Other than the occasional visit to the set of “Law & Order,” Barry Diller isn’t one to step into a courtroom – but that all changes this week when the IAC/InterActiveCorp CEO faces off with partner-turned-nemesis John Malone of Liberty Media in a Delaware court.
Not since former Disney titans Michael Eisner and Michael Ovitz duked it out in Delaware four years ago has a legal proceeding been so hotly anticipated in the entertainment world.
After all, with Diller’s penchant for making his point with either obscure literary quotes or salty street language and Malone’s measured yet menacing cadence, the expected four-day trial has all the makings of great theater.
At issue in the case, scheduled to begin today, is whether IAC can proceed with plans to divide the company into five pieces, all of which would no longer carry a dual-class stock structure.
Liberty, which owns 30 percent of IAC’s equity but nearly 62 percent of its voting stock, contends such a plan would dilute its control of IAC, whose assets include Ask.com, Ticketmaster and HSN home-shopping network.
Trouble is, Malone long ago gave Diller sole authority to vote Liberty’s shares in IAC as he saw fit.
Diller, who is scheduled to testify on Wednesday, has indicated he plans to vote Liberty’s shares in favor of the breakup, while Malone contends that doing so would harm Liberty and is therefore in violation of the proxy agreement.
“There are cross-obligations at work here that make things difficult,” said Charles Elson of the University of Delaware’s Center for Corporate Governance. “The right vote for [IAC] may not be the right vote for [Liberty].”
If Diller wins, then he can finally lay claim to the autonomous control that he’s always wanted. But if he loses, it likely means the end for both him and IAC.
If Malone wins, then he gains back the voting control he ceded to Diller years ago. But if he loses, then things pretty much remain as they are now – Liberty would still maintain its equity position and board seats in IAC.
And regardless of the outcome, the two companies can still negotiate an asset swap or other deal as is widely expected.
Sources close to both companies said talks continued over the weekend in the hopes of striking an 11th hour deal and avoiding court. These sources added that talks will likely continue over the course of the trial.