The Background Of The Merger ........... 8

2. The Proxy Discloses A Fair Summary Of Goldman's and Greenhill's Financial Valuation Analyses, Which Is All The Law Requires ..................................................................................................... 1 0

3. The Proxy Adequately Discloses Safeway's Financial Projections .......... 12

B. Plaintiff Has Not Demonstrated An Imminent Threat Oflrreparable Injury ........ 13

C. Neither The Balance of Hardships Nor Public Policy Favors An Injunction ........ 14

D. Injunctive Relief Cannot Be Granted Absent A Substantial Bond ........................ 15

CONCLUSION ................................................................................................................. 15

1



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3

TABLE OF AUTHORITIES

CASES

Page(s)

4 Aaron v. Yang, No. C-08-5438 RMW, 2009 WL 1689707 (N.D. Cal. June 15, 2009) ................................ 6

5 Abrons v. Maree,

6 911 A.2d 805 (Del. Ch. 2006) ................................................................................................ 7

7 Am. Union Ins. Co. v. Meridian Ins. Group, Inc., 137 F. Supp. 2d 1096 (S.D. Ind. 2001) ................................................................................. 15

8 David P. Simonetti Rollover IRA v. Margolis,

9 C.A. No. 3694-VCN, 2008 Del. Ch. LEXIS 78 (Del. Ch. June 27, 2008) ..................... 11, 13

10 Daft & Co. v. Travelocity.com Inc., No. Civ.A. 19734, 2004 WL 1152338 (Del. Ch. May 20, 2004) ......................................... 13

11 Earth Island Inst. v. Carlton,

12 626 F.3d 462 (9th Cir. 2010) .............................................................................................. 1, 6

13 Gaines v. Narachi, No. Civ.A. 6784-VCN, 2011 WL 4822551 (Del. Ch. Oct. 6, 2011) .................................... 13

14 Gesoff v. IIC Indust. Inc.,

15 902 A.2d 1130 (Del. Ch. 2006) ............................................................................................ 12

16 Gimbel v. Signal Cos., Inc., 316 A.2d 599 (Del. Ch. 1974) .............................................................................................. 15

17 Globis Partners, L.P. v. Plumtree Software, Inc.,

18 C.A. No. 1577-VCP, 2007 WL 4292024 (Del. Ch. Nov. 30, 2007) ...................................... 9

19 Grooms v. Legge, et. al., No. 09cv489, 2009 WL 962067 (S.D. Cal. Apr. 8, 2009) ................................................... 14

20 In re 3Com S'holders Litig.,

21 C.A. No. 5067-CC, 2009 WL 5173804 (Del. Ch. Dec. 18, 2009) ................................... 9, 11

22 In re Answers Corp. S'holders Litig., No. 6170-VCN, 2011 WL 1366780 (Del. Ch. April11, 2011) ............................................ 12

23 In re CheckFree Corp. S 'holders Litig.,

24 2007 WL 3262188 (Del. Ch. Nov. 1, 2007) ......................................................................... 10

25 In re Cogent Inc. S'holder Litig., 7 A.3d 487 (Del. Ch. 201 0) .................................................................................................... 9

26 In re Cysive, Inc. S 'holders Litig.,

27 836 A.2d 531 (Del. Ch. 2003) .............................................................................................. 14

28

LATHAM&WATKINSm ATTORNEYS AT LAW

SILICON VALLEY 11

DEFENDANTS OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION Case No. 4: 14-cv-0 1670-JSW


1 In re Delphi Fin. Grp. S'holder Litig., C.A. 7144-VCG, 2012 WL 729232 (Del. Ch. Mar. 6, 2012) ................................................. 9

2 In re !XC Commc 'ns, Inc. S'holders Litig.,

3 1999 WL 1009174 (Del. Ch. Oct. 27, 1999) .................................................................... 1,14

4 In re Netsmart Techs., Inc. S'holder Litig., 924 A.2d 171 (Del. Ch. 2007) ........................................................................................ 11, 13

5 In re Plains Exploration & Production Co. Stockholder Litig.,

6 2013 WL 1909124 (Del. Ch. 2013) ........................................................................................ 9

7 In re Santa Fe Pac. Corp. S'holder Litig., 669 A.2d 59 (Del. 1995) ......................................................................................................... 8

8 In re Siliconix Inc. S 'holders Litig.,

9 No. 18700-VCN, 2001 WL 716787 (Del. Ch. June 19, 2001) ............................................. 13

10 In re Topps Co. S'holders Litig., 926 A.2d 58 (Del. Ch. 2007) ................................................................................................ 11

11 In re Zenith Nat'! Ins. Corp. S'holders Litig,

12 C.A. No. 5296-VCL (Del. Ch. Apr. 22, 2010) ..................................................................... 12

13 La. Mun. Police Emples. Ret. Sys. v. Crawford, 918 A.2d 1172 (Del. Ch. 2007) ............................................................................................ 14

14 Loudon v. Archer-Daniels-Midland Co.,

15 700 A.2d 135 (Del. 1997) ....................................................................................................... 8

16 Marie Capital Master Fund, Ltd. V. Plato Learning, Inc., 11 A.3d 1175 (Del. Ch. 2010) ..................................................................................................................................... 13

17 Matsushita Elec. Indus. Co., Ltd. v. Epstein,

18 516 U.S. 367 (1996) ............................................................................................................... 6

19 Neal v. Ala. By-Products Corp., No. Civ.A. 8282, 1990 WL 109243 (Del. Ch. Aug. 1, 1990) .............................................. 11

20 New York City Employees' Ret. Sys. v. Jobs,

21 593 F.3d 1018 (9th Cir. 2010) ................................................................................................ 7

22 Shepard v. Meridian Ins. Group, Inc., 137 F. Supp. 2d 1096 (S.D. Ind. 2001) ................................................................................. 15

23 Skeen v. Jo-Ann Stores Inc.,

24 7 50 A.2d 1170 (Del. 2000) ............................................................................................ passim

25 Stroud v. Grace, 606 A.2d 75 (Del. 1992) ......................................................................................................... 9

26 Tate & Lyle P LC v. Staley Continental, Inc.,

27 No. 9813, 1988 Del. Ch. LEXIS 61 (Del. Ch. May 9, 1988) ............................................... 15

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SILICON VALLEY 111



1 TSC Industries v. Northway, 426 U.S. 438 (1976) ........................................................................................................... 7, 8

2 Wayne County Emples. Ret. Sys. v. Corti,

3 954 A.2d 319 (Del. Ch. 2008) ................................................................................................ 8

4 Weinberger v. Rio Grande Indus., Inc., 519 A.2d 116 (1986) ............................................................................................................. 10

5 Winter v. Natural Res. Def Council,

6 555 U.S. 7, 129 S. Ct. 365 (2008) ...................................................................................... 6, 7

7 STATUTES

8 15 U.S.C. § 77z-1 (a)(3)- (a)(B) ................................................................................................ 6

9 RULES

10 Fed. R. Civ. P. 65(c) ................................................................................................................... 15

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SILICON VALLEY IV DEFENDANTS OPPOSITION TO MOTION FOR

PRELIMINARY INJUNCTION Case No. 4:14-cv-01670-JSW


1 SUMMARY OF ARGUMENT

2 Plaintiffs Motion to enjoin the shareholder vote on the proposed $9 billion merger

3 transaction between Safeway and Albertsons should be denied. Plaintiffs Motion rests entirely

4 on allegations that Safeway failed to disclose a number of discrete items in the preliminary proxy

5 that Safeway filed with the SEC on April17, 2014. But since that time, Safeway settled a nearly

6 identical lawsuit that was filed six weeks before this one in the Delaware Court of Chancery. In

7 that settlement, Safeway agreed (among other things) to make certain additional disclosures,

8 including the vast majority of the items that Plaintiff claims were omitted. To that end, on June

9 19, 2014, Safeway filed its definitive proxy with the SEC, seeking the stockholders' approval of

10 the proposed merger. The definitive proxy- which is over 500 pages long- contains a lengthy

11 description of the sales process leading up to the merger, Safeway's bankers' financial analyses

12 supporting the fairness of the deal, and a Safeway's long-term financial projections.

13 With this background in mind, it is not surprising that Plaintiff is unable to meet the high

14 burden necessary to obtain a preliminary injunction in this Court. Earth Island Inst. v. Carlton,

15 626 F.3d 462, 469 (9th Cir. 2010). First, Plaintiff has failed to establish that it is likely to

16 succeed on the merits of its disclosure claims because (1) the vast majority of the items Plaintiff

1 7 claims were omitted have now been disclosed as a result of the Delaware settlement; and (2)

18 Plaintiff has not come close to meeting its burden of showing that the alleged omissions are

19 material, i.e., that there is "a substantiallikeliltood that the undisclosed information would

20 significantly alter the total mix of information already provided." Skeen v. Jo-Ann Stores Inc.,

21 750 A.2d 1170, 1174 (Del. 2000). Second, Plaintiff has not demonstrated any threat of

22 irreparable injury where, as here, stockholders have the opportunity to make a fully informed

23 decision based on the extensive disclosures already made. In re !XC Commc 'ns, Inc. S 'holders

24 Litig., 1999 WL 1009174, at *1 (Del. Ch. Oct. 27, 1999). Plaintiff also has not shown that the

25 balance of equities tips in its favor where, as here, it is Safeway' s stockholders who will suffer

26 harm from an injunction, which would put at risk the best- and only- offer on the table to

27 purchase their shares at a significant premium. Nor has Plaintiff shown that granting its untimely,

28 duplicative motion serves the public interest.

LATHAM&WATKINS"' ATTORNEYS AT LAW

SILICON VALLEY 1 DEFENDANTS OPPOSITION TO MOTION FOR



1 I. INTRODUCTION

2 Plaintiffs motion is both meritless and moot. The only relief Plaintiff seeks is an order

3 requiring Safeway to make various additional disclosures, almost all of which Safeway has

4 already made pursuant to a recent settlement in a separate, previously-filed lawsuit. The only

5 disclosures Plaintiff seeks that Safeway has not already made are immaterial as a matter of law,

6 and cannot sustain Plaintiffs heavy burden of showing that such extraordinary relief is needed.

7 Plaintiffs motion, and its lawsuit, must be viewed in context. This case is about a

8 proposed $9 billion merger between two of America's largest grocery companies that was

9 announced on March 6th of this year. Safeway's independent Board ofDirectors negotiated the

10 merger at arms-length over a period of several months, repeatedly rejecting the buyer's proposals

11 before finally agreeing to terms the Board found to be in the best interest of Safeway's

12 stockholders. Although it has been public knowledge for many months that Safeway was for

13 sale, and although Safeway reached out to numerous other potential bidders, no higher offer has

14 emerged. The proposed transaction represents a significant premium for Safeway' s

15 stockholders, who nonetheless remain free to reject the transaction if they deem it inadequate.

16 Like virtually every public merger these days, the proposed transaction drew a swarm of

17 stockholder lawsuits shortly after the deal was announced. Several were filed in the Delaware

18 Court of Chancery - which, under Safeway' s bylaws, is the only forum where claims relating to

19 Safeway's internal corporate governance may be brought. In direct violation ofthat bylaw,

20 certain plaintiffs filed virtually identical suits in the Superior Court of Alameda County -- which

21 promptly dismissed those actions based on the bylaw provision.

22 Seeking to avoid the same fate, Plaintiff (and others) filed suit in this Court, asserting

23 federal Section 14 claims in addition to the fiduciary duty claims that were already being

24 litigated in Delaware. That tactic came with a price: under the Private Securities Litigation

25 Reform Act, Plaintiff is barred from taking any discovery unless its complaint first survives

26 Defendants' motion to dismiss (absent exceptional circumstances not present here). Plaintiff

27 therefore has no evidence to sustain its heavy burden; its motion is instead based entirely on the

28 500-page preliminary Proxy Statement that Safeway filed on April17, 2014.





1 Plaintiffs motion does not ask the Court to find that the proposed merger is somehow

2 unfair, that its terms are somehow unlawful, or that it should be enjoined from ever taking place.

3 Plaintiffs motion only seeks to force Safeway to make even more disclosures in advance of the

4 stockholder vote. Although the preliminary proxy already contained an unusually long

5 description of the merger negotiations, and extensive descriptions of Safeway' s financial

6 projections and its advisors' analyses, Plaintiff claims it should include various additional details.

7 Of course, a plaintiff can always claim that additional granularity might be useful -- but that is

8 not the standard. To justify any relief, the plaintiff must show that the allegedly missing

9 information would significantly alter the total mix of information that is already available to

10 stockholders. Plaintiff does not even attempt to explain how the allegedly missing information

11 satisfies that standard. Nonetheless, Plaintiff asks this Court to prevent Safeway's stockholders

12 from deciding whether to accept this premium deal unless those additional details are provided.

13 Plaintiff waited until June 6, 2014 to file its motion challenging the April17 preliminary

14 Proxy. By filing on that date, Plaintiff set the hearing on its motion for July 11, 2014- the date

15 that had already been publicly announced for the preliminary injunction hearing in the Delaware

16 action. By the time Plaintiff filed its motion, Defendants had already completed expedited

17 discovery in the consolidated Delaware action. The parties have now entered into a settlement of

18 the Delaware action, subject to that court's approval. Pursuant to the settlement, Safeway has

19 now made various supplemental disclosures in its definitive Proxy Statement (the "Proxy")

20 concerning the background of the proposed merger, the analyses ofSafeway's financial advisors,

21 Safeway' s financial projections, and other matters. 1 Those disclosures encompass virtually all of

22 the alleged "omissions" that are the subject ofPlaintiffs motion; the rest are the sort ofnitpicky

23 minutiae that courts routinely find immaterial, and which cannot support injunctive relief.

24 The Court should recognize Plaintiffs motion for what it is: a lawyer-driven effort to

25 extract attorneys' fees by imposing litigation burdens and creating a risk of delay. Plaintiff has

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1 The Schedule 14A Definitive Proxy Statement ("Proxy"), filed with the Securities and Exchange Commission on June 19, 2014, as amended, is attached as Exhibit 1 to the Declaration of Patrick E. Gibbs ("Gibbs Decl.") filed concurrently herewith.



PRELIMINARY INJUNCTION Case No. 4: 14-cv-0 1670-JSW


1 not come anywhere near satisfying its heavy burden of showing that a preliminary injunction is

2 appropriate, particularly in light of the additional disclosures Safeway has recently made. The

3 motion should be denied, and the stockholders should be allowed to decide for themselves what

4 to do with their property.

5 II. STATEMENT OF FACTS

6 A. Safeway And Albertsons Announce the Proposed Merger

7 Safeway Inc. ("Safeway" or the "Company") is a Delaware corporation. Compl. ~ 16.

8 Safeway operates Vons, Pavilion's, Randall's, Tom Thumb, Carrs, and Safeway stores. With

9 sales of$ 36.1 billion in 2013, Safeway is one of the largest food and drug retailers in the United

10 States. !d. ~ 3. Safeway' s Board of Directors (the "Board") consists of eight outside directors,

11 as well as Robert Edwards, Safeway's ChiefExecutive Officer ("CEO"). The Board also has a

12 standing Executive Committee that regularly meets between full Board meetings, has broad

13 authority to act on the Board's behalf, and has a majority of outside directors. Proxy at 184, 186.

14 On March 6, 2014, Safeway announced its execution of a Merger Agreement with AB

15 Acquisition, LLC ("AB Acquisition"), Albertson's LLC and Albertson's Holdings, LLC

16 (collectively "Albertsons"), under which Albertsons will acquire all outstanding shares of

17 Safeway for over $9 billion in cash and other consideration (the "Proposed Transaction"). AB

18 Acquisition is an affiliate of Cerberus Capital Management, L.P. ("Cerberus"). AB Acquisition

19 owns Albertsons. Proxy at 4. Under the terms of the merger agreement, Safeway stockholders

20 will receive a total estimated value of $40 per share in exchange for each share of Safeway they

21 currently hold. Proxy at 25. The merger is subject to the stockholders' approval. Proxy at 5.

22 B. Safeway Provides Voluminous Disclosures To Its Stockholders

23 Safeway filed a preliminary proxy statement with the SEC on April17, 2014. Safeway

24 filed an amended proxy statement on May 23, 2014 in response to comments received from the

25 SEC staff. On June 19, 2014, Safeway filed the definitive Proxy.

26 The Proxy discloses in great detail the sale process that led up to the Proposed

27 Transaction. It contains an 18 page description ofthe background ofthe merger, covering an

28 eight month period during which the Proposed Transaction was considered and discussed. Proxy





1 at 53-70. Those disclosures detail, among other things, the back and forth negotiations between

2 the parties; the numerous meetings held by the Board and the Executive Committee; Safeway's

3 repeated rejections of Albertson's proposals and its repeated demands for better terms; and the

4 discussions and decisions made by Safeway and its directors throughout the process. !d.

5 The Proxy also includes the written fairness opinions from Safeway's financial advisors

6 (Goldman Sachs and Greenhill), as well as summaries of their respective analyses. Proxy at 76-

7 97, Annex E, Annex F. The section of the Proxy describing Goldman's opinion spans 11 pages,

8 and the section describing Greenhill's opinion spans another 8 pages. Proxy at 76-97. Both

9 sections include the bankers' opinions that the per share merger consideration to be paid to

1 0 Safeway' s stockholders pursuant to the merger agreement is fair from a financial point of view to

11 such holders, (Proxy at E-4, F-4) and both sections support those opinions by describing the

12 different financial analyses that Goldman and Greenhill performed, each of which are

13 summarized at some length. !d. at 76-97.

14 Finally, the Proxy includes a summary of Safeway' s financial forecasts for the years 2013

15 -2018, including both a January version and an updated February version of those projections.

16 !d. at 97-100. Each set of disclosed projections includes the projected total operating revenue,

17 EBITDA, net income and free cash flow for each of the projected years, as well as other line-

18 items. !d. These disclosures include descriptions of the metrics and assumptions that were used

19 in preparing the projections.2 !d.

20 c. Various Plaintiffs File Nearly Identical Lawsuits In Delaware and California.

21 Shortly after the March 6 announcement, seven purported stockholder class action

22 lawsuits were filed in the Delaware Court of Chancery, all of which sought to enjoin the

23 proposed transaction. That court subsequently consolidated those actions and appointed lead

24 counsel. The consolidated Delaware Action raises nearly identical allegations, based on the

25 same transaction and same set of facts, against the same defendants, and on behalf of the same

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27 2 This high level description of disclosures set forth in the Proxy does not do it justice; Defendants invite the Court to review for itself the full background section on pages 53-70 and

28 76-97 of the Proxy to appreciate the comprehensive disclosures that have already been made.





1 purported class of Safeway stockholders, as this action. On April 22, 2014, the Delaware court

2 entered a scheduling order for expedited proceedings. In accordance with that order, the parties

3 engaged in extensive discovery: the defendants and non-party financial advisors produced

4 thousands of pages of documents and the Delaware plaintiffs took the depositions of six fact

5 witnesses (including Safeway's CEO and the independent Chairman ofSafeway's Board).3

6 Plaintiff filed this action on April10, 2014, more than six weeks after the first complaints

7 were filed in Delaware, asserting the same state-law claims asserted in the Delaware Action. On

8 May 15,2014, Plaintiff amended its complaint to challenge the adequacy ofthe disclosures

9 contained in the Preliminary Proxy that Safeway had filed four weeks earlier. The Complaint

10 asserts claims under§§ 14(a) and 20(a) ofthe Exchange Act, as well as disclosure claims under

11 Delaware law. Compl. ~~ 130-156. Plaintiffs federal claims are based on the same alleged

12 omissions as its state-law claims for breach of fiduciary duty. Compl. ~~ 130, 144. Two similar

13 complaints were also filed in this Court, captioned Templeton v. Safeway, Inc. eta!., Case No.

14 3:14-cv-02412-JD (N.D. Cal. Filed May, 23, 2014) and Romaneck, et al. v. Safeway, Inc. et al.

15 Case No. 4:14cv2015 (N.D. Cal. Filed May 1, 2014). None of these plaintiffs has been

16 appointed lead plaintiff, and none of their lawyers has been appointed lead counsel, as required

17 by the Private Securities Litigation Reform Act. 15 U.S.C. § 77z-1 (a)(3)- (a)(B).

18 D. Plaintiff Seeks a Preliminary Injunction Based On the Preliminary Proxy

19 Although it has not been appointed lead plaintiff, Plaintiff filed its motion for preliminary

20 injunction on June 6, 2014. With respect to the Exchange Act claims, Plaintiff complains (in

21 summary) that (1) the preliminary Proxy fails to sufficiently disclose the sale process leading up

22 to the merger; (2) the preliminary Proxy fails to sufficiently disclose material calculations and

23 assumptions used by Goldman and Greenhill in in rendering the fairness opinion; and (3) the

24 preliminary Proxy fails to sufficiently disclose the complete set of financial projections relied

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upon by the Board and Goldman and Greenhill in rendering the fairness opinions. Mot. at 3.

3 Several other plaintiffs filed virtually identical suits in the Superior Court of California, Alameda County; those actions were subsequently dismissed. A copy of the decision in Groen v. Safeway, No. RG14716641 (Alameda Cnty. May 14, 2014) is attached to the Gibbs Declaration as Exhibit 2.

5 DEFENDANTS OPPOSITION TO MOTION FOR



1 E. Defendants Reach a Settlement Agreement In the Delaware Action

2 On June 13, 2014, after extensive arms' length negotiations, the parties to the Delaware

3 Action reached an agreement in principle, subject to court approval, to resolve all claims on

4 behalf of the class (the "Settlement"). As part of the Settlement, the parties agreed that Safeway

5 would make certain supplemental disclosures. The Settlement is documented in a Memorandum

6 of Understanding, which contemplates a more detailed stipulation of settlement that will include

7 full releases by each of the class members of any claim related to the Proposed Transaction,

8 including claims brought under the federal securities laws.4 Gibbs. Decl., Exhibit 3 (MOU).

9 F. Safeway Files The Definitive Proxy, Which Includes Additional Disclosures

10 On June 19, 2014, Safeway filed its definitive Proxy with the SEC. The Proxy contains

11 additional information that was not set forth in the preliminary Proxy that is the subject of

12 Plaintiffs motion, including the supplemental disclosures required by the Settlement in the

13 Delaware Action. As a result, almost all of the information that Plaintiff claims was improperly

14 omitted from the preliminary Proxy has now been disclosed. 5

15 III. PLAINTIFF HAS NOT MET ITS HEAVY BURDEN OF MAKING A "CLEAR SHOWING" THAT A PRELIMINARY INJUNCTION IS NECESSARY

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A preliminary injunction is "an extraordinary remedy that may only be awarded upon a

clear showing that the plaintiff is entitled to such relief." Earth Island Inst. v. Carlton, 626 F .3d

462, 469 (9th Cir. 2010) (quoting Winter v. Natural Res. Def Council, 555 U.S. 7, 129 S. Ct.

365, 376, 381 (2008)). Accordingly, Plaintiff"must establish that he is likely to succeed on the

merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

22 4 If the Delaware Settlement is ultimately approved, Plaintiff and those stockholders that Plaintiff seeks to represent will be bound by any settlement approved by the Delaware court, and the preclusive effect ofthe settlement will result in a dismissal of Plaintiffs claims here. Matsushita 23

Elec. Indus. Co., Ltd. v. Epstein, 516 U.S. 367, 369 (1996) (analyzing a Delaware class action 24 settlement and holding that the settlement applied to Plaintiffs Exchange Act claims according

25 to the Full Faith and Credit Act because Delaware law affords preclusive effect to settlement judgments); Aaron v. Yang, No. C-08-5438 RMW, 2009 WL 1689707 at *4-*8 (N.D. Cal. June 15, 2009) (dismissing Plaintiffs Exchange Act and fiduciary duty claims based on a Delaware settlement under the Full Faith and Credit Act). 26

27 5 For the Court's convenience, Exhibit 4 to the Gibbs Declaration is a chart identifying each of the alleged non-disclosures set forth in Plaintiffs motion that have been rendered moot as a

28 result of the definitive Proxy, and where the relevant information can be found in the Proxy.

LATHAM&WATKINSn' ATTORNEYS AT LAW




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balance of equities tips in his favor, and that an injunction is in the public interest." Winter, 555

U.S. at 20 (clarifying the proper standard for injunctive relief, noting that the Ninth Circuit's

standard, by allowing injunctive relief where a plaintiff showed only a "possibility of irreparable

harm," was "too lenient" and finding that a plaintiff must "demonstrate that irreparable injury is

likely in the absence of an injunction.") (emphasis in original). Contrary to the standard set forth

in Plaintiffs opening brief, Plaintiff must show more than just the "possibility" of irreparable

injury. See Mot. at 7 (relying on pre-Winter cases stating preliminary injunction requirements).

Where, as here, a plaintiff seeks to enjoin a premium merger transaction in the absence of

a competing offer, the plaintiffs burden is especially heavy:

[T]he extraordinary remedy of a preliminary injunction 'is granted only sparingly and only upon a persuasive showing that it is urgently necessary, that it will result in comparatively less harm to the adverse party, and that, in the end, it is unlikely to be shown to have been issued improvidently.' This court is particularly reticent when faced with a plaintiff seeking to enjoin a transaction that affords stockholders a premium in the absence of a competing offer. The plaintiff must make a particularly strong showing on the merits to enjoin a premium transaction without a competing offer because of the risk of significant injury to the stockholders.

Abrons v. Maree, 911 A.2d 805, 810-11 (Del. Ch. 2006).

A. Plaintiff Has Failed To Show A Strong Likelihood Of Success

Plaintiffs Motion depends entirely on the premise that the preliminary Proxy fails to

disclose information required under Section 14(a) of the Exchange Act and Rule 14-a-9

promulgated thereunder. Mot. at 1. To state a cause of action for violations of§ 14(a) and Rule

14a-9, Plaintiff has the burden of establishing that "(1) a proxy statement contained a material

misrepresentation or omission which (2) caused the plaintiff injury and (3) that the proxy

solicitation itself, rather than the particular defect in the solicitation materials, was an essential

link in the accomplishment of the transaction." New York City Employees' Ret. Sys. v. Jobs, 593

F .3d 1018, 1022 (9th Cir. 201 0) (internal quotation marks omitted) (emphasis added).

Materiality is governed by the standard set forth in TSC Industries v. Northway, 426 U.S.

438, 449 (1976). Mot. at 8. Under that standard, "[o]mitted facts are not material simply

because they might be helpful. To be actionable, there must be a substantial likelihood that the




1 undisclosed information would significantly alter the total mix of information already provided."

2 Skeen v. Jo-Ann Stores Inc., 750 A.2d 1170, 1174 (Del. 2000) (rejecting disclosure challenge)

3 (emphasis added). 6 Further, "to establish a likelihood of success on the merits of a disclosure

4 claim, a plaintiff 'must allege that facts are missing from [the proxy] statement, identify those

5 facts, state why they meet the materiality standard and how the omission caused injury.'" Wayne

6 County Emples. Ret. Sys. v. Corti, 954 A.2d 319 (Del. Ch. 2008) (citation omitted).

7 Plaintiffs alleged non-disclosures fall into three categories. First, Plaintiff lists three

8 allegedly omitted items related to the sale process. Mot. at 9. Second, Plaintiff identifies seven

9 of the financial advisors' analyses that they claim were not adequately disclosed. Third, Plaintiff

10 lists various line items that were allegedly omitted from Company projections that were

11 disclosed. Mot. at 12-13. As an initial matter, the vast majority of the items Plaintiff claims

12 were omitted have now been disclosed as a result of the Delaware Settlement. As for the other

13 allegedly omitted information, Plaintiff does not explain how any of the alleged omissions, if

14 disclosed to stockholders, would have a substantial likelihood of significantly altering the total

15 mix of information already available to them in the over 500-page Proxy. Plaintiff, therefore,

16 has failed to provide any "basis for [the] court to infer that the alleged omissions were material."7

17 Loudon v. Archer-Daniels-Midland Co., 700 A.2d 135, 141 (Del. 1997) (quoting In re Santa Fe

18 Pac. Corp. S'holder Litig., 669 A.2d 59, 66 (Del. 1995)).

19 1. The Proxy Adequately Describes The Background Of The Merger

2o With respect to the background of the merger, all that is required is "an accurate, full, and

21 fair characterization" of "the history leading up to" the Proposed Transaction. Glob is Partners,

22 L.P. v. Plumtree Software, Inc., C.A. No. 1577-VCP, 2007 WL 4292024, at *14 (Del. Ch. Nov.

23 30, 2007). The law "does not require a play-by-play description of every consideration or action

24 6 As Plaintiff conceded in its opening brief, Delaware courts recognize the same standard of materiality as the Supreme Court in TSC, and Delaware case law on alleged proxy disclosure

26 violations is instructive authority with respect to evaluating Plaintiffs Exchange Act claims. Mot. at 8-9, fn. 8.

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27 7 Plaintiff also has failed to show (or even address) that it is likely to meet the heightened pleading standards of the PSLRA and its loss causation requirement, which serves as an

28 additional reason to deny Plaintiffs request.

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1 taken by the Board." In re Cogent Inc. S'holder Litig., 7 A.3d 487, 511-12 (Del. Ch. 2010); In re

2 Delphi Fin. Grp. S'holder Litig., C.A. 7144-VCG, 2012 WL 729232, at* 18 (Del. Ch. Mar. 6,

3 2012) (disclosure claims premised on the 'tell me more' variety" unlikely to succeed). Courts

4 have also rejected the fallacy that more disclosure is always better, recognizing that over-

5 disclosure can be as misleading as underdisclosure. In re 3Com S'holders Litig., C.A. No. 5067-

6 CC, 2009 WL 5173804, at *6 (Del. Ch. Dec. 18, 2009).

7 In this case, the Proxy contains a remarkable sixteen single-spaced pages of highly

8 detailed descriptions of the key events leading up to the Proposed Transaction. Proxy at 53-70.

9 Plaintiff nonetheless claims that the Proxy is false and misleading because three minute details

10 are omitted from this extensive discussion. Mot. at 9. As an initial matter, one of those three --

11 the estimated value ofSafeway's real estate assets as ofNovember 1, 2013 --has since been

12 disclosed. Proxy at 56. As for the remaining two, Plaintiff argues that this information is

13 necessary to "complete" the picture of the process provided, but that is not the standard. !d.

14 Rather, Plaintiff must show "that the undisclosed information is inconsistent with, or otherwise

15 significantly differs from, the disclosed information." Skeen, 750 A.2d at 1174 (emphasis

16 added). Plaintiff does not even attempt to make any such showing.

17 Plaintiff fails to cite any case holding that the additional disclosure it demands is required

18 by law. Plaintiff contends that the Proxy fails to disclose Cerberus Capital's view of the

19 synergistic value of a transaction between Albertsons and Safeway as of September 5, 2013

20 (Mot. at 9), but the law does not require the Board to disclose what other parties thought or

21 believed. Stroudv. Grace, 606 A.2d 75, 84 (Del. 1992). Moreover, "synergies" are inherently

22 speculative, as they require assumptions and judgments about what will take place in a

23 hypothetical future world after the two companies are combined. Failing to disclose such

24 conjecture does not give rise to a disclosure claim. See In re Plains Exploration & Production

25 Co. Stockholder Litig., 2013 WL 1909124 (Del. Ch. 2013); Weinberger v. Rio Grande Indus.,

26 Inc., 519 A.2d 116 (1986).

27 Plaintiff also complains that the Proxy does not disclose the "strategic initiatives related

28 to Safeway's different geographic regions" that the Board discussed in September 2013 -- six

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1 months before the merger agreement was signed. Mot. at 9. This is exactly the sort of "play-by-

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play," "tell me more" disclosure claim that courts routinely reject. Moreover, the Proxy does

explain that Safeway had entered into an agreement to sell its Canadian assets; that it

"periodically has reviewed its various operating regions to assess whether Safeway should

consider sales or acquisitions in order to maximize stockholder value"; and that it had been

exploring the possibility of exiting the Chicago market. (Proxy at 53-54.) It explains that in

September, the Executive Committee and management "were focused on selling stores or other

assets in the Chicago region in order to eliminate recurring losses." (Proxy at 54.) The Proxy

explains that Safeway did in fact sell those assets, and that in October the Board "reviewed a

range of strategic options, including continuing to implement Safeway's business plan as a

standalone company, pursuing a transaction for the sale of Safeway with Albertson's LLC,

another strategic entity or a private equity firm, separating [its subsidiary] Blackhawk possibly

through a spin-off, split-off or sale, and using the cash from the pending Canadian sale to return

capital to the stockholders and retire outstanding debt." (Proxy at 55.) Plaintiff has not shown

that any more details would be "inconsistent with" or "differ from" the information already set

forth in the Proxy, and has not shown any likelihood (let alone a "strong" likelihood) of success.

2. The Proxy Discloses A Fair Summary Of Goldman's and Greenhill's Financial Valuation Analyses, Which Is All The Law Requires

Courts have repeatedly held that a "fair summary" of the investment banker's valuation

work is all that is required for disclosure purposes. In re CheckFree Corp. S'holders Litig., 2007

WL 3262188, at *3 (Del. Ch. Nov. 1, 2007). The Delaware Supreme Court has made clear that

stockholders are not entitled to receive "all the financial data they would need if they were

making an independent determination of fair value" themselves. Skeen, 750 A.2d at 1174.

In this case, the Proxy contains detailed disclosures relating to Goldman's and

Greenhill's fairness opinions, including a description of each of the various analyses they

undertook, the key assumptions they made, and the conclusions they derived. Proxy at 76-97.

Nonetheless, Plaintiff seeks minute details regarding the inputs and assumptions underlying the

analyses, which Plaintiff claims would help the stockholders "independently assess" Goldman's




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and Greenhill's valuations. Mot. at 11. But stockholders are not entitled to disclosure sufficient

to make an "independent determination of fair value"- they are entitled to a fair summary.

In any event, most of the items Plaintiff claims are lacking, including all of the details

discussed in the argument section of Plaintiffs brief (Mot. at 11 ), have now been disclosed.

Proxy at 86, 93; see Gibbs Decl., Ex. 4. Plaintiff fails to show how the few remaining items on

its laundry list would "significantly alter" the total mix of information regarding Goldman's and

Greenhill's fairness opinions, nor does Plaintiff provide any support for the proposition that this

level of detail regarding Goldman's and Greenhill's valuation analyses is legally required. 8

What Plaintiff seeks is not a "fair summary" at all- it is the entire analysis. The law does not

require that, and courts have repeatedly held that these types of "quibbles" with a financial

advisor's analyses do not state a viable disclosure claim, much less one with a strong likelihood

of success. See, e.g., In re 3Com S'holders Litig., 2009 WL 5173804, at *6.

Finally, Plaintiff contends that the missing items are important because the amount of

compensation Goldman is receiving renders Goldman conflicted. Mot. at 11. As an initial

matter, the details of Goldman's compensation are fully disclosed to stockholders considering

how much weight to give Goldman's analysis in determining how to vote. Proxy at 14, 87.

More fundamentally, Plaintiff does not show how the existence of the alleged conflict requires

8 The cases Plaintiff relies upon do not change this analysis. The court in Netsmart took issue with the company's failure to disclose the multiple sets of projections prepared by management, and relied on by the investment banker. In re Netsmart Techs., Inc. S'holder Litig., 924 A.2d at 203 ("[a]side from the omission of the projections underlying the [bank's] fairness opinion, the plaintiffs have failed to persuade me that the Proxy does not fairly describe the [bank's] work."). In Simonetti, the Court of Chancery mandated additional disclosure related to the fact that the financial advisor to the company being acquired held notes and warrants of the company that potentially provided the financial advisor with a differing interest in seeing the acquisition succeed than an ordinary stockholder or an ordinary financial advisor receiving a fee for services rendered. David P. Simonetti Rollover IRA v. Margolis, C.A. No. 3694-VCN, 2008 Del. Ch. LEXIS 78, at *23-34 (Del. Ch. June 27, 2008) (requiring further disclosure as to financial advisor's holdings of notes and warrants, but rejecting plaintiffs' request for additional disclosure regarding management projections and the sales process). In In re Topps Co. S'holders Litig., 926 A.2d 58, 76-77 (Del. Ch. 2007), the court held that a proxy statement was materially misleading because it failed to disclose a specific valuation presentation made by the financial advisors, not because it failed to disclose certain key inputs and assumptions underlying the advisor's DCF analysis, as is alleged here. Id. In Neal v. Ala. By-Products Corp., No. Civ.A. 8282, 1990 WL 109243 (Del. Ch. Aug. 1, 1990), the court was faced with a minority stockholder seeking appraisal of their shares as a result of a merger, not a preliminary injunction based on insufficient disclosures. I d. at * 1.




1 any additional disclosure concerning the substance of Goldman's analysis, beyond the "fair

2 summary" that is already presented. Plaintiffs burden is to show how the omitted information

3 would significantly alter the total mix of information already provided to the stockholders

4 (Skeen, 750 A.2d at 1174), which it utterly fails to do given the disclosures already contained in

5 the Proxy concerning Goldman. Mot. at 13. Furthermore, in an arm's length deals with

6 unaffiliated third parties, such as the proposed transaction here, alleged banker conflicts are of

7 less importance. In re Zenith Nat'! Ins. Corp. S'holders Litig, C.A. No. 5296-VCL, at *18-19

8 (Del. Ch. Apr. 22, 2010) (banker conflicts are "frankly [of] less importance ... when you have

9 an arm's-length deal," and declining to require disclosure or to enjoin the deal).9

10 3. The Proxy Adequately Discloses Safeway's Financial Projections

11 The Proxy discloses the Safeway projections that Goldman and Greenhill relied upon in

12 connection with its fairness opinion, including management's projections for revenue, EBITDA,

13 net income and free cash flow. Proxy at 97-100. The extensive financial projections disclosed in

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an understanding of management's current views ofthe Company's future. Nothing more is

required. In re Answers Corp. S'holders Litig., No. 6170-VCN, 2011 WL 1366780, at *7 (Del.

Ch. April 11, 2011) (finding that disclosure of similar figures was "sufficient to allow

shareholders to evaluate the Proposed Transaction .... "); In re Siliconix Inc. S'holders Litig., No.

18700-VCN, 2001 WL 716787, at *10 (Del. Ch. June 19, 2001).

Ignoring that precedent, Plaintiff argues that the Proxy is false and misleading because it

omits a series of discrete sub-items relating to Safeway's financial projections for the calendar

years 2013-2018. Mot. at 12-13. Once again, the majority ofthose sub-items have since been

9 The case that Plaintiff relies on for the proposition that financial advisor conflicts affect the value of a banker's fairness opinion is wholly distinguishable. In Gesoffv. IIC Indust. Inc., 902 A.2d 1130, 1150-51 (Del. Ch. 2006), the court was faced with a transaction between a parent and its subsidiary. Id. at 1138. In light of this inherent conflict, a special committee was formed to negotiate the deal. Id. The record showed, however, that the financial advisor had been selected by the conflicted parent, and that the financial advisor was "actively and disloyal to the special committee and to its aims of ensuring a fair transaction for [the company's] minority stockholders." Id. The court held that that conflict- of the bank's loyalty to the conflicted parent company instead of the special committee it was meant to represent- "rob[ed] [the banker's] fairness opinion of its value"). Plaintiff makes no such argument.




1 disclosed. Proxy at 99-100, see Gibbs Decl., Ex. 4. But even as to those items that were not,

2 Plaintiff merely argues that this information would be useful to stockholders so that they can

3 "reliably assess the credibility of the various analyses performed by Goldman Sachs and

4 Greenhill" that relied on those projections. Mot. at 13. But once again, that is definitively not

5 the standard: stockholders are not entitled to "all the financial data they would need if they were

6 making an independent determination of fair value." Skeen. 750 A.2d at 1174. Plaintiff has not

7 explained how or why the remaining items (discrete line items at further levels of granularity)

8 "would significantly alter the total mix of information already provided." !d. 10

9 B. Plaintiff Has Not Demonstrated An Imminent Threat Of Irreparable Injury

10 Plaintiff has failed to meet its heavy burden of showing that it faces an imminent threat of

11 irreparable injury. Indeed, Plaintiffhas not demonstrated any threat of irreparable injury at all

12 because Plaintiff cannot demonstrate a valid disclosure claim. Plaintiff's entire motion is based

13 on nothing more than an outdated Proxy (which it did not even put before the Court). But as the

14 record makes clear, the Proxy on which Safeway's stockholders will be asked to base their vote

15 contains over 3 5 pages of detailed disclosures regarding the sale process, the financial advisors'

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18 10 The cases Plaintiff relies upon for the proposition that financial projections are "important" to stockholders (Mot. at 7) are inapposite because the projections have in fact been disclosed (in

19 some detail). The cases are also distinguishable. Both Netsmart and Simonetti address whether disclosures of projections were inadequate in light of multiple sets of projections prepared by

20 management. In re Netsmart Techs., Inc. S'holder Litig., 924 A.2d 171, 202 (Del. Ch. 2007); David P. Simonetti Rollover IRA v. Margolis, No. 3694-VCN, 2008 WL 5048692, at *10 (Del.

21 Ch. June 27, 2008). Plaintiff does not suggest that any additional projections were prepared but not disclosed, nor that those disclosed in the Proxy were not in fact the projections Goldman and

22 Greenhill used in rendering their fairness opinion. Marie Capital Master Fund, Ltd. V. Plato Learning, Inc. 11 A.3d 1175, 1178 (Del. Ch. 2010) addresses the lack of disclosure of estimates

23 that were made by management that were "inexplicably" excised from the disclosed projections. !d. Gaines v. Narachi, No. Civ.A. 6784-VCN, 2011 WL 4822551, at *2 (Del. Ch. Oct. 6, 2011)

24 addressed whether disclosures of the data underlying the financial advisor's DCF analysis were inadequate, given that management had provided the banker with forecasted free cash flows that

25 were then utilized by the banker. Plaintiff does not suggest that Safeway's management prepared its own forecasted free cash flows that were then utilized by Goldman or Greenhill in

26 their DCF analyses, and in fact, the Proxy indicates otherwise. Proxy at 82, 88-89 (explaining how Goldman and Greenhill calculated the estimated unlevered free cash flow). In Daft & Co. v.

27 Travelocity.com Inc., No. Civ.A. 19734, 2004 WL 1152338, at *5 (Del. Ch. May 20, 2004) the court was faced with an appraisal action as a result of a merger, not a preliminary injunction

28 based on insufficient disclosures. !d. at * 1.

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1 analyses, and the financial projections on which the financial advisors' relied (see supra at II.B),

2 including the vast majority of the disclosures that Plaintiff claims were omitted.

3 In short, the Proxy provides all material information necessary for Safeway's

4 stockholders to decide whether to vote for or against the merger with Albertson's. Where

5 stockholders have the opportunity to make a fully informed decision, the court "has no basis to

6 intervene to frustrate the exercise of the shareholder franchise[.]" In re !XC Commc 'ns, Inc.

7 S'holders Litig., 1999 WL 1009174, at *1 (Del. Ch. Oct. 27, 1999). Although Plaintiff argues

8 that voting on the basis of inadequate disclosures constitutes irreparable harm, Mot. at 2-3, 14,

9 Plaintiff has not shown that the extensive information disclosed in the 500-page Proxy is in fact

10 inadequate, and thus has not shown that irreparable injury is likely.

11 c. Neither The Balance of Hardships Nor Public Policy Favors An Injunction

12 Plaintiff must also prove that the balance ofhardships and public policy favors the

13 requested relief. Grooms v. Legge, et. a!., No. 09cv489, 2009 WL 962067, at *6-7 (S.D. Cal.

14 Apr. 8, 2009). Plaintiff has made neither showing.

15 Plaintiff argues that ifthe Proposed Transaction is not enjoined, Safeway's stockholders

16 will be "forced to vote on the basis of a materially misleading proxy." Mot. at 14. For the

17 reasons discussed above, that "harm" simply does not exist. To the contrary, as the best (indeed,

18 the only) offer on the table, Albertson's offer to purchase the company at a premium represents a

19 singular opportunity for Safeway's stockholders. In re Cysive, Inc. S'holders Litig., 836 A.2d

20 531, 557 (Del. Ch. 2003) ("Because of the absence of a higher bid ... I lack confidence that an

21 injunction would not be detrimental to the stockholders' best interests."). Finally, the availability

22 of appraisal rights further militates against an injunction. See La. Mun. Police Emples. Ret. Sys.

23 v. Crawford, 918 A.2d 1172, 1885 (Del. Ch. 2007).

24 Nor has Plaintiff shown that the public interest would be served by granting its motion.

25 Plaintiff filed its suit six weeks after other plaintiffs had done so in Delaware, asserting federal

26 claims solely to circumvent Safeway' s bylaws. Plaintiff then sat on its hands for weeks after the

27 preliminary Proxy was filed before filing its motion-- timing it so that the hearing would be the

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1 same day as the already-scheduled hearing in Delaware. The public interest is not served by

2 rewarding strike-suit plaintiffs for using the federal courts to play such games.

3 D. Injunctive Relief Cannot Be Granted Absent A Substantial Bond

4 Under Fed. R. Civ. P. 65(c), the court may issue a preliminary injunction "only if the

5 movant gives security in an amount that the court considers proper to pay the costs and damages

6 sustained by any party found to have been wrongfully enjoined or restrained." Plaintiff does not

7 even acknowledge this requirement in its motion, much less show that it has posted or will post a

8 bond if a preliminary injunction is issued.

9 In a merger case, it is appropriate for the court to consider the potential loss to

10 stockholders ofthe value of their stock if the merger proves to have been erroneously enjoined.

11 Shepard v. Meridian Ins. Group, Inc., 137 F. Supp. 2d 1096, 1111 (S.D. Ind. 2001). To mitigate

12 the risk Plaintiff is advocating here, a bond of $9 million should be required of Plaintiff prior to

13 the entry of any injunction. This represents 0.1% of the $9 billion transaction Plaintiff seeks to

14 enjoin, which is well within the limits of what courts have previously required. See Gimbel v.

15 Signal Cos., Inc., 316 A.2d 599,618 (Del. Ch. 1974) (requiring bond of5% ofthe transaction

16 value); see also Am. Union Ins. Co. v. Meridian Ins. Group, Inc., 137 F. Supp. 2d 1096, 1111

17 (S.D. Ind. 2001); Tate & Lyle PLC v. Staley Continental, Inc., No. 9813, 1988 Del. Ch. LEXIS

18 61, at *29 (Del. Ch. May 9, 1988) (ordering that the injunction "will be granted upon plaintiffs

19 posting bond in the sum of $65 million"). If Plaintiff is unable or unwilling to post the required

20 bond, the injunction request must be denied. See Fed. R. Civ. P. 65(c).

21 IV. CONCLUSION

22 For the foregoing reasons, the Safeway Defendants respectfully request that Plaintiff's

23 Motion for a Preliminary Injunction be denied.

24 Dated: June 20, 2014

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LATHAM & WATKINS LLP

By: /s/ Patrick E. Gibbs Patrick E. Gibbs

Attorneys for Defendant Safeway Inc. and the Individual Defendants




Documents

Case4:14-cv-01670-JSW Document41 Filed06/20/14 Page1 of 21