(Bloomberg) — Oil-pipeline giant Energy Transfer LP must pay $410 million for scuttling a $33 billion merger with rival Williams Cos. over a tax flaw in the deal, a judge concluded.
Since Dallas-based Energy Transfer — owned by billionaire Kelcy Warren — successfully pulled the plug on the 2016 combination, it’s required under the merger agreement to pay a so-called break-up fee, Delaware Chancery Court Judge Sam Glasscock III ruled Wednesday.
“Having called a dirge for the merger,” Energy Transfer “must pay the piper,” Glasscock said in his 95-page ruling in the more than five-year dispute over the deal.
Glasscock’s ruling marks the latest twist in what was nicknamed the energy industry’s “deal from hell.” The proposed tie-up stands as one of the largest deals undone by a collapse in oil prices. The merger was aimed at creating the nation’s largest natural-gas transporter. Oil prices have since rebounded.
“As we have long contended and the court’s ruling on this matter now recognizes, Energy Transfer breached the 2016 merger agreement and is obligated to pay Williams the $410 million termination fee, plus interest,” Laura Creekmur, a Williams vice president, said Thursday in an emailed statement. Energy Transfer officials didn’t respond to a request for comment on the ruling.
Following a trial, Energy Transfer convinced Glasscock in 2016 it had grounds to pull out of the merger after advisers said the deal didn’t free investors from $1 billion in tax liabilities. The ruling prompted both companies to demand break-up fees, arguing it was the other side that maneuvered to sink the deal.
But in 2017, Glasscock concluded Warren and Energy Transfer executives were the moving force behind sinking the deal and rebuffed their bid for a $1.5 billion breakup fee. The company has 86,000 miles of pipeline traversing 36 states.
In that decision, the judge said it would be strange for a merger agreement to be drafted so the party who pulled the plug over its would-be partner’s objections received a “windfall of a substantial termination fee.” In Wednesday’s ruling, Glasscock said Energy Transfer didn’t satisfy several underlying provisions of the agreement and that left it on the hook for the breakup fee.
But Glasscock agreed with Energy Transfer’s demand that Williams pay a monetary sanction for CEO Alan Armstrong’s decision to wipe out a Gmail account he used to discuss the merger. Energy Transfer sought to prove Armstrong used the account in a secret effort to tank the merger.
At trial, Armstrong said he deleted the Gmail account over concerns about spam messages. Glasscock said he didn’t find the CEO’s explanation credible. “I find that Armstrong’s destruction of his Gmail account was spoliation of evidence,” the judge wrote. Glasscock said Williams must pay some of Energy Transfer’s legal fees tied to its email-destruction challenge.
The case is Williams Companies Inc. v. Energy Transfer Equity LP, 12168, Delaware Chancery Court (Georgetown).