Jaroslawicz v. M&T Bank Corporation et al

Filing 82

MEMORANDUM ORDER directing further submissions regarding Motion to Dismiss (D.I. 75 ). Signed by Judge Richard G. Andrews on 10/18/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELA WARE
DAVID JAROSLA WICZ., Individually and on behalf
of all others similarly situated,

Plaintiffs,
V.

M&T BANK CORPORATION, HUDSON CITY
BANCORP, INC., ROBERT G. WILMERS, RENE F.
JONES, MARK J. CZARNECKI, BRENT D. BAIRD,
C. ANGELA BONTEMPO, ROBERT T. BRADY, T.
JEFFERSON CUNNINGHAM III, GARY N. GEISEL,
JOHN D. HAWKE, JR., PATRICK W.E. HODGSON,
RICHARD G. KING, JORGE G. PEREIRA,
MELINDA R. RICH, ROBERT E. SADLER, JR.,
HERBERT L. WASHINGTON, DENIS J.
SALAMONE, MICHAEL W. AZZARA, VICTORIA
H. BRUNI, DONALD 0. QUEST, JOSEPH G.
SPONHOLZ, CORNELIUS E. GOLDING, WILLIAM
G. BARDEL, and SCOTT A. BELAIR,

Defendants.

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Civ. No. 15-897-RGA

MEMORANDUM ORDER

Currently pending before the court is Defendants' motion to dismiss Plaintiffs' second
amended class action complaint. (D.I. 75). Having reviewed the parties' briefs, the court issues
the following order:
1.

Background. In August 2012, Defendants executed a merger agreement pursuant

to which M&T Bank Corporation would acquire Hudson City Bancorp. (D.I. 72

ii

58). To

complete the merger, M&T stockholders had to approve the issuance of M&T common stock in
the merger, and Hudson City stockholders had to adopt the merger agreement. In connection with
the stockholder votes, M&T issued a prospectus filed pursuant to Rule 424(b)(3 ), and Hudson City
issued a proxy statement on Schedule 14A (the "proxy").

2.

Discussion. In this action, Plaintiffs have sued Hudson City, M&T, and some of

their current and former officers and directors, alleging that the proxy violated Section 14(a) of the
Securities Exchange Act of 1934 (the "1934 Act"). (D.1. 72). Among other things, Plaintiffs argue
that the proxy omitted significant risk factors required under Item 503(c) of Regulation S-K. (D.1.
78 at 11). Item 503(c) addresses "registrant[s]" and "prospectus[es]." 17 C.F.R. § 229.503(c). It
does not mention proxies. The court is aware of a treatise stating that "[b ]y its terms, Item 503(c)
is not applicable to filings under the 1934 Act." Alan R. Bromberg et al., Bromberg & Lowenfels
on Securities Fraud 5-401 (2d ed. 2017). The proxy was filed under the 1934 Act.

NOW, THEREFORE, it is HEREBY ORDERED that:
1. The parties shall meet and confer to determine whether they agree or disagree that
Item 503(c) governs the proxy; and
2. If the parties agree, then no later than October 23, 2017, the parties shall submit a
joint report that: (a) explains why Item 503(c) applies, and (b) cites supporting authorities; or
3. If the parties disagree, then no later than October 25, 2017, the parties shall submit
separate letters putting forth their position with cites to supporting authorities.
4. If the supporting authorities are not available on Westlaw or Lexis Nexis, then
courtesy copies should be provided to the court.

Dated: October 18, 2017