Apple 2.0

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Hedge fund wins suit Apple's CEO called a 'silly sideshow'

February 22, 2013: 6:00 PM ET

But David Einhorn is no closer to getting the preferred shares he's been lobbying for

Screen Shot 2013-02-22 at 5.46.25 PMFORTUNE -- Three days after he heard the case, U.S. District Judge Richard Sullivan ruled against Apple (AAPL) and for David Einhorn's Greenlight Capital in a dispute that generated a lot of heat but shed no light on the issue Apple investors care most about: What the company plans to do with the $137 billion in cash and marketable securities it has stockpiled.

"The dimensions of this dispute extend well beyond the SEC rules invoked in the Complaints," wrote U.S. District Judge Richard Sullivan in his decision. "Billionaire hedge fund manager Einhorn is at odds with Apple over the future of the company's capital allocation strategy. But despite the sweep of the parties' disagreement, the Court's inquiry remains a narrow one: whether Apple's proxy materials "likely" violate the SEC rules governing proxies for shareholder vote, and whether Greenlight ... will suffer irreparable harm as a result." (Full text here via AllThingsD.)

At Tuesday's hearing, Judge Sullivan had already indicated that Greenlight was likely to prevail on the question of whether Apple erred by lumping three different issues into one proposition in the proxy for its Feb. 27 shareholders meeting. In Friday's decision he ruled that not allowing shareholders to vote separately on those issues -- and send a message to management about how they felt about them -- was harm that the court could prevent by deciding in Greenlight's favor.

The judge was not moved by Apple's argument that it would cost $3 million to mail out a new proxy form. Apple could have avoided the cost if it had properly worded its proxy in the first place, he wrote, and can avoid it now if it postpones the vote until next year's shareholders meeting.

But despite the win, the suit brings Einhorn no closer to getting Apple to issue the perpetual preferred stock he's been lobbying for. The lawsuit did, however, get the attention of Apple CEO Tim Cook (who last week dismissed it a "silly sideshow") and of the Apple shareholders who tuned in Thursday for Einhorn's 60-minute conference call in which he pitched his preferred shares -- now rebranded "iPrefs" -- as a way for the company and its shareholders to have their cake and eat it too.

Greenlight's statement:

"This is a significant win for all Apple shareholders and for good corporate governance.  We are pleased the Court has recognized that Apple's proxy is not compliant with the SEC's rules because it bundles different matters in Proposal 2.  We look forward to Apple's evaluation of our iPref idea and we encourage fellow shareholders to urge Apple to unlock the significant value residing on its balance sheet."

Apple's statement:

"We are disappointed with the court's ruling. Proposal #2 is part of our efforts to further enhance corporate governance and serve our shareholders' best interests. Unfortunately, due to today's decision, shareholders will not be able to vote on Proposal #2 at our annual meeting next week."

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About This Author
Philip Elmer-Dewitt
Philip Elmer-DeWitt
Editor, Apple 2.0, Fortune

Philip Elmer-DeWitt has been following Apple since 1982, first for Time Magazine, and now on the Web for Fortune.com.

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