Proposition 2

Hedge fund suit against Apple hangs on 'irreparable harm'

February 19, 2013: 6:26 PM ET

Judge agrees that Apple's proxy probably broke SEC rules, but hesitates to intercede

Greenlight's Einhorn

Greenlight's Einhorn

FORTUNE -- It looks like billionaire hedge-fund manager David Einhorn won half his battle with Apple (AAPL) in a New York federal court Tuesday.

Lawyers for Greenlight Capital, Einhorn's firm, had argued that putting into one proposition three separate items -- two of which Einhorn supported and one (which barred Apple's board from issuing preferred shares without a shareholder vote) he vehemently opposed -- was a clear violation of SEC regulations against such "bundling."

At the end of the 90-minute hearing -- expedited because Apple's shareholders meeting is scheduled for Feb. 27 -- U.S. District Judge Richard Sullivan said he was inclined to agree.

"Candidly I do think the likelihood of success is in favor for Greenlight on the merits," he said.

What was less clear was whether Greenlight had proved that it would suffer the "irreparable harm" required for the judge to issue a preliminary injunction blocking the vote. The egg could always be "unscrambled," he said, using the metaphor both sides seemed to favor, if he later determined that the proposition was illegal.

Besides, no matter how the vote went, he said, Einhorn was unlikely to get Apple to issue the preferred shares he had been lobbying for. (See What exactly does David Einhorn want from Apple?) Although Tim Cook promised to give the idea serious consideration, he also characterized Einhorn's lawsuit last week as a "silly sideshow."

Apple's lawyers, for their part, described in apocalyptic terms the prospect of a New York judge preventing a California corporation from conducting a shareholder vote as it saw fit. "Unprecedented interference in the suffrage of one of the most respected companies in America," they called it.

Just to issue the new proxy ballot Einhorn is demanding would cost Apple, by its estimation, $3 million in mailing costs alone. Greenlight's lawyers calculated that when spread among nearly a billion Apple shares, that amounted to three hundredths of a penny per share.

"Chump change to you maybe," Judge Sullivan said. "To a federal judge that sounds like real money."

At the end of the day, the judge seemed attracted to a wait-and-see scenario Apple's lawyers put forward where he wouldn't, in his words, "have to do a damned thing."

"It's a mess no matter what I do," he said.

He promised a ruling before next Wednesday's meeting.

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