Alpha-Massey merger headed to Supreme Court

May 25, 2011 by Ken Ward Jr.

UPDATED, 12:20 P.M.: This case has now been filed with our state Supreme Court, along with a motion asking that the files be sealed … the Court has not yet acted on that motion, but is not releasing any documents until it does.

UPDATED, 2:30 P.M.: The Supreme Court has asked for responses to the petition filed in the Massey-Alpha merger by noon on Friday. Justices are expected to take up the matter as early as next Tuesday.

UPDATED: I’ve posted a copy of the motion to seal, filed by lawyers for the California State Teachers’ Retirement System and others, here.

UPDATED, 3:20 P.M.: I’m told that Justice Brent Benjamin has recused himself from this matter.

The growing dispute over the impending merger of Alpha Natural Resources and Massey Energy appears headed for West Virginia’s State Supreme Court of Appeals.

While nothing has been filed yet at the Supreme Court (at least as of this morning), lawyers in the case have asked officials at the Kanawha Circuit Court to gather up the record so the files can be quickly transferred across town to the Supreme Court.

As we reported earlier, Kanawha Circuit Judge Charles King called off a hearing scheduled for today on a motion by certain Massey shareholders for a preliminary injunction to block the $8.5 billion transaction. Judge King is in the midst of a murder trial, and felt he did not have time to appropriately consider the matter until that trial is concluded. Apparently, some lawyers in the case also objected to the hearing, citing inadequate notice and scheduling conflicts.

Judge King has not yet ruled on a sweeping motion by the Massey shareholders — led by the California State Teachers’ Retirement System — for a broad order sealing legal briefs and evidence regarding their motion for a preliminary injunction. Of course, in West Virginia, we have a Constitutional mandate of open courts. Just because the parties in a civil case have agreed to a protective order, that doesn’t mean they automatically get it. The public has a right to open courts, and our state Supreme Court has mandated that circuit judge carefully consider whether secrecy is warranted on a case-by-case basis.

Meanwhile, in a similar case in Delaware, the judge has not yet mandated that various exhibits — deposition transcripts and internal merger documents — be made public. But legal briefs filed by the Massey shareholders, by Massey management and by Alpha have been unsealed and made available and we’ve posted them online.

And those documents contain some fascinating information — we’ve posted stories regarding them here and there’s a new blog post from last night that reveals Alpha was ready to give now-retired Massey CEO Don Blankenship a job as a consultant after the companies were combined. The documents also reveal, though, that Alpha was deeply concerned about Massey, given this assessment by Alpha of the company it now hopes to acquire:

The entire Massey organization appears to be managed by an autocratic central command and control structure. This can be seen in all facets of the organization and results in senior operating management being involved in lower level mine issues and decisions.

The Massey culture is driven by a strong focus on production and its associated components with other facets of the operations such as employee safety and regulatory compliance receiving minimal consideration.

The underground site visits indicated a strong cultural emphasis on production first with compliance and outby maintenance on a non-priority basis.

The plants are generally poorly maintained and have been for a period of time.

Thursday’s hearing in Delaware might provide more details on all of this. It’s scheduled to be broadcast live starting at 1:30 p.m. on The Courtroom View Network (there is a charge for their service).

Stay tuned …

2 Responses to “Alpha-Massey merger headed to Supreme Court”

  1. Thomas Rodd says:

    On p. 38 of Alpha’s response brief in the Delaware case, they say “Alpha fully intends to cooperate with [federal and state criminal] investigations.”

    Does that intended “cooperation” include Alpha telling its employees that a condition of their continued employment is answering questions posed by federal and state investigators?

    Or is “taking the Fifth” acceptable “cooperation” conduct for Alpha employees?

  2. Bill Howley says:

    Will Justice Benjamin recuse himself from this case because of his past involvement with Massey Energy?

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