One More Lawsuit Against Directors of Data Domain

Shareholder rights law firms Bernstein Litowitz Berger & Grossmann LLP (BLB&G) and Grant & Eisenhofer, P.A. (G&E) announced the filing of a shareholder class action lawsuit against members of the board of directors of Data Domain, Inc., and NetApp Inc. and its acquisition entities on behalf of the Police & Fire Retirement System of the City of Detroit (Detroit P&F) and similarly situated shareholders of Data Domain. The lawsuit, which was filed on Friday, June 12, 2009 in the Court of Chancery in the State of Delaware, is captioned Police & Fire Retirement System of the City of Detroit v. Bernal, C.A. No. 4663-VCL.

The lawsuit alleges that the members of the Board of Directors of Data Domain are breaching their fiduciary duties to their shareholders by refusing to negotiate with a potential acquirer, EMC Corporation, and for agreeing to sell Data Domain to NetApp without taking any steps to maximize the price paid to Data Domain’s shareholders. On May 20, 2009, just days after EMC privately disclosed its desire to acquire Data Domain, NetApp agreed to an Agreement and Plan of Merger, allowing NetApp to acquire Data Domain for $25 per share in a mix of cash and stock. On June 1, 2009, EMC launched a competing proposal to acquire Data Domain in a $30 per share all-cash deal. Shortly thereafter, NetApp increased its bid to $30, comprised of the same amount of stock and an increased percentage of cash, which the Data Domain Board immediately approved.

According to the lawsuit, Data Domain’s Board of Directors violated their fiduciary duties by approving the original and the restructured deals with NetApp, both of which give NetApp an improper bidding advantage in the form of a termination fee, a no-shop/no-talk provision and matching rights. The Board granted each of these deal protections before any value-maximizing process took place, in a blatant effort to ensure that their favored merger partner is Data Domain’s ultimate acquirer. The lawsuit seeks to enjoin the revised NetApp transaction "until such time as the Data Domain Directors have fully complied with their fiduciary duties and taken all readily available steps to maximize shareholder value."

Following the filing of the lawsuit, Data Domain’s Board announced that it has recommended that Data Domain shareholders reject the $30 per share EMC offer and vote in favor of the revised merger agreement with NetApp that the plaintiffs seek to enjoin. Detroit P&F and its counsel intend to vigorously prosecute the claims in the lawsuit in order to protect shareholders’ rights and obtain the best possible consideration for their shares, without favoring one bidder over another.