In a curious twist on the Ashford/Simpson love duet, Massey Energy (NYSE:MEE) shareholders have signaled that they intend to pursue claims aggressively against the board of directors notwithstanding efforts by the latter to make a wash of the whole thing. The matter is now before the West Virginia State Supreme Court.

The case elements center about liability, reputation, and board oversight. Simply put, plaintiffs allege that the Board of Directors failed in its Duty of Loyalty by not ensuring that safety processes were being implemented. Safety, as we have noted before, is a key business process underpinning reputational value. And the safety-linked disaster at Massey certainly did knock with wind out of the company's reputational value.

We've seen this movie before -- most recently with Johnson and Johnson (see below). Here is how the National Association of Corporate Directors explains the current situation in their 31 May newsletter:

"The fate of a shareholder vote on Massey Energy's proposed $7.1 billion sale to rival coal producer Alpha Natural Resources is up to the state Supreme Court," the Washington Post (May 31) reports. The court is expected on Tuesday to take up the request by a trio institutional investors who are seeking to prevent a June 1 vote by Massey shareholders. The shareholders will also urge the court to seal case records. "The Charleston Gazette and National Public Radio are asking the court to open the files," the Post notes. "They argue the documents may shed light on the April 5, 2010, explosion at Massey’s Upper Big Branch mine that killed 29 miners." The investors state that the explosion and other actions damaged the company's value.

The Wall Street Journal (May 31, Maher) adds that the court will decide whether to grant a temporary injunction sought by the investors, "who allege that Massey's board agreed to the sale to escape any personal liability for a coal-mining accident last year that killed 29 miners and drove down the company's stock price." The suit claims the company not only gave Alpha preferential treatment during the bidding process, it also failed to disclose key information about the negotiating process in its filings with the SEC. In addition, the Journal states, "The West Virginia suit alleges that the board failed to comply with a 2008 court order to institute new safety systems at the company." The plaintiffs include the California State Teachers' Retirement System.

Combined, Benzinga (May 31, Wilcox) notes, "Alpha Natural and Massey would the be largest U.S. producer of metallurgical coal." Additionally, Massey is facing a separate suit brought by the New Jersey Building Laborers Pension Fund, which also seeks to halt the sale.

Here's the background as summarized recently in Intellectual Asset Management magazine, the official publication partner of the Society. According to Cathy Reese, a partner with law firm Fish & Richardson and chair of the Intangible Asset Finance Society’s Committee on Intangible Asset Governance, the Delaware Supreme Court’s 2006 opinion in Stone v Ritter adopted the concept of oversight liability, which had been discussed some 10 years earlier in the influential 1996 In re Caremark decision by the Delaware Court of Chancery. Importantly, this duty of oversight applies to all corporate assets, including intangible assets.

The court in Stone v Ritter stated that director oversight liability may be predicated on facts showing that either: “(a) the directors utterly failed to implement any reporting or information system or controls; or (b) having implemented such a system or controls, consciously failed to monitor or oversee its operations thus disabling themselves from being informed of risks or problems requiring their attention.”

Now the West Virginia Supreme Court gets to weigh in on the matter.

The Wall Street proverb, “buy low...sell high” applies to many metrics. On 31 January, Alpha Natural Resources Inc. (NYSE:ANR) said it had reached a deal to buy rival coal company Massey Energy (NYSE:MEE) for $7.1 billion in cash and stock. The sale price was driven by expectations that 2011 will bring both high prices and high demand for the metallurgical coal produced by many Massey mines. That there was a sale at all was driven by mounting losses precipitated by last year's deadly explosion at Massey Energy's Upper Big Branch coal mine in West Virginia. And by Massey’s rock-bottom reputation.

In its final financial report for 2010, Massey said it suffered a net loss of $166.6 million last year. That's down from a $104.4 million profit in 2009, despite higher revenues in 2010. Close to 70 percent of last year's loss, or $115 million, were the result of costs associated with the Upper Big Branch disaster that killed 29 coal miners. The April explosion focused attention on the company's record of safety violations and drew intense scrutiny from federal mine safety regulators. Massey has cited the increased oversight, an ongoing mine disaster investigation and resulting production declines as reasons for its losses. The company also blamed its lower productivity on difficulty in finding enough mine workers.

In short, the reputational consequences of the catastrophic safety event have been costly -- in the last quarter of 2010 alone, the company's losses totaled $70.1 million. This is why. While firms with superior reputations outperform their peers, firms with damaged or poor reputations command lower prices and market share, have higher operating costs, pay more for credit, and have inferior vendor terms. And in heavily regulated industries, they have higher regulatory burdens.

The Steel City Re Corporate Reputation Index shows the precipitous fall in reputation ranking in April, a moderate rebound, and then a final collapse by the fall of 2010. The exponentially weighted moving average (EWMA) of reputation volatility peaked at 80% in October. And the equity value, reflecting the effects of the costs of the safety event, is giving investors an return on equity over the trailing twelve months that is underperforming the median of its peers by 14%.




The story continues. On 2 February, Massey Energy held a conference call with industry analysts. Among the key reputational message points were the comments by COO Chris Adkins that "voluntary quits" were up 12% in the 4th quarter over the same period last year; and from an operational perspective, Massey's labor shortage and increased federal regulation in response to the Upper Big Branch explosion account for a quarterly production shortfall of 300,000 tons.

And then there's the litigation related to reputation and its drivers: ethics, innovation, quality, safety, security and sustainability. In June 2010, a securities class action complaint charged the company with issuing false and misleading financial information to investors. The complaint alleges that Massey Energy claimed to be one of the safest coal mine operators in the industry, but in fact, safety at Massey Energy’s coal mines was allegedly sacrificed so that production goals could be met, and Massey had received undisclosed citations arising from uncorrected safety and other regulatory violations.

There's more. Shortly after the agreement was announced, a prominent plaintiff's law firm announced an investigation as to whether the 21% premium offered over the prior day's close, and accepted by the board, was consistent with the Board of Directors' duty to maximize value for Massey Energy investors.

On 5 April 2010, an explosion in a West Virginia coal mine owned by Massey Energy (NYSE:MEE) killed 29 miners and propelled the incident into the worst US mine disaster since 1970. USA Today reports that since 2008, the mine operator was cited more than 700 times by the Mine Safety and Health Administration for dangerous conditions arising from inadequate air, faulty fire extinguishers, exposed wiring, malfunctioning communication systems, inaccurate gas monitors, and deep pools of standing water. Massey counsel Shane Harvey conceded that the Upper Big Branch River "mine's record was not as good as Massey's record as a whole."

Without in anyway wishing to diminish the seriousness of the tragedy, and in keeping with the Society's goal of advancing superior intangible asset management, we asked if there were financially relevant reputation metrics that might help build the business case for fostering better safety practices. The subtext of the question, which was overtly asked of both Jon Low of Predictiv and Paul Liebman of Dell at the Mission Intangible Monthly Briefing Friday 9 April is this: in an industry with a sullied reputation, can a tragedy like this diminish reputation any further?

Turning to the numbers, we see from the 12 trailing month's graph of the return on equity from bigcharts.com that Massey Energy has rewarded shareholders handsomely since the low point of the market collapse in the spring of 2009. While return on equity as of early April was nearly 300%, the event did trigger a substantial sell off and knocked about 18% off the market capitalization. (Shown in brown is the 45 day exponentially weighted moving average.) 



Now turning to the Steel City Re Corporate Reputation Index spanning the period from 8 Dec 2008, we see the values for 7 April 2010 (shown in red) represent a significant change in the trend for the prior 16 months. The chart below suggests that stakeholders do care when matters rise to the level where they create headline risks. So it seems that headline risk avoidance may be one means of fostering better conformance with safety practices.